OUTIA'VRY 0? WAR ^ c^/^T^TOTvi n, LKVTTT90N r r.-f-<?" <5^ ^.K ,^ X ■ /T y OUTLAWRY of WAR SALMON O. LEVINSON , '." ''' v\ i- > • • ■> - J December 25, 192 1 UNIVERSITY of CALIFORNM AT LOS ANGELES LIBRARY ISSUED BY THE AMERICAN COMMITTEE FOR THE OUTLAWRY OF WAR 76 WEST MONROE ST. CHICAGO, ILL. i n 1 .* ! .r '■• ••. ••■ .• •• • • • < • • • • • • • V ' SL I dSZ Introduction >..u -? War between nations with all its attendant horrors has always been, and is now, perfectly legal. A direct attack by one nation on another, no matter how un- justified, is a legal procedure. Even the Kaiser was vio- lating no known law by declaring war in 1914. What- ever value wars may have had in the past, these last years have shown modern war to be so terrible an in- strument, so far reaching in its destruction and the re- ^ suits of that destruction, that its use in our closely inter- ^ dependent present-day civilization jeopardizes the very life of that civilization. ^ 4 The appeal to force, therefore, between nations as between individuals, is, under existing conditions, intol- erable and should be forever outlawed. This was the method by which the legal war between individuals, called duelling, was abolished — the institution was made a crime and punished as such. The nations can do the ^; same for war, and establish orderly legal procedure to settle their disputes, and make war between nations a ^ public crime under an international code of law. I In any reform there are two elements — the principle ^ and the methods by which the principle is made effective. ^ The following pages contain a statement of the principle and certain suggestions as to how it can be carried out. oX They have been carefully prepared, and no less an au- thority than the late Senator Knox (Secretary of State under President Taft) believed them to be practicable. But like all questions of method they are subject to sug- gestion and modification. Whether they shall be en- forced by President Harding's Association of Nations, by some modified form of the present League, by a future Hague Conference, or by some machinery yet to be created, — does not impair the validity of the principle of the outlawry of war. Salmon O. Levinson, Chairman Mrs. B. F. Langworthy, Secretary Margaret Dreier Robins F. R. Moulton Raymond Robins Edward Osgood Brown Albert H. Loeb Mrs. William S. Hefferan Mrs. A. G. Becker Joseph M. Artman Milton F. Goodman Mrs. Russell Tyson Committee. OUTLAWRY OF WAR "If I catch the conscience of America we'll lead the world to outlaw war." Senator Harding, September 4, 1920. "Let us give of our influence and strength, yea, olF our aspirations and convictions, to put mankind on a higher plane, with war's distressing and depressing trag- edies barred from the stage of righteous civilization." "There must be, there shall be, the commanding voice of a conscious civilization against armed warfare." President Harding at Arlington, November 11, 1921. "The call is not of the United States of America alone, it is rather the spoken word of a war- weary world, struggling for restoration, hungering and thirsting for better relationship; of humanity crying for relief and craving assurances of lasting peace." "Contemplating the measureless cost of war and the continuing burden of armament, all thoughtful peoplevS wish for real limitations of armament and would like war outlawed." President Harding Keynote Conference Address— November 12, 1921. "As soon as world conditions permit participation therein by all peoples, initiate an international conference to formulate for submission to the nations of the world with a view to adoption by them, an arrangement providing for the codification of international law, the establisment 8 of a court of international justice and the outlawry of war. This arrangement to be as complete, comprehensive and compelling as shall be consistent with human rights and human liberty and with the progress of civilization." P. C. Knox Speech in U. S. Senate — May 5, 1920 "Above all, making sure that war shall henceforth be declared to be a crime punishable by the law of na- tions." Lloyd George, Great Britain's Peace Aims June 1918. "War in itself and for itself is the greatest crime in the world and the glory of victory pursued for itself is a crime. This world is made for peace and for work in peace time. The first duty is to work for our people, not to fight." Marshal Foch, Detroit, November 7, 1921. Foreword By Dr. John Dewey, Columbia University. There are at least some persons who in the days just before and after the Armistice favored a League of Na- tions who afterwards changed their mind. As one such person I should like to mention two reasons for the change, not for controversial purposes or to make a contrast which Mr. Levinson has himself wisely refrained fr6m making, but for the sake of indicating why those who favored the League and those who now oppose it should unite in favoring the plan for a world court based upon world codification of international law having for its major premise the outlawry of war. The peoples of the world are not yet educated enough in international affairs to guarantee the successful workings of a political League, even supposing the idea is inherently desirable. And any present scheme is bound to make much of the sanction of physical force against recalcitrant nations. In that way, it continues the old tradition of the lawfulness of war. What the world now needs is enlightenment and a concentration of moral forces. The plan suggested by Levinson is simple and understandable. Like all really simple and intelligible propositions, it goes to the root of the situation. Above all it does more than any other plan yet proposed to provide natural and orderly agen- cies for enlightening the peoples regarding disputes among nations, and for concentrating all the moral forces of the world against modern war, that abomination of abomi- nations. If we cannot trust to the good-will and good faith of the peoples of the world expressing the common purpose and judgment through law, the only means of expression the world has discovered for all other disputes, no political machinery will work and the world is doomed to war and doomed by war. 7 Foreword By Judge Edward O. Brown, Chicago, III. Dr. Dewey's foreword to Mr. Levinson's interesting and significant brochure speaks for those who just before and after the Armistice favored a League of Nations, and subsequently changed their minds. I have been in favor of the League of Nations from the day that the plan for it took form in 1915, — and have not changed my mind. It is not my purpose to be controversial any more than it was Dr. Dewey's. I will not therefore undertake to give reasons for my belief that the solidarity of civiliza- tion has been advanced by the actual definite existence of the League of Nations even in its present defective and inefficient form — a form which must continue to be defec- tive and inefficient until the United States and Germany are both members of it. I am merely stating my belief and position to emphasize my opinion, as it is Dr. Dewey's, that there is no reason why friends a;nd foes of the League as it exists or as it may be amended should not unite in favoring the plan which Mr. Levinson has so forcefully outlined. It seems to me incredible that any man can approve or defend war as a method of settling disputes between races, peoples or nations. If he does so, he is preaching the devil's doctrine. Defense of ourselves and of others at- tacked aggressively and wantonly may compel resort to any arms that may be available, and even the virtues which may show themselves in such a defensive war are the product of prior peaceful times, while the vices which become rampant and widespread during and after it are developed and aggravated by the war itself. Attempts to render war less cruel or savage by formu- lating so-called "laws of war" and to provide for its conduct humanely are food to the gods for laughter! You cannot feed tigers on oranges. But to formulate and codify laws, rules and decisions which shall "outlaw" aggressive war and declare it to be the chief of crimes and thereby prevent it, ought not to be a hopeless endeavor. Such a noble effort Mr. Levinson is trying to foster. The heart of his plan, as I view it, is the codification of International Law, by leading jurists of the world, with all civilized nations participating, and the establishment of a permanent International Court with real jurisdiction to take cognizance of offenses against such a Code, and to hear and determine purely international disputes. Whatever may be the merits or defects of the Present League of Nations neither that nor any other association of nations that takes its place can be of its proper benefit to the world without such a codification and such a Court. Foreword By Col. Raymond Robins, Chicago, 111. The people of the world are ready and eager for the next step in the slow advance from savagery toward inter- national civilization. They believe that the boundless sacrifices and sufferings of the Great War should have some milestone of progress in the moral code of mankind. They want war unmasked and declared in inter- national law to be what it is in fact, the supreme enemy of the human race. They want the conscience of men everywhere to think of war, not as an honorable profession, not as the path to glory and power, but as the arch murderer of the youth of the race — the master assassin of motherhood and the home. They want war revealed as the paralysis of produc- tion and the suicide of commerce, the betrayal of brother- hood, the poison in the cup of good-will between the nations of the earth, the forerunner of pestilence and famine, spreading ruin and desolation alike upon the victors and the vanquished and crucifying Christ afresh on every battlefield. They want war outlawed as a crime against the law of nations and the life of humanity. They want militarists branded as super felons among the criminals of the earth. Let the first step toward the outlawry of war be taken by the conference now at Washington, and it will in this act alone, mark an epoch in the life of the race and lift mankind to new levels of moral understanding and power. This step would begin the liberation of the people from the age long thraldom of the Sword and prove that the countless dead on all the battlefields of the Great War have not died in vain. 10 PLAN TO OUTLAW WAR* A Conference of all civilized nations to be called for the creation and codification of international law; the code to contain, among other things, the following provi- sions, with which none of the other provisions of the code shall be in conflict: 1. The further use of war as an institution for th'e settlement of international disputes shall be abolished. 2. War between nations shall be declared to be a public crime, punishable by the law of nations. 3. War shall be defined in the code and the right of de- fense against actual or imminent attack shall be preserved. 4. All annexations, exactions or seizures, by force, duress or fraud, shall be null and void. 5. An international court with affirmative jurisdiction over purely international disputes shall be created modelled as nearly as may be on the jurisdiction of the United States Supreme Court over controversies between states. All purely international disputes as defined by the code shall be decided and settled by the international court sitting as a judicial body, which shall be given juris- diction over all parties to a dispute upon the petition of any party to the dispute or of any signatory nation. 6. All nations shall agree to abide and be bound by and in good faith to carry out the orders, decrees and decisions of such Court. 7. One nation cannot summon another before the International Court except in respect to a matter of international and common concern to the contending nations, and the jurisdiction of the court shall not extend to matters of governmental, domestic or protective policy *Formulmt«<l In 1919 by the Ut« SeoAtor K&oi tod the author. U unless one of the disputing parties has by treaty or other- wise given another country a claim that involves these subjects. The classes of disputes excluded from the juris- diction of the international court should be specifically enumerated in the code and not be left open to the flexible and dangerous distinction between justiciable and non- justiciable controversies. 8. The court should sit in the hemisphere of the contend- ing nations; and if the disputants live in opposite hem- ispheres, then in the hemisphere of the defendant nation. 9. National armaments to be reduced to the lowest point consistent with domestic safety and with the necessi- ties of international requirements. 10. Abolition of professional soldiery and the substi- tution of a potential army through citizen soldiery on the Swiss model. 11. All nations shall make public report once each year setting forth fully their military and naval arma- ments, structural and chemical. These reports to be verified by authorized committees. 12. The doctrines of military necessity, retaliation and reprisal which are open to such flagrant and abhorrent abuse, shall be eliminated. An international arrangement based on the foregoing would not impair our independence or our sovereignty; it would relieve the world of the destructive incubus of war; it would civilize international relations by the sub- stitution of real law and a real court for the bloody de- cisions of war; it would preserve the Monroe Doctrine, our tariff and revenue policies, our right to repel invasion, our right to expel aliens and all other domestic and pro- tective policies (the other nations to enjoy corresponding M rights and policies); it would eliminate aggression, duress, fraud and secret diplomacy in international dealings; it would rob the profession of killing of its glory and prestige, and it would outlaw war by making it a public crime pun- ishable by the law of nations. It ANALYSIS OF PLAN L Civilization has been marked in its upward trend out of savagery into its present condition by the evolution of law and courts to supplant methods of violence and force. 2. Processes of courts and law have been adopted in all human relations, from individuals and corporations to states within a nation, except in the international field. Here disputes between nations can be compulsorily settled only by force of arms. There is no authoritative law or court. Nations remain in this regard in a state of nature. 3. Disputes are human and inevitable whether be- tween individuals or between nations. War is inhuman and is inevitable only by tradition. 4. There are but two ways of compelling settlement of disputes whether intranational or international in character; one is by force and the other is by law. In international controversies the resort to force has always been open. 5. War is an institution. An institution is a custom not contrary to law established over long periods among peoples and races. The church is an institution; marriage is an institution; slavery was an institution. 6. All wars between nations are legal. War has never been made unlawful by any convention or treaty or so- called international law since the time of Adam. It is at once the greatest and most lawful "crime" in the world. 7. For example, suppose the Kaiser had simply de- clared in 1914 that Germany's desire for a place in the sun meant he would take the whole of France and Bel- gium, and thereupon declared war on both those coun- tries: — there is nothing in any work on international law or in any treaty or convention that would have made that pronouncement of war illegal. Wars may be wicked and cruel but not unlawful. "The King can do no wrong." 8. In dealing with any other form of evil our first impulse is to have the legislature or congress pass a law making the practice illegal and criminal. If that is the way to deal with ordinary grievances, why not try the beaten path with the greatest of all wrongs? We want not ''laws of war" but "laws against war" as we have laws against murder and burglary. The recent revival at Washington of proposals for "rules" regulating or prohibiting the use of poison gases and submarines seems like sheer mockery so long as war itself remains legal. Besides, the last war certainly demonstrated the futility of relying on "rules of humanized warfare." 9. The farcical exhibition at Versailles of the attempt to indict the Kaiser for the "crime" of starting the war emphasizes this point. There never was a law against war upon which to base such an indictment. And strange to say, the nations, thwarted by this terrible defect in international law, did not adopt a convention, enact a law or take any steps at Versailles to make war a crime and thus lay the foundation for the indictment of the "next Kaiser". 10. The reduction of armaments is most valuable as an economic remedy and a splendid step in the right direction. The people rightly demand and will have it. But that does not lay the axe to the root. Suppose all countries should reduce their aramments to what they were say in 1870 or in 1850 or in 1800 — was the world not cursed with war then? Indeed, the United States had very small armaments in 1917 but had the intri^isic power to create large ones by 1918. The logic of disarmament, according to General Hugh S. Johnson, in a series of brilliant articles in the New York World, is as follows: "Finally it must be recognized that no possible project of disarmament can create a condition of equilibrium as between weak and powerful nations. ... A disproportion- ate condition would remain if all nations would completely disarm just as it would remain if all would arm to the limit of their resource. . . . The justification of this is in part the principle that a giant with a sword is little, if any, more dangerous to a Lilliputian than a giant with a club." We want not fewer wars but no wars; not less destruc- tive wars but no wars at all. Limitation of armaments is not enough. In the crisp words of President Harding, the crying need is: "Less of armament and none of war." n. The closest historical analogy to war is the duel, "duellum" and "bellum" both originally meaning war. The duel had its origin in Germany and now survives to some extent there and in France and Italy. In England and in this country it passed muster for centuries, re- maining lawful because of the "honor" element which it was supposed to uphold. It was as late as 1850 before the duel was pronounced murder in the last of our states and thus outlawed. The practice of duelling is now extinct because it is plain murder under our laws. Ques- tions of "honor" were as fallacious as they were bountiful in the institution of duelling and as they are still in the institution of war. Man has not become a mollycoddle because he cannot resent every supposed affront to his "honor" by a sword-thrust or a bullet. We have nobly abolished the institutions of duelling and slavery; why not abolish the institution of war? 12. In creating a real international court, the subtle and mischievous distinction between justiciable (triable) and non-justiciable (not triable) controversies must not be permitted to defeat its jurisdiction. If it lies in the power of a nation itself to say that a cause is non-justici- able and that therefore the court cannot take jurisdiction over it, all judicial power crumbles. It is not only easy for chancellors or premiers to give a dispute a non-justi- ciable turn but, as a matter of fact, practically all the wars in the past hundred and fifty years have started from non-justiciable causes. That was the case in the late war. The word "non-justiciable" is but a new edition of the old phrase * national honor and vital interests." , While it is true that a nation's honor and its vital inter- ests should be safeguarded, this exception is used not to safeguard these things but to justify and fortify war. The new code must itself state what causes are within the jurisdiction of the court and what are not, and must now allow an individual country' to decide the matter for the court. The proposed plan covers this by excluding from the jurisdiction of the court all domestic and protective questions (like revenues, immigration, Monroe Doctrine, etc.) which shall be agreed upon for all countries and enumerated in the code. In this way the jurisdiction of the court over all purely international disputes can be protected and maintained. 13. The proposition that the causes of things must be first removed, e. g. the causes of war, the causes of armament, etc., is fallacious and plays into the hands of militarists. However commendable it is to solve the problems of evil and injustice in the world great reforms cannot await such slow and indefinite processes. Thus: Suppose an attempt had been made to remove the causes of duelling before outlawing it; would the day before judgment day have seen it abolished? No. The causes of duelling were as various as human motives. The causes of war or of armament or of duelling (or of disputes, which are basic to the foregoing) will be removed when the era of the brotherhood of man is ushered in and not before. J7 It is claimed by some that the underlying causes of war are existing trade barriers and that if we remove these we will eliminate war. Others insist that religious and race hatreds and prejudices cause war. But these trade barriers and hatreds merely beget disputes which the bloody "court" of war settles. It is this legal device of violence that must be removed. For the remedy of war has now become always worse than the dis- ease. We must continue more and more to put civili- zation under the control of law and courts and not wait until we have removed causes that are buried perhaps irremovably in the breast of human nature. 14. From the foregoing it follows that in order to outlaw war, it is necessary to codify international law, and one of the first articles of the code should abolish the institution of war for the settlement of disputes between nations, by making it illegal and criminal. A real court should be created with power judicially to hear and de- termine all international controversies as enumerated in the code. 15. The code should be prepared by the leading states- men and jurists of the world with all civilized nations represented in an International Conference called for that purpose. It may take two years to prepare such a code. Senator Knox thought it would take five years. There- fore, a commitment in principle to a plan for the codifi- cation of international law, the creation of a court with affirmative specified jurisdiction and the criminal out- lawry of war is all that is necessary at this time. The Code Conference will do the rest. 16. The expense of securing and liberally paying for the services of the best brains of the world for the work of codification, and also giving each member of the Con- ference a life pension, will not exceed one-one hundredth of one per cent of the cost of the last war, or thirty million dollars. SI 17. It remains to consider the obstacles and objections to such a program. They seem to be as follows: (a) The love of power that resides in rulers and their ministers which disincline them to lose their greatest weapon. This, of course, applies mainly to the large nations, as most of the small nations have been willing to do away with war for many years. At both Hague Con- ferences the small nations tried to have universal obliga- tory arbitration adopted, but the big nations always defeated it. The first obstacle thus applies to the large nations and usually takes on this word-formula: 'The world is not yet ready for so great a step". The United States, however, through Mr.Choate, at the second Hague Conference, took a leading stand in favor of universal arbitration. It is the purpose of the big nations, as shown by Article XV' of the League of Nations, to refer to arbi- tration only such disputes as they see fit, reserving to themselves the power of their armaments to decide all others. This is why Article XIV of the League creates an internationalcourt without any inherent jurisdiction at all. It is purely a consent court with the right of consent to jurisdiction to be given or withheld at the pleasure of any nation after the dispute has arisen. In short, it is no court at all. (b) Another objection is that if the proposed inter- national court is given affirmative jurisdiction to hear and determine disputes (which it has under the outlawry proposal) it must have the power to enforce its decrees. Particularly to a lawyer this seems at first to be necessary to the dignity and respect of any court. The international court must of course be given adequate power to enforce its judgments against all war criminals. The precise manner in which this may best be accomplished would be one of the important functions of the Codification Con- ference. But as to the civil decrees of the court a reading It of the history of our constitutional debates will probably be persuasive if not convincing that force is not indispens- able. When it was proposed to give the United States Supreme Court original jurisdiction over controversies between states, it was contended that the court should have the power to enforce its judgments in sudi cases as in all others. Madison, however, took the ground that to do so would be to destroy the sovereignty of the in- dividual state, and wowld create anarchy, revolt and rebellion. He contended it was not proper to appoint a receiver for a state and that reliance must be placed on the consent of the states to the jurisdiction of the Supreme Court and on their agreement to abide by its decisions. As great an authority as the late Senator Knox believed this to be a practical working model for the World Court. However, this question of enforcement is one to be settled by the learned delegates at the convention for the codification of international law. Much may be said in favor of an international force, or a force contri- buted to by various nations to aid in the execution of the international court's civil decrees as well as its criminal judgments. Whichever way this may be decided, it will not affect the reason for outlawing war. It is probable that revolution cannot be altogether prevented. For if a nation is strong and mad enough to defy the world, either generally or in resistance to a decree of an international court, that is a risk that must be provided against, because it will always be inherent in any program. But revolutions, as we ordinarily view them, are domestic in character and therefore not within the scope of the theory of outlawry which deals only with controversies between nations. Any form of domestic violence whether arising through revolution, riots or otherwise, is subject to the control of intranational ma- chinery and amenable to domestic law. 20 (c) i\nother objection is that some nation might plan to overrun the world while other nations were sleeping. The program of outlawry does not call for an abatement of armaments beyond the point of safety. Reduction of armaments is a world-wide economic necessity as well as a profound move toward peace; but the question of out- lawry is one that can be considered entirely apart from the question of the size of the armaments necessary for each nation to protect itself against possible bad faith dr disobedience to law or violation of contract or treaty rights. But when war becomes a crime armaments will subside. (d) Still another objection is that outlawry of war cannot be established because of the essential difference between disputes among individuals and disputes between nations. Here, of course, the conception of sovereignty interposes itself. There has been considerable confusion of the two words "sovereignty" and "independence". A nation's independence must be maintained at all haz- ards; its sovereignty is "invaded" every time it makes a treaty or contract or puts a check upon its original un- limited power in any respect. Essentially, international disputes are the same as individual disputes in that they legitimately involve property or property rights and questions of liberty. Take the case of Alsace-Lorraine: After all, through the centuries, it was a controversy over real estate; a large amount of real estate to be sure, and involving, incidentally, a question of national allegiances; but inherently a question of title to real estate. In con- sidering outlawry of war we must assume that disputes between nations are legitimate. If they are legitimate there ought to be a court that has the power to hear and determine such disputes under a code of law for the es- tablishment of justice. If the controversies are illegiti- mate, that is, covers for conquest, they should not be allowed to provoke war and to spread destruction and ti death. After all, disputes will arise and they must get settled, if not by law and courts, then by violence and war. A sovereign nation that would set itself up above all the laws of justice in its dealings with other nations is unworthy to retain its sovereignty. In any case, outlawry will reduce war to the level of piracy and duelling, and will prevent the education of another people to the blood and iron standard of "Deutsch- land Uber Alles." In connection with the foregoing obstacles and ob- jections it should be borne in mind: (a) That the international code when prepared must be sumitted to each civilized nation and be by it approved. As each of such nations will participate in the preparation of the code general harmony may be expected. Besides it is also proposed that every five years the code may be amended and brought down to date, so that freshly discovered points may be covered. (b) That the abolition of the institution of war by outlawry will tend to crystallize international public opinion in favor of peace, and to the branding of mili- tarists as criminals. And if the nations of the world find that they are civilized enough to live under the reign of law in th^r international dealings, the economic salvage from the obsolete "court" of war will be colossal. (c) That each nation shall disclose once a year the full nature of its armament, structural and chemical, new and old, and that these figures shall be verified by international committees. In this way substantially accurate knowledge of the preparation of each nation in the line of armament will be given to the others and secret preparation made abortive. 18. Outlawry of war is not intended as a panacea nor does it underwrite a millenium. It seeks to apply the tried and effective methods of civilization to international relations. It seeks to put a final end to the theory of force and violence for the determination of right in any human dispute. It does not claim that it will usher in the era of brotherly love nor create a United States of the World. It merely seeks to abolish the worst form of violence and crime existing among men, Salmon O. Levinson Chicago, 111. . 1()4<;83 UNIVERSITY OF CALIFORNIA AT LOS ANGELES THE UNIVERSITY LIBRARY 'i'i 'ili This book is DUE on the last date stamped below W8 11^^^ Form L-9-15»)?-3,'34 AT ?0? ANGI 1^ V xij o fUll L57er^ Outlawr}^ of cop.ic war. 1 I 1960 <* fx\ < V ^ i 1 ^ '/^■^