Progressive Grand Strategy And Nuremberg

By Steve Hynd

My colleague Dave wrote a particularly impressive post a couple of days ago on what a progressive grand strategy might look like, one I'd heartily endorse. However, while his analysis is entirely progressive, it's also a hardline realist one. Take for example:

Those are the major American interests; territorial integrity, a reasonably stable European core, a reasonably stable East Asian littoral and open sea lanes. Everything else is at least a secondary interest including who in particular is selling the United States its oil, and what forms of government distant nations have. The overall DoD budget would shrink significantly as expensive aviation is de-emphasized and mission scope is dramatically reduced to align with actual core interests instead of identifying everything as a critical American interest.

These interests are not irrelevant, but they are not vital interests. Main body or large scale commitment of military force should be reserved for critical interests. Anything else is the engagement of force, treasure and attention in the pursuit of expensive luxuries that crowd out needed investments at home.

It's a very realist position - one that assumes the existence of American national interests in and off themselves give sufficient cause for upholding those interests with military force, should it be required.

But everybody has national interests and they all diverge and conflict to some extent. Unless we're to posit some form of American Exceptionalism, we've no ethical case to say American interests should be subject to their own private laws. There's no obvious inherent right to say to others "do as we say, not as we do".

Thankfully, there's a body of international lawmaking that supports every nation upholding its interests while still giving an ethical and legal framework for the use of military force. Although set up by the U.S. and its allies it is a body of legal opinion that has been somewhat sidelined by the prevalent realist view over the decades since it was formulated, yet it gives an ethical underpinning to a strategic posture exactly like the one Dave proposes. I'm talking about the Nuremberg Principles formulated by the UN's International Law Commission to embody the ethical structures which giuded the Nuremberg Trials of Nazis following World War Two. The heart and soul of the thing is Principle Six:

Principle VI states,

"The crimes hereinafter set out are punishable as crimes under international law:

(a) Crimes against peace:

(i) Planning, preparation, initiation or waging of a war of aggression or a war in violation of international treaties, agreements or assurances;

(ii) Participation in a common plan or conspiracy for the accomplishment of any of the acts mentioned under (i).

(b) War crimes:

Violations of the laws or customs of war which include, but are not limited to, murder, ill-treatment or deportation of slave labor or for any other purpose of the civilian population of or in occupied territory; murder or ill-treatment of prisoners of war or persons on the Seas, killing of hostages, plunder of public or private property, wanton destruction of cities, towns, or villages, or devastation not justified by military necessity.

(c) Crimes against humanity:

Murder, extermination, enslavement, deportation and other inhumane acts done against any civilian population, or persecutions on political, racial, or religious grounds, when such acts are done or such persecutions are carried on in execution of or in connection with any crime against peace or any war crime."

My friend Michael Cohen asked me today if I'd object to being described as an "anti-militarist". I replied that I was fine with the term - while I'm not anti-military, and not a pacifist, I do strongly disagree that the military should be the first or only tool in the foreign policy box. But I self-describe as a Nuremberg Hardliner. The only moral or legal use of military force is in response to military force. That may well qualify as an "almost absolutist" opposition to the use of military force but it is the only way, I think, to be a member of the nations that ran the Nuremberg Trials and not be an entire hypocrite. It's also the only way I see to forge a consistent and moral international law on the use of force. Without such a strict application of Nuremberg, you inevitably find yourself wandering into areas of privi-lege, private law, rather than a universal rule of law.

One thing that the Principles don't directly speak to, though, is the modern notion of "non-state actors" and being able to wage war "on terror". As I understand it, under a strict interpretation of Nuremberg, only States make aggressive war and a military force response to non-state actors is illegal. The only legal response to the use of force by "non-state actors" would be a civilian/police led response and the intervention in Afghanistan, for example, would be illigitimate. 

Obviously, that's not what happened. The US and allied intervention was green-lighted, granted legality, by a UNSC resolution which characterized 911 as an act of war and didn't seperate the actions of the non-state actor from the actions of a the state actor in providing safe haven. However, then comes the thorny issue of just how keen the Taliban government in Afghanistan at the time was to keep refusing to hand over the non-state actors involved to a civilian/police response. If they had been truly intransigent, as the Bush administration painted them, then I would certainly entertain an argument about complicity in "planning or preparation" for Crimes Against Peace. (I'd still have liked a hearing at the UN or ICC to decide the case - or, better still, a permanent Nuremberg Court). But leaked Pakistani documents out of GWU back in September set a massive bomb under that argument. In fact, they'd be Exhibit A at any Nuremberg Hearing accusing the Bush admin of "preparation and planning for a Crime Against Peace" in invading Afghanistan. 

I'd also want to caution that the U.S. and its allies will not be the only people who get to define who is or isn't a "non-state actor". What about corporations, for example? They're powerful actors, capable of criminal acts, but not states. If they are "non-state actors" and such are allowed as targets of a military force response then do they become capable of war crimes and crimes against humanity under Principle VI b) and c) ? If you're going to open Nuremberg up to allowing non-state actors then I can see scenarios where Third World nations could mount military force operations to seize corporate assets (I'm thinking Nigeria seizing petrochemical infrastructure, for example) under Principle VI justifications. I'm not averse to that on ethical or legal grounds but we need to be aware of the can of worms the term "non-state actors" opens under Nuremberg.

Ideally, as I say, such questions should be decided by a reconvened Nuremberg Court of top judges or by the existing ICC. No wonder the US has bi-partisanly refused to join the latter. Instead, we have a non-ideal situation where the politicians of the UNSC get to decide by horse-trading which wars will be given the imprimatur of legality.

The point of the Nuremberg Principles is that they try to make war very, very difficult for nations to wage legally - only in response to an original aggressive act, although the international community can act collectively against that act. Based upon the "high ground" moral position taken by America and its Western allies at the very end of World War Two, that was the whole point. Accordingly, since then they have been more or less sidelined by an America that was more interested in justifying its own aggressive wars. Good progressive policy - and progressive strategy - would restore the Principles to pre-eminience in international law.