The face of war and the face of peace

Any definition of peace is also a definition of war. The two cannot be described other than in each other's image. In the twentieth century there have been four roughly separate periods of warfare. Their character and consequences tell us much about how peace was defined.

International conventions

Given this rough sketch of the twin existence of images of war and images of peace, how else might we configure peace? Would a brief look at international conventions help? Article 1 of the Hague Conventions of 1899 and 1907 were explicit in defining peace. Peace is that state of affairs when international conflicts are settled without resort to armed force. In the course of the twentieth century that definition was broadened. After the Second World War, and in the 1970s, peace became that state of affairs when global, international, transnational and sub-national disputes are settled without resort to armed force. The effect of this change has been to narrow what may called the ‘band of peace’ in the spectrum of international conflict, indeed, to narrow it to vanishing point.

I have argued above that as war has changed, so peace has changed. Now that war has mutated and expanded to include all kinds of armed conflict not previously recognised under international humanitarian law, peace has become a scarce commodity. In some hands, the concept of peace has been so narrowly defined as to be evanescent or non-existent. Consider the cold war. There is now a vast literature on its causes, conduct and outcome. Some cold war historians are triumphalist, and celebrate winners and console losers, as if the cold war was like all the others. If the cold war started in 1948 and ended in 1989, as some argue, then the second half of the twentieth century was virtually devoid of peace. The period 1945–7 was the scene of fighting and barbarity in China, Greece and Palestine, for instance. The period since 1989 has had its share of horrors too, as we all know. If then we conclude that there has been no peace since the Second World War, we are left with a situation where war is understood both as a set of affairs when people die in substantial numbers and when the threat of mass death replaces the shedding of blood on a significant scale. This strikes me as absurd; consequently, my remarks define war as the application of armed forces in transnational, national or sub-national conflicts in such a way that substantial loss of life and material damage occurs. How we understand ‘substantial’ is ambiguous, but not to those who suffer wounds or loss of loved ones. They know what war is.

The ambiguity of the distinctions between war and peace are further complicated by ambiguities of distinctions between combatants and non-combatants recognised by the Fourth Geneva Convention, signed on 12 August 1949, and based in part on the Hague Convention of 1907. Persons in the hands of an occupying power are protected if their nation signed the convention, so says Article 4; but Article 5 says that

So in 1949 those engaged in any way in guerrilla warfare or ‘people's war’ and not wearing a uniform – as had been the case for the French Maquis or Soviet partisans – were not protected persons.

That position was refined and redefined in the 1977 Protocol Additional to the Fourth Geneva Convention (Additional Protocol I). In particular, Article 44(3) states:

The second sentence of paragraph 3 expands the notion of combatant to include those who engage in guerrilla warfare or other kinds of warfare without uniforms or insignia. This provision was intended to ban indiscriminate reprisals against civilians of the kind the Germany army in 1914 inflicted on Belgians suspected of being francs-tireurs, and the Nazis inflicted throughout Europe, as well as to give those fighting anti-colonial wars the status of combatant, with the protections assigned thereby.

Additional Protocol II of 1977 extended these protections to all armed conflicts ‘which take place in the territory of a High Contracting Party between its armed forces and dissident armed forces or other organised armed groups which, under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations and to implement this Protocol’. As of 2006, 163 nations have signed this protocol, although not the United States. The legal black hole of Guantánamo Bay exists in part because the United States refuses to do so.

Political discourse and political thought

So much for international conventions. What about political practice and, in more general terms, political discourse? Have war and peace been distinguished in different ways over time? Absolutely. Let me choose two important interventions in this discussion produced in the inter-war years, one by the anti-liberal German theorist Carl Schmitt, the other by the liberal jurist René Cassin. I want to suggest that the difference between them catches the critical turning point of the 1930s and 1940s. In this context it becomes clear that the human rights movement was and remains a new form of pacifism and constitutes a set of ideas critical of notions of absolute sovereignty. Human rights may then be reconfigured as a bridge between notions of war and peace, applying to all cases of social conflict, violent or not. It is perhaps the only bridge we have which does not require us to separate the two notions of war and peace. Rather, it enables us to see them as points or bands on a continuum of social and political conflict almost certain to outlive us all.

First, the anti-liberal notion of war and peace. The locus classicus of this definition is Carl Schmitt's essay ‘The Concept of the Political’, written in Cologne in 1927. Specifying political conflict as emerging from the distinction between friend and enemy, an existential distinction in his words, of a kind that makes the enemy ‘in a specially intense way, existentially something different and alien, so that in the extreme case conflicts with him are possible’.Footnote ⁴ That special intensity was expressed by violence or by the threat of violence, rather than by content or substance of a social, political or ideological kind. Drawing on Max Weber's notion that the state is that institution holding the monopoly on the legitimate use of physical force, Schmitt went one step further and noted that the use of force or the threat of force against an enemy is what all politics are about. Later he married this notion to the idea of a state of exception, which provided the sovereign with his identity: the sovereign is he who decides on the state of exception. In his hands, the exception becomes the norm; the sovereign identifies and eliminates or constrains enemies, and domestic politics joins international politics as a field of force unconstrained by law. The Nazis and fascists celebrated violence as the politics of the street; Schmitt theorised and justified what they had done; thus the distinction between peace and war collapses on the internal political level as well as on the international level. Anti-liberalism arrives finally at Hobbes's war of pure survival.

Now for the liberal answer. For that we turn to the work of René Cassin, author (among many others) of the Universal Declaration of Human Rights. Cassin was born in 1887 in Bayonne, and grew up in a well-to-do Jewish family in the south of France. He studied law and history in Aix and decided on an academic career in law, but then had to postpone it when war broke out in 1914. He served in the French infantry, was severely wounded in 1914, and survived both his wounds and the shockingly poor medical treatment he received from the French army. After his unlikely, indeed miraculous, recovery in 1915, he worked to secure human rights for the wounded and decent pensions for the disabled. After bleeding for France, he fought against the cruelties and insensitivity of its bureaucracy by creating the first veterans’ movement during the war. By 1920 his movement had 5 million members. They formed what I believe to be the first pacifist veterans’ movement in history.

Cassin brought his message of soldiers’ pacifism to the League of Nations, where he served as French delegate in 1924–38. He worked on disarmament, arbitration and new definitions of sovereignty. Here is the interesting contrast with Schmitt. At virtually the same time as Schmitt redefined sovereignty in absolute terms, Cassin created a framework within which sovereignty was defined as limited – limited by his doctrine of human rights.

In Geneva Cassin had a front-row view of the fragility of the League of Nations, an institution which challenged the supremacy of state sovereignty as a principle of international political order. He saw how entrenched were conventional approaches to unbridled state power as the ultima ratio of international affairs. No one could question his patriotism, but he had no time for what he termed ‘the ordinary obstinacy of old ideas which, in the name of the absolute sovereignty of states, flow directly into the construction of armaments, to the politics of prestige, and then to war’.Footnote ⁵

The two major events which formed Cassin's approach to questions of state sovereignty were the Nazi seizure of power through constitutional and lawful means in 1933, and the collapse of the Third Republic after France's defeat by Germany in 1940. The latter event brought Cassin to London, in exile, a very fruitful exile during which he emerged not only as the man who drew up the accord constituting the Free French under de Gaulle as the de jure representatives of Free France, but also as a major figure in the post-war political order. But it is important to recognise that Cassin, among others, long before Hindenburg conferred the chancellorship on Hitler, had created a position diametrically opposed to that of Schmitt and other advocates of absolute sovereignty. The confluence of these intellectual developments in legal theory, alongside the politics of war aims and the preparation for war crimes trials, is what brought Cassin into the position which he used to frame the 1948 Universal Declaration of Human Rights.

I have already given an account of these developments,Footnote ⁶ and will provide only a rough outline here. In a set of lectures he gave in 1930 at the Academy of International Law in The Hague, entitled ‘The New Conception of Domicile in the Resolution of Conflicts of Law’,Footnote ⁷ Cassin challenged theories of state sovereignty and showed how an alternative set of ideas might offer major advantages. Much in the same way that advocates of global citizenship in the 1990s tried to bypass political citizenship as the sole judge of rights, Cassin claimed that where you lived mattered above all else.

The problem of statelessness in the interwar years was highlighted by very large population flows in the aftermath of war. Some solutions emerged, such as that of Nansen passports, named after the Norwegian arctic explorer and Nobel Peace Prize laureate of 1922. But underlying the problem of statelessness was a view of citizenship hopelessly out of date. Twentieth-century jurisprudence had to adjust itself to twentieth-century conditions. There were precedents for this kind of thinking. In France, married women could have more than one nationality, if their domicile was different from their citizenship. Their standing, he insists, must be based on a right of domicile independent of nationality. The same choice ought to be available to those minority peoples who flee persecution or war, as in the case of Armenian or Russian refugees. Domicile over blood ties as determining citizenship juxtaposed France and Germany in 1930 in obvious ways. It was time, Cassin argued, that we abandon a set of ideas ‘which confers to the sovereign nation a competence which is too exclusive, simplistic, and ill adapted to satisfy the complex needs of international life . . .’.Footnote ⁹ At this early point, Cassin insisted that a domiciliary theory had the virtue of giving standing to the individual, dwelling here and not there, as a person with standing in international law. This revolutionary doctrine, which had never been accepted in international law, derived its force from this redefinition of state sovereignty.

If we move just a few years on, and watch the use by the Nazis of state sovereignty to violate every single principle of human rights and the rule of law, we can see the force of Cassin's indictment of the Leviathan state which brought war to Europe in 1939.

Here, too, we can see the path leading to the Universal Declaration of Human Rights. First in civil law and then in international law, Cassin pressed the case for limited state sovereignty, bounded by a higher a code, a set of principles which he enunciated first in the French and international veterans’ movement, then at the League of Nations and finally at the United Nations.

Cassin was in a position to act within the United Nations because he was the French delegate to the two St James conferences of 1941, which linked the Atlantic Charter with the structure of the post-war world. France sat as an equal with the other Allies because Cassin had written the foundational documents of the Franco-British alliance, and had secured money and even more importantly legitimacy for de Gaulle and his small band of French patriots. While in Paris, Cassin made certain that there would be an office enabling French men and women to register as French. Almost as a demonstration of his position in law, Cassin's citizenship was stripped from him, all his property was seized by the Vichy regime and he was sentenced to death in absentia by the Court of Riom. Twenty-five members of his family, including his sister and an 89-year-old uncle, were deported and killed. Here was the vassal of the Leviathan state in action, reducing to a heap of ashes the proud French tradition of human rights.

Cassin was awarded the Nobel Peace Prize in 1968, twenty years after he had read out the Universal Declaration of Human Rights to the United Nations assembled in Paris. He read it out and thereby breathed life into it, at the Palais de Chaillot, where Hitler had stood triumphant a mere eight years before. Cassin's voice was that of a veteran, a severely disabled veteran, a soldier who knew what war was, and who saw in human rights the best chance – perhaps the only chance – that pacifism had to outlaw war.

His achievements in this field were mixed. The United Nations proved a poor channel for the development of his ideas; the Council of Europe was a better bet, creating a European Court of Human Rights in Strasbourg, on which Cassin sat from its inception in 1959. He was president of the court until 1968, after which he was honoured in the year of human rights with the Nobel peace prize. That Court represented a sovereignty higher than that of the states which signed the European convention. They had to sacrifice some sovereignty in order to obtain the benefits of peace, a peace which had eluded Europe for so long.

In effect, what Cassin had done was to provide an alternative to the Schmittian worship of the state and the statesman, he who defines the state of exception. Cassin used Kantian arguments to oppose exceptions to categorical principles of human dignity. Effectively, what he did was to dig a channel, or an underground river which flowed under and then beyond older notions of state sovereignty.

Human rights were diverted and ignored in the early decades of the cold war. But in the mid-1970s it turned from a principle into a process. At Helsinki, human rights became a diplomatic and geopolitical force and weapon.Footnote ¹⁰ It helped to end the cold war, and thereby constitutes what Cassin hoped it would be – a normative limit to intractable international conflict. By fostering and specifying what human rights are, Cassin helped to define what peace is: that regime in which human rights are respected and observed. In his view, violations of human rights constitute threats to the peace. This pacifist approach to human rights law – developed not only in the Universal Declaration but also in the European Court of Human Rights – constitutes his legacy. It is one which helps us to see clearly how far we have come from the first article of the Hague convention of 1899.

And yet. There is much that is still undone. Cassin's was clearly a Kantian project. Rules are eternal; regimes change, but without rules, the pursuit of peace is a quixotic journey, destined to failure. The problem with this argument is that the Kantian project, very much informing the work of the German philosopher Jürgen Habermas and that of other theorists of the European Union, is its timeless character.Footnote ¹¹ Kant's categorical imperatives are not dynamic; they are not contingent or particular. They are universal. As such, they do not contain that element of instability which enables us to redefine peace time and again, as the institutions of war mutate. And they will. Categorical imperatives offer hope, but they may make the pursuit of peace harder rather than easier.