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The Confederate Lawyer
September 30, 2013

War and Peace
by Charles G. Mills
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GLEN COVE, NY —On the eve of the feast of the Nativity of the Blessed Virgin Mary on September 8, Pope Francis presided over a four-hour Marian Vigil for peace in Syria and elsewhere. He was joined by 100,000 of the faithful, while hundreds of thousands of people around the world simultaneously joined in prayer.

The Pope took his theme from the earliest moments of the human experience — Adam's cowardly and disloyal attempt to shift the blame for his sin to his wife, and Cain's question whether he was his brother's keeper. The Pope's message was that war is never good and that we are all the keepers of all of our brothers.

At the same time, President Obama was beating the tom-toms of war like crazy. He has temporarily backed off a little, but his message is still one of war, specifically, that the United States would be justified in waging war against Syria — as long as we do not call it a war.

His justification for his warmongering is that Syria has used poison gas. This is a preposterous proposition. Almost 400 years ago, a body of law, originally called the law of nations, began to emerge. This law governed the conduct of war among nations. It has never governed the suppression of a civil rebellion, at least if the rebellion has not acquired the characteristics of a nation.

 

... European powers did not use gasses in World War II because no nation wanted to be the first to use them ... This fear was much like nuclear deterrence in today's world.

 

poison gases

The law of nations can be arbitrary. For example, disguising a ship as an enemy ship to sneak up on an enemy ship and sink it is considered a legitimate ruse, but disguising a soldier as an enemy soldier to sneak up on an enemy soldier and kill him is considered perfidy.

Before World War I, international conventions outlawed the use of poisons in war. In World War I, however, poison gasses were not considered poisons and were widely used. Their use by Germans is the most widely known, but the British also used them. Even the Blessed Charles of Austria, one of the most peaceful monarchs in history, allowed the use of gasses by his troops in accordance with existing international law. After the war, the use of gas was not one of the war crimes for which Germans were punished.

In the intervening years between 1918 and World War II, the major nations of the World attempted to control some of the horrors of modern war. Agreements were signed to ban hollow-point bullets, although these can easily be bought by civilians today. A 1925 treaty banned the use of gas in warfare between nations. The developed nations abided by the terms of the treaty in their dealings with one another.

Developed nations — the British, the French, and the Spanish — however, did use poison gasses against third-world adversaries. The new Soviet Union also used poison gas to consolidate its power. The Italians used poison gas in their campaigns to colonize parts of Africa, and the Japanese used it in their invasion of China. The Argentinians used gas against the British in the Malvinas.

The Germans developed sophisticated nerve gasses during World War II, but they never used them in warfare. It is clear that they were deterred by fear of retaliation rather than by respect for international law. The major European powers did not use gasses in World War II because no nation wanted to be the first to use them; each nation recognized that it would be subject to retaliation if it did. This fear was much like nuclear deterrence in today's world.

In the contemporary world, Iraq has used poison gasses against the Kurds, and Iran and Syria have used them to suppress internal rebellions.

For the moment, at least, it seems that peace has won out over war. This does not mean, however, that there is no longer any pressure to go to war against Syria. The use of poison gas against insurgents who burn churches, kill priests and nuns, kidnap bishops, murder prisoners, and behead people for religious dissent, is not the basis of a just war. It is a totally inadequate basis for a nation to go to war, especially in the absence of an international consensus.

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The Confederate Lawyer column is copyright © 2013 by Charles G. Mills and the Fitzgerald Griffin Foundation, www.fgfBooks.com. All rights reserved.

This column may be forwarded, posted, or published if credit is given to Charles Mills and fgfBooks.com.

Charles G. Mills is the Judge Advocate or general counsel for the New York State American Legion. He has forty years of experience in many trial and appellate courts and has published several articles about the law.

See his biographical sketch and additional columns here.

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