OUTLAWRY OF WAR means, in the popular concept, the placing of war as a means of national policy outside the pale of law. War has been regarded in certain instances as the last resort of a state to obtain what it believes to be its lawful object. Certain writers have pointed out that, while an individual is prohibited by domestic law enforced by a police power from the use of force in his dealings with other individuals, a state under international law has heretofore been free to use war as a means of attaining its national objectives, excepting as limited in spe cific instances by its treaty engagements.
It was during the Thirty Years' War (1618-48) that s published (1625) his monumental treatise De Jure Belli ac Pacts, in the foreword to which he said: "Throughout the Christian world I observed a lack of restraint in relation to war, such as even barbarous races should be ashamed of ; I observed that men rush to arms for slight causes, or no cause at all, and that when arms have once been taken up there is no longer any respect for law, divine or human ; it is as if, in accordance with a general decree, frenzy had openly been let loose for the committing of all crimes." Thus commenced the growth in International Law of a set of rules governing the conduct of wars.
Since then the development of International Law, the multi plication of arbitration and conciliation treaties and the provisions of the Covenant of the League of Nations and the Locarno treaties has been to effect a certain humanization of the practice of war and to lessen the number and kind of circumstances in which war could legitimately be resorted to. Up to 1928, however, war re mained a recognized and respectable instrument of national policy. The advocates of the outlawry of war theory feel that so long as the institution of war remains respectable and enjoys a recognized place in the field of international relations, the root of the evil remains. Their solution of the problem is, in part, to oust war from its privileged position by denying it a legal status and placing a State indulging in hostilities against another State beyond the pale, that is to say, literally to outlaw it.
Among the principal advocates of the outlawry of war move ment in the United States have been Judge Florence E. Allen, Senator William E. Borah, Dr. Nicholas Murray Butler, Professor John Dewey, Reverend John Haynes Holmes, Mr. S. 0. Levinson, Dr. C. C. Morrison, Reverend M. V. Oggel, and the American Committee for the Outlawry of War.
From an article on this subject appearing in the New Republic, March 9, 1918, the following quotation from a suggested plan is given: "As long as international law continues to legalize war all nations are moral accessories before the fact to 'collective murder.' Conversely,
outlaw war and militarism is out of a job. War . . . would be branded as a crime and the force of the world would be organized to deal with the criminal . . . two things are indispensable to the reorganiza tion of the world: The specific outlawing of war by the code of nations and the ability by force to execute the decrees of the inter national tribunal." Senator William E. Borah in February 1923 introduced a resolu tion into the U.S. Senate reading in part as follows "Resolved, That it is the view of the Senate of the United States that war between nations should be outlawed as an institution or means for the settlement of international controversies by making it a public crime under the law of nations. . . . That a code of inter national law of peace based upon equality and justice between nations, amplified and expanded and adapted and brought down to date should be created and adopted" also "That a judicial substitute for war should be created (or, if existing in part, adapted and adjusted) in the form or nature of an international court, modeled on our Federal Supreme Court in its jurisdiction over controversies between our sovereign States ; such court to possess affirmative jurisdiction to hear and decide all purely international controversies, as defined by the code or arising under treaties, and to have the same power for the enforcement of its decrees as our Federal Supreme Court, namely, the respect of all enlightened nations for judgments resting upon open and fair investigations and impartial decisions, and the compelling power of enlightened public opinion'." The fundamental difference between these two proposals is at once apparent. The first proposal postulated "an ability by force to execute the decrees of the international tribunal" while Senator Borah rejected the idea of a supernational authority with power to use force in the execution of the decrees of a world court. The wisdom of Senator Borah's position on this point apparently commended itself to the American Committee for the Outlawry of War, for the draft treaty to outlaw war which the latter sub sequently suggested as a basis for discussion provided that the signatory States would:— " . . . condemn and abandon forever the use of war as an instrument for the settlement of international disputes and for the enforcement of decisions and awards of international tribunals, and hereby outlaw 'Senate Resolution 441, 67th Congress, 4th Session. Reintroduced Dec. 20, 1923, as Senate Resolution ioi, 68th Congress, ist Session.