Year XXXVIII, 1996, Number 1 - Page 43



The atrocities committed in the civil wars of the former Yugoslavia and Rwanda led the UN Security Council, first in 1993 and again in 1994, to promote the constitution of two ad hoc international tribunals responsible for prosecuting crimes committed in these two areas “in violation of international humanitarian law and those crimes which offend the conscience of the human race”.[1] But the worldwide increase in episodes going against all respect for human rights has meant increasing demand for justice in world public opinion. Thus in the December of 1995 the United Nations General Assembly asked a Preparatory Committee to write a draft Statute for a permanent International Criminal Court, with the aim of calling a World Intergovernmental Conference by 1997. These decisions were greeted favourably by all countries (Italy has already offered to host the Conference in 1997) and by the majority of non-governmental organizations which, coordinated by the World Federalist Movement,[2] were in the forefront of demands for the institution of this Court. This battle is a significant example of the opportunities which are opening up for the federalists at world level to take the lead in initiatives that can bring together the major international non-governmental organizations. But, as in many crucial battles in which the transfer of a part of the sovereignty of the states is at stake, in this case in the judiciary field, one of the dangers to be avoided by the federalists is precisely that of letting their attention stray from strategic institutional objectives. The events of the last few years have shown how the battle to protect human rights cannot be won by acting at national level alone. What could only be theorized at the outset of the battle for human rights is today beginning to become reality. A famous champion of the Rights of Man like Thomas Paine, a fierce critic of the systems of government of his time because they were almost all enemies of fundamental human rights, pointed to the American federal government as the first example of a government compatible with respect for human rights. Paine underlined also how a government based on human rights cannot fail to consider a “system of universal peace”. This point of view is still struggling to spread in the majority of human rights movements, but the federalist perspective of this battle now has a chance to enter the political debate. On this point it is worth considering some simple questions. In what sense can the creation of an International Criminal Court open new opportunities for federalists to act? Is the creation of such a Court to be considered a strategic objective in itself? Or has this battle an instrumental value only to the extent that it can bring out more clearly how maintaining national sovereignty is incompatible with respect for the value of justice?
Two considerations may perhaps help us clarify the terms of the problem. The first concerns the ambiguity of wanting to set up a Court which punishes individuals, but which in reality, in the current situation, would be obliged to judge on the basis of an a priori distinction, not of a legal but of a political nature, between good countries and bad countries. The precedent of the Nuremberg Tribunal is emblematic. It was instituted on the basis of a political choice: the conquerors had to judge the conquered. And in fact, during the trial, whenever the lawyers defending the accused referred to possible crimes committed by the victors, the President of the Tribunal overruled their requests since it was not within that Tribunal’s remit to investigate the activities of the allied powers. More recently, other episodes have highlighted this ambiguity. The difficulties which emerged following the arrest of two Serbian officials by Bosnian government authorities, and their referral to the International Court of Justice at the Hague on the basis of the Dayton Peace Agreement, have for example highlighted the dangers inherent in the exercise of a partial and casual justice, which is not really concerned with identifying and prosecuting those responsible for the countless crimes which accompanied the Yugoslav tragedy. In fact, apart from Mladic, Karadzic and their respective collaborators – already universally considered criminals – should not individuals such as the Croat Tudjman, the Serb Milosevic and even the Moslem Izetbegovic, who are by no means extraneous to what happened in the former Yugoslavia in the last few years, at least be investigated? But as heads of state were their actions not perhaps exercising the power they derived from the sovereignty recognized to them by the other nation-states?
In a much more peaceful context, the diplomatic incident which arose between Spain and Belgium, two countries of the European Union and of the common judicial area sanctioned by the Schengen agreements – in other words of the world’s most integrated area in every respect – confirms the difficulty of exercising a penal action against individuals without having the appropriate institutions to regulate justice between countries.[3] These observations bring us to a second consideration. There is an irreconcilable contradiction between justice and the exercise of raison d’état by nation states. The latter, in the attempt to defend their own sovereignty at all costs, presume to administer justice at the international level in the same way as absolute monarchs administered it in their kingdoms. Bacon effectively stigmatized this modus regnandi thus: “Let judges be lions, but yet lions under the throne being circumspect that they do not check or oppose any parts of sovereignty”. These are the judges that sovereign states would like to have at international level. It need hardly be said that this is not due to any evil intention of the states themselves, but because the very existence of national sovereignty denies international justice, since it denies the principle of equality and liberty for the citizens of different states. This relationship between equality and justice has been well known since the time of Aristotle, who made very clear how “those who are neither free nor equal have no political justice in their dealings with each other, but a sort of justice called thus by analogy”. Justice, concluded Aristotle, exists only for those whose relations are regulated by law. It is law which guarantees both justice and equality simultaneously. At the international level therefore, the problem is precisely that in the final instance relations between states are not yet regulated by law. This problem, far from being resolved with the creation of the International Criminal Court, is, on the contrary, destined to crop up again and again, more and more obviously.
In a passage of the intervention at the United Nations General Assembly already quoted at the beginning, it was stated that “the European Union considers that an important characteristic of the Court should be that it is complementary to the national systems of penal justice”. In the preamble of the draft Statute for an International Criminal Court drawn up in 1994, it was also specified that “being complementary is to be understood as the possibility of undertaking a judiciary action when national action shows itself impracticable or ineffective”. This idea of complementarity would presuppose the possibility of legally judging the political choices of sovereign states. The identification of the guilty parties and of which criminals to prosecute would in fact continue to depend more on the balances of power within and between states, rather than on the judgement of the Court.
The expectations raised by the General Assembly’s vote do not yet take sufficient account of these ambiguities and contradictions.[4] These expectations concern above all the attribution of autonomous power of initiative to the future judges of the Court, the capacity to bring suspects to justice, the definition of the principal crimes on which the Court could exercise its jurisdiction, and guarantees for the accused. But can these expectations be satisfied without the states accepting a general law governing them and the interference of an international police within their borders? Is it possible to win the fight to create an International Criminal Court without tackling the problem of creating an effective International Court of Justice above the States? An answer to these questions was already given by the historian Seeley more than a century ago: “I do not assert that such a court can never be established, simply because there has not yet been any example of it. But I point out that no presumption of its success can be drawn from the success of existing courts, since these courts have succeeded under widely different condition... A judge, therefore, or bench of judges, cannot exist in isolation, but stands necessarily connected with other powers – a nominating power, a regulating power, and an enforcing power. But where all these powers meet – a power of nominating officers, a regulating or legislative power, a judicial power, and a power of executing sentences – there you have the complete organization of a State, and thus it is matter of demonstration that a State is implied in a law-court, and, as a necessary consequence, that an international law-court implies an international or federal State”.[5] This declaration by Seeley is only apparently contradicted by the existence in Europe of a Court of Justice which, even without a federal union, has helped affirm the precedence of community over national law. In fact the European Court of Justice has acted and continues to act in a context in which, since 1945, the European states have renounced, or, more precisely, have been forced to renounce war, and have decided to start a process of supranational political unification which has not only gradually advanced but has by now reached a crucial point.
The constitution and the effectiveness of an International Criminal Court are therefore linked to the creation of a federal state, and once more raise the unresolved problem of the relationship between justice and national sovereignty, between the right to justice and the right to peace.
Over two centuries ago, with the Universal Declaration of Human Rights, the French National Assembly for the first time affirmed the principle according to which the ultimate aim of every political organization must be the safeguarding of the natural and inalienable rights of man. These rights were identified as the right to freedom, the right to property, the right to security and to resistance to oppression. But the fundamental articles of the declaration were not limited to laying the foundations for the defence of individual freedoms. They also introduced the principle of safeguarding the freedom of nations, and pointed to the nation as the single true source of sovereignty. Regarding this point, during the debate in the French National Assembly the doubt was already raised that this double claim to freedom for individuals and for national groups of individuals contained the seeds of a dangerous contradiction. Indeed, some members of the Assembly noted that the Declaration of Rights should have been accompanied by a Declaration of Duties. The objection was not seriously taken into consideration, since it was observed that each individual right always implies a corresponding duty to guarantee the same right to all individuals. Thus the problem was not tackled of how it would have been possible to guarantee the same rights to the citizens of several free and independent sovereign nations, underlining how “the only causes of public misfortune and government corruption” are to be found in “the ignorance, neglect and lack of respect for human rights.” The Declaration of the Rights of Man, by affirming the right of individuals to equality and freedom, but not to peace, therefore laid the foundations for claiming justice at national but not at international level.
As long as nationalism continued to embody the myth of the liberation of peoples and individuals, this limit was not perceived as an intolerable contradiction. Only recently, with the progress of economic, social, cultural and political integration on an international scale, has the nation state increasingly appeared an anachronistic and dangerous obstacle on the road to development and emancipation of mankind from the global dangers which hang over it. Thus a new era has opened in the fight for human rights. An era in which it becomes possible to finish the revolutionary battle begun with the Declaration by the French Assembly; an era in which it may perhaps become possible to translate into political action Kant’s intuition on the basis of which “the problem of establishing a perfect civil constitution is subordinate to the problem of a law-governed external relationship with other states, and cannot be solved unless the latter is also solved”.[6]
Starting from this Kantian point of view, it is possible to read the story of the peace movement and human rights movements in a new light, so as to finally show how the fight to abolish war and the fight to affirm human rights are two sides of the same coin.
International action for the protection of individual rights initially developed in the last century in two situations where every respect for human rights was most obviously infringed: slavery[7] and war. The fight for the abolition of slavery, helped by the evolution of the mode of production which progressively marginalized the slave-trading economies, substantially reached its goals. In contrast, the fight to humanize war has proved impossible to win. It was after the Crimean War that the Geneva Convention of 1864 established the primary obligations with regard to combatants wounded in battle. The preamble o fthis Convention expressed the international community’s concern over the fate of combatants as follows: “The inhabitants and the belligerents remain under the protection and governance of the principles of the law of nations, derived from the usage established among civilized peoples, from the laws of humanity and from the dictates of the public conscience”. Evidently the Geneva Convention confused the fact that the nation state had succeeded in imposing law internally in order to abolish violence between individuals, with the simple aspiration to justice in relations between countries. It is incredible to observe how the voice of the majority of the leagues for peace and peace societies of the nineteenth century substantially agreed with the aspirations of the Geneva Convention, as indeed Seeley himself complained in the article already quoted. The affirmation of the fight to protect those human rights which are denied at the very moment war is admitted as a means to resolve conflicts between States, significantly coincided with the pacifist movement’s progressive acquiescence on national ideology.[8]
Two factors contributed to the consolidation of this renunciatory attitude. On the one hand the absence of great wars in Europe for about forty years (from the Franco-Prussian to the First World War) was erroneously taken to mean the impossibility of further great wars in Europe. On the other hand the rise of nationalism was greeted as a temporary, innocuous revendication of the rights of peoples. In the last century the movement for peace, on the basis of a mistaken analysis of the facts, therefore renounced really fighting for the value it championed, a renunciation which resulted in inaction at the outbreak of the First World War and an ambiguous existence after the Second.
The reasons for and the nature of this renunciation should be analyzed more thoroughly than is possible in this note. Suffice it here merely to mention how the problems of peace and the imposition of a law above the states are interwoven in the course of the debate, lasting over several decades, within the peace movement.
In the First International Congress of the Leagues for Peace and Peace Societies in London (1843), for the first time there were two opposing factions: the American delegates, who proposed the federal model, and the European delegates, who proposed the establishment of a Court for the Nations. At the Frankfurt Congress too (1850), two currents were formed, one Anglo-American and federalist, the other continental European and democratic, which saw peace as the final stage of the wars of national liberation. At the Congress of 1867, in which around 6,000 delegates participated (the grand Assizes for European Democracy), the pacifist movement approved the following programme: 1) the creation of the United States of Europe; 2) the realization of all revolutionary rights and principles, self-determination, freedom of conscience, the abolition of permanent armies, the abolition of racial prejudices, freedom of speech and association, the right to work, mass public education, and the harmony of economic interests in freedom; 3) the creation of an international organization capable of fighting to realize the present programme without regard to borders.[9] Very soon however there was a return to the divide between the American and the European positions. The American delegation at the Interparliamentary Conference (today Interparliamentary Union), which initially shared their international secretariat for some years with that of the pacifist movement, proposed the creation of a European Parliament, but without success. Thus after the Franco-Prussian War, the attention of the diplomatic services and of the national sections of the pacifist movement took a decisive turn towards the creation of an International Tribunal. But the Permanent Court of Arbitration, known as the Hague Tribunal, was no sooner established (1899), due to the efforts, among others, of the Interparliamentary Conference and the League for Peace, than its fragility immediately became obvious. At the outbreak of the Boer War the British Government refused its arbitration and Salisbury’s government declared itself not bound by the Hague Convention since the Boers were not among its signatories. The US and Great Britain never ratified the Treaty of Bilateral Arbitration. Later, in 1911, during the war between Italy and Turkey for the control of Libya, the Italian summits of the pacifist movement, instead of appealing to the Tribunal, sided with the Italian government in support of the invasion.[10]
The result was that on the eve of the First World War the pacifist movement was no longer even able to release a joint communiqué from its general headquarters in Berne because the Council was divided between supporters of the French cause and those supporting Germany. A movement of about two hundred sections, several thousand activists, and about twenty newspapers in over ten languages, dissolved just at the moment when it should have made its voice heard.
If this brief and partial account of this experience has any meaning in relation to the choices which the federalists must make today, it probably lies in the confirmation that Hamilton’s warning not “to set at defiance the accumulated experience of ages”, encamped on the front cover of this review, must also be valid for political movements. In the last century, and indeed in the first half of this century, the socio-historical situation was not yet ripe for the development of a battle for federation such as was to develop after the Second World War. The political forces and public opinion were mobilized by national and social questions, and not by themes of democracy and international justice. But, at least on the level of theoretical elaboration, the federalist current of the movement for peace lost the chance to denounce utopian pacifism openly, to point out the deeper causes of the war and the links between peace and justice. Today, as a century ago, the movement for peace, now ranged with the ecological and human rights movements, finds itself having to choose whether to take the federalist path or cede to the temptation to ride the ephemeral successes of internationalist chimeras. However, unlike a century ago, the ground is more fertile for cultivating federalist ideals in the growing number of energies disillusioned by the prospect of continuing on the path of simple international cooperation. No-one can now realistically believe that individual human rights can be protected by justice without overcoming the dividing line between an association of sovereign states and a federal government. For the Federalist Movement therefore there is a historic opportunity to play an avant-garde role in this phase of the unification of the human race.
Franco Spoltore

[1] Intervention by the permanent Spanish representative at the United Nations (30th October 1995).
[2] See also the intervention by Fergus Watt, “Global Governance and Global Citizenship”, in The Federalist, XXXVII (1995), pp. 198 ff.
[3] In the course of these events the Belgian government accused France, Spain and the United Kingdom of having made it impossible to reach a European agreement on what meaning to attribute to the term “political criminal” for acts of terrorism. For its part, the Spanish government hoped that an agreement would be reached in a bilateral or multilateral context.
[4] A sufficiently detailed description of these expectations is found for example in the article “Challenges Ahead for the United Nations Preparatory Committee Drafting a Statute for a Permanent International Court”, by Christopher Keith Hall, in Amnesty International UK Lawyers’ Network Newsletter, Supplement, N. 21, 1996.
[5] John Robert Seeley, “United States of Europe” (1871), in The Federalist, XXXI (1989), p. 177.
[6] Immanuel Kant, “Idea for a Universal History with a Cosmopolitan Purpose”, in Kant’s Political Writings, ed. Hans Reiss, tr. H. B. Nisbet, Cambridge University Press, 1970, p. 47.
[7] During the eighteenth century in Great Britain and in the United States, especially due to the initiative of the Quaker movements, there was a campaign to sensitize the governments to the problem of slavery. In 1787 an Anti-Slavery Society was founded in Great Britain and the following year saw the establishment in France of the Societé des Amis des Noirs. The British Society succeeded in bringing its demands to Parliament: in 1807 the slave trade was forbidden in all British territories. Only in 1841, with the Treaty of London, did the other European governments recognize the right of every signatory state to block any ship involved in slave trade. In 1890, when the majority of countries, including the USA, had abolished slavery, the Treaty of Brussels established the obligation to abolish the slave trade between signatory countries, creating a system of international supervision to ensure that this obligation was respected.
[8] See Sandi E. Cooper, Patriotic Pacifism Waging War on War, 1815-1914, New York, Oxford University Press, 1991.
[9] The Assembly took place under the chairmanship of Giuseppe Garibaldi, and Victor Hugo vigorously maintained the need for a United States of Europe. In the next congress Hugo abandoned this slogan in favour of social revolution.
[10] The leader of the Italian movement at that time was Teodoro Moneta, who epitomized the contradictions in which the peace movement was struggling. He was a supporter of national independence in the insurrection of Milan against the Austrians in 1848. He then sided against the French in 1867. As leader of the Lombard Union for Peace, the most important Italian section together with the section in Turin, he was awarded the Nobel Prize in 1907. When Italy began to flex its own political muscles, amid the disconcertment of European pacifists Moneta did not hesitate to enter the field actively in favour of the Italian invasion of Libya against Turkey, and of Italy’s right to conquer an empire for itself in North Africa.


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