Year XLII, 2000, Number 2, Page 123



At the beginning of June, the International Criminal Court for the former Yugoslavia closed the formal inquiry into NATO’s bombing campaign in Kosovo, clearing the alliance of the charges levelled against it. But the very fact that the Court was required to assess the war conduct of the United States and its allies, which intervened in the conflict in the name of the safeguarding of the human rights of the populations involved, is quite indicative of the contradictions with which this body is struggling, and merits several considerations.
Naturally, the issue here is not the assessment of NATO’s intervention, nor the behaviour of the Court, nor even the controversy to which this behaviour has given rise. The question, rather, is that of whether or not it is possible to judge the war conduct of sovereign states. International criminal courts — and this applies both to ad hoc ones as well as to the permanent one whose ratification is currently in progress — are not, indeed, in the business of abolishing war, nor of declaring it illegal as such, but rather, of judging it. They start from the assumption that, in a world of sovereign states in which only power relations have any influence, war as such cannot be outlawed, if for no other reason than because it represents, for democratic countries, their very last chance to oppose and seek to put a stop to the expansionistic or hegemonic projects of authoritarian states, or to intervene where there is violation of the human rights of groups or entire populations. From this derives the claim that wars which are conducted in the name of the “defence of human rights” and “respecting” the principles sanctioned by international treaties (themselves drawn up in order to spare civilians pointless suffering and to prevent the committing of atrocities) can be considered juridically just.
Clearly, this claim is without foundation: presuming to have the capacity to determine, within the sphere of an action that, by definition, is violent and lawless, what amounts to excessive brutality or gratuitous violence means claiming to be able to judge the strategic war conduct of a country and to enter into an assessment of the opportuneness of certain choices that have been made, necessarily, in order to achieve a rapid victory with the fewest possible losses. It is clear that such an assessment is practically impossible to make: can it not perhaps be said that the first duty of those in charge of the armed forces is to spare their own soldiers useless suffering, because this is the mandate they are given by the citizens of their state, and to achieve victory in as short a time as possible? What is the basis upon which judges without a democratic mandate claim the right to establish which suffering must be prevented, and which lives spared, and which can, instead, be sacrificed?
A similar argument can be put forward with regard to the question of the just war. In general, as Kant explains so well, given that states exist, in relation to one another, in a state of nature, “the method used by states to defend their law can never be, as before an external court, trials, but only war… And moreover, this permanent state of war cannot even be defined as unjust, since within it, everyone is his own judge.”[1] “The expression ‘unjust enemy’ is a pleonasm when applied to the state of nature, because the state of nature is, itself, a state of injustice. A just enemy would be one whom it would be unjust for me to resist, in which case he would no longer be my enemy.”[2] Law, in fact, can rest “solely upon the principle of the possibility of an external constraint, which can co-exist with the freedom of everyone in accordance with general laws”.[3] “And a state that rests upon a general, external (that is, public) law, which has force on its side, is a civil state”.[4] It is thus only within the Kantian civil state (in other words within the State) that law can be guaranteed. Outside it, the concepts of just and unjust become, from the juridical point of view, meaningless. This is why, even though it is true that international criminal courts claim to make purely juridical — and not political — assessments in order to clarify the responsibilities solely of individuals, and therefore that, in theory, they do not set out to express judgements on wars that are in progress, in fact, in the absence of a state framework that constitutes the basis of the law, no evaluation of a conflict can ever be juridical, but is, necessarily, political; in substance, these institutions actually find themselves in a position where they are establishing which wars can be authorised and which cannot, on the basis of criteria that are never expressly set out. Conflicts are, in fact, the last link in the power chain that underpins relations between states and, as such, they can never be divorced from the situation that generated them. However, given that it is impossible for a court to assume the political responsibility for establishing the primary causes of conflicts, all it can do, as it seeks to assess who is guilty of violence and oppression, is to respond to the power balances between the states. If the hegemonic powers at international level label a country or regime as an enemy — a country or regime that may indeed be despotic and politically dangerous, but which, on the moral plane or as regards universal law, is no worse than dozens of others — then it, or rather its leaders, will become the object of the court’s deliberation. Similarly, a group of countries wishing to create difficulties for the hegemonic powers may ask the court to intervene in order to assess the action of the latter, and while it may not achieve effective results, it will succeed in injecting a certain element of unease into the process of the formation of public consensus towards the victors. All this is inevitable, because international criminal courts, which are not sustained by any political power and which have no democratic legitimacy, must have the support of the states to be able to act, and obviously, the latter use them as instruments of their own foreign policy. And it is, in any case, better that they be used by states — at least states are institutions that are founded on the consensus of the people, and thus exercise a certain degree of responsibility, albeit necessarily partial — than in the hands of individuals (“independent” judges) who are not answerable for their actions before any democratic body.
The most profound and most dangerous contradiction on which international criminal courts are based is thus the idea that international justice can be pursued even in a world that is divided up into independent states and that the law can be established without challenging their existence as sovereign entities. In accordance with this assertion, as mentioned earlier, the state ceases to represent the basis of the legitimacy of the law; instead, the law can be imposed not only in the absence of a political power that has the monopoly on force and can thus impose respect for it, but also in the absence of the consensus that would provide the basis for its legitimacy. In practice, it is an unworkable idea because these courts, in reality, can only act within the framework of the power relations between states. On a conceptual level, however, it nevertheless remains a decidedly ill-fated idea, because like all mystifications, it produces a movement away from a true understanding of reality, and from the possibility of acting effectively in order to improve it.
This separation of state and law is part of an increasingly widespread current of thought that tends to attribute to the state a secondary function in the government (now governance in fact) of the political and economic processes. In the face of the nation-states’ partial loss of sovereignty and reduced capacity for intervention, both products of the process of globalisation, the most common reaction is, in fact, to stop regarding the state as the primary level in the organisation of power, in the areas both of domestic policy (where it can be replaced by the momentum of the market and by the organisations of civil society) and of international policy (where there is a growing number of international bodies which ought to be able to provide not only the framework for cooperation but also to assume the role of decision-making bodies).
But here again, we are clearly in the presence of a mystification which continues to conceal both the weakness of the nation-states and the power relations on whose basis the states act. It is no coincidence that the most widespread support for these theories has been generated, above all, in Europe, where the inadequate dimensions of the nation-states and the consequent reduction in the governments’ capacity for intervention and sense of responsibility are the very reasons why the crisis of the state is felt so keenly. This fact is aptly illustrated by comments, reported some time ago in Europe’s leading daily newspapers, made by the Czech president, Vaclav Havel: “In the coming century, most of the states will begin their transformation from cult objects into simple civil administrative units, in the ambit of a complex planetary organisation… It will be possible to see a shifting, both downwards and upwards, of the practical responsibilities and jurisdiction of the state: in the first case, towards the various bodies and structures of civil society to which the state will gradually have to transfer many of its tasks, and in the second towards communities and organisations, regional, transnational and global. And this transfer of functions is already under way.”
It is probable that no one in the United States would subscribe to this view since, in that country, the federal government continues to play a fundamental role in directing economic policy and shoulders responsibility for foreign policy. In reality, where it works, the state framework is still the central point of reference. In Europe, however, it is a view that is now extremely widely held, particularly in Germany, Great Britain and Italy. Even Habermas, a rigorous intellectual who in fact acknowledges the crisis of Europe’s nation-states and sees the creation of a European federation as the possible means of restoring the state’s capacity for intervention (and who thus grasps the link between enlargement of the orbit of the state and the possibility of once more being able to govern political processes), when required to tackle global issues and to link them to the questions of post-national democracy, points to the launch of a “world domestic policy” as a solution, while regarding as neither possible nor desirable the constitution of a “world state”.[5] By “world domestic policy” he thus means an institutionalisation of the procedures (in order to obtain a pragmatic harmonisation of interests at world level and an intelligent establishment of common interests) that would take into account the independence, preferences and peculiarities of what were “previously sovereign” states. The protagonists in this project would thus have to be, in the first place, non governmental movements and organisations, the first embryos of a world civil society which would generate the impetus for the overcoming of national interests.
Habermas maintains, then, that choices decisive for the future of mankind can be made without the existence of a decision-making body, an institution which bases its authority, and thus founds its legitimacy, on the consensus of the people, and which is backed up by the democratic mechanisms that are essential for expressing the general interests of a whole community that feels part of a common destiny. In fact, all he is doing is expressing a need — the need to succeed in affirming the common good of the whole of humanity — without indicating how it could be fulfilled, but willing that men might prove able to become entirely rational beings, capable of cohabiting without the need to create institutions that have the monopoly on force and the capacity to ensure respect for the law (the two requisites fulfilled by the state).
At the time of the war in Kosovo, Habermas re-examined this concept from a new angle, and in a much more explicit manner. Setting pacifism of law against realist thought, he affirms the need to transform international law into a law of universal citizenship. The war in Kosovo, justified as a peace-making and defence of human rights mission, can, according to Habermas, be interpreted precisely as a step towards the affirmation of the cosmopolitan law of a universal society. The defence of human rights has become, in fact, a primary duty of our times that derives from the tragedies of the first half of the twentieth century. What is more, the process of globalisation is gradually divesting the nation-states of their sovereignty, and leaving the way clear for intervention in their domestic affairs. But in order for the defence of rights to become an objective that can be pursued effectively, it must in some way be institutionalised, creating a juridical structure for international relations, so that that the usufructuary of the law is also the author of it; there is therefore a need to create a “democratic legal order” on a world scale which would be the foundation for the legitimacy of intervention. This scenario, he maintains, could emerge even regardless of a world state or government’s monopoly on violence. It would be sufficient to have an efficient Security Council, the binding decisions of an international court of justice and integration of the general assembly of representatives of government with a second level of representation of the citizens.
The fact that a scholar like Habermas, who is actually a firm supporter of the role of the state in many areas, and above all in the social field, should stumble into such an obvious contradiction is indicative of how difficult it has now become to think through the question of statehood and the problem of peace. It is in fact clear that if the legitimacy of an intervention in the name of the defence of human rights is based on the fact that the usufructuary of that intervention is also the author of the rights in question, then the “institutions” that Habermas suggests are sufficient to create a democratic legal order at world level (a reformed UN and a court of justice with binding powers) certainly do not have the capacity to realise this objective. In reality, only the state has this capacity, but to regard a world state as superfluous, unrealistic, or even dangerous, is, inevitably, to be drawn up a blind alley.
The question of the links between a state framework and the possibility of imposing law is thus crucial to an understanding of the role of the state. If it is not grasped, then it becomes impossible to assert the importance of the latter in every field. The refusal to recognise the role played by the state in directing and regulating the economy, and in pursuing the objective of social justice, is rooted in the same contradiction as before: that of maintaining that politics, i.e., the capacity to govern the processes that are in progress and to impose respect for the law, can be divorced from the state, i.e., the organisation of power (the state has the monopoly on force) and from consensus (the state, in fact, is the people and vice versa).
As Carl Schmitt, one of the few authors to have tackled with real lucidity this question of the relationships between state, law and people,[6] clearly explains, the essence of the state is the fact that it represents the political unity of a people, and thus is founded on an act of political will. And it is in this act, through which the multitude becomes a people, that the basis for its legitimacy and its power lies. The same applies to the constitution which, when the term is applied in its most profound and absolute sense, also coincides with the state, and indeed constitutes its principle of unity and of social order; it too is the product of a conscious decision, made by the people in their capacity as holders of constituent power and of sovereignty. It is through this exercising of political will that a people becomes aware of being a subject that is capable of acting and of determining by itself its own political destiny. The legitimacy of law is thus based on the act of political will through which a people affirms its own existence, of which the state is the concrete expression. This is why the modern state embraces both the concept of formal law (the law understood as regulations, and more precisely as juridical rules, which is the basis of the idea of the rule of law), and that of political law (law understood as concrete will, as power, as an act of sovereignty — as the will of the people[7]), and both of these concepts of law are central to an understanding of the modern constitution, because they correspond to its two fundamental elements, the part which relates to the rule of law and the political part.
This also makes it possible to understand why the modern state is, as Eric Weil maintains, the only sphere in which a community can reach conscious and universal decisions.[8] As regards the organisation of power it is, in fact, the only form in which there is coincidence between those who are the authors of the law and those who must respect it, in which the holder of rights, and the subject bound to fulfil the corresponding duties, are one and the same.
Obviously, today’s states are only partial and highly flawed versions of the ideal model that embodies the general will. The main reason for this is to be found precisely in the existence of a multiplicity of sovereign states which makes the state, at once, “the guarantor of peace and respect for the law on its inside, and the agent of violence in relationship with other states… The exercise, or the threat of the exercise, of violence by the states externally necessarily compromises the certainty of legal relationship internally, since the two spheres can not be isolated. As a result, the state can achieve internally a sphere of legality only at the cost of tolerating and often promoting a sphere of relationship, both in international relations and internally, that is removed from the control of the law.”[9]
The crisis of national sovereignty, produced by man’s growing interdependence, brings to light first of all the need to enlarge the sphere of influence of the state, until it is sufficient to cope with the, now global, dimensions of the various problems it faces, be they economic, environmental, or questions of security, social justice or the defence of human rights. This process will certainly be a very long one, and one in which provision will have to be made for intermediate stages: regional unions of which Europe, providing it proves able to complete the course of its own unification through the founding of a federation, will be the first example and model. However, this process, which coincides with the overcoming of the division of humanity into sovereign states, is the only one with the capacity to achieve anything approaching a realisation of the full expression of the general will. It will involve “the progressive gaining of self-awareness of the world federal people in–the-making through the formation of regional federations, and its resolution will be the foundation of the cosmopolitical federation… [It will be] the foundation of a state that, in its turn, will approximate more than ever before to the realisation of its own idea, freeing itself from its violent side and assuming as its sole mission the pursuit of the common good of humanity.[10]
In conclusion, institutions like international criminal courts, as well as analyses that indicate the need to affirm a law of universal citizenship, both constitute demonstrations of a real need, and highlight — albeit, generally-speaking, unconsciously — the fact that the crisis of the state as “the agent of violencein international relations has already begun. But the solution that both envisage, i.e., the transformation of international law into regulations that will bind the sovereign states, is wrong and even counterproductive: it is wrong because there can be no short-cuts in the affirmation of peace, which, rather, is brought about through the slow process of building a world state; and it is counterproductive because, as mentioned at the start, spreading the illusion that peace and law can be achieved even in a divided world not only leads to the mobilisation of energies in pursuit of illusory objectives, but also leads away from an awareness of the reality of the problem. Demonstration of this is provided, once again, by Europe, which exploits the international institutions in order to avoid shouldering its responsibilities and making a real contribution to the peace-building process. Compliant alignment with American decisions, which is what we currently see, certainly does not constitute a real contribution, and neither, vice versa, do minor efforts to unsettle the hegemonic power — such as, precisely, lending support to the birth of theInternational Criminal Court — in areas where it is clear that there is no penalty to be paid. Europe can, in fact, make a real contribution only by setting in motion the process that, through the completion of its federal unification, will lead to the overcoming of the absolute sovereignty of the states, and open up the way for similar processes in other parts of the world.
Luisa Trumellini

[1] I. Kant, Zum ewigen Frieden. Ein philosophischer Entwurf, inI. Kant, Sämtliche Werke, Band 6, Insel-Verlag, Frankfurt a.M.,1964, pp. 210-211.
[2] I. Kant, Die Metaphysik der Sitten, in, I. Kant, Sämtliche Werke, Band4, Insel-Verlag, Frankfurt a.M., p.474.
[3] Ibid., p. 339.
[4] Ibid., p. 366.
[5] J. Habermas, Die Postnationale Konstellation, Frankfurt a.M., Suhrkamp Verlag, 1998.
[6] These highly schematic references are taken from Verfassunglehre, Berlin, 1928.
[7] Political here means, in contrast to the rule of law, a concept of law that derives from the form of political existence of the state and from the concrete structure of the organisation of power”, in C. Schmitt, Verfassunglehre, cit.
[8] E. Weil, Philosophie politique, Paris, Vrin, 1966.
[9] F. Rossolillo, “Popular Sovereignty and the World Federal People as Its Subject”, in The Federalist, XXXVII (1995), p.150.
[10] Ibid., p. 184.


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