Year XLIII, 2001, Number 2, Page 89
Law and Politics
Certain events in recent history have seemed to suggest that the end of the Cold War ushered in a new phase in international relations, a phase characterised by a progressive extension of the sphere of law in relation to that of politics, and thus by the increasing prevalence — in what cannot be but a slow and difficult process — of behaviour inspired by the principles of justice over that dictated by the demands of the raison d’état.
This apparent tendency has manifested itself in a number of contexts. Criminal courts have been set up, following the precedent of the Nuremberg Trials way back in the forties, for the former Yugoslavia and for Rwanda, and in the near future, as soon as the founding agreement reached in Rome in July 1998 has obtained the necessary number of ratifications, an international criminal court will be set up whose jurisdiction will no longer be restricted to events occurring in a given region, but instead extended to all acts of genocide, to all war crimes and to all crimes against humanity, wherever they are committed. As we wait for the birth and the entry into force of this international criminal court, we are witnessing a spread of the principle of so-called universal jurisdiction, according to which the perpetrators of the crimes just mentioned can be tried by any national court, regardless of the nationality either of the accused or of the victims and regardless of the place in which the crimes are alleged to have taken place. At the same time, some governments are tending, increasingly, to cite the violation of human rights on the part of other states as a means of justifying their own hostile actions towards them, and to confer on these actions the seemingly legal status of punishment of crimes. In the most extreme cases, it is even deemed legitimate, on the basis of the so-called “right of humanitarian intervention” to go as far as armed intervention. Similarly, armed intervention is not presented as a political act, but rather, as the legal restoration of respect for rules that have been violated through serious criminal acts committed by a country’s government, or by one section of its population against the members of another section.
All these events and tendencies are, without doubt, a sign of the growing awareness, among certain sections of public opinion in the countries of the industrialised West, of the need to give justice an international dimension. But there is also a darker aspect to them, which is engendering new hypocrisy and ambiguity in international relations. One only needs to consider the fact that the general cry is for a retributive kind of justice, in other words, for the punishment of crimes committed by politicians or by the military, while scant interest is shown in the concept of distributive justice — in the need, that is, for a more just and even distribution of the world’s wealth. It is the absence of this justice, highlighted by only a few, a few whose words tend, moreover, to fall on deaf ears, that often lies at the root of the very crimes for which punishment is so vehemently demanded.
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Efforts to bring an end to violence and oppression in relations between states through the introduction of some kind of substitute for law are certainly not a new phenomenon in the history of mankind. The classic concept of international law was developed precisely to this end. This does not mean that it was conceived in opposition to politics. Quite the contrary. From the very birth of the modern state, the existence and observance of certain rules have, at least under normal circumstances, always served the clear interests of governments. The main purpose of a state is to pursue its own interests and to preserve or increase its power without having recourse to war. Thus, the existence of treaties, agreements and all the other practices that establish or decide certain rules and lend a measure of predictability to the behaviour of states, is, under normal circumstances, to the good of everyone.
Clearly, however, this measure of predictability is far from sufficient to prevent the periodic recurrence of the tragic phenomenon of war. After all, international law is not true law. In the absence of a superior power, able to guarantee a relatively consistent interpretation of its complex system of rules, as well as relatively certain sanctions in the event of their violation, the observance of international law depends entirely on the goodwill of the states, which, when vital interests are at stake and negotiation proves impossible or fruitless, are, in extremis, left only with recourse to violence as a means of settling their disputes.
In the first half of the twentieth century, the horror generated by the extermination and destruction of two world wars led, for two short periods of time following the end of each of them, to the birth and the diffusion of the hope that international law might be rendered binding through the creation of politically-oriented international organisations of global dimensions. It was felt that the Society of Nations, initially, and later the United Nations Organisation, should, expressing public opinion in the world and drawing strength and authority from the general inclination towards peace, strive to ensure that justice prevailed over the logic of national interests, in such a way that observance of the rules of international law no longer depended on the free will of states. But on both occasions, the illusion was short-lived. The Society of Nations, incomplete from the outset, soon disintegrated, while for a long time the UN merely provided the stage on which the power conflict between the United States and the Soviet Union unfolded. And since the collapse of the Berlin Wall, it has served only to reflect the events that have denoted America’s precarious hegemony over the rest of the world. In short, in their working and in their decisions, both organisations did little more than mirror the existing power relations. What is more, in order to implement the decisions they reached, they used, and still use, the military instruments made available to them by the states that belonged, or belong, to them. Both were caught in the tragic and paradoxical trap, pointed out by Einaudi as long ago as 1918, of endeavouring to impose peace through recourse to the instrument of war. Despite the considerable symbolic significance both organisations had, and continue to have, given the circumstances of their foundation, neither was able to alter the nature of international relations. International law continued to be what it had been: an instrument serving the raison d’état.
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The international criminal courts, and in particular the one destined to be born of the Rome agreement (for which the so-called universal jurisdiction, already seized upon by certain national tribunals, is only intended as a temporary substitute) should provide a different kind of answer to the need, mentioned earlier, to make certain universal laws and principles binding. Since they judge, and will judge, and when necessary condemn, and will condemn, not states but individuals on the basis of laws whose validity extends beyond the boundaries of states, these new tribunals could seem to be a first, embryonic form of cosmopolitan law. It was thus to be expected that their creation should generate hope and mobilise energies.
But the truth is that the activity of the various international courts has not altered, nor is it destined to alter, the basic picture. Of course, the deeds that they have been, and will be, called upon to judge (acts of genocide, war crimes and crimes against humanity, defined at the institution of the Nuremberg Tribunal and subsequently codified by The Hague Convention in 1948 and the Geneva Convention in 1949) are utterly abominable and a shocking affront to the consciences of all civilised men and women. But this is missing the point. The point is that the “law” on the basis of which these tribunals passed, and will pass, sentence is not law, but an instrument of power. The deeds whose criminal nature they are required to assess are crimes that can be punished only when the accusers are the victors and the accused the vanquished, or when the accusers are strong and the accused weak. It is indeed the Nuremberg trials that provided the first historical demonstration of this truth. The Nuremberg Tribunal was not — obviously — required to judge those responsible for mass exterminations like the bombing of Dresden or the dropping of the atomic bombs on Hiroshima and Nagasaki. These deeds, committed by the victors, could only be viewed as legitimate acts of war.
This is certainly not to say that the atrocities committed by the Nazis in the course of the Second World War should, in terms of their deep historical significance, be equated with those committed by the Allies. It merely means that the sentences passed at Nuremberg do not base their legitimacy on legal rules — in order to be such these would have had to be equal for everyone — but on history. The clash between the forces of democracy and the forces of Nazi totalitarianism that led to the Second World War brought to the fore conceptions of man, of civil cohabitation and of the future of mankind that were radically incompatible. The victory of the coalition of democracies (and of the Soviet Union) could not have culminated in anything other than the annihilation of both the Nazi regime and its leading figures. It was, indeed, an act of civility that these individuals were given the possibility of defending their actions before a court, and not subjected to an act of summary justice. But all this has nothing to do with law. Law cannot take into account the global historical context in which certain acts are perpetrated. A hypothetical, impartial judge, applying the criteria on whose basis the Nazi war criminals were convicted, could not fail to have accused and convicted also those who ordered, and physically carried out, the acts of war on Dresden, Hiroshima and Nagasaki.
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Similar conclusions can be reached when considering the habitual citing, as an instrument of foreign policy, of another state’s violation of human rights. To date, recourse to this argument has been had solely as a means of defending precise corporate interests and its use has merely heightened contrasts between states without influencing, in any real way, the promotion of any value of civil cohabitation in the various countries that, in turn, are accused of failing on the human rights front. To a considerable degree, the reason for this lies in the fact that, at the current evolutionary stage reached by the process of emancipation of the human race, there exists no universally accepted notion of justice, no universally recognised scale of priorities as regards social and political values. This, in turn, can be attributed both to the persistence of profound differences in outlook determined by the diversity of cultures and to the fact that, in countries that are less economically developed than those of the industrialised West, the observance of what the West defines as “human rights” must, necessarily, be secondary to the urgent need for development and for the maintenance of a degree, often precarious, of social peace. It is these radical differences that render it impossible to form a world power, sustained by a universal consensus and equipped to impose, on the whole of mankind, observance of and respect for the same laws and principles; these differences that make it impossible, too, to give the expression “human rights” a meaning that is unequivocal and accepted universally on the international stage. It is therefore crucial to draw a clear distinction between the call for human rights addressed by a people to its own government in the course of a revolutionary struggle and that addressed by one government to another purely as a means of justifying a hostile policy. In the first case, the rights the people are demanding constitute the legal expression of values that are generally shared: this expression, providing the revolutionary movement prevails in the struggle, is destined to evolve into laws and decisions that are sufficiently clear and, in the main, equal to all men. The same cannot be said, on the other hand, in the case of relations between states. This is why any attempt made by one state to impose observance of human rights on another is always bound to fail, or, as in the case of the UN intervention in Somalia between 1992 and 1995, to stir up hostile reactions that lead to the development of power or propaganda operations destined to have disastrous results.
As before, this does not mean that we are obliged to embrace a relativist vision of civil cohabitation, or that we have to give up fighting for the values in which we believe. This review has always been guided by its conviction in the absolute validity of the “Western” values of freedom, justice, equality of the sexes, respect for the environment, and so on. But believing completely in the universal character of certain values must not blind us to the fact that many of them are not recognised by entire societies, organised into states — societies that follow behavioural rules that are different from the values to which we aspire. This can lead us to just one conclusion: that the only way to generate a widespread acceptance of a certain conception of human rights is to generate the spread of the way of life of which that conception is the expression. To this end, it is crucial to avoid using the violation of human rights argument as a means of threatening or of bringing pressure to bear on other states. Instead, we must trust in the capacity of Western values to assert themselves outside the West, through a global political design aimed at promoting cooperation and dialogue; it is also important to recognise, when the incompatibility between different conceptions of cohabitation becomes so extreme as to produce the breakdown of established balances in international relations, making recourse to violence inevitable, that the latter is not a quasi-automatic penalty for behaviour that goes against the law, but instead an eminently political choice. It is a choice that must entail not only a full evaluation of all the values and all the interests at stake (as well as of the power situation that makes the promotion of the same possible), but also the shouldering of all the responsibility, and attendant risks, that it involves.
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And thus we reach the question of the “right of humanitarian intervention”. This is presented as the direct opposite of the so-called “principle of non intervention”, (considered one of the fundaments of classic international law and, in practice, systematically violated in international relations). In actual fact, the “principle of non intervention” is connected with the recognition by all states of the sovereignty of other states, and thus of the right of an other state to take the measures necessary to promote the type of cohabitation that characterises its own society. But since the Gulf War, there has been a progressive acceptance of the idea that there exist certain fundamental legal rules, rules that protect values universally deemed inviolable, whose validity extends beyond the sphere of the sovereignty of each individual state and whose observance can be enforced by any state on those that do violate them, even through recourse to arms and in contempt of the principle of non intervention. But here also, the basic contradiction that is inherent in the very nature of international law surfaces once again, in so far as 1) it is never a superior and neutral body that declares a state guilty of violating certain essential human rights, but always the state that decides to intervene in the domestic affairs of another (if possible, and when the necessary alliances are in place, with the backing of the United Nations), 2) the states that exercise the “right of humanitarian intervention” have, to date, always been Western powers — large or medium-sized — whereas the parties guilty of violating human rights and incurring the resulting “penalty” have always been poor countries, or ones weakened by deep internal splits and 3) this “humanitarian intervention” has always taken the form of harsh acts of war whose effects on the civil population have been at least as devastating as (if not more devastating than) those of the actions that the intervention set out to punish. Once again, the intention here is not to deny that some of the actions that have been carried out in the name of “the right of humanitarian intervention” have been justifiable attempts to check appalling social catastrophes. But in order to justify the extreme selectiveness of its application, it would be necessary to talk in terms not of the exercising of a right (from whose enforcement some countries, China and Russia for example, are excluded a priori), but instead of the responsible exercising of a power. From this perspective, it is also much easier, among other things, to highlight the huge responsibility of Western countries for all the humanitarian disasters that have occurred in recent history. By systematically refusing to channel more than an insignificant part of their national product into development aid, these countries have helped, decisively, to provoke, in the poor countries of the world, the very traumas that they have later striven to plug, generally unsuccessfully, claiming the right of humanitarian intervention.
The truth underlying all this is to be found in the Kantian precept that there can be law only where there is a state, and that where there is no state, anarchy reigns. In the light of this, the only way to render international law equal and certain is to turn it into the constitutional law of a world state. Until this objective is in sight — and at the present time it is not in sight — any expedient suggesting that international law can be rendered binding in a world made up of sovereign states is mere hypocrisy. International relations will continue to be governed by politics, and politics will continue to be duplicitous, representing, at once, both pursuit of the common good and the art of conquering and managing power. Power, in turn, will continue to be the indispensable instrument for the realisation of a flawed common good — the only kind that can be achieved in a divided world. Power, albeit loaded with ambiguities, will continue to guarantee respect for the law within states and to assume responsibility for ensuring a reasonable degree of stability and fairness in international relations, and thus to guarantee a minimum of effective international justice. But in order to pursue these ends and, in the midst of international anarchy, to promote the values shared by the people they represent, the holders of power have no choice but to make compromises, to commit injustices, to use deceit and to have recourse to violence or to the threat of violence — in short, to commit or to tolerate acts that would, by their own internal legal orders, be classed as crimes. No statesman (and certainly no statesman called upon to manage huge international responsibilities), if brought before an impartial court that was judging his actions and omissions in the carrying out of his own government’s foreign policy on the basis of the criteria applicable to his country’s domestic legal order, would be able to escape a conviction. But in foreign policy the pursuit of the common good certainly does not mean the dogmatic application of pre-established rules, but instead the choice — often a dramatic one — between alternatives that are all, in part, inherently wrong and unjust; it means assuming the relative responsibility, before one’s own people and before the whole of mankind.
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Today, politics is faced by two great tasks, and Europe is the world region where these tasks can be carried out. The first is to widen the sphere of law, by widening that of the state. As far as the journey towards the definitive transformation of international law into domestic law is concerned, the institutional goal that must be achieved is the founding of a world federal state. Moreover, just as the overcoming of mediaeval anarchy through the founding of the modern state led to a vast enlargement of the sphere of law in Europe, and thus rapidly to an unprecedented level of civil evolution, so it could now spread from the national to the continental sphere through the federal unification of Europe. Europe is today faced with a choice between federal unification and descent into a second Middle Ages, a course, which many predict, and some desire: in other words, either a full renewal of the rule of law or a plunge into nationalistic anarchy or local tribalism. Crucially, were it to choose the first option, Europe would, by its own example, also stimulate other regional unifications (that is to say an extension of the sphere of law in Latin America, Asia and Africa) and thus help to speed up the process towards world unification.
The second task is to promote fairer kind of international “law” and greater respect for its rules. Europe’s unification would not alter the nature of international “law”, observance of which would continue to depend on the goodwill, or rather the interests, of states. But in certain circumstances — when the world power situation is balanced, or the interests of a hegemonic power coincide with those of the states that are within its sphere of influence — international relations are characterised by a greater degree of stability and governments are more ready to implement foreign policies oriented towards the reaching of fairer agreements and the stricter adherence to undertakings made. This is not the situation today. The United States of America, left alone to guarantee a semblance of world order, is obliged to shoulder responsibilities too vast for its resources. This leads it to violate, increasingly frequently and increasingly patently, the fundamental principles of international justice, to affirm its sovereignty by violating that of others, and to block the functioning and even the existence of international organisations that it cannot control. Meanwhile the European states, being divided, are forced to renounce all responsibility on the international stage. The state has thus reached a crisis point both in the United States and in Europe: in the US because of the excessive weight of the responsibilities it has to assume; and in Europe because of the incapacity of the various countries to face up to those that they should be assuming.
Let it be clear that the change that is required cannot be expected to come from the United States. Europe is the only area in the world that can generate a radical — and positive — change in the global power situation. The European governments are in an unusual position: it is within their power not only to create a solid foundation for their cohabitation and for the values by which they are guided, but also to unburden the Americans of a share of their responsibility towards the rest of the world, thereby allowing them once more to play an international role that is open and progressive and breathing new life into their very democracy. This is the only way that can lead to the creation of a more stable world balance, on whose basis fairer international rules might be agreed, and whose observance might reasonably be guaranteed. But to achieve these goals, Europe’s governments must be prepared to make political choices, accepting all the risks involved, and not hide behind the fragile screen of law that is not there.
The Federalist
