Victors' Justice

From Nuremberg to Baghdad

Danilo Zolo, M W Weir

• Publisher: Verso
• Year: 2020
• ISBN:
  9781788736640
• Topic: Politica e relazioni internazionali
• Subtopic: Relazioni internazionali

Victors' Justice is a potent and articulate polemic against the manipulation of international penal law by the West, combining historical detail, juridical precision and philosophical analysis. Zolo's key thesis is that contemporary international law functions as a two-track system: a made-to-measure law for the hegemons and their allies, on the one hand, and a punitive regime for the losers and the disadvantaged, on the other. Though it constantly advertised its impartiality and universalism, international law served to bolster and legitimize, ever since the Tokyo and Nuremberg trials, a fundamentally unilateral and unequal international order.

1

THE CRIMINALIZATION OF WAR

The juridical negation of war

In some celebrated pages of Der Nomos der Erde, Carl Schmitt argued that the conclusion of the First World War coincided with the end of the centrality of Europe and the passing of the jus publicum Europaeum. This marked the end of an international order conceived of in spatial terms—as established at Westphalia—which, in the celebrated formula of Emmerich de Vattel, sought to mettre la guerre en forme.¹ It was replaced at Geneva in the second decade of the twentieth century by the League of Nations, a universalistic and ‘de-spatialized’ institution which came into being at the instigation of the United States and was dominated by the cosmopolitan credo of Woodrow Wilson. Its declared aim was to ensure a lasting peace throughout the world, and not only in Europe. In Schmitt’s view, international law as formulated at the Geneva conference table no longer served to ‘ritualize’ warfare between the states of Europe so as to limit and moderate it and prevent the sort of ‘war of annihilation’ experienced in the wars of religion. Instead, the League of Nations set out to ‘be simultaneously a European order and a universal and global order’. At Geneva, in the name of the universalistic dogma, ‘there was much talk about the proscription and abolition of war, but none about a spatial bracketing of war’.²

The League of Nations, according to Schmitt, was doomed to failure because the new institution was an attempt to abolish war simply by declaring it illegal. In reality, he maintained, ‘any abolition of war without true bracketing resulted only in new, perhaps even worse types of wars, such as reversions to civil war and other types of wars of annihilation’.³ In common with universalistic pacifism, the grandiose design of making ‘aggressive war’ an international crime was bound to fail, for it was viewed not only as a crime to be imputed to the nations at war, but also as involving the penal responsibility of individual persons. In Schmitt’s opinion, the criminalization of wars of aggression is a return to the notion of bellum justum and the whole medieval issue of justa causa belli which had been elaborated by Francisco de Vitoria to justify the conquest of the New World by the Catholic powers.⁴ It was no coincidence, he adds, if authors such as the Belgian Ernest Nys and, in particular, the American internationalist James Brown Scott had gone out of their way to revive the doctrines of Vitoria in the first decades of the twentieth century.⁵

This neo-scholastic philosophy lay behind the Western internationalist doctrine which, in the first decades of the twentieth century, sought to rid itself of the legal notion of justus hostis intrinsic to the jus publicum Europaeum. What was being rejected was the Westphalian principle of the legality of war between states, conducted by sovereign authorities which could lay claim to equal rights, including the right to use force to assert the interests of the state. This was replaced by an ethico-political evaluation of the ‘causes of war’, which gave a negative connotation to the notion of ‘aggression’ (le crime de l’attaque), even though in the Judeo-Christian tradition, and in particular in medieval Catholic theology, this notion had no such negative overtones. The medieval doctrine of the bellum justum made explicit provision for the possibility of a ‘just aggression’. In much the same way as the Jewish doctrine of the milchemet mitzvà (‘obligatory holy war’), the theory of a just war considered wars of aggression to be morally acceptable—bellum justum offensivum—if waged by Christian rulers against any rulers and peoples who refused to recognize the authority of the Church. Turks, Arabs and Jews were thus automatically deemed to be hostes perpetui.

According to the new doctrine, Schmitt maintained, the aggressor was no longer a justus hostis but a ‘criminal’ in the full penal sense of the term; an ‘outlaw’, indeed, on a par with a pirate, with no claim to rights of any kind, just like the infidels under the doctrine of the bellum justum. Thus the procedural guarantees that European international law had come up with for the ‘state of war’, in an attempt to contain the most devastating and sanguinary consequences of armed conflicts, were lost to view. Instead, alongside the medieval model of a ‘discriminatory war’, ‘confessional civil war’ as waged between religious factions in the sixteenth and seventeenth centuries made its reappearance.⁶ As Schmitt laments, this involved the destruction of a ‘marvellous product of human reason’ which had only been achieved by dint of ‘laborious legal work’ and thanks to which there had been no war of large-scale annihilation on European soil for more than two centuries.⁷

Such a reconstruction of the history of modern international law begs some important questions. In particular, one must doubt whether the jus publicum Europaeum really introduced any significant elements capable of attenuating violent warfare during the two centuries in which it was in force, in spite of the attempt, dating from the treaty of Münster in 1648, to set up a system of collective security designed to stop individual states from having recourse to the use of force.⁸ One only has to think of the Napoleonic wars, which hardly receive a mention in Der Nomos der Erde, or the military expansionism of the European colonialists, principally the British Empire. Schmitt treats the colonial wars as an adiaphorous phenomenon with respect to the European scenario, since he believes that the juridical ritualization of European warfare required a spatial delimitation which, by its very nature, excluded the limiting of colonial conflicts. And we could add that the First World War, with its eighteen million victims—ten million of them civilians—and over twenty million wounded, was itself an irrefutable indictment of European international law, which patently failed to contain the devastating effects of new weapons and military strategies.

Nonetheless, there is some corroboration for Schmitt’s thesis in the conviction that gradually gained ground in the first decades of the twentieth century that new international institutions were called for: the Westphalian system of sovereign states had led to a situation of anarchy that the treaties and multilateral diplomacy of the ‘Concert of Europe’ had been unable to redress. This involved moving beyond the jus publicum Europaeum and its excessive pluralism and particularism. It also required a drastic revision of the notion of the sovereignty of nation-states, making way for the construction of institutions which were ‘supranational’ and not simply inter-state. This point is forcefully made by the foremost European jurist of the twentieth century, Hans Kelsen, in his essay Das Problem der Souveränität, and again in his celebrated manifesto for ‘legal pacifism’, Peace through Law, which takes its cue from Christian Wolff and Kant.⁹ It became necessary to dispense with not only the traditional normative and institutional structures pertaining to states, but also the hidebound European strategies of the balance of power, with their attendant diplomatic formalities such as the protocol of ‘declaring war’.¹⁰ A stable, universal peace could only be achieved by means of a global legal system able to transcend the particularism of state sovereignty and vest the legitimate use of force in a supranational authority—a ‘universal state’—unfettered by the domestic jurisdiction of the individual states. It was also essential to affirm the ethical and political primacy of the international legal system as civitas maxima, recognizing all members of the human community as its subjects.¹¹

In the framework of these very general premises, it may be instructive to consider to what extent—in the context of the legal prohibition of war that asserted itself in the course of the twentieth century at the instigation of the victors of the two world wars—the identification of ‘aggressive war’ as an international crime produced the results its advocates had claimed for it. An analogous question can be raised concerning international criminal justice. But we might also ask whether, on the contrary, these institutions did not in fact bring nearer the apocalyptic vision Carl Schmitt evokes repeatedly in Der Nomos der Erde: a comprehensive discriminatory war—or ‘global civil war’ (ein globaler Weltbürgerkrieg)¹²—no longer subject to the legal limitations of the ‘old inter-state war’, and hence sanguinary and destructive in the highest degree.

According to this prophecy, the doctrine of universalism, more ethical than juridical, preached by the Western internationalists—primarily the United States—gave rise to international institutions which were incoherent in normative terms and politically ineffective. It was the failure or impotence of these institutions which ended up by legitimizing the global use of force in the name of civilization, or humanity, against enemies branded as the new barbarians or infidels.¹³ In the light of an abstract, moralistic notion of world order, modern warfare turned, under the impulse of American imperialism, into ‘global war’ legibus solutus (‘beyond the law’). Having suffered military defeat, the enemies of humanity were to be indicted as barbarian aggressors and subjected to exemplary punishments, sanctioning their moral worthlessness and exclusion from the civil world, putting them beyond the pale of any peace treaty or amnesty, and even denying them any right to humane compassion. In a word, they became ‘bandits’ to be exterminated in the name of the victors’ justice.¹⁴

The failure of universalist institutions and the normalization of war

There is nothing to be gained by presenting a brief, highly charged denunciation of how juridical–institutional universalism came to grief in the twentieth century. It would be all too easy to cite empirical evidence for the way military violence triumphed in the Second World War just as it had in the First, and how, in spite of the United Nations, one armed conflict after another broke out in the 1950s, ’60s and ’70s. One need look no further than the attack on Vietnam launched by the United States, and the Soviet Union’s offensive against Afghanistan. Or again, the ‘new wars’ launched at the turn of the new millennium: from the Gulf War in 1991 to the two ‘humanitarian wars’ in the Balkans, the aggression against Afghanistan by the United States following the terrorist attack of 11 September 2001, and the ‘pre-emptive war’ launched by the United States and Britain against Iraq in 2003.

In the course of these conflicts, hundreds of thousands of innocent people have lost their lives, been mutilated or wounded, or had their families and property destroyed. Hundreds of thousands more civilians have died from hunger or disease on account of the embargoes imposed by the West—above all the one on Iraq following the war in 1991. In contrast, the military losses sustained by the Western forces have been very limited, and in some cases nil. To the scourge of war we have to add the ongoing ethnocide of the Palestinian people, the continuous violence being inflicted on the Chechens, Kurds and Tibetans, and lastly the atrocities of international terrorism. The escalation of hate, grief, destruction and death has had its counterpart in the inertia or sheer impotence of the international institutions which are supposed to safeguard peace.

One might say that war has been totally ‘normalized’, both in practice and, all the more, in the way it is being explicitly endorsed by the leading Western powers. The ‘industry of collective death’ has never been so flourishing, in spite of the generous but ineffective campaigning of the pacifist movements. The production and commerce of arms, including nuclear weapons, is no longer under the control of the so-called ‘international community’. Indeed, the use of arms depends on the decision to kill, which the major powers take in the light of their own strategic interests. A collective death sentence is pronounced, with total impunity, against people (in their hundreds, even thousands) who are neither guilty of any crime nor morally reprehensible in any way whatsoever. War has come to be seen as the supreme expression of scientific and technological progress, unstoppable and invincible. It has become an ‘intelligent’, ‘surgical’ activity, technologically sterilized and sublimated, in which death, the mutilation of bodies, the devastation of everyday life, and terror are the familiar ingredients of a ritual spectacle which fails to provoke any emotional reaction. Collective killing, whether in the name of public authority or in the service of private interests, has once again become a prized and noble undertaking, affording financial reward, social standing and public acclaim.

In spite of all this, I do not believe any decisive arguments can be inferred—in the normative and institutional domain—from the simple fact that violent warfare was never stopped during the twentieth century and that, on the contrary, it actually erupted in forms of exceptional virulence in the last years of the century, following the collapse of the Soviet empire and the end of the juxtaposition of the two superpowers. If this were not the case, it would be all too easy to share Schmitt’s pessimism and regard his critique of Anglo-American institutional universalism as an acute and far-sighted diagnosis. But the fact that violence and bloodshed remain at the centre of human history can hardly come as a surprise to any realistic spectator of international relations. And besides, Schmitt’s own criticism of the discriminatory ruthlessness of the United States’ warmongering cannot be ingenuously accepted as deriving from limpid pacifist and anti-imperialist motivations.¹⁵

Today ‘pre-emptive’ global war, as theorized and practised by the United States and its closest Western allies, seems to be part and parcel of the development of globalization processes that are increasingly dividing the world between the rich and powerful, on the one hand, and the poor and weak on the other, while so-called ‘global terrorism’ has become the no-less-sanguinary-and-nihilistic counterpart of the neo-colonial conflict which sets the West against the countries that resist its claim to planetary hegemony.¹⁶ In these circumstances, it is not easy to imagine a reform of international institutions such that they could condition the hegemonic strategies of the major powers—the United States in particular—by disciplining and limiting the use of international force. The recent failure of the (highly prudent) project of reform of the United Nations proposed by Kofi Annan and his High-Level Panel is just one more confirmation of the stalemate.¹⁷ The only function which international institutions seem able to carry out today—and this may be precisely why they are kept in being—is that of adapting to the status quo and legitimizing it. Confronted by a concentration of power which increasingly takes on the form of a neo-imperial world constitution, the international institutions are once again revealing their inability to stand up to the powers that be. As Alessandro Colombo has written, in a historical condition like that of the present, in which the distribution of power and wealth is as unequal as it could possibly be, even the fundamental principles which have regulated international society for centuries—state sovereignty, the legal equality of states, non-interference in internal jurisdiction, the regulation of warfare—tend to become the instruments of the strongest.¹⁸

Leavin...