- Victors’ Justice: From Nuremberg to Baghdad by Danilo Zolo, translated by M.W. Weir
Verso, 189 pp, £14.99, October 2009, ISBN 978 1 84467 317 9
No casualty of recent wars has been mourned more keenly than the concept of international law. By the summer of 2001, so its standard bearers believed, international law had largely achieved its rightful primacy, guiding and ordering world affairs from the UN building in Manhattan. Philippe Sands, a prominent proponent of this view, claims that after the fall of the Berlin Wall, ‘the liberal Anglo-American vision of a rules-based international system appeared to be becoming a reality.’ True, there had been some backsliding in the Clinton years, but nothing to compare with what happened in response to 9/11. According to the jurist Richard Falk, September 11 saw a terrible departure from the norm that prevailed in the aftermath of the Second World War, when, so it was said, the right to make war – the jus ad bellum – came under strict legal control:
World War Two ended with the historic understanding that recourse to war between states could no longer be treated as a matter of national discretion, but must be regulated to the extent possible through rules administered by international institutions. The basic legal framework was embodied in the UN Charter, a multilateral treaty largely crafted by American diplomats and legal advisers. Its essential feature was to entrust the Security Council with administering a prohibition of recourse to international force (Article 2(4)) by states except in circumstances of self-defence, which itself was restricted to responses to a prior ‘armed attack’ (Article 51), and only then until the Security Council had the chance to review the claim.
The ban on wars of aggression, and the strict control even of wars of self-defence, had been the centrepiece of international law, proclaimed at the Nuremberg tribunals and institutionalised in the UN. Until 2003, so the story goes, launching a war without justification was a rare and regrettable breach.
It is difficult to see how this story caught on, even among lawyers. The US invasion of South Vietnam, the bombing campaigns against North Vietnam and Cambodia, and the invasions of the Dominican Republic and Panama; the Soviet invasions of Hungary, Czechoslovakia and Afghanistan; Turkey’s invasion of Cyprus; Indonesia’s invasion of East Timor: the catalogue of wars of aggression, many leading to more fatalities than the invasion of Iraq, is long and depressing. Yet we continue to talk about international law as if we believed in its global, god-like authority. It is a habit that Danilo Zolo would like us to forgo. ‘No one expects the United Nations, or the international criminal courts, to ensure a stable and universal world peace,’ he writes, ‘for this is a Kantian utopia devoid of theoretical and political interest.’ Rather than trying to reinforce the authority of the Security Council, Zolo says we ought to give up on it. He also believes it’s time we abandoned our faith in the UN’s ad hoc criminal tribunals, in the reheated medievalism of ‘just war’ theory, and even in the notion of universal human rights, a doctrine increasingly weaponised and called ‘humanitarian intervention’. International law has failed to prevent countless atrocities, and the great powers suffer no significant penalty for launching wars of aggression, ‘preventive’ or otherwise.
Over the past two decades Zolo has developed an illuminating and unusually coherent critique of the international legal order, its aspirations, its many uses, its successes and failures. Born in 1936 in Rijeka in Croatia, he came of age in the Marxist-dominated intellectual milieu of postwar Italy. Having experienced the Italian ‘years of lead’ of the 1970s, when the rule of law was routinely undermined by terrorists, by organised crime and, most seriously, by the state itself, Zolo knows that lo stato di diritto is more than a buzzword. His work on international law is contained in a loose trilogy, beginning with Cosmopolis: Prospects for World Government (1995), followed by Invoking Humanity: War, Law and Global Order (2000) and Victors’ Justice: From Nuremberg to Baghdad, published in Italy in 2006.
Zolo’s trilogy is a critical engagement with the true believers in international law and its juridical pacifism, a number of whom – Habermas, Rawls, even Falk himself – have ended up endorsing recent wars, from the Nato assault on Belgrade to the invasion of Afghanistan. Some promoters of the liberal Kantian project – for example, Michael Ignatieff – have gone further, embracing the invasion of Iraq as a muscular extension of normative human rights, and in some cases dreaming of yet more humanitarian assaults on targets from Khartoum to Tehran.
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