Hans Kelsen, the Theory of Law and the International Legal System - A Talk 5 The Theory of `Just War' and the Problem of the Legal and Moral Qualification of War D.Z. Let me move, by way of conclusion of our dialogue, to a topic you have been dealing with for a long time, which divided us during the Gulf War. This is the problem of the legal and moral treatment of war. You have repeatedly criticized the doctrine of the just war, especially in the essay `Il problema della guerra e le vie della pace', proclaiming its obsolescence in the nuclear age. You have maintained that modern war, from both the ethical and the legal point of view, is legibus soluta. It is, you have written, outside `any possible criterion of explanation and of legalization. It is uncontrolled and uncontrollable by law, like an earthquake or a storm. After being regarded either as a way to implement law (the theory of the just war) or as an object of legal regulation (in the evolution of the ius belli), war has gone back to being, as in Hobbes' portrayal of the state of nature, the antithesis of law.' Your intransigent ethical and legal rejection of war is very far removed from Kelsen, who, albeit with ambiguity and vacillations, adopted the doctrine of the iustum bellum. It seems to me, though, that in more recent years you have changed your opinion on this point. For instance, you liked Michael Walzer's book, Just and Unjust Wars, and in an interview after the Gulf War, as I mentioned, you maintained that the tradition of the just war still has something important to say to us. Do you really think that this doctrine still contains any features of validity or interest? N.B. I wish to emphasize that my thoughts on the problem of war began in the 1960s - that is, the period of the Cold War and the balance of terror. When I defined war as an event, like a natural disaster, lying outside any legal or moral valuation, I was referring essentially to nuclear conflict. I maintain that conviction. Yet there is the risk of deducing from this position the principle that in the nuclear age any type of armed conflict is illegitimate and unjust. One might even draw the conclusion that a war of defence against aggression or a war of national liberation are unjust too. I do not share this conclusion, since I feel there must be a distinction between `primary violence' and `secondary violence', between whoever first uses military force and those who are defending themselves. Normally whoever first uses force is the aggressor, and those exercising force second are the weaker, compelled to defend themselves: the two positions cannot be legally or morally set on the same plane. This is the classic topos of aggression and resistance to aggression. I am very well aware that it is not at all easy in specific situations to determine clearly who is the aggressor and who is the victim, for instance in the case of a civil war. Yet we cannot neglect the fact that - as I maintained during the Gulf War too - if we do not establish criteria for legally and morally assessing the use of military force, we run the risk of always giving in to the bully. I usually say that if we were all conscientious objectors except one, this one could take over the world. Aggressors are very happy to find themselves facing adversaries who renounce the use of force. I am absolutely convinced of that. I say it with the greatest of respect for non-violence and for absolute pacifism. Indeed, there ought to be a truly absolute pacifism, practised by all... but we are aware that that is not the way things are, and perhaps never can be. D.Z. I would like to note, though, that these are practical arguments that do not necessarily lead to the conclusion that modern war can, in particular circumstances, be morally just (or unjust). If recourse to war is brought about by a state of necessity - the need to defend oneself against aggression - it does not thereby become a morally just act if it nonethess entails, in a nuclear age, horrendous destruction and suffering, especially the sacrifice of a very great number of innocent persons or even victims of the despotic regime - victims of the `bully' as you say - who first unleashed the violence, as happened in the Gulf War. Even a defensive war, in a nuclear age, involves enormous breaches of fundamental rights of thousands or hundreds of thousands of people. Thus a defensive war too remains, to use your expression, legibus soluta. N.B. Yet one must meditate on the fact that violent people do exist... This is why, for instance, at the domestic level we have assigned to the political system, to the state, a monopoly on the exercise of force: this has been done in order to control and reduce widespread violence, to protect citizens from the aggressions of the violent. So it is hard to see why this cannot be done at the international level too, giving rise here too to forms of monopoly of the use of force, and thus legitimating recourse to military force against those who first exercise violence. It should further be added that today, at the international level, a new, very serious phenomenon is occurring: private violence is reappearing and spreading. It is almost a return to the situation of the Middle Ages. Criminal groups are engaging in clandestine trade in arms, drug trafficking and the exploitation of women and children are multiplying and growing stronger at planetary level. The Mafia, for instance, is a phenomenon that from the West has spread to Russia as well as to China. These are extremely powerful, highly armed criminal organizations that even have heavy weapons at their disposal. In the face of this phenomenon, the power of repression available to the individual states is entirely insufficient. Their very sovereignty might be overthrown by the overweening power of the criminal organizations, something we have more or less seen in Albania and perhaps, too, in the war in the former Yugoslavia. It would not be overly bold to imagine that there could be completely different wars in the near future from those we have seen so far in clashes between states. These wars were at any rate tempered to some extent, subject to rules of ius in bello regarding, for instance, the treatment of prisoners, the prohibition of certain types of weapon, etc. All this might become something utterly passé, ridiculous... D.Z. So you think that only a supranational power, supranational courts and police, would be able to control this new type of private international violence? N.B. I confine myself at this point to noting that today there are conflicts and wars of a new type. It's a frightening spectacle... And it is clear that the powers and the jurisdiction of individual states are insufficient. D.Z. So for these reasons too, I imagine that you look favourably on the International Criminal Tribunal for the former Yugoslavia in the Hague and the one for Rwanda. And I believe that you are particularly in favour of the prospect, which has been under discussion for more than fifty years now and is today apparently becoming concrete, of the establishment under United Nations auspices of a `permanent' international criminal court. This court ought to judge all those responsible for crimes against humanity and other particularly serious war crimes, on the basis of an international criminal code. N.B. It is natural for me to be completely in favour, and along the purest Kelsenian lines. Kelsen was the first, in his 1944 work that I've repeatedly mentioned, to propose the setting up of this type of international court. I know that there are discussions in formal terms in connection with the Hague Tribunal. There are those who maintain that this is a special court, or that the United Nations Security Council was ultra vires in deciding to set it up. But I think that it was necessary to start somewhere, and that it was right to start this way. But over and above that, I am especially in favour of the fact that we are moving towards an international law whose subjects are no longer just the states, but also, and especially, individuals. This means, I repeat, the achievement of a project that Kelsen, in his farsightedness and courage, was the first to conceive.
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