Kant and Kelsen, implying the possibility of guaranteeing global peace by relying on universalistic legal and institutional instruments made available to the major powers, has revealed the true nature of its idealistic and normative abstraction as well as—and this is the most serious point—its political ambiguity. It is what, following the political realism of Hans Morgenthau, has been called the ‘cosmopolitan model of the Holy Alliance’.98
In addition to all this, we can entertain serious doubts as to the efficacy of international criminal justice—whether it is applied to punish the vanquished or, in a purely academic hypothesis, the victors—as an instrument of direct or indirect prevention of war, and hence of global pacification. In reality, there is no guarantee that a judicial activity that metes out even the most severely retributive and exemplary sanctions (the Hague Tribunal actually imposed prison sentences of forty-five and forty-six years, as well as life imprisonment)99 has any effect on the macro-structural dimensions of war—i.e. on the profound motives underlying human aggressive-ness, conflict and armed violence. When so much is being made of international criminal justice, one would do well perhaps, with Hedley Bull, to come out strongly in favour of diplomacy, above all when implemented preventively.100
From the point of view of the major powers, the Security Council, the international criminal jurisdiction and the whole discipline of the law of warfare are of use if they serve to legitimize ex post facto the results of wars which the powers themselves had decided unilaterally to wage. The United Nations, with its plethoric bureaucracy, cohort of academic jurists and ever-increasing number of self-styled ‘non-governmental organizations’, operating in reality at the service of their governments, defers to the victors and their brand of justice. Modern warfare has been transformed into a global ‘humanitarian’ and ‘preventive’ war in which the major Western powers wield ever more sophisticated and uncontrollable instruments of mass destruction, which will shortly also encroach on outer space. And they do so in the name of a ‘just war’ against the new enemies of humanity, or ‘new cannibals’: those organizations of ‘global terrorism’ which counter the nihilism of the West’s abuse of power and military superiority with their own bloody nihilism. Carl Schmitt’s apocalyptic prophecy of the advent of a ‘global civil war’, irrespective of its controversial motivations, seems to be approaching dramatic fulfilment. And there is also confirmation for the bitter adage of Radhabinod Pal, the Indian judge at the Tokyo Tribunal who was frequently at odds with the majority of the court: ‘only a lost war is a crime’.101
Global security
The practice of justifying aggressive war as ‘humanitarian intervention’ derives from documents drawn up in the highest political and military circles in the United States from the end of the 1980s. In August 1990, in a speech delivered in Colorado, US President George H.W. Bush outlined a project of world pacification styled the ‘new world order’. The thrust was that, having won the last world war—the Cold War—the United States had a duty to oversee the future development of international order and set out the principles and rules that were to govern it.1
The following year, this project was elaborated in a policy document entitled National Security Strategy of the United States.2 Early in 1992, the strategic outlines announced by the president were further developed in another text, Defense Planning Guidance. This important document was drawn up by a staff of officials in the Pentagon and State Department, presided over by the deputy secretary of defense, Paul Wolfowitz—a leading figure in the neoconservative movement then embarking on a long and brilliant career which was to see him installed as president of the World Bank.3 In the meantime, an extensive specialized literature was pursuing the strategic and military implications of the notion of ‘global security’ that lay at the core of these documents. The fact that the world was no longer divided up by the traditional ideological and military barriers did not mean that threats to peace had ceased: they had become more insidious and widespread, requiring different means for concentrating and deploying international power and radically new defence strategies that could ensure security on the global scale.4
The strategic insights that emerge from these documents, and from Defense Planning Guidance in particular, are extraordinarily illuminating, because they anticipate the essential traits of US foreign policy during the final decade of last century. The collapse of the Soviet empire and the end of the Cold War were seen as ushering in a new era in which the danger of a large-scale nuclear war has diminished. Thus the United States had within its grasp the ‘extraordinary possibility’ of building a just, pacific international system based on the values of liberty, the rule of law, democracy and the market economy. The foundations for this new world order were to be a system of ‘global security’, reflecting the ever increasing interdependence of economic, technological and communications factors on the planetary scale. Such a system would require the close cooperation of the nations in the three most highly industrialized areas on the planet: North America, Europe and Japan. In view of the increased complexity and interdependence of international factors, the vital interests of the industrial countries were judged to be more vulnerable than ever before, in particular with respect to their unhampered and regular access to energy sources, supplies of raw materials, liberty and security of movement by sea and air, and the stability of world markets (financial markets in particular). Finally, the industrialized nations were seen to be living under the combined threats of international terrorism and the proliferation of biological, chemical and nuclear weapons.
The organization of this system of global security involved two essential strategic innovations. In the first place, now that NATO was no longer committed to opposing the Warsaw Pact countries, following the Pact’s dissolution, the defensive strategy of the alliance had to be revised. Its traditional geographical framework had to be expanded so as to counter the increasing risks of international disorder which might spring up in many different regional areas.5 In a world that was no longer divided up into two blocs, the trans-Atlantic alliance which had underwritten the US military presence in Europe needed to be recast, with new functions being allocated to its massive military resources. The new ‘Atlantic entente’ had to be the expression of a strategy that was protective rather than defensive, expansive rather than merely reactive, dynamic and flexible rather than static and rigid. And the emphasis on security was not to be restricted to the military sphere, but extended to include the political and economic dimensions—not least in order to control the ongoing decomposition of the Soviet empire.6 It was on the basis of these premises, and showing remarkably rapid strategic reflexes, that United States presented a ‘new strategic concept’ to the NATO summit held in Rome in November 1991. In the summit’s closing declaration we find explicit reference to a new vocation for NATO that goes beyond the geographical limits of its traditional competence, defined in Article 5 of its Charter, to identify the need to pay greater attention to the ‘global context’, rather than merely the regional context of Europe and the Atlantic.7
In the second place—and this is the crucial point—the strategy of global security requires the major powers, seen as responsible for world order, to regard the old principle, sanctioned at Westphalia, of non-interference in the domestic jurisdiction of nation-states as having been superseded. They are called on to exercise and legitimize their right and duty to undertake ‘humanitarian intervention’ whenever force is required to solve crises within individual nations, and particularly to prevent or put an end to serious violations of human rights.
Since the 1960s, various international institutions have referred to the principle of ‘humanitarian intervention’ as the right of the international community to intervene on a country’s national territory in order to verify violations of human rights and bring aid to the mistreated population. During Carter’s presidency, the defence of human rights
