Over the last decade the Florence-based philosopher of law Danilo Zolo has emerged as one of the most principled and scholarly critics of the doctrine of ‘military humanitarianism’ that has followed the West’s victory in the Cold War. His latest book, La giustizia dei vincitori—‘Victors’ Justice’—analyses the 20th-century recasting of the legal status of war and proposes a genealogy of the international tribunals, ‘from Nuremberg to Baghdad’, in which it has been embodied. In a sense, the work may be regarded as the third of a trilogy, beginning with Cosmopolis: Prospects for World Government (1995; English publication 1996) and continuing with Invoking Humanity: War, Law and Global Order (2000; English publication 2001). Zolo himself has described Cosmopolis—a panoramic critique of liberal cosmopolitanism and juridical universalism—as a way of working through his shock and dismay at Norberto Bobbio’s salute to Operation Desert Storm as the harbinger of a new international legal order, founded on individual human rights. Invoking Humanity extended this analysis to the Kosovo conflict: it contains a scathing account of the Yugoslav War Crimes Tribunal at The Hague, under Carla Del Ponte, and its political and financial collusion with nato; and a rigorous dissection of disquisitions on ethical cosmopolitanism by Habermas and others.
If relations between war and liberalism have played a major role in his recent writings, Zolo has been preoccupied with the broader questions of law and power from the beginning of his intellectual life. Born in 1936, in the Croatian city of Rijeka—then Fiume, and under Italian rule—he studied jurisprudence and then worked as an assistant to the radical Catholic Mayor of Florence, Giorgio La Pira, a strong proponent of disarmament during the Cold War. In the following decade Zolo moved closer to the Della Volpean school of Marxism and wrote widely on law, criminology and politics. In a climate of heightened tension and terror threats during the late 1970s, he defended the practice of democratic legality—garantismo—against the government’s recourse to emergency laws, with which the pci colluded. During this period Zolo produced important work on bourgeois right and the ‘withering away of the state’, notably Stato socialista e libertà borghesi (1976). Immanent critiques of classical Marxism’s insufficient and ‘Rousseauian’ attention to law and the state presaged his turn, in the 1980s, towards an engagement with German and Anglo-Saxon social and political theory, including the work of Giddens, Hirst and Beck. Zolo now developed what he termed a realist theory of democracy, turning from the legitimating vocabulary of parliamentary consensus—rights, sovereignty, deliberation, representation—to study the actual functioning of liberal polities. His interest in the ideas of Otto Neurath and Niklas Luhmann was apparent in, respectively, Reflexive Epistemology (1986; English 1989) and Democracy and Complexity (1987, English 1992).
In contrast to most of the Anglo-German social theorists, however, Zolo’s response to the wars of the 1990s was to become more sharply critical of the international liberal order. The works from Cosmopolis onwards combine a long-standing if often unspoken pacifist impetus with a multi-dimensional realism, which embraces not only state-power politics but ethological discussions of human aggressivity, anthropological debates about cultural difference and the crucial role of economic inequality and exploitation. Initially, the overall tonality was a tragic one—witness the proposal in Cosmopolis for a ‘weak pacifism’—rather reminiscent of Freud’s exchange with Einstein on war. As the casuistries seeking to legitimate brute force and dispossession have congealed into official discourse, however, a steelier note has entered Zolo’s work. Arguably, La giustizia dei vincitori—a potent and articulate J’accuse against the manipulation of international law as an instrument of American power—is his most incisive denunciation of the politicization of justice to date. It provides both a welcome guide to the instrumentalities of the system, abounding in vital details and historical erudition, and an uncompromising polemic against the impunity of the ‘lords of peace’.
As his title suggests, Zolo’s central thesis is that contemporary international law, hallowed as the domain of impartiality and universalism by liberal cosmopolitan theorists such as Bobbio, Habermas and Ignatieff, in fact produces an asymmetrical and retributive form of justice from which consideration of the winners’ crimes is systematically excluded. La giustizia dei vincitori comprises a number of reworked essays and interventions which build on Zolo’s previous research, tackling themes from the definition of ‘war crimes’ to the doctrine of pre-emption, from ‘empire’ to terrorism. Though the seven chapters to a certain extent stand on their own, each bears a relation to the central argument of the book: that, behind the veneer of humanitarianism which characterizes the ‘criminalization’ of war, there lies an instrumentalization of international law and legal institutions to fit the needs of a us-dominated world order, deeply marked by inequality and injustice. Its essence was pithily summarized by a dissenting Indian judge at the Tokyo International Military Tribunal in 1946: ‘Only lost wars are international crimes’.
Zolo’s starting point is Carl Schmitt’s insight in The Nomos of the Earth: that the outlawing of armed state aggression, starting with the ‘Wilsonian cosmopolitanism’ of the League of Nations, in reality served as prelude to unlimited and dehumanizing forms of warfare. For Schmitt, Zolo suggests, the Great War had signalled the end of the jus publicum europaeum, the Westphalian system based on sovereign-state equality with its recognition of the justus hostis, the legitimate enemy. The new order of the world suggested a return to the ‘just war’ model of Christian scholars, itself a re-elaboration of the Israelites’ ‘holy war’, with its ethico-political dimension. With world peace supposedly guaranteed by the ‘despatialized’ League of Nations, war was redefined as an international crime—one that could be imputed to an individual as easily as to a state, as in the calls to ‘try the Kaiser’ in the wake of World War One. Building on Schmitt’s periodization, Zolo presents a genealogy of 20th-century international law and its move from a concept of justus hostis to one of the aggressor as criminal, with the expansion of law beyond domestic jurisdictions. In this diagnosis, the post-Westphalian order legitimates a no-holds-barred onslaught against those defined as the enemies of humanity. Yet the ethical universalism that initially saw itself embodied in the League of Nations has proved unable, or unwilling, to generate genuinely impartial global institutions for the exercise of law beyond national sovereign jurisdictions. It ends by subscribing to a Manichean vision of conflict, pitting humanity against barbarism, at the behest of the dominant powers.
La giustizia dei vincitori then turns to examine the corrupting amalgam of law and military triumph constituted by the Nuremberg War Crimes Tribunal. Against the consensual view of Nuremberg as a paragon of virtue, Zolo sees it as the institution par excellence of winners’ justice. As he points out, the Tribunal was established by the Allied powers’ London agreement of 8 August 1945: two days after Hiroshima and two days before Nagasaki. But the perpetrators of nuclear destruction would not be tried at Nuremberg, whose jurisdiction was limited to the defeated state. Here, as in the even more instrumentalist tribunal in Tokyo, Zolo highlights the double standard that exonerates the victor’s crimes—whether of jus ad bellum, resort to war, or jus in bello, conduct in war—while prosecuting those of the enemy in ways that break with myriad legal principles, from habeas corpus and the right of appeal to the rules of admissible evidence and the non-retroactive character of law. Zolo argues that the ‘Nuremberg model’ conforms to Otto Kirchheimer’s definition of ‘political justice’, in which ‘the differential functions of justice and politics are annulled’ and the criminal justice process becomes characterized by ‘the ritual theatricalization of politics, the personalization and stigmatization of the enemy, and the procedural legitimation of expiatory sacrifice’. The victorious powers granted themselves impunity and—with no pretence of impartiality—appointed the prosecutors and judges from their own ranks. The rights of the accused were at the discretion of the judges. Sentences were envisaged as exemplary and retributive, evoking biblical models of expiatory punishment.
The ‘crimes of aggression’ that Nuremberg was designed to punish were left remarkably ill-defined. As Zolo notes, the un Charter lacks a workable definition of ‘aggression’, and it was therefore left to the un Security Council, through Article 51, to decide whose deeds should count as such. As to the efficacy of criminalization in preventing war of aggression—the ‘supreme international crime’, according to the judges at Nuremberg, since ‘it contains within itself the accumulated evil of the whole’—Zolo suggests that it is ‘enough to point to the American war on Vietnam, or the Soviet invasion of Afghanistan’ to judge its results. The same double standards of victors’ justice apply to the international law on occupied territories, formulated in the Fourth Geneva Convention of 1949. While military occupation—in Kosovo, Iraq, Lebanon or Palestine, for example—has routinely been the outcome of a war of aggression, Article 64 states that the invading power may abrogate local laws if this is necessary for ‘the occupiers’ security’. As Zolo writes: