Due Process in the Context of Transitional Justice

Transitional justice has only recently become a field of its own. Despite the novice character of the field, it has expanded in an increasingly larger area in which a plurality of actors is in constant participation. In the same vein, transitional justice comprises an intricacy of elements that are closely intertwined: political, societal and legal. To analyze them in their entirety would be a herculean task that would go beyond the purpose of this essay. The purpose is to inquire in a specific facet within the normative framework and which reverberates across the aims of transitional justice. The right to due process is a central tenet of the rule of law and of any Western democracy, in particular of the liberal character. Its importance is evidenced by the fact that it is enshrined by the most relevant human rights treaties including the International Covenant on Civil and Political Rights (ICCP) specifically in its Article 14, among others. Nonetheless, it is posited that in times of transitional justice the right to due process must be interpreted according to the exceptional circumstances in which the trial is being carried out. The burden that complying carries regularly with the requisites of due process during ordinary times can, rightly so, impair a correct healing of a given society under a period of transitional justice. Thus, a plausible response to the dilemmas posed by that is to establish a lower threshold or the employ of alternate methods. Part I roughly analyzes the concept of transitional justice. For a correct understanding of the conditions surrounding the right to due process, it is essential to put in proper context what constitutes transitional justice and its objectives. Part II consists of two sections, a first one dedicated to developing a brief overview of the rule of law and the second one drawing the contours of the right to due process. Part III studies the problems with the right to due process related to a transitional justice background. Part IV is none other than the conclusion.

I. What ‘transitional’? What ‘justice’?

The fact that transitional justice is constantly evolving as a maturing field – and as a buzzword – does not exactly spell out to what it is referring to. The notion of transitional evokes a movement from one state to the other. But at the same time it conveys the assumption that a society is stalled in a particular moment and now is moving elsewhere. This is misleading. Several scholars have pointed out the deceptiveness of such thoughts. Any society is in continuous transformation, it is in transitional condition as it never stays the same[1]. It is irrelevant if these changes are for better or for worse, the fact is that no society is frozen within a certain setting. Hence the lack of clarity to what the transitional is related to.

The concept of justice equally suffers of an even bigger definitional problematic. It is one of the main philosophical and moral ideas of humankind and for that reason there have been bitter arguments over its content and delimitations.

Nonetheless, taken together transitional justice has an explicit content and it is circumscribed to a certain state of affairs. Transitional refers only to those societies changing to a liberal democracy direction after a period of authoritarianism. Justice has too specific a meaning. The UN contributes a concept of justice closely connected to the abovementioned definition of transitional justice. For the Organization, justice is

an ideal of accountability and fairness in the protection and vindication of rights and the prevention and punishment of wrongs. Justice implies regard for the rights of the accused, for the interests of victims and for the well-being of society at large. It is a concept rooted in all national cultures and traditions and, while its administration usually implies formal judicial mechanisms, traditional dispute resolution mechanisms are equally relevant[2].

Then, transitional justice can be defined as “a response to systematic or widespread violations of human rights. It seeks recognition for victims and to promote possibilities for peace, reconciliation and democracy. Transitional justice is not a special form of justice but justice adapted to societies transforming themselves after a period of pervasive human rights abuse”[3].

What is occasionally omitted by certain authors is a description of the surroundings on which transitional justice happens, details that influence the possibilities of a successful process. These countries do not only come from a situation of moral bankruptcy and more often than not with the large shadow of the former regime hovering above them but also from a dire economic situation: rampant corruption, lack of resources, shabby infrastructure, and so forth. All these make the process harder as hard choices have to be made that can hamper the purposes of transitional justice[4]. Similarly, these purposes encompass “a multitude of discrete, though overlapping, and often conflicting themes”[5]. Clark has at least found six objectives; all of them interrelated to greater or lesser extent: reconciliation, peace, justice, healing, forgiveness and truth[6]. It is beyond this essay to divulge them but it is worth indicating that the right to due process for those people in charge of or responsible for gross violations of human rights have an effect on all of them. They are intertwined. There is no peace if there is no justice and justice is necessary for achieving the truth and subsequently to heal the wounds so there can be forgiveness and reconciliation. Before delving into the right to due process, it requires a step back. One central aspiration of transitional justice is to restore the rule of law. And because due process is subsumed in the rule of law, it is a precondition to analyze it before delving into due process.

II. The rule of law and its meaning in regards with the right to due process.

The rule of law is surrounded by the same uncertainties concerning transitional justice. Whereas transitional justice is at least confined to a particular situation in order to give it a workable meaning, the rule of law has varied faces and at the same time the existing different legal traditions put the accent over one trait upon another. In this regards, it is worth noting that many authors have done the enormous task of coming with a definition and with an explanation on what it consist of. Unfortunately, this would go well beyond this essay. However, despite the enormity of the rule of law, it is possible to locate certain characteristics that shed light over its importance and how crucial it is for countries that just came out from a long history of abuses to have it.

What underpins the rule of law is the idea of limitation. The rule of law came into being predominantly during the advent of liberal democracies during the eighteenth and nineteenth centuries. It is a barrier against untamed power. Under its premise, society must be a rule-governed enterprise. Power ought to be channelled through rules and norms. There cannot be arbitrariness or abuse of power. Thus, it has a positive and negative mandate. It establishes how a government must exercise its authority; how it should restrain its dominance through predictability and certainty. At the very same time, as a corollary of the concept, it promotes certain rights indispensable for a correct functioning under the rule of law.

Among those rights benefitting individuals, it comprises the right to a due process. It is not included in the basic core of human rights, but it illustrates splendidly how the rule of law operates. Due process is simultaneously a limit to power and a guarantee for the individual. For practical reasons of time and space, the right to due process used in this essay is taken from the Spanish Constitution. The choice of this text is due to the fact that its redaction was heavily influenced by the several human rights covenants existing at the moment of its enactment. Article 24.2 asserts that anyone has the right to a judge predetermined by law, the defence and assistance by a lawyer, to be informed of any charge against him, to a public process without unlawful delay and with all guarantees, to use any piece of evidence necessary for the defence, to not declare against oneself, to not confess guilt and to be innocent until proven guilty. The scope of the entitlement plainly reduces the government’s space in manoeuvring, and imposes a pro-active duty to demonstrate that someone is guilty. Consequently, “due process is designed in part to protect the innocent from punishment and prevent excessive punishment of the less guilty. But due process is also what gives legitimacy to trials and convictions”[7]. Under normal circumstances of a democracy running its usual course, due process reflects the respect for human rights and of a functioning democracy. It is true that it makes it harder to punish a criminal but it similarly permits the innocent to present their case fairly and to avoid an unwarranted sentence. Unfortunately, this presupposes a stringent and expanded interpretation of due process, something that can oddly enough affect negatively a society in transitional justice phase.

III. The conflictive nature of due process when applied during transitional justice.

Transitional justice refers to an extraordinary moment of any given society. This exceptionality is derived from the circumstance that the society is attempting to cut ties with the former regime so it can begin with a new liberal democratic society. It is backward-looking and forward-looking at the same time. It is a paradoxical situation where institutions are set up but are concurrently in a sui generis status. Take for instance the use of legal instruments which are according to Teitel

between the past and the future…between retrospective and prospective. Transitions imply paradigm shifts in the conception of justice; thus, law’s function is inherently paradoxical. In its ordinary social function, law provides order and stability, but in extraordinary periods of political upheaval, law maintains order, even as it enables transformation[8].

However transformative legal instruments can be, not all are equally effective. Part of them can obstruct the restorative process. This inadequacy stems from the uniqueness of the period encompassing transitional justice. During this process a society is not only recovering from ordinary crimes, but from exceptional crimes as well. In the former state of affairs, a society was massively affected by gross violations of human rights. The state is frequently the main culprit as those committing and planning the wrongdoings are part of or are aided by the state. It could be a whole society – e.g. the Nazi Germany against the Jews – or one part of the society against other – e.g. Rwanda – or perhaps the suffering was inflicted mainly upon a minority – e.g. Muslims in Bosnia. What characterizes this situation is the active participation of a great segment of the fabric of the society in continuously abusing a relevant portion of the population. An involvement of this magnitude supersedes those legal responses that underline the rule of law in ordinary times. Equally, the other outcome is the presence of a whole social stratus being affected by the perpetrators. A massive crime generates massive suffering. It comes to no surprise that those who have endured exceptional pain (morally and physically) demand recognition of their suffering during transitional period: an acknowledgement of the negative experiences that disturbed their social condition during the former regime, as individuals but also as a collective[9]. Here enter the demands of justice. If there is no treatment of the gross violations committed during the former regime, there is no chance of reconciliation and the chance of moving forward because the wounds of the past haunt them. The exceptionality of the situation creates a requirement of a contextual justice especially elaborated during the transitional period. “What is deemed just is contingent and informed by prior injustice… legacies of injustice have a bearing on what is deemed transformative”[10]. In this context, the concept of justice shoulders a great importance because it directly leads to dealing with past injustices. As Stahn asserts, there is an intimate relationship between “restoration of justice and security in post-conflict situations”[11]. A failure in bridging the past atrocities with the establishment of a healthy society can lead to the reversal of the transitional justice, but by another collective. To bring justice is to choose one model depending on how backward or forward-looking it is: retributive, deterrent and restorative[12]. Irrespective to which model one leans to, there is a common attribute: prosecution of the perpetrators; normally through trials. And that is where due process comes into action. While it is true that there are other means of punishment, it has generally been understood as a necessary element of any transitional justice to process the prosecution of those responsible for egregious violation of human rights[13] bearing in mind the impact of an existing possibility of duty under international law to prosecute[14].

To begin with, prosecution of criminals through criminal law entails the assumption of individual, criminal liability. This is problematic. Under due process, anyone accused of wrongdoing must be proven guilty beyond certainty. That imposes an extra burden for instance in cases where the prosecuted formed part of the machinery of the state where the responsibility can be diluted except in case of top leadership. To punish them according to a strict understanding of due process could be equated to punishing under criminal law for political liability, eventually challenging the rule of law[15]. Equally, the evidences enough for proving an accused guilty are stringent. A lack of sufficient evidence along with the high threshold of the evidentiary requirements “of due process may make it not only generally more difficult to convict, but also particularly difficult to convict those who are most culpable”[16] because they were in a position to take advantage of the resources available, they could get rid of the evidences and because of their political position. By the same token, to make a veritable case against the perpetrator and demonstrating that he was guilty in taking part of the crime beyond reasonable doubt, is expensive[17]. Each trial requires time and resources to convincingly attribute the offence to someone that can be quite an issue in underdeveloped countries that are forced to spend their scarce resources on the trial of criminals while the victims of the atrocities are victimized for a second time as their basic needs are not fulfilled. Even more damaging, the scarceness of resources together with the lack of evidences and the requirements of due process force the prosecutors to be selective in their efforts. The mass character of the crimes does not help either. This puts the prosecutors in the dilemma against whom to press charges. The upshot is twofold: on the one hand, not all victims will be satisfied as not everyone who tortured, raped or murdered will be judged. On the other hand, the most culpable will not be targeted because those lower-level offenders are easier to prosecute under due process requisites[18]. In a similar stance, Kritz adds the political prism as he writes that “prosecution of every single participant in the planning, ordering or implementation of the atrocities in question – not to mention all those who collaborated with them – would be politically destabilizing, socially divisive, and logistically and economically untenable”[19]. The phenomena of “limited criminal sanction” come then to no surprise. This concept is espoused by Teitel, to whom this

constitutes compromised prosecution processes that do not necessarily culminate in full punishment…Depending on just how limited the process, investigations may or may not lead to indictments, adjudication, and conviction. Convictions are often followed by little or no punishment. In transition, the criminal sanction may be limited to an investigation establishing wrongdoing[20].

She ascribes this situation to the difficulties in subsuming systemic wrongdoings during the former regime in individual criminal liability. In other words, that the limited criminal liability is based on a thorough understanding of the complexities of crimes of a mass scale[21]. Although it is a valid assertion, the influence of due process in conjunction with the dire economic situation of a country in transitional justice also cannot be discarded.

Another inconvenience is the search of truth of past egregious violations. A trial’s primary role is in elucidating the defendant’s guilt. This is a direct consequence of due process demands of knowing under what charges one is being prosecuted. This restricts the story to the specific accusation brought up by the prosecutor. Truth then becomes a legal truth which covers only a small proportion of the narrative. Evidences that would aid in construing the story of past abuses are not deemed relevant if they are not related to the charges. They are discarded and not included in the discourse. Needless to say, this affects the victims as there is no space for expressing the abuses committed to them.

Last but not least, the turn to a legal response for former abuses has the drawback of the accused taking advantage of the process, and subverting further the right to due process[22].

IV. Conclusion

This essay noticeably exhibits the inconveniences of using a guarantee designed for ordinary times and essential in democracy as due process in extraordinary times and its inadequacy when coping with mass crimes where the state as a whole or a relevant part of the community has participated in their commission. If prosecution remains as one of the primary tools as a response in transitional justice, it is advocated a sui generis reading of due process. This is not tantamount to a complete disrespect of the human right, but an attempt to take victims into consideration. Based on Teitel’s, it is submitted that this distinctive reading does not endanger the foundations of the newly liberal democracy because, as its name suggests, transitional justice refers to a specific moment. A community is trapped between two regimes, thus the transitional period is by definition limited, which gives rise to a contextual notion of justice based on past grievances but with the purpose of remedying the victims[23].

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[1] M. Freeman and D. Djuckic, “Just Post Bellum and Transitional Justice” in C. Stahn & J.K. Kleffner (eds.), Just Post Bellum – Towards a Law of Transition from Conflict to Peace 213, 214 (2008).

[2] UN Doc. S/2004/616, The Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies, Report of the Secretary General, 4 (2004).

[3] Definition given by the International Center for Transitional Justice. Available at http://www.ictj.org/en/tj/ (last time checked on 20th October 2009).

[4] See S.W. Daniel Han, “Transitional Justice: When Justice Strikes Back-Case Studies of Delayed Justice in Argentina and South Korea”, 30 Hous. J. Int’l L. 653, who argues in favour of delayed transitional justice, giving priority first for the economic development of the country.

[5] P. Clark, “Establishing a Conceptual Framework: Six Keys Transitional Justice Themes” in P. Clark and Z.D. Kaufman (eds.), After Genocide – Transitional Justice, Post-Conflict Reconstruction and Reconciliation in Rwanda and Beyond 191, 191 (2008).

[6] Id., 195-204.

[7] M.J. Aukerman, “Extraordinary Evil, Ordinary Crime: A Framework for Understanding Transitional Justice”, 15 Harv. Hum. Rts. J. 39, 49 (2002).

[8] R. Teitel, “Transitional Jurisprudence: The Role of Law in Political Transformation”, 106 Yale L.J. 2009, 2014 (1996-1997).

[9] F. Hadelmann, “Another Kind of Justice: Transitional Justice as Recognition”, 41 Cornell Int’l L.J. 675, 678-680 (2008).

[10] Teitel, op. cit., 2014.

[11] C. Stahn, “Justice Under Transitional Administration: Contours and Critique of a Paradigm”, 27 Hous. J. Int’l L. 311, 315 (2004-2005).

[12] See Clark, op. cit., 197-198.

[13] See R. Teitel, “Transitional Justice Genealogy”, 16 Harv. Hum. Rts. J. 69, 72-74 (2003).

[14] See D.F. Orentlicher, “Settling Accounts: The Duty to Prosecute Human Rights Violations of a Prior Regime”, 100 Yale L.J. 2537 (1990-1991).

[15] Teitel, op. cit., 2038.

[16] Aukerman, op. cit., 51.

[17] Id. 52.

[18] Id. 61.

[19] N.J. Kritz, “Coming to Terms with Atrocities: A Review of Accountability for Mass Violations of Human Rights”, 59 L.& Cont. Prob. 127, 138-139 (1996).

[20] R. Teitel, “Transitional Rule of Law” in A. Czarnota, M. Krygier and W. Sadurski (eds.), Rethinking the Rule of Law after Communism 279, 281 (2005).

[21] Id. 282-283.

[22] Teitel, op. cit., 848.

[23] Teitel, op. cit., 2013-2014, 2019-2020.

Nothing new under the sun

Ya que Neoprogs se ha remodelado, creo que es una buena ocasión para celebrarlo con la entrada de otro post largo y aburrido. Espero participar más activamente en la dinámica.

I.

War has been a constant throughout history. It has been a recurring tool used by several actors in order to achieve power[1]. As Clausewitz famously stated, war “is a continuation of political intercourse with a mixture of other means”[2]. This circumstance has unsurprisingly provoked the constant necessity of tackling the phenomenon, whether disapprovingly or accepting it as a matter of life. Likewise, this permanence of war has allowed appreciating certain common traits. For Neff, these traits represent the “hallmarks of war” which has allowed the identification of a “body of legal ideas about war as such”[3]: collective and public character, against a foreign state, war as a rule-governed enterprise, and as marking off peace from war[4]. But these characteristics are a product of an empirical analysis of war not a product of a theoretical or legal systematization. Thus, the objective of the following paragraphs is to compare if these steady traits are present in the just war tradition and in the UN Charter.

The just war traditions

War as a collective enterprise. Even though the just war prescriptions are directed towards individuals, war is seen as a public institution. Not anyone could wage war against another, only certain people could do it. This requirement is known as the auctoritas principle. According to this principle, a political community can go to war “only if the decision has been made by the appropriate authorities, according to the proper process, and made public, notably to its own citizens and to the enemy state”[5]. Private individuals were not allowed to initiate a war, only those rulers with the appropriate competence could as they had superior rights[6]. Because the just war theorists believed in the inherently sociability of human beings, they considered the existence of government as an instrument which permits to a given collectivity to reach certain goals as crucial[7].

This emphasis on the public character of war is strengthened by the justa causa principle. Not any claim was valid for waging war, it could only be justified by claims of legal validity[8] and normally those were the “protection of innocents within its borders […] and […] any violation of its […] political sovereignty and territorial integrity”[9]. Accordingly, only claims affecting the community and its well-being were considered as a just cause. It is worth repeating, that even though the just war traditions were directed to individuals and to a single unitary unit encompassing a whole community, the two aforementioned principles required war to be a public and collective enterprise as only certain people entrusted with public duties could wage war and for public causes.

Against the “other”. A war always opposes two sides; it pits one’s demands against someone else’s. As stated by Neff, it has to be a foreign state or political entity, not any actor is included[10]. In these regards, just war traditions fall easily within this trait. Justa Causa is the most obvious case as the claims for going to war are of a political nature or as a response to violations upon a given community. Neff provides a good illustration with the war in defence of the Christian world, whereby two distinctive polities clashed as well as the reconquista where the Spanish Catholics waged war against the Muslims living in Spain at that time[11].

Law’s empire. Wars require rules. Despite the fact that war could be considered as an antagonist of law, because of its collective character the presence of rules is needed in ordering the phenomenon. In this sense, the just war traditions heavily regulated war, before, during and after. The very same just war traditions were designed to regulate when a community could go to war, the ius ad bellum. Equally, it states how to waged war, ius in bellum, which individuals could participate, which ones could and could not be considered objectives and even to which extent military force could be used; and although just war theorists focused mainly in when and how to manage war, it is possible also to find traces of just post bellum resolutions[12]. Whatever the deficiencies, it did regulate profusely war.

Peace/War. As shown by Neff, it is a recurrent feature from diverse societies to mark a division between peace and war[13]. Now, when applied to the just war traditions, it is harder to grasp such stark distinction between both spheres. In this framework, war is seen as law-enforcement tool[14]. War is used as a last resort instrument. Only when the previous mechanisms have proven ineffective, resorting to war is allowed[15]. This conception is derived from the very same notion of just war, which implies that only one side is acting ‘justly’ in order to correct the deviating behaviour of the other side, meaning that the basic bonds remain intact. Consequently, the same norms that apply during peace time are also applied during a conflict[16].

However, in my opinion it is true only to a certain extent. Maybe there is not a rigid barrier between times of peace and times of war, but the just war traditions’ attempts to regulate war also displays an internal recognition of the circumstances on which war is handled. When describing how to conduct it, it does establish a distinction between peace and war times. It introduces rules that do not apply during peace times. Thus, there is a set of rules, however small[17], that can only be applied during war times and that stop being in force when the war has ended. Even within the just war traditions, where the separation is the blurriest, there is a minimal distinction.

One Charter to rule them all

War as a collective enterprise. Undoubtedly, “war”[18] is undertaken as a collective enterprise. This is more evident in this case than within the just war traditions because the latter addressed first and foremost upon the individuals, even though it retained a collective character as war could only be waged by those with auctoritas. The UN Charter is the constitutive document of an international organization which is composed by states, who are subjects representing diverse polities. Furthermore, the main organ within the UN entrusted with the objective of maintaining international peace and security is the Security Council, which is not as representative as the General Assembly – it is composed by fifteen states – but is equally collective. Article 25 clearly establishes the main purpose of the SC which is the maintenance of international peace and security. Thus it is instructed to achieve that on behalf the international community. It is an international collective enterprise. This is confirmed by the fact that the Charter allows a right to self-defence not only individually but also collectively[19]. The security system enshrined by the UN Charter is primarily a collective effort.

Against the “other”. As with the just war traditions, the UN Charter confronts anything that goes against the maintenance of international peace and security. Primarily, it was conceived against states endangering international affairs, mainly through a literal interpretation of peace and security as an absence of war. But this has changed. Especially after the end of the cold war, the term has been expanded to include a positive conception of security and peace, meaning that not only the absence of war is enough but disarmament, decolonization, among others as well[20]. Consequently, it does not go alone against a state breaching the international peace and security; it goes against certain notions, as well as other political entities.

Law’s empire. The UN Charter tightly regulates the use of force as it is banned as a general rule and it is allowed in a few instances. Currently, the Security Council holds a quasi-monopoly over the use of force. According to Article 42 - after the SC has determined that there is a situation endangering the international peace and security - it can undertake any necessary action, including the use of force. States, on the contrary, can only resort to the use of force in case of self-defence, according to the (in)famous Article 51. Thus, the UN Charter regulates war but only partially, it is circumscribed to the ius in bellum, when to resort to war. This is different from the just war traditions which also regulate how to wage war. But that is because it is regulated heavily in a different set of norms: in international humanitarian law. The only exception is the law of neutrality[21].

Peace/War. The founding of the UN, and of what was established in the Charter, marked a return to some basic assumptions of the just war traditions. The most relevant feature was a renewed conception of the state of peace as the basic condition of international relations[22]. As Neff points out, the UN Charter rejected the basic assumptions of positivists from the nineteenth century who viewed war as a fact of life as states tried to compete with each other aggressively[23]. With peace being the normal condition of international affairs, any disturbance is seen as a breach in the usually pacific state of foreign affairs. As a result, the actions that the UN carries out are perceived as being law enforcement in nature, to restore the situation to the previous state of peace[24]. The logical effect based on that assumption is the lack of a proper distinction between times of peace and war. Similarly to the just war traditions whoever breaches the Charter is in the “unjust” side as the Charter describes exhaustively when to resort to war, and otherwise is a violation of the UN Charter and of the state’s obligations toward it. This means that the principles and purposes that overview the Charter remain on place. That is, that the Charter is still applied when there is an outbreak. The bonds and values enshrined on the Charter continue to exist; there is no appearance of a completely distinctive set of norms for when the use of force is used.

Now, this is true only to a certain extent. In most of the cases the line between peace and war will be blurred or non-existent, but there will be cases in which the presence of war will make both states distinctive. This does not imply that the UN Charter will stop being in force. Quite the contrary, it will continue to be applied. But as highlighted earlier, there is a set of norms, rules and principles that come into force when there is a war situation. In other words: international humanitarian law, because it embodies and assumes an objective conception of war[25]. That is to say, it comes into action when there is according to the articles a situation resembling war. This set of rules only functions intermittently and temporarily. Accordingly, there will be occasions in which there will be a distinction between both states, however minimal.

II.

The rise and fall of the state[26]

In the outlook of both situations, the differences between the “war as a state policy” versus “new wars”, due to change of circumstances, seem significant; in particular if the material aspects of both are compared. The crucial distinctive feature is the relevance of the state. In Neff’s account, the state is its pinnacle of strength and power. The nineteenth century embodies its splendour. In Kaldor’s description, the state still exists but is a ghost of its former self. Here, the state is unable or has lost the capacity to control its own territory. This can occur for many reasons: an ineffectual government ridden with corruption, mismanaged and under a great amount of pressure by the impact of globalization. Likewise, the inability to have an effective state is heightened by sectarian fights ravaging the infrastructure, towns and so forth. These contrasting situations greatly influenced – and still influence - the handling of war.

First, in the “war as a state policy”, war is conducted between states; interstate fight is the paradigmatic condition. This is in stark contrast with the “new wars”. The state disappears from the scene and it is overtaken by non-state actors. Even the state becomes one of the many factions battling in the arena. Now the war is an internal and transnational condition. As a result of this change of paradigm, the traits of war adjust in every aspect. The military army, with its centralized command, bureaucracy, professionalism and heavily armed, yield to scattered groups, where there is no formal hierarchy, where there are untrained and where being a combatant is only one of their many faces.

However, these superficial divergences can obscure the fact that both types of war are of the same nature but only quantitatively dissimilar. That human condition is difficult to modify. Take for instance the goals of war. As Neff explains the objectives during the “war as a state policy” was purely political. There was no room for other sorts of influences. The war was carried out on the basis of cold, calculated, and rationalized interests, as a means of maximizing their power. There was no special animosity against the other counterpart when pursuing the objectives. Compare this with the “new wars” as presented by Kaldor, where identity politics hover all over the roaring combats. Utilitarianism is substituted to national, ethnic or religious politics. It is not merely a quest for power, but equally a moral duty and a hatred for the “other”. These two images cannot depict a stark contrast between both, but it fails to exhibit the entire film. Already during the nineteenth century wars were waged for identity politics. It is the century of romanticism and nationalism. States increasingly resorted to war alongside policy reasons as a sense of national sentiment. This is reinforced by the fact that occasionally armies were aided by civilians who wanted the best for their motherland and fought remorselessly[27]. This group of people does not differ much from present-day combatants. The only real separation is that the goals are varied: not only the motherland but religious or ethnic causes are also at stake. But the peculiarity is the active participation of organized-crime groups that profit from war and for who war is not seen as a means for end, but as an end in itself. That is the most remarkable feature of these “new wars”.

Likewise, the presence of non-state actors already during the nineteenth century demonstrates that they are not a new phenomenon. What has changed is the intensity of their activity, and only in places where the state is weak enough so as to have a proper monopoly of violence over the territory. Another similarity is how they wage wars. While it is true that the tactics and the armaments employed in both sorts of wars are not equal, the results are similar. Even though there were attempts to regulate the exercise of war – and there were undoubtedly regulations concerning it – reality was messier. As with the “new wars”, the distinction between the public and private sphere was not as sharp as it should be as the way the armies waged war also affected greatly the civilians. Like with the identity groups that expel civilians different from them in order to gain control over the territory, the fact that the “idea of total war against populations was never thoroughly drained”[28] from that period meant that the whole population was held responsible during the war. The only difference between both types of wars was that the state was using this tactic mostly derived from policy and not for ideological reasons. It was not a mean and an end itself (yet). It was mostly a matter of degree. The greatest distinction is the existence of neutrality during the nineteenth century, and what fits within the framework of war as policy. If the war is waged for identity reasons, there is no space for neutrality because even if they are not interested in the fight, in the eyes of those groups combating they are wrong because of their identity and it marks them as enemy. Neutrality becomes outdated.

Overall, what distinguishes both eras is not that different. As has been mentioned, on the surface the distinctions look vast. A state and a guerrilla for example are worlds apart. One epitomizes a whole polity, the other maybe a fraction of a fraction of a group. But when handling war, the image is not apparent. It becomes a matter of gradation, of quantity. What stands out is that during the nineteenth century war was treated amorally in those occasions where ideological motives were not part of the decision-making process. War was one of the many options that a state could pursue in order to gain power. In the “new wars”, war is not only an option, but it is a means through which they can pursue their goals. War has become a moral duty, however deviated.

Back to basics?

To compare the just war traditions according to Neff with Kaldor’s cosmopolitanism seems like a futile exercise as they represent two different eras with nothing in common but a thirst for violence. Looking closer, however, there are elements that are similar. These similarities are more pronounced on an ontological plane. These are three specifically: the appeal to universalism, the law-enforcement approach to war and its offensive nature

What differentiates the just war traditions from subsequent frameworks dedicated to cope with war is that it is directed to individuals. As Neff writes, the strong natural-law influence in the just war traditions meant that the rules dealing with this issue addressed individuals, not states[29]. The same occurs with Kaldor’s approach. In her description, she argues in favour of a humanist universalist stance whereby the civil society is the central element in around which her argument revolves. However, it is not only directed to the individual, it goes beyond it and the state. It is a calling for civic values[30] that have to be spread by NGOs, collectives, international organizations, and so forth. It is an inclusive attitude. It could be seen as an update of the natural-law universalism from the Middle Ages[31].

The just war traditions considered peace as the given state of affairs. A violation of peace was seen as an exception that ought to be punished and solved. The corollary was the fact that the ties that bond the states together continued to subsist during the conflict. The commission of a crime was a rupture of peace and consequently it had to be restored[32]. This law enforcement mind-set blurred any distinction between peace and war as the same rules were applied before, during and after the conflict. Kaldor’s cosmopolitanism reflects the same but with different (secular) values[33]. A recurrent condition of these “new wars” is a brutalization of violence, aimed predominantly against civilians. These actions lead to massive violations of human rights which is the condition that ties the warrant parties. The request for a stronger response by the international community in order to avoid human rights violations, not only war crimes, presupposes a permanent state of peace in which human rights are respected and promoted[34].

Another interesting feature of the just war traditions was its offensive nature. They were undertaken to undo an unjust situation. They were never taken in self-defence, as it was considered egoist[35]. Cosmopolitanism requires a pro-active stance as well. It compels stopping whatever armed conflict threatens human rights, deploying peace enforcement operations, and the reconstruction of the state from bottom to top among other actions. As with the just war traditions, there is an unjust situation that must be put to an end.

These conceptual similarities do not fade away when comparing the specific characteristics that adorn the just war traditions with Kaldor’s cosmopolitanism. As emphasized by Neff, if a war was to be considered as just it had to fulfil the five criteria developed by the scholars: auctoritas, personae, res, justa causa, animus[36].

With regards to the authority, Kaldor put the onus over the international community, which has the right/obligation to act when human rights are violated. Certainly, the mention alone of the international community does not solve the conundrum, as it is vague enough and could include potentially everyone. There is no clarity in knowing who has the authority to decide. Nonetheless, she has confined the authority in the Security Council and if the organ is blocked or unable to proceed, she advocates certain rules that would allow third states to perform[37].

Cosmopolitanism seems mute over which people can participate during combats, but it can be identified if one reads closely. “New wars” are characterized by a confusion of the military and the society where civilians take arms but do not differentiate from other civilians. On the other hand, those who have to stop the mass atrocities are the professional armies of the states taking over the situation of those soldiers lent to the UN for peace enforcement operations.

Res would be the continuous violation of human rights, the casus belli. This would be accompanied with the just causa in which the legal claim is the obligation of states and international organization to prevent and to halt human rights violations[38].

Finally, a cosmopolitan outlook requires the existence of an animus, the rightful intention when acting. Those who participate in petering out the situation in places suffering “new wars” must do it because they want to uphold human rights and to reconstruct the state. If cosmopolitanism is a humanist approach, then the assistance is provided because those suffering are considered as equals.

III.

In light of the aforementioned, the just war doctrines more or less fit the hallmarks of war. The only clear divergence is in the peace/war distinction. A similar conclusion can be held regarding the UN Charter.

Kaldor’s “new wars” do not differ much from the “war as state policy” as described by Neff. The differences are quantitative more than qualitative. The main qualitative divergence is in the use of war as a means or as an end in itself according to Kaldor’s characterization.

Likewise, the cosmopolitan approach significantly resembles the just war traditions as it is similar ontologically and it does fulfil to a great extent the criteria that delineate a just war.

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[1] H. Morgenthau, Politics among Nations 11 (1973, 5 ed.). Cited in K.N. Waltz, “The Origins of War in Neorealist Theory”, XVIII:4 J. Inter. H. 615, 616 (1988).

[2] As quoted in M. Sheehan, “The changing character of war” in (eds.) J. Baylis, S. Smith & P. Owens, The Globalization of World Politics 210, at 213 (2008, 4 ed.).

[3] S.C. Neff, War and the Law of Nations 15 (2005).

[4] Id. 15-29.

[5] B. Orend, War and International Justice: A Kantian Perspective 49 (2000) (Emphasis added).

[6] A.J. Bellamy, Just Wars – From Cicero to Iraq 39 (2006) and M. Taghi Karoubi, Just or Unjust War? 65 (2004).

[7] Id. 38.

[8] Neff, op. cit. 50.

[9] Orend, op. cit., 49.

[10] Neff, op. cit., 18.

[11] Neff, op. cit., 53, 56.

[12] See R.P. DiMeglio, “The Evolution of the Just War Tradition: Defining Just Post Bellum”, 186 Mil. L. Rev. 116 (2005) and Neff, op. cit., 66-68.

[13] Neff, op. cit., 26.

[14] Id. 57.

[15] Bellamy, op. cit., 38.

[16] Neff, op. cit. 57-58.

[17] Id. 65.

[18] Since the inception of the UN Charter, war is proscribed, literally and literally. As stated in Article 2.4., states shall refrain in their international relations from the threat or use of force. Consequently, from now on the Charter refers euphemistically to war as use of force.

[19] Neff, op. cit. 326.

[20] R. Wolfrum, “Article 1” in (ed.) B. Simma, The Charter of the United Nations: a commentary 37, 41 (2002, 2 ed.).

[21] See among others Article 25 UN Charter.

[22] Neff, op. cit., 316.

[23] Id.

[24] Id. 325.

[25] For the meaning of objective conception see Neff, op. cit., 172ff.

[26] The arguments drawn from Kaldor’s book New & Old Wars (2007, 2 ed.) are from chapters 3, 4 and 5. Similar case with Neff with chapters 5 and 6.

[27] Neff, op. cit., 206.

[28] Neff, op. cit., 204.

[29] Neff, op. cit., 56.

[30] Kaldor, op. cit., 187.

[31] As she states: “the rights of individuals supersede the rights of states, and that, therefore, international law that applies to individuals overrides the laws of war. In other words, jus in pace should not be suspended in wartime.” in M. Kaldor, “From Just War to Just Peace” in M. den Boer & J. de Wilde (eds.), The viability of human security 21 (2008).

[32] Neff, op. cit., 57-58.

[33] See Kaldor, op. cit., 21.

[34] Id.

[35] Neff, op. cit., 60-61.

[36] Neff, op. cit., 49-52.

[37] Kaldor, op. cit., 29.

[38] Kaldor, id., 21.