OBSERVARE
Universidade Autónoma de Lisboa
ISSN: 1647-7251
Vol. 5, n.º 2 (november 2014-April 2015)
Articles
Patrícia Galvão Teles - The International Criminal Court and the evolution of the idea of
combating impunity: an assessment 15 years after the Rome Conference - pp 1-15
Sofia Santos - The International Criminal Court and the construction of International Public
Order - pp 16-44
Alexandre Fonseca - “War is a racket!” The emergence of the libertarian discourse
about World War I in the United States - pp 45-58
João Paulo Vicente - War as a continuation of politics by other means... unmanned - pp
59-73
Pedro Miguel Duarte da Graça – From war to peace. The contribution of military corps
with police functions: the GNR in Iraq - pp 74-93
José Rebelo - On the dual and paradoxical role of media: Messengers of the dominant
ideology and vehicles of disruptive speech - pp 94-107
Notes
Helena Curto, Luís Moita, Brígida Brito, Célia Quintas, Maria Sousa Galito - Cities
and Regions: paradiplomacy in Portugal - pp 108-115
OBSERVARE
Universidade Autónoma de Lisboa
ISSN: 1647-7251
Vol. 5, n.º 2 (november 2014-april 2015), pp. 1-15
THE INTERNATIONAL CRIMINAL COURT AND THE EVOLUTION OF THE IDEA OF
COMBATING IMPUNITY:
AN ASSESSMENT 15 YEARS AFTER THE ROME CONFERENCE
Patrícia Galvão Teles
pgalvaoteles@gmail.com.
Graduate of the Faculty of Law of the University of Lisbon; Master's Degree and PhD in
International Law from the Institute of International Studies of the University of Geneva,
Switzerland; Researcher and Member of the Scientific Council of Observare and of the Editorial
Board of Janus.Net; Legal Adviser of the Permanent Representation of Portugal to the European
Union in Brussels (Belgium).
Abstract
This article1
evaluates the International Criminal Court´s first years of operation, taking
stock of the institution’s activity. It describes and analyzes the main challenges which
confronts this institution, namely: a) universality, complementarity and cooperation; and b)
peace and justice. In the specific case of Kenya, the President and Vice-President of the
Republic are suspected of committing crimes against humanity. Considering the positions
taken by the African Union, the debate is whether the introduction of immunity from
criminal jurisdiction, albeit temporary, to Heads of State and Government while in Office
may, or may not, come to represent a step backwards for the idea of combating impunity
for the most serious international crimes.
Keywords:
International Criminal Court; International Criminal Justice; Impunity; Immunity; African
Union
How to cite this article
Teles, Patrícia Galvão (2014). "The International Criminal Court and the evolution of the
idea of combating impunity: an assessment 15 years after the Rome Conference".
JANUS.NET e-journal of International Relations, Vol. 5, N.º 2, november 2014-april 2015.
Consulted [online] on date of last visit, observare.ual.pt/janus.net/en_vol5_n2_art1
Article received on April, 21 2014 and accepted for publication on October, 9 2014
1 Article is elaborated in the context of the research project "International Criminal Justice: a Dialog
between Two Cultures", in progress in the Observatory of Foreign Relations – Observare/UAL, coordinated
by Mateus Kowalski and Patricia Galvão Teles.
JANUS.NET, e-journal of International Relations
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The International Criminal Court and the evolution of the idea of combating impunity:
an assessment 15 years after the Rome Conference
Patrícia Galvão Teles
2
THE INTERNATIONAL CRIMINAL COURT AND THE EVOLUTION OF THE IDEA OF
COMBATING IMPUNITY:
AN ASSESSMENT 15 YEARS AFTER THE ROME CONFERENCE
Patrícia Galvão Teles
Introduction
The signing of the Statute of the International Criminal Court (ICC)2
The International Criminal Court is currently adjudicating approximately twenty cases in
eight different countries: Uganda, Democratic Republic of Congo, Sudan/Darfur,
Central African Republic, Kenya, Libya, Ivory Coast and Mali. The Democratic Republic
of Congo, Uganda, Central African Republic and Mali situations were submitted by the
respective States. The UN Security Council has submitted two: Darfur and Libya. The
final two were the result of the powers of the Prosecutor to investigate proprio motu:
Kenya and the Ivory Coast.
took place in Rome
on 17 July 1998 and it entered into force on 1 July 2002. There are now 122 States
part of this Statute, which corresponds to approximately two-thirds of the members of
the international community. Specifically, there are 34 States from Africa, 27 from
Latin America and the Caribbean, 25 from Western Europe and Others Group, 18 from
Eastern Europe and 18 from Asia.
The ICC is the first permanent international criminal court with jurisdiction to try those
responsible for the most serious principal international crimes: aggression3
The Statute of the ICC is, without a doubt, one of the principal treaties of the post-cold
war period. International law received popular support at the time of the Statute, which
was at the center of the political discourse, particularly in response to the most serious
atrocities since World War II, such as Rwanda and the Former Yugoslavia, celebrating
now the 20th anniversary since these cases justified the creation of ad hoc tribunals.
, genocide,
crimes against humanity and war crimes. Today, it is the main forum for international
criminal justice, although ad hoc tribunals and the universal jurisdiction remain in
existence.
During the genesis and early years of the ICC, fighting impunity was a constant
challenge, regarding the prevention of atrocities and their repression. Yet, how has the
idea of fighting impunity evolved over the last 15 years and what are the main
challenges facing the ICC today?
2 For detailed information on the ICC, its cases, organs, etc., see: www.icc-cpi.int
3 Despite the amendments adopted at the Review Conference in Kampala in 2010, the definition of the
crime of aggression and the conditions for the exercise of jurisdiction have not yet entered into force.
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The International Criminal Court and the evolution of the idea of combating impunity:
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Patrícia Galvão Teles
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If the creation of the ICC was an enormous (and for some an unexpected) success,
international criminal justice is currently under pressure. Expectations were high and
thus generating high expectations which may explain the frustration with the fact that
the Court, disposing of a substantial budget4, has taken ten years for the first
conviction5
Nevertheless, the major challenges, besides the delay of justice or the financial burden
of the institution, are political in nature. The fact that the ICC focuses mainly on cases
involving African states arouses criticism of selectivity. Moreover, in the absence of full
international ratification there are always "double standards" in the struggle against
impunity,even though this can be remedied – but only in part - by the UN Security
Council since the "P5" will always be "safe", given their power of veto).
, especially at a time of global economic crisis and austerity measures.
Likewise, the lack of adoption of national legislation criminalizing international crimes
undermines the ICC system, which is based on the principle of complementarity. Non-
cooperation and lack of Court custody of many of the defendants, particularly from
Uganda and Sudan, weaken the reputation and credibility of the Court.
On the other hand, the fact that the Court is called to exercise its jurisdiction in some
cases pending conflict resolution, and that Heads of State in office are the subject to
criminal proceedings, invigorates the debate on "peace" and "justice", and which of
these objectives should be promoted and achieved first.
Therefore, we can group two main challenges around the following themes: a)
Universality, Complementarity and Cooperation; and b) Peace vs. Justice or Peace and
Justice.
The Kenyan case and recent issues raised by the African Union, climaxing during the
last Assembly of States Parties in the autumn of 2013, also calls for reflection. Still
unresolved, these tensions may leave a mark in the fight against impunity.
Current challenges facing the ICC
a) Universality, Complementarity and Cooperation
Universality6
Although based on classical international law, an international treaty like the Rome
Statute, whose ratification or accession is a sovereign and voluntary decision of states,
is not akin to other multilateral agreements. Like the Charter of the United Nations or
major treaties on human rights and international humanitarian law, the Statute aspires
to universality. To this end, a campaign for universal ratification is consistently
promoted (on the part of some member States, the European Union and NGOs). This is
likewise echoed in resolutions adopted annually by the Assembly of States Parties
(ASP) of the ICC
7
4 Approximately 120 million Euros per year.
, the political body where the State Parties convene, as well as
5 Conviction, in 2012, of Thomas Lubanga Dyilo, sentenced to 14 yrs. of prison for recruitment of child
soldiers during the Democratic Republic of Congo conflict. The second sentence of the ICC relates to the
same crime, in the case of Germain Katanga. The conviction of March of 2014 is still subject of appeal.
6 See, e.g., X. Philippe, “The principles of Universal Jurisdiction and Complementarity: How do the two
principles intermesh?
7 See the most recent Resolution ICC /12/Res. 8, November 27, 2013.
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observer States. The ASP meets at least once annually and is responsible for ICC
management and legislation.
Ideally, the ICC would have jurisdiction to try the most serious crimes committed in
each country, but during the first decade, attention was directed toward conflicts in
African countries. This is explained by three facts: atrocities were committed in several
States that are not party to the Statute (still approximately a third of the international
community), referral according to the action of the Security Council (which refereed
only the cases of Sudan8 and Libya9
However, preliminary investigations have started in several other cases, such as
Afghanistan, Colombia, Georgia, Equatorial Guinea, Honduras, North Korea, and
Nigeria. Nevertheless, for the moment, such investigations have not yielded results.
), and that half of the cases were submitted by
States themselves, by coincidence African States.
On the other hand, Commissions of Inquiry, mandated by the UN Human Rights Council
on atrocities committed in Syria and North Korea, recommended the submission of
such cases to the ICC in 2013 and 2014.10 In the first case, Syria is not a State Party to
the ICC and there was a decision against sending the case to the ICC11
As Navi Navanethem Pillay, the Un High Commissioner for Human Rights stated,
, despite the
favorable position of some of the UN Security Council members. In the case of North
Korea, which is not part of the ICC either, the outcome is pending.
“broadening the reach of the ICC is necessary so as to turn the
ICC into a universal court and close the loopholes of accountability
at the international level”12
.
While the ICC is not a truly universal court - and one wonders if some day it may be -
its "partial" or "incomplete" jurisdiction will always be a challenge, as long as "loopholes
of accountability" remain open.
Complementarity
The ICC was designed as a Court of last resort, as each State has the primary duty to
protect its population from the most serious international crimes and to prevent and
repress the offences definted in the Rome Statutein accordance with national criminal
systems.
The Statute states clearly, in the preamble, that the ICC is intended to judge the
crimes of greater severity and, in particular, Article 17 establishes the principle of
complementarity, whereby the ICC only has jurisdiction to try crimes when the State
8 Resolution 1593 (2008).
9 Resolution 1970 (2011).
10 It was also the case in relation to Darfur and to Libya, whose reports of the UN Commissions of Inquiry
led the Security Council to refer these cases to the ICC in 2005 and 2011.
11 Cf. Resolution 2118 (2013).
12 Opening Remarks at the Side-Event at the 24th Session of the UN Human Rights Council, “The
International Criminal Court 15 years after the Rome Statute: Prospects for the Future”, September 10,
2012.
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having jurisdiction over the same crime is "unwilling" or "unable" to exercise that
jurisdiction.
To this extent, the appropriate legislation and the capacity for effective investigation
and judicial procedures are necessary at the national level. This is encouraged and
supported by the ICC and the ASP (cf. Resolution ICC-ASP/12/Res. 4) in order to avoid
the so-called "impunity gap", i.e. criminal cases that are not judged at the national or
international level13
However, not all of the 122 States Parties to the Rome Statute have the appropriate
legislation or competent judiciary to prosecute crimes within their jurisdiction. A
thorough analysis of national legislation, to ensure its appropriateness, remains to be
done and technical assistance can be provided to help these State Parties improve and
adopt the necessary domestic legislation.
.
On the other hand, it is not always evident how to determine the situations in which a
member State, in accordance with Article 17 (1) of the Statute, refuses or lacks the
capacity to carry out the national jurisdiction over crimes. Only in the case of a
negative assessment, can the Court declare the case inadmissible. As of yet,
consolidated case law determining with certainty if the State "does not want" or "does
not have the capacity" is lacking. Nor is it the practice of States on when to invoke such
an objection of inadmissibility or of the Prosecutor for not pursuing investigations.
Are there other ways to avoid the "impunity gap"?
Cooperation
Non-cooperation with the Court is a phenomenon that strongly affects the credibility of
the ICC. The States Parties are under an obligation to cooperate in accordance with
Part IX of the Statute, specifically, in the implementation of the decisions of the Court
and execution of the arrest warrants. In the event of cases referred by the Security
Council under Chapter VII of the Charter, it would be fair to say that even the States
not party shall be obliged to cooperate with the Court, in accordance with, at least, the
aspects referred to in the resolution.
The most serious case of non-cooperation is, of course, the non-compliance with arrest
warrants or requests for delivery. Arrest warrants or requests for delivery of more than
half of the defendants have gone unheeded, as is outlined in the Resolution ICC-ASP
/12/Res.3. Considering that all the members of the international community are under
obligation to cooperate, arrest, or surrender those under warrant to the Court, it is
striking that the the accused in situations submitted by the Security Council under
Chapter VII (Darfur, President Bashir14
Pursuant to Article 63 of the Statute, the accused shall be present during the trial.
Since there is no provision for trials in absentia, the Court's role diminishes, as a case
cannot proceed to trial by reason of non-presence of the accused.
, and Libya) or in the first case, initiated in 2005
by Uganda, none of the suspects are in Court custody.
13 Cf. Informal Summary by the Focal Points, “Stocktaking of international criminal justice - Taking stock of
the principle of complementarity: bridging the impunity gap”, Review Conference of the Rome Statute,
Kampala, 31 May-11 June 2010.
14 See G. P. Barnes, "The International Criminal Court's Ineffective Enforcement Mechanisms: the
Indictment of President Omar Al Bashir".
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b) Peace vs. Justice or Peace and Justice15
The idea of peace and justice, whether conflicting or complementary, is a relatively new
issue, coming to light by the creation of the ICC. Previously, instances of establishment
of international criminal tribunals took place at the end of the conflict as a consequence
of crimes committed. The cases of the military court in Nuremberg or the ad hoc
tribunals for the Former Yugoslavia and Rwanda demonstrate this point.
In the ICC´s case, jurisdiction can be triggered during any stage of the conflict,
provided that there is suspicion that crimes, in accordance with the Statute, have been
committed and that the situation will be referred by the State in whose territory the
crimes are committed, by the Security Council, or in accordance with the powers
proprio motu by the Prosecutor of the Court.
Likewise, being that the majority of current conflicts are intrastate or civil wars, their
resolution will depend on a process of negotiated internal peace, where it is often
necessary to gather all the conflicting parties to the negotiating table. It is frequently
the case that some of these parties - government or rebels - have committed crimes,
i.e., war crimes or crimes against humanity.
In the case of such peace negotiations, some argue that it is necessary to carry out the
peace process first and, subsequently, commence the fight against impunity and for
justice16 through a process called "sequencing". This is illustrated by the example of
Uganda, where the case was brought to the Court by the government in an attempt to
weaken the rebels of the “Lord's Resistance Army”. However, the warring parties would
only accept negotiations if the peace agreement gave them immunity from ICC
indictments17
The Rome Statute and general international law seem incompatible with granting
amnesty for the most serious international crimes. Yet, the Rome Statute recognizes
the importance of suspending investigations or trials in cases of the maintenance of
international peace and security (Article 16), when the crimes are subject to processes
at the national level (Article 17), or when the Prosecutor believes that suspension best
serves the interests of justice (Article 53).
.
For the ICC and the ASP, these concepts are complementary: "There can be no lasting
peace without justice and (...) peace and justice are thus complementary
requirements" (Resolution ICC-ASP/12/Res. 8)18 Moreover, it is the only way to
enhance the effect of deterrence19
15 For a brief interesting summary of this debate, its history and different positions, see Draft Moderator
Summary, "Stocktaking of international criminal justice - Peace and Justice", Review Conference of the
Rome Statute, Kampala, 31 May-11 June 2010. See also the "Nuremberg Declaration on Peace and
Justice", Annex to the letter dated 13 June 2008 from the Permanent Representatives of Finland,
Germany and Jordan to the United Nations addressed to the Secretary-General (A /62/885).
regarding the commission of the most serious
16 See the opinion of the African political figure, Thabo Mbeki, co-author of an article in the New York Times,
published in February 5, 2014, with the provocative title of "Courts can't end civil wars."
17 Cf. L. M. Keller, "Achieving peace without justice: the International Criminal Court and Ugandan
alternative justice mechanisms", and L. M. Keller, "The false dichotomy of Peace versus Justice and the
International Criminal Court".
18 See also the article of the Prosecutor of the ICC, Fatou Bensouda, the New York Times, 19 March 2013,
entitled "International Justice and Diplomacy."
19 K. Cronin-Furman, "Managing expectations: International criminal trials and the prospects for deterrence
of mass atrocity".
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international crimes, which was the initial rationale for the creation of the first
permanent international criminal court.
The ICC, the case of Kenya, the African Union (AU) and the future of
the idea of combating impunity
In the autumn of 2013, the African Union raised concerns20
The African Union has taken several tough positions on the question of universal
jurisdiction, the fight against impunity,
directed toward the ICC,
especially concerning the case of Kenya, hitting its climax in the Assembly of State
Parties. Still ongoing, these tensions continue to challenge the idea of combating
impunity.
21
Regarding Kenya, the case was not referred to the ICC by the State directly, although it
is a party to the Rome Statute, but triggered by a Prosecutor investigation proprio
motu. The referral occurred after the discovery that crimes against humanity were
committed in the wake of the 2007 national elections. Specifically, murder, rape, forms
of sexual violence, deportation, forced transfer of populations, and other inhumane acts
were reported. The Prosecutor´s findings led to the 2010 indictment for crimes against
humanity of three suspects, two of whom were elected in 2013, President Uhuru
Kenyatta (trial postponed) and Vice President William Ruto (trial started in 2013) of the
Kenyan Republic.
and the International Criminal Court,
specifically with the cases of Sudan and Kenya.
During the 21st Session of the Assembly of the African Union in May 2013, the African
Union, by resolution (Assembly /AU/13 (XXI), reiterated its,
"strong conviction that the search for justice should be pursued in
a way that does not impede or jeopardize efforts at promoting
lasting peace" and the "AU's concern with the misuse of
indictments against African leaders."
As a result of this decision, a letter22
20 For an evolution of the relations between the ICC and Africa see N. Waddell and P. Clark, Courting Conflict?
Justice, Peace and the ICC in Africa; A. Arieff et al, International Criminal Court Cases in Africa: Status
and policy issues; E. Keppler, "Managing setbacks is the International Criminal Court in Africa"; A.
Warrior, The resistance of the African States to the jurisdiction of the International Criminal Court; F. M.
Benvenuto, "La Cour Penale Internationale en juge"; and C. C. Jalloh, "Reflections on the indictment of
Child Heads of State and Government and its consequences for peace and stability and reconciliation in
Africa"-
was addressed on 10 September, coinciding with
the start of the trial of Vice-President Ruto, to the President of the ICC referring to the
need of the creation of a national mechanism to investigate and prosecute crimes
21 On this theme see "The AU-EU Expert Report on the Principal of Universal (AHJ) (Council of the European
Union 8672 1/09, 16 April 2009). The theme of universal jurisdiction and the International Criminal Court
has caused wide friction between the African Union and the European Union, which gave rise to the
above-mentioned report. The Declaration of the most recent EU-Africa Summit, which took place in
Brussels on 2 and April 3, 2014, with total absence of reference to the ICC, states in paragraph 10: “We
confirm our rejection of, and reiterate our commitment to, fight impunity at the national and international
level. We undertake to enhance political dialogue on international criminal justice, including the issue of
universal jurisdiction, in the agreed fora between the parties.”
22 Cf. Doc. BC/U/1657.10.13.
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committed in the context of the post-electoral violence in Kenya in 2007. The same
letter stated that the Court proceedings affect the ability of Kenyan leaders to lead,
who - despite possible liability for the crisis of 2007 -, are democratically elected and
must remain in the country to fulfill their constitutional responsibilities. Furthermore,
the trial period requiring the physical presence of the President and the Vice-President
at The Hague would not be feasible, since the Constitution of Kenya states that when
the President is abroad, the Vice-President cannot be also, and vice versa.
In response, the ICC denied any procedural statute to that letter or the May decision
since it fell outside the scope of the process and was not sent the request of the parties
or the Security Council, and responded negatively to the pretense of suspending the
process23
In October 2013, a Special Session of the Assembly of the AU adopted a new
resolution, this time entitled: "Decision on Africa's relationship with the International
Criminal Court" (cf. Ext /Assembly/AU/Dec .1 (Oct. 2013)). This resolution reiterated
the concern with the politicization and misuse of accusations against African leaders by
the ICC. Regarding the question of Kenya, the resolution stated that the indictment
prompts a serious and unprecedented situation in which both the President and Vice
President in Office of a country are the target of a international criminal process,
affecting the sovereignty, stability and peace in that country, as well as the national
reconciliation and the normal functioning of constitutional institutions.,The resolution
decided, inter alia, the following:
.
- For the safeguarding of constitutional order, stability, and integrity of the Member
States, no prosecution can be initiated or continued by any international tribunal
against any head of State or Government in Office or someone who acts or with the
right to act in that capacity during his tenure;
- That the trials of the Chairman Uhuru Kenyatta and the Vice-president William
Samoei Ruto, who are the current leaders in Office of the Republic of Kenya, must
be suspended until theirterms are completed;
- Creation of a Contact Group of the Executive Board, to be headed by the President of
the Council, which shall consist of five members (one per region) to conduct
consultations with the members of the UN Security Council (UNSC), specifically, the
five Permanent Members, with a view to collaborate with the UNSC in all concerns of
the AU on their relationship with the ICC, including the postponement of the cases
against Kenya and the Sudan, in order to obtain the answer before the beginning of
the trial, the 12 November 2013;
- Accelerate the extension process of the African Court on Human and Peoples' Rights
(TADHP) mandate to judge international crimes, such as genocide, crimes against
humanity, and war crimes;
- The African States Parties to the Rome Statute to propose relevant amendments to
the Rome Statute, in accordance with Article 121 of the Statute;
- Ask the African States Parties to the Rome Statute of the ICC, in particular the
members of the Bureau of the Assembly of States Parties, to include in the Agenda
of the next session of the ASP the question of the prosecution of a Head of State and
23 Cf. 2013/PRES/00295-4/VPT/MH, Letter from September 13, 2013.
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of Government in Africa in Office by the ICC, and its consequences for the peace,
stability, and reconciliation in the Member States of the African Union.
- That any member State of the AU wishing to refer a case to the ICC should inform
and obtain the approval from the African Union;
- That Kenya should send a letter to the Security Council of the United Nations,
requesting postponement of the case against the President and the Vice President of
Kenya, in accordance with Article 16 of the Rome Statute, which is supported by all
African States Parties;
- In accordance with this Decision, ask the Court to postpone the trial of President
Uhuru Kenyatta, marked for November 12, 2013 and to suspend the procedure
against the Vice-president William Samoei Ruto up to the moment in which the UN
Security Council considers the request of Kenya for deferral, supported by the AU.
- That the President Uhuru Kenyatta not be required to appear before the ICC until the
moment that the concerns raised by the AU and its Member States have been duly
considered by the Security Council of the United Nations and the ICC.
On November 15, 2013 the Security Council rejected, though extremely divided (7
votes in favor and 8 abstentions) a draft Resolution (doc. S/2013/660) which sought,
pursuant to Article 16 of the Rome Statute and Chapter VII of the Charter, to defer the
investigation and trial of the President and Vice-President of Kenyan, for a period of one
year. Voted in favor Azerbaijan, China, Morocco, Pakistan, Russia, Rwanda and Togo.
Abstained Argentina, Australia, France, Guatemala, Luxembourg, the Republic of Korea,
United Kingdom and USA (for individual explanations of vote see S/PV. 7060).
Nevertheless, the 12th session of the ASP included, at the request of the African Union,
a special segment entitled, "Indictment of Sitting Heads of State and Government and
its consequences on peace and stability and reconciliation."
During the November 2013 intervention on behalf of the AU in the ASP, it was stated;
“… I would like to turn now to the situation in Kenya and to
highlight the inescapable link between peace and justice. We at
the AU would like to see an intelligent interaction between justice
and peace because it is only in this way that we can succeed in
promoting democratic governance with strong institutions, the rule
of law and constitutionalism. The African Union believes that if
Kenya does not qualify for use of Article 16 of the Rome Statute
and subsequently the principle of complementarity then no other
State Party will. If this turns out to be the case, then not only
Article 16 would be deemed to be redundant for the United Nations
Security Council to legitimately and constructively resort to it, but
the irresistible conclusion will also be that the ICC, whose
establishment Africa and the Organization of African Unity strongly
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supported and advocated for is no longer a Court for all but only to
deal with Africans in the most rigid way”24
.
According to the proposal submitted by the African States - adopted by consensus -
substantial amendments to the Rules of Procedure and Evidence of the ICC - namely
Rule 134 – were drafted, specifically allowing the justification of absence or that of
physical presence in the trial to be replaced by participation via video technology. In
accordance with the Resolution ICC-ASP/12/Res. 7, the following was inserted after
Rule 134 of the Rules of Procedure:
“Rule 134bis
Presence through the use of video technology
1. An accused subject to a summons to appear may submit a written request to the
Trial Chamber to be allowed to be present through the use of video technology
during part or parts of his or her trial.
2. The Trial Chamber shall rule on the request on a case-by-case basis, with due regard
to the subject matter of the specific hearings in question.
Rule 134ter
Excusal from presence at trial
1. An accused subject to a summons to appear may submit a written request to the
Trial Chamber to be excused and to be represented by counsel only during part or
parts of his or her trial.
2. The Trial Chamber shall only grant the request if it is satisfied that:
(a) exceptional circumstances exist to justify such an absence;
(b) alternative measures, including changes to the trial schedule or a short
adjournment of the trial, would be inadequate;
(c) the accused has explicitly waived his or her right to be present at the trial; and
(d) the rights of the accused will be fully ensured in his or her absence.
3. The Trial Chamber shall rule on the request on a case-by-case basis, with due regard
to the subject matter of the specific hearings in question. Any absence must be
limited to what is strictly necessary and must not become the rule.
Rule 134 quarter
Excusal from presence at trial due to extraordinary public duties
1. An accused subject to a summons to appear who is mandated to fulfill
extraordinary public duties at the highest national level may submit a written
request to the Trial Chamber to be excused and to be represented by counsel
24 http://www.icc-cpi.int/iccdocs/asp_docs/ASP12/GenDeba/ICC-ASP12-GenDeba-AU-Uganda-ENG.pdf.
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only; the request must specify that the accused explicitly waives the right to be
present at the trial.
2. The Trial Chamber shall consider the request expeditiously and, if alternative
measures are inadequate, shall grant the request where it determines that it is
in the interests of justice and provided that the rights of the accused are fully
ensured. The decision shall be taken with due regard to the subject matter of
the specific hearings in question and is subject to review at any time.”
There will be those who question the compatibility of these amendments with Article 27
of the Rome Statute and the principle of equal treatment. The Court, in a decision from
November 26 2013 on the Kenyan process, contended that the absence of the accused
should only occur in exceptional circumstances and be limited to what is strictly
necessary. Although the trials in absentia were allowed in the Nuremberg trials, they
were excluded, as a general rule, in the Tribunals for the former Yugoslavia, Rwanda
and by the Statute of the ICC.
Article 27 of the ICC Statute confirms, in addition, that the official capacity of a
defendant is irrelevant for the purposes of a trial before this Court, providing that
immunities or special procedural rules that may be inherent to the official duties of a
person, according to national or international law, does not prevent the Court from
exercising its jurisdiction over such a person. In addition, Article 98 of the Statute does
not refer to the personal immunities of Heads of State, Government, or Ministers of
Foreign Affairs in absolute terms, but rather to the diplomatic immunities between
Member States and the possible need to obtain consent prior to the delivery of a
suspect to Court.
The proposals made during the ASP for amendment to the Rules of Procedure, its
acceptance policy and strategy of containement, did not prevent, however, the
Government of Kenya from notifying, on November 22, 2013, the Secretary-General of
the United Nations,25
as depositary of the Rome Statute, the following proposed
changes to the Statute in accordance with Article 121 (1), in particular with regard to
Articles 63 (Trial in the Presence of the accused), 27 (Irrelevance of official capacity)
and to the paragraph of the Preamble on complementarity:
Article 63 (2) - the Presence of the accused at trial
"Notwithstanding article 63(1), an accused may be excused from continuous presence
in the Court after the Chamber satisfies itself that exceptional circumstances exists,
alternative measures have been put in place and considered, including but not limited
to changes to the trial schedule or temporary adjournment or attendance through the
use of communications technology or through representation of Counsel.
(2) Any such absence shall be considered on a case-by-case basis and be limited to
that which is strictly necessary.
(3) The Trial Chamber shall only grant the request if it determines that such
exceptional circumstances exist and if the rights of the accused are fully ensured
25 Officially circulated on March 14, 2014 (C.N.1026.2013.TREATIES-XVIII.10 - Depositary Notification).
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in his or her absence, in particular through representation by counsel and that
the accused has explicitly waived his right to be present at the trial."
Article 27 (3)- Irrelevance of official capacity
“Notwithstanding paragraph 1 and 2 above, serving Heads of State, their deputies and
anybody acting or is entitled to act as such may be exempt from prosecution during
their current term of office. Such an exemption may be renewed by the Court under the
same conditions”
Introductory Paragraph on Complementarity
"Emphasizing that the International Criminal Court established under this Statute shall
be complementary to national and regional criminal jurisdictions."
If the proposed amendment to Article 63 - the new rules introduced in ASP 2013 are to
some extent already accepted - represents a 60 year step backwards to the trials in
absentia of the Nuremberg Tribunal, the proposed amendment to Article 27 goes
against a fundamental "sacrosanct" principle upheld since Nuremberg and incorporated
in the Statute of all criminal courts: international criminal law applies to everyone,
regardless of official capacity. Article 7 of the Charter of the International Military
Tribunal stated “the official position of defendants, whether as Heads of State or
responsible officials in Government Departments, shall not be considered as freeing
them from responsibility or mitigating punishment.”
The proposal for the amendment of Article 27, supported by the African States and
proposed for discussion in an extraordinary ASP, would alter a fundamental principle of
the Statute and customary international criminal law, recognized by ICJ in the Case
Arrest Warrant of 2000. It would be "a shameful retreat in the global fight against
immunity".26
In our view, and as mentioned above, the appropriate safeguards for complex cases,
such as the case of Kenya are already incorporated in the Rome Statute, therefore, no
change to the aforementioned articles is required. However, the safeguards in Articles
17 (Complementarity and Admissibility), 53 (Powers of the Prosecutor) and 61 and 63r
(Presence of the accused at trial), could be readdressed to improved consistent and
continuity. In any case, in extreme circumstances, the power to appeal will remain, and
in cases in which peace is seriously threatened, the Security Council, pursuant to Article
16 of the Statute, may suspend, for periods of 12 months, the proceedings before the
ICC. The fact that that body has not accepted the use of this prerogative in Sudan´s
Additionally, according to the same author, this Amendment to Art. 27
could even be a stronger incentive for taking power (by democratic means or not) in
order to avoid a trial in The Hague. The proposal, likewise, contradicts the principle of
speedy justice for the victims, because the Court would be prevented from exercising
jurisdiction with regard to persons that occupy high political positions.
26 C. C. Jalloh, "Reflections on the indictment of sitting Heads of State and Government and its
consequences for peace and stability and reconciliation in Africa", p.15.
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case, where it did not formally take a decision, or Kenya, where the request was denied
by a narrow margin, does not mean that this safeguard is ineffectual.27
Conclusions
Due to the challenges of the current cases, some perceive the idea of combating
impunity and international criminal justice as declining. Others view this as a process of
stabilization developing in the ICC; which after a revolutionary achievement, despite
maturing over many decades, materialized in a relatively short period.
However, the African attempt to introduce immunity from criminal jurisdiction for
current Heads of State for the most serious international crimes - even if temporarily -
is a severe setback to the idea of fighting impunity.
The future credibility of the ICC´s role, pursuant on how and when these challenges
and ideas are approached, awaits judgment. The proposal for a separate International
Criminal Court for Africa (suggested by the African Union and the proposed amendment
to the Statute of Rome from Kenya) and the possible withdrawal from the ICC Statute
(authorized but with limited effects on current cases) by Article 127 (2) by some
African states has yet to materialize.
Kofi Annan succinctly clarified the issue when he stated,
"it is the culture of impunity and individuals who are on trial at the
ICC, not Africa"28
.
It is our hope that the entire international community will understand these words of
wisdom and that the struggle against "impunity" will not lose its "p" and become, in
fact, for some, ”immunity" from crimes against humanity.
References
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Semaine Juridique, Vol. 86, No. 52:1-24.
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Statute to its review. Ashgate.
27 On the relationship between the ICC and the UN Security Council see H. Mistry and D. Ruiz Verduzco
(Rapporteurs), “The UN Security Council and the International Criminal Court, International Law Meeting
Summary”; D. Kaye et al, “The Council and the Court: Improving Security Council Support for the
International Criminal Court”; e J. Trahan. “The relationship between the International Criminal Court and
the UN Security Council: Parameters and best practices”.
28 Speech of K. Annan in " 3rd Annual Desmond Tutu International Peace Lecture", October 7, 2013.
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Benvenuto, F.M. (2013). “La Cour Pénale Internationale en accusation.” Le Monde
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OBSERVARE
Universidade Autónoma de Lisboa
ISSN: 1647-7251
Vol. 5, n.º 2 (november 2014-april 2015), pp. 16-44
THE INTERNATIONAL CRIMINAL COURT
AND THE CONSTRUCTION OF INTERNATIONAL PUBLIC ORDER
Sofia Santos
sofiasantos@ymail.com
PhD in Public International Law, University of Saarland, Germany, PhD scholarship of the German
Academic Exchange Service (DAAD). Master in European Law and Public International Law
(University of Saarland). Undergraduate in European Studies (University of Porto, Portugal).
Invited Assistant Professor, Faculty of Law, New University of Lisbon (Portugal).
Integrated investigator, Research and Development Center on Law and Society (CEDIS), in
International Security Law. Associate investigator, OBSERVARE, in International criminal justice
and European security and defense policy. Auditor of the National Defense Course of the
Portuguese National Defense Institute and of other courses organized by the Institute. Author
and speaker on International Law, European Law, International Organizations, Defense and
International Security.
Abstract
Envisioning an international public order means envisioning an order sustained by a legal
and institutional framework that ensures effective collective action with a view to defending
fundamental values of the international community and to solving common global problems,
in line with the universalist vision of international law. Envisioning the construction of an
international public order means considering that this framework, which embraces and
promotes the respect for human rights focused particularly on human dignity, is
consolidating and evolving based on the International Criminal Court (ICC). The
establishment of the ICC added an international punitive perennial facet to international
humanitarian law and international human rights law and linked justice to peace, to security
and to the well-being of the world, reaffirming the principles and objectives of the Charter of
the United Nations (UN). Nevertheless, the affirmation process of an international criminal
justice by punishing those responsible for the most serious crimes of concern to the
international community as a whole, faces numerous obstacles of political and normative
character. This article identifies the central merits of the Rome Statute and ICC’s practice
and indicates its limitations caused by underlying legal-political tensions and interpretive
questions relating to the crime of aggression and crimes against humanity. Finally, the
article argues for the indispensability of rethinking the jurisdiction of the ICC, defending the
categorization of terrorism as an international crime, and of articulating its mission with the
"responsibility to protect", which may contribute to the consolidation of the ICC and of
international criminal law and reinforce its role in the construction of an effective
international public order.
Key Words:
International Criminal Court; International Public Order; The Rome Statute; International
Criminal Law; International Crimes; Terrorism; Responsibility to Protect
How to cite this article
Santos, S. (2014). "The International Criminal Court and the construction of International
Public Order". JANUS.NET e-journal of International Relations, Vol. 5, N.º 2, november
2014-april 2015. Consulted [online] on date of last visit,
observare.ual.pt/janus.net/en_vol5_n2_art2
Article received on September 24, 2014 and accepted for publication on October 29,
2014
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The International Criminal Court and the construction of International Public Order
Sofia Santos
17
THE INTERNATIONAL CRIMINAL COURT
AND THE CONSTRUCTION OF INTERNATIONAL PUBLIC ORDER
Sofia Santos
The ICC will not be a panacea for all the ills of humankind. It will not eliminate conflicts, nor
return victims to life, nor restore survivors to their prior conditions of well-being and it will not
bring all perpetrators of major crimes to justice. But it can help avoid some conflicts, prevent
some victimisation and bring to justice some of the perpetrators of these crimes. In doing so, the
ICC will strengthen world
order and contribute to world peace and security.
M. Cherif Bassiouni, Ceremony for the Opening for Signature of the Convention
on the Establishment of an International Criminal Court, Rome, 18 July 1998
… justice is a fundamental building block of sustainable peace
Kampala Declaration, 11 June 2010.
1. Introduction
Envisioning an international public order means envisioning an order sustained by a
legal and institutional framework that ensures effective collective action with a view to
defending fundamental values of the international community and to solving common
global problems, in line with the universalist vision of international law. Such an
international order implies institutions, procedures and international instruments that
enable the achievement of common objectives (Bogdandy; Delavalle, 2008: 1-2).
Envisioning the construction of an international public order means considering that this
framework which embraces and promotes the respect for human rights focused
particularly on human dignity, aiming to safeguard peace, security and well-being of
the world, is consolidating and evolving based on a permanent and independent court,
the International Criminal Court (ICC).
The preludes of an international criminal court as a protector and as a driving force of a
public order date back to the Convention on the Prevention and Punishment of the
Crime of Genocide of 1948 under the auspices of the United Nations (UN)1
1 Convention on the Prevention and Punishment of the Crime of Genocide, the Official Gazette, 1st Series A,
No. 160, 07.14.1998.
. Indeed, the
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General Assembly, taking into account the question raised during the discussion on the
punishment of crimes of genocide and the increasing need for a competent body for the
trial of certain crimes under international law in a developing international community
invited the International Law Commission to study the desirability and possibility of its
establishment2. The positive response of the Commission3 resulted in a draft statute,
elaborated over several decades and submitted to the General Assembly in 1994 that
advocated the importance of the creation of an international criminal court4
Armin von Bogdandy and Sergio Dellavalle stress that the progress of an international
public order and effective international law largely depends on the fate of international
criminal law and on the success of the Statute’s regulatory project (2008: 2). However,
how is this dependence manifested? How could the regulatory project and, more
specifically, the ICC be more successful and influence this construction in a more
effective manner?
. In this
sense, the Assembly established a preparatory committee in 1996 with the aim of
producing a draft text, which served as the basis for negotiations at the Rome
Conference in 1998, culminating in the signature of the Statute.
This article examines the merits of the Rome Statute and ICC’s practice and then
explicates its limitations. Lastly, it argues for the indispensability of a process of
acquiring new dimensions and of deepening existing facets, formulating some
proposals.
2. The Rome Statute and the recent praxis of the ICC: key
considerations
The Rome Statute of 1998 reaffirmed the relevance of the UN Charter objectives and
principles5
The Statute established the notion of "most serious crimes" of concern to the
international community as whole and which are enumerated in Article 5: crime of
genocide, war crimes, crimes against humanity and the crime of aggression. In this
context, the statute added a punitive facet to international human rights law and to
international humanitarian law, since until then the punishment of its violation
depended solely on national criminal jurisdictions.
and recognized the existence of common values such as peace, security and
well-being of the world which should be safeguarded by the court.
2 U.N. Doc. A/RES/3/260 B (III), Study by the International Law Commission of the Question of an
International Criminal Court, 09.12.1948.
3 U.N. Doc. A/CN.4/34, Report of the International Law Commission on its Second Session, 5 June to 29
July 1950, Official Records of the General Assembly, Fifth session, Supplement No.12 (A/1316), Yearbook
of the International Law Commission, vol. II, 1950, §140, p. 379. Ricardo J. Alfaro, Special Rapporteur
pointed out in his report submitted to the Commission that “The community of States is entitled to
prevent crimes against the peace and security of mankind and crimes against the dictates of the human
conscience, including therein the hideous crime of genocide. If the rule of law is to govern the community
of States and protect it against violations of the international public order, it can only be satisfactorily
established by the promulgation of an international penal code and by the permanent functioning of an
international criminal jurisdiction”, UN. Doc. A/CN.4/15 and Corr.1, Report on the Question of
International Criminal Jurisdiction, Question of international criminal jurisdiction, Yearbook of the
International Law Commission, vol. II, 1950, §136, p. 17.
4 U.N. Doc. A/49/10, Draft Statute for an International Criminal Court, Report of International Law
Commission on the work of its forty-sixth session, 2 May-22 July 1994, Official Records of the General
Assembly, Forty-ninth session, Supplement No.10, Yearbook of the International Law Commission, 1994,
vol. II(2), pp. 26 ff.
5 See Articles 1 and 2 of the UN Charter.
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Specifically, regarding International Human Rights Law, the Statute incorporated, in
Article 6, the definition of the crime of genocide as stated in Article II of the Convention
on the Prevention and Punishment of the Crime of Genocide. Hence, genocide means
any act committed with intent to destroy, in whole or in part, a national, ethnical, racial
or religious group: homicide, causing serious bodily or mental harm to members,
deliberately inflicting conditions of life designed to bring about its physical destruction
in whole or in part, imposing measures intended to prevent births, and the forced
transfer of children to another group.
The punitive facet of international humanitarian law was embodied in Article 8 related
to the war crimes prescribed in the Geneva Conventions of 1949. The Court has
jurisdiction over these crimes “when committed as part of a plan or policy or as part of
a large-scale commission of such crimes”. This article covers grave breaches of these
conventions, i.e., acts against persons or property and serious violations of the laws
and customs applicable in international armed conflict under international law. In the
case of non-international armed conflicts, war crimes refer to violations contained in
Article 3, common to the Geneva Conventions. That is, acts committed against
individuals taking no active part in the hostilities, including members of armed forces
who have laid down their arms or were placed hors of combat: acts of violence to life
and person, outrages upon personal dignity, hostage-taking, the passing of sentences
and the carrying out of executions, without previous trial by a regularly constituted
court, which affords all indispensable judicial guarantees as well as other serious
violations of the laws and customs applicable to such conflicts under the international
law framework.
Under the Statute, crimes against humanity are any act committed as part of a
widespread or systematic attack against a civilian population with knowledge of the
attack, such as murder, extermination, enslavement, deportation or forcible transfer of
population, imprisonment in violation of fundamental rules of international law, torture,
rape, sexual slavery, persecution against an identifiable group or collectivity on
political, racial, national, ethnic, cultural, religious, gender grounds or on other
universally accepted criteria, crimes against humanity, forced disappearance of
persons, the crime of apartheid, and other inhumane acts of a similar nature
intentionally causing considerable suffering, serious injury or affect mental or physical
health (Article 7).
In contrast to the crimes of genocide and war crimes, the crimes against humanity are
not codified in an international convention and the analysis of the jurisprudence of the
international ad hoc criminal tribunals reveals different understandings. The
systematization contained in the Statute encompasses acts that had not been specified
previously as crimes against humanity, being therefore the most comprehensive listing
on this matter.
The merits of the Statute are not solely limited to codifying the most serious crimes,
except the crime of aggression whose definition and conditions for the exercise of the
ICC’s jurisdiction were procrastinated to a review Conference (Article 5, paragraph 2).
By prescribing the application of the general principles of criminal law (Part III), the
principles of the presumption of innocence (Article 66) and of the prohibition of double
jeopardy - ne bis in idem (Article 20) by the Court, the Statute contributes significantly
to the consolidation and development of international criminal law (Stein; von Buttlar
2012: 438).
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This punitive system is based on the complementarity principle (Article 1), that even
though constraining the ICC’s power, enables the Court to exercise influence over the
states’ sphere of authority. It forms part of a gradual erosion process of the
Westphalian view of the sacrosanctity of state sovereignty and internal affairs. As
Miguel de Serpa Soares argues:
"any form of international justice always represents a means of
limiting national sovereignty. In the case of International Criminal
Law this limitation is even more evident by compromising
elements essential to the classic paradigm of International Law, as
for example the punitive monopoly of States or the concept of a
quasi-absolute State sovereignty" (Soares, 2014: 9).
In effect, the Court is competent to determine a state’s unwillingness to carry out the
investigation or prosecution: situations where the proceedings were or are being
undertaken or the national decision was made for the purpose of shielding the person
concerned from criminal responsibility within the Court’s jurisdiction, existence of an
unjustified delay in the proceedings or the proceedings were or are not being conducted
independently or impartially, and they are or were being carried out in a manner that is
inconsistent with an intent to bring the person concerned to justice (Article 17,
paragraph 2).
In addition, the Statute imposes upon the States Parties the obligation to cooperate
with the Court in the investigation and prosecution of crimes within its jurisdiction
(Article 86) and to adopt procedures under national law for all of the forms of
international cooperation and judicial assistance specified under Part IX (Article 88).
The praxis evidences an increasing activity of the Court, demonstrating its commitment
to ending impunity.
In 2012, Thomas Lubanga Dyilo was sentenced to 14 years in prison for war crimes.
He was found guilty of enlisting and conscripting of children under 15 years of age to
actively participate in a non-international armed conflict in the Democratic Republic of
the Congo from 1 September 2002 to 13 August 20036. In 2014, Germain Katanga was
found guilty and sentenced to 12 years in prison for one count of crime against
humanity (murder) and four counts of war crimes (murder, attacking a civilian
population, destruction of property and pillaging) committed on 24 February 2003
during the attack on the village of Bogoro in the Democratic Republic of the Congo7
Presently, the Office of the Prosecutor is investigating several situations by state party
referral − Uganda (2004), Democratic Republic of Congo (2004), Mali (2012), The
Union of the Comoros (2013) and Central African Republic (2005 and 2014) − by
proprio motu action of the Prosecutor: Kenya (request submitted in 2009, authorization
of the Pre-Trial Chamber in 2010), Ivory Coast (request submitted and authorization of
.
6 See ICC-01/04-01/06-2901, Trial Chamber I, Situation in the Democratic Republic of the Congo in the
Case of the Prosecutor v. Thomas Lubanga Dyilo, Decision on Sentence pursuant to Article 76 of the
Statute, 10.07.2012.
7 See ICC-01/04-01/07-3484, the Trial Chamber II, Situation in the Democratic Republic of the Congo, The
Prosecutor v. Germain Katanga, Decision on the sentence (Article 76 of the Statute), 23.05.2014.
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the Pre-Trial Chamber in 2011) − and conducting preliminary examinations concerning
several states, namely Ukraine, a non-state party which accepted the jurisdiction of the
Court (2014). Even more important is the referral of the situations in the Darfur region,
in Sudan (2005) and in Libya (2011) by the UN Security Council due to the existence of
evidence of international crimes8
. It can be considered that these referrals are in line
with the argument of universalism that this competence of the Council allows the
extension of the Court’s jurisdiction to non-States Parties and thus constitutes an
"evolution in shaping the international order" (Kowalski, 2011: 124).
3. Limitations of the ICC and implications for the applicability of
International Criminal Law
The limitations of the ICC result, firstly, from legal and political tensions arising from its
relationship with the Security Council and the complementary character of its
jurisdiction and, secondly, from the ambiguity of certain formulations contained in the
provisions concerning the “crime of aggression” and “crimes against humanity”, raising
interpretive problems which the law applicable by the Court under Article 21 of the
Statute9
does not clarify categorically.
3.1. Legal-political tensions and the problem of decision
implementation
Article 13, paragraph b) of the Statute provides for the possibility of the Security
Council to refer a situation to the Prosecutor under Chapter VII. This means that the
consent from the state in which the acts were committed or of the nationality of the
person alleged to have committed international crimes is not required. The Security
Council’s referrals of the situations in Darfur, Sudan, in 2005 and in Libya in 2011 were
considered historic. However, in the first case, the Security Council has not actively
supported the ICC with respect to detention and to the states’ duty to cooperate with
the Court. In the second case, despite the swift reaction of the Council, the resolution,
as the Darfur referral decision, was flawed, as it, for instance, excluded the Court’s
jurisdiction over nationals of non-states parties (Stahn 2012: 328).
But it is mainly Article 16, according to which an investigation or a prosecution may not
be initiated or proceeded with for a period of 12 months if the Council has requested
the Court to that effect in a resolution adopted under Chapter VII, with the possibility
8 Resolution 1593 (2005) which refers the situation in Darfur (since July 1, 2002) to the ICC does not
specify possible international crimes committed in the region. However, the Security Council took note of
the report of the International Commission of Inquiry on Darfur – this Commission was established by
former UN Secretary General, Kofi Annan, on the basis of resolution 1564 (2004) with a mandate to
investigate reports of violations of international human rights law and international humanitarian law in
the region - which considered that the crimes committed may amount to war crimes and crimes against
humanity (UN Doc. S/2005/60). Resolution 1970 (2011) which refers the situation in Libya to the Court
mentions that the widespread and systematic attacks taking place against the Libyan civilian population
could constitute crimes against humanity.
9 According to Article 21, paragraphs 1 and 2, the Court must in the first place, apply the Statute, the
Elements of Crimes and the Rules of Procedure and Evidence, and in the second place, where appropriate,
applicable treaties and the principles and rules of international law including the established principles of
the international law of armed conflict. Failing that, general principles of law derived by the Court from
different national legal systems and principles and rules of law as interpreted by the Court in previous
decisions.
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of renewal, that raises sharper criticism based on the argument that this action
undermines the independence of the Court10
. Jorge Bacelar Gouveia qualifies this
mechanism as "whimsy" and underlines that:
“It is very difficult to accept the interference of a political organ in
the heart of the exercise of public power of a body that should be
jurisdictional, whose intervention, above all, can not only happen
at any time in the proceedings, but also repeat itself, though it has
in its favor the temporality and the astringent context of Chapter
VII of the UNC” (2013: 792-793).
The Court's complementary nature to national criminal jurisdictions means that, as
Judge Philippe Kirsch noted, the Statute is a two-pillar system: a judicial pillar
represented by the Court and an enforcement pillar represented by the States11
In fact, the execution process of the warrants of arrest has been to a certain extent
troubled. Therefore, it cannot be considered a coincidence that the first words of the
declaration of the first Review Conference of the Statute - the Declaration of Kampala
of 2010 – focus on a renewed spirit of cooperation and solidarity, emphasizing the
States Parties’ commitment to fight impunity and ensure lasting respect for the
enforcement of international criminal justice.
. Yet,
the absence of a permanent mechanism that ensures compliance with the court’s
decisions hampers the implementation of this pillar and, therefore, the fight against
impunity.
The case of Sudanese President Omar al-Bashir is representative of this problem. The
origins of this case date back to 2005 when the Security Council referred the Darfur
situation to the Court in resolution 1593. The former ICC Prosecutor, Luis Moreno-
Ocampo, initiated an investigation later that year and in 2008 requested the Pre-Trial
Chamber to issue a warrant of arrest against the Sudanese President (first warrant
issued on 4th March 2009 and the second warrant issued 12th July 2010, accused of
indirect responsibility for war crimes, crimes against humanity and genocide)12
10 The definition of the crime of aggression involved the establishment of procedures that emphasize this
dependence in the case of a state party referral or proprio motu action by the Prosecutor, although
paragraph 9 of Article 15 bis underlines that such determination by an external body is not binding on the
Court. According to paragraphs 6 and 8 of this Article respectively, when the Prosecutor concludes that
there is a reasonable basis to proceed with the investigation, he/she must first ascertain whether the
Security Council made a determination of such an act committed by the State concerned and notify the
United Nations Secretary-General of the situation before the Court; if no determination is made within six
months after the date of notification, the Prosecutor may continue the investigation as long as the Pre-
Trial Chamber has authorized the initiation of the investigation and the Security Council has not decided
otherwise under Article 16.
. This
was the first case in which an arrest warrant was issued against a head of state in
office. Subsequently, the African Union (AU) submitted a request, pursuant to Article 16
of the Statute, to the Council to adopt a resolution under Chapter VII to defer the
decision, which was declined by the Security Council. As a result, the AU appealed
repeatedly to Member States not to cooperate with the ICC in the arrest of Omar al-
11 ICC, Philippe Kirsch, Opening remarks at the fifth session of the Assembly of State Parties, 23.11.2006.
12 ICC-02/05-01/09-1, Pre-Trial Chamber I, The Prosecutor v. Omar al Bashir, Warrant of Arrest for Omar
Hassan Ahmad al-Bashir, 04.03.2009 and ICC-02/05-01/09-95, Pre-Trial Chamber I, The Prosecutor v.
Omar al-Bashir, Second arrest warrant for Omar Hassan Ahmad al-Bashir,12.07.2010.
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Bashir13
On several occasions, the ICC urged, unsuccessfully, the States Parties and non-States
Parties to execute the arrest warrants issued against al-Bashir during his presence on
their territory. In April 2014, the Pre-Trial Chamber determined that the Democratic
Republic of the Congo failed to comply with its obligations to arrest and surrender Omar
al-Bashir during his visit to the country. Consequently, in accordance with Article 87,
paragraph 7, the Pre-Trial Chamber informed the Assembly of State Parties and the
Security Council
. As David Luban stated, the Court’s weakness, namely, the gap between the
aspiration for criminal justice and its accomplishment, became evident when most
African and Arab states gathered to support the Sudanese President against the ICC’s
decision (2013: 508).
14
Another relevant case regards the current President of Kenya, Uhuru Muigai Kenyatta,
accused of being criminally responsible as an indirect co-perpetrator for crimes against
humanity. This case concerns the violence that occurred in Kenya following the 2007
presidential elections that caused numerous victims. In 2009, Luis Moreno-Ocampo
submitted a request to the Pre-Trial Chamber for authorization of an investigation,
which culminated, at request of the Prosecutor, with the issuance of an arrest warrant
against six Kenyan officials, the so-called "Ocampo six”, by the Pre-Trial Chamber in
2011. That year, the AU endorsed the Kenyan government’s request to the Security
Council to adopt a resolution, requesting the ICC to defer the proceedings against the
Kenyan president and the vice president, William Ruto, pursuant to Article 16. The AU
renewed the request in 2013, which was once again declined by the Security Council
. The fact that the latter may take the necessary measures on this
matter demonstrates that the power to enforce the decisions of the Court lies also on
this organ.
15
In June 2014, the AU adopted an amendment to the protocol of the Statute of the
future African Court of Justice and Human Rights, with jurisdiction over international
crimes, that grants immunity from prosecution to heads of state and senior
government officials, in opposition to Article 27
.
16
13 See Theresa Reinold (2012), Constitutionalization? Whose constitutionalization? Africa’s ambivalent
engagement with the International Criminal Court, International Journal of Constitutional Law, 10(4):
1076-1105, Ken Obura (2011), The Security Council’s Power to Defer ICC Cases under Article 16 of the
Rome Statute, Journal of African and International Law, 4(3) 581-583 and Stella Nyana (2011), The ICC
at a Crossroads: Between Prosecution and Peace in Africa, Journal of African and International Law, 4(1):
1-74.
of the Rome Statute, which allows for
the prospect of the persistence of legal and political tensions between the AU and the
ICC.
14 ICC-02/05-01/09-195, Pre-Trial Chamber II, The Prosecutor v. Omar al-Bashir, Decision on the
Cooperation of the Democratic Republic of the Congo Regarding Omar al-Bashir’s Arrest and Surrender to
the Court, 09.04.2014.
15 See Theresa Reinold (2012), Constitutionalization? Whose constitutionalization? Africa’s ambivalent
engagement with the International Criminal Court, International Journal of Constitutional Law, 10(4):
1076-1105, Ken Obura (2011), The Security Council’s Power to Defer ICC Cases under Article 16 of the
Rome Statute, Journal of African and International Law, 4(3) 581-583 and Stella Nyana (2011), The ICC
at a Crossroads: Between Prosecution and Peace in Africa, Journal of African and International Law, 4(1):
1-74.
16 Article 27, paragraph 1 determines that "this Statute shall apply equally to all persons without any
distinction based on official capacity. In particular, official capacity as a Head of State or Government, a
member of a Government or parliament, an elected representative or a government official shall in no
case exempt a person from criminal responsibility under this Statute, nor shall it, in and of itself,
constitute a ground for reduction of sentence”. Article 27, paragraph 2 states that "immunities or special
procedural rules may attach to the official capacity of a person under national or international law, shall
not bar the Court from exercising its jurisdiction over such a person".
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3.2. Weaknesses in the interpretation of the Rome Statute
3.2.1. "Crime of Aggression" and "Act of Aggression"
The failure to reach an agreement on a definition of "crime of aggression" and
respective elements at the Rome Conference resulted in the inclusion in the Statute of
an additional clause to the incorporation of this crime as a “core crime”. This clause
provided for the exercise of jurisdiction once a provision was adopted in a Review
Conference, in accordance with Articles 121 and 123, defining this crime and setting
out the conditions for that purpose (Article 5, paragraph 2). In this sense, resolution F
in Annex I of the Final Act of the Rome Conference established a preparatory
commission with various tasks including the preparation of proposals for a provision on
this crime17
The definition of the crime of aggression adopted at the Kampala Conference
represents a significant development in international criminal law
; this task was subsequently attributed to the Special Working Group on the
Crime of Aggression.
18
Regarding the formal constraints, the Court will only have jurisdiction over crimes
committed one year after acceptance or ratification by a minimum of thirty states
. It is undeniable
that the exercise of jurisdiction over the crime of aggression will constitute an
evolution, since it will be the first time that a permanent criminal justice system
imposes criminal liability for the illegal use of force. However, it is subjected to formal
and material constraints, the latter giving rise to interpretive issues that may hinder
the determination of the existence of such a crime.
19
As for the material constraints, the new Article 8 bis, paragraph 1, defines the crime of
aggression as:
and
after a decision to be taken only after 1 January 2017 in the Assembly of States Parties
to activate the Court’s jurisdiction (Articles 15 bis and 15 ter, paragraphs 2 and 3).
These limitations garner criticism by some authors as Mary Ellen O'Connell and
Mirakmal Niyazmatov, who qualify this process as “byzantine” (2012: 191).
"Planning, preparation, initiation or execution, by a person in a
position effectively to exercise control over or to direct the political
or military action of a State, of an act of aggression which, by its
character, gravity and scale, constitutes a manifest violation of the
Charter of the United Nations".
17 U.N. Doc. A/CONF.183/13 (Vol. I), United Nations Diplomatic Conference of Plenipotentiaries on the
Establishment of an International Criminal Court, Official Records, Rome 15 June-17 July 1998, United
Nations, 2002, §7, pp. 72 and f.
18 See, among others, Niels Blokker; Claus Kress (2010), A Consensus Agreement on the Crime of
Aggression: Impressions from Kampala, Leiden Journal of International Law, 23(4): 889-895.
19 Currently, 15 states accepted the amendments concerning the crime of aggression: Andorra, Austria,
Belgium, Botswana, Croatia, Cyprus, Estonia, Germany, Liechtenstein, Luxembourg, Samoa, Slovakia,
Slovenia, Trinidad and Tobago and Uruguay.
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Criminal liability is solely applicable to individuals in a position effectively to exercise
control over or to direct a state’s political or military action. In other words, the
leadership position is a determining factor.
Paragraph 2 refines the notion of "act of aggression". It means the use of armed force
by a State against the sovereignty, territorial integrity, political independence of
another State or in other manner inconsistent with the principles of the UN Charter.
This provision absorbed Article 1 of the Definition of Aggression of the UN General
Assembly - resolution 3314 (XXIX) of 1974. Simultaneously, it listed several acts that
may qualify as an act of aggression, as mentioned in Article 3 of the Definition of
Aggression, such as invasion, military occupation and bombardment by the armed
forces of a State against another State’s territory. It is also important to note that the
act of aggression must be considered in the context of its “character”, “scale”, and
“gravity”. This means that a determination of the existence of a crime of aggression
presupposes an act of aggression constituting a manifest violation of the Charter. Thus,
although the act of aggression can only be perpetrated by a State, the responsibility for
such unlawful acts lies on the individual who is responsible for the state’s action.
Articles 15 bis and 15 ter establish the procedures under which the Court may exercise
jurisdiction. The first article concerns the possibility to open an investigation pursuant
to a state referral or a proprio motu action by the Prosecutor. Article 15 ter prescribes
the possibility of a Security Council referral, which means that in this case the Court
will also be competent for the investigation and prosecution of crimes of aggression
regardless of the acceptance of the Court’s jurisdiction by the concerned States.
The Kampala Conference defined the crime of aggression and its elements which serve
the purpose of clarifying and assisting the Court in the interpretation and application of
the amendments to the Statute. However, the enunciated provisions and clarifications
contain some ambiguities.
As far as "act of aggression" is concerned, while the criteria of "gravity" and "scale"
were included to avoid overloading the Court with minor cases, the criterion of
"character" aimed to exclude controversial cases involving the use of force (Mancini,
2012: 236). However, the criteria of "character," "gravity" and "scale" used to assess
whether an act constitutes a manifest violation of the Charter lack definition. The latter
two undefined criteria are also used in the determination of an armed attack in Article
51 of the UN Charter and this lack of clarity could be problematic, particularly given the
existing divergences regarding the lawful use of force in self-defence or in the case of
humanitarian intervention (Santos, 2012). The elements of crimes refer that the
determination of a "manifest" violation of the Charter is objective, but this process
within the UN is not peaceful.
At the same time, the remission of paragraph 2 of Article 8 to resolution 3314 of the
General Assembly with the purpose of clarifying the term “act of aggression” raises
some questions. Firstly, some formulations in the resolution are vague and the
enunciated list is not exhaustive, which may lead to controversial situations. Secondly,
the article does not provide clarification whether and to what extent other articles of
the resolution were applicable or relevant to the Court (Surendran Koran: 252).
In addition to the political character of the Definition of Aggression − the General
Assembly can only make recommendations, devoid of any binding effect −, paragraphs
6, 7 and 8 of Article 15 bis confirm the power of the Security Council. In fact, Article 39
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of the Charter stipulates the exclusive power of the Council to determine the existence
of an act of aggression and it may refer to cases which are not mentioned in the
Definition of Aggression. The practice, however, is not uniform, and, repeatedly, in its
Chapter VII decisions the Security Council uses different wording.
Other aspects have been criticized such as the complete exclusion of acts committed by
nationals of non-states parties – unlike the procedures relating to the "most serious
crimes" − and the “retrograde opt-out clause” (Alam, 2010: 179-180) that provides for
the possibility of voluntary exclusion from the Court's jurisdiction (Article 15 bis,
paragraph 4). Other critics consider the resolution as a political guidance in
determinations of state responsibility and, therefore, it did not contemplate its
application to individual liability (Alam, 2010: 170).
But, an essential criticism can be pointed to the fact that the definition of aggression
adopted in Kampala did not contemplate a possible aggression by non-state actors. The
terrorist attacks of 11 September 2001 demonstrated the likelihood of such an act
being committed by non-state actors as well as the magnitude, comparable to an action
perpetrated by a State.
In fact, this solution reveals problems that cannot be underestimated otherwise it could
hamper the proper functioning of the ICC. However, the pessimistic view of some more
critical authors like Mary Ellen O'Connell and Mirakmal Niyazmatov who argue that “the
substantive provision leaves experts unclear to what the prosecutable crime even is”
cannot be corroborated. These authors doubt the feasibility of criminal proceedings and
regret that the solution presented is different from the definition of crime of aggression
under international law, affirming that this prohibition of aggression must not be
undermined by the political compromise reached at Kampala (O'Connell; Niyazmatov
2012: 191, 207).
3.2.2. "Crimes against Humanity"
Some formulations of Article 7 reveal a certain ambiguity. Several authors highlight
interpretive difficulties and their consequences.
Jordan J. Paust considers the formulations too restrictive and unclear: “Article 7
contains a limiting definition of 'attack' that is lacking in common sense. Instead of
recognizing that one attack can constitute an 'attack', Article 7 (2)(a) requires that an
'attack' involves ‘a course of conduct involving the multiple commission of acts’” (2010:
691). The author also argues that the use of the word “attack” instead of, for example,
act(s) committed (against) is problematic, since this may result in the impossibility to
include certain situations linked to crimes of this type and that are included in the
listing. Moreover, according to the author, the phrases "course of conduct" and
"multiple commission of acts" are debatable, since they do not include acts of torture,
rape, persecution among others (ibid.: 692-693).
Further criticism can be pointed to the expression “when committed as part of a
widespread or systematic attack directed against any civilian population, with
knowledge of the attack”, since it leaves open the following question: Which is the
threshold of “widespread or systematic”?
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Another interpretive problem relates to the understanding of the formulation “other
inhumane acts of a similar character intentionally causing great suffering, or serious
injury to body or to mental and physical health” (paragraph 1, subparagraph k). This
interpretation became relevant for the first time in the joint indictment of Germain
Katanga and Mathieu Ngudjolo Chui in 2008. The Office of the Prosecutor accused both
of perpetrating such acts and in its decision confirming the charges, the Pre-Trial
Chamber decided that the wording should be interpreted strictly. However, several
authors like Bernhard Kuschnik support a broad interpretation (2010: 524-530).
According to Cameron Russell, one of the interpretive problems relates to the notion of
“civilian”. The author advocates that the parameters are not clear, which is partly a
result of the decoupling of these crimes from the requirement of the existence of an
armed conflict. This concept was employed to differentiate civilians from "combatants",
but the fact that these crimes can be committed in times of peace generates
interpretive problems (2011: 60-61). In addition, an “attack directed against any
civilian population” implies a conduct “pursuant to or in furtherance of a State or
organizational policy to commit such attack” (Paragraph 2, subparagraph a), since the
term "organizational" is imprecise, which also results from the dissociation with the
existence of an armed conflict. Thus, it becomes necessary to define "organization" to
distinguish it from the entity of the state (Ibid.: 63). In the author's opinion, the
requirement of "policy" seems to create some inconsistency within the Statute (ibid.:
70). Leila Nadya Sadat notes that the Pre-Trial Chambers have been demonstrating
different positions on the interpretation of Article 7, especially, regarding the phrase
“State or organizational policy” (2013: 335). This element for the prosecution for these
crimes remains controversial (ibid.: 352) and should be interpreted broadly otherwise it
could result in the fragmentation of international criminal law (ibid.: 375). The
dissenting opinion of Hans-Peter Kaul, following the request of the Prosecutor to the
Pre-Trial Chamber to open an investigation into the post-election violence in Kenya,
showed an opposite understanding. According to the judge, only states or organizations
with similar characteristics to a State following criminal policies may perpetrate crimes
against humanity. This position has gathered support in the doctrine and within the
Court (Sadat, 2013: 336).
It is also important to refer the minority opinion of Christine Van den Wyngaert of
March 2014 concerning the case of Germain Katanga, since it illustrates this
problematic and it can have repercussions in future trials. The judge disagreed with
Germain Katanga’s conviction for lack of evidence of his criminal responsibility to
intentionally contribute to the perpetration of crimes by a group of persons with
knowledge that this group had such purpose (Article 25, paragraph 3, subparagraph d,
vii) and the interpretation of the evidence could have been made in a different and
more convincing manner. As for the accusation of crimes against humanity, the judge
argued numerous points. Firstly, the number of victims was insufficient to qualify the
acts as crimes against humanity and, therefore, there was no multiple commission of
acts; secondly, the intent of targeting the civilian population was not proved in an
incontestable manner; thirdly, the existence of a policy and of an organization was not
proved incontestably and, finally, the attack could not be considered systematic20
20 ICC-01/04-01/07-3436-Anxl, Minority Opinion of Judge Christine Van den Wyngaert, 07.03.2014.
.
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In this context, the decision of the International Law Commission to add the topic
"crimes against humanity" to its program in June 2013 - following the recommendation
of the Working Group on the Long-term Programme of Work based on the proposal
prepared by a working group member, Sean Murphy – is to be welcomed. As the author
of the proposal notes:
“For example, the mass murder of civilians perpetrated as part of
an international armed conflict would fall within the grave breaches
regime of the 1949 Geneva Conventions, but the same conduct
arising as part of an internal armed conflict (as well as internal
action below the threshold of armed conflict) would not (…). A
global convention on crimes against humanity appears to be a key
missing piece in the current framework of international
humanitarian law, international criminal law, and international
human rights law.”21
Sean Murphy stressed the importance of the elaboration of an international convention
on the prevention and punishment of such acts. The author mentioned aspects that
should be taken into account by the Commission for the purposes of the Convention
such as defining the offense of "crimes against humanity" as expressed in Article 7.
As for the articulation between the Convention and the ICC, Sean Murphy claims that
the Convention would benefit substantially from the language of the Statute and
related instruments as well as jurisprudence. In turn, the adoption of the Convention
could address aspects that were not covered by the Statute and it could support the
ICC's mission22
21 U.N. Doc. A/68/10, Sean D. Murphy, Annex B, Report of the International Law Commission, Sixty-fifth
session, General Assembly, Official Records, Sixty-eighth session, 2013, §2 and §3, pp. 140-141.
. In particular because, among other aspects mentioned by the author,
the Statute regulates relations between States Parties and the Court, but not among
States Parties themselves and between State Parties and non-States Parties. Part IX,
headed “International Cooperation and Judicial Assistance” implicitly recognizes that
inter-state cooperation on crimes under the jurisdiction of the Court may occur outside
the Rome Statute. The Convention could help to promote inter-state cooperation in
relation to the investigation, detention, prosecution and punishment of individuals who
commit such crimes, which would be consistent with the object and purpose of the
Statute. The Convention would require the enactment of national legislation prohibiting
and punishing these crimes, which in the author's opinion has not been made by
several Member States yet, helping to fill a gap and, thus, encouraging all States to
ratify or accede to the Statute. In the case of States that have adopted legislation in
this regard, frequently it only authorizes the prosecution of crimes committed by
nationals of that State or in its territory. The Convention would require the State Party
to broaden its legislation to cover other individuals who are in their territory - nationals
of other States who commit an offense in the territory of another State Party to the
Convention. In the event that a State Party receives a surrender request from the
Court and at the same time, an extradition request from another State in accordance
with the Convention, Sean Murphy proposes that the Convention should be designed to
22 Ibid., §8, §9, pp. 142 and f.
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ensure that States which are party to the Statute and to the Convention can continue
to follow the procedure outlined in Article 90 of the Statute on competing requests.23
4. Multifaceting the ICC
Certain challenges such as terrorism in all its forms and manifestations, the profusion
of intrastate conflicts with different nuances and complexities and the phenomenon of
fragile states, failed or collapsed demonstrate the increasing number of distinct and
intricate situations in which a state is unwilling or unable to conduct an investigation or
prosecution or is incapable of protecting its population from international crimes.
Thus, these challenges justify the indispensability of rethinking the ICC through a
process of adding new facets and deepening facets foreseen in the Statute. More
specifically, rethinking the competence of this body to expand its jurisdiction to the
crime of international terrorism − i.e. large-scale terrorist acts, which "threaten the
peace, security and well-being of the world", acts of atrocities "that deeply shock the
conscience of humanity" and of concern "to the international community as a whole",
paraphrasing the preamble, similarly to what occurs with the most serious crimes under
the jurisdiction of the Court – and rethinking the action of the ICC with a view of
protecting populations from those crimes which should be implemented in articulation
with the "responsibility to protect" concept.
4.1. Categorization of terrorism as an “international crime”
Terrorist acts, methods and practices can take many forms and manifestations and aim
the destruction of human rights and fundamental freedoms24
The idea of including terrorism as one of the most serious crimes of concern to the
international community dates back to the Draft Statute for an International Criminal
Court of the International Law Commission of 1994. The Commission's proposal
contained an article - Article 20 - which contemplated - along with the crimes of
genocide, aggression, serious violations of the laws and customs applicable to armed
conflict and crimes against humanity - a specific subparagraph, subparagraph e),
regarding the “treaty crimes” which included terrorism: "Crimes, established under or
pursuant to the treaty provisions listed in the Annex, which, having regard to the
conduct alleged, constitute exceptionally serious crimes of international concern."
. The dissemination of a
new type of terrorism of transnational nature and the proliferation of terrorist groups in
different parts of the globe, including the territories of States Parties to the Statute,
groups that could include nationals of those States, imply to revisit the question of the
possibility of ICC jurisdiction over this matter.
25
23 Ibid., §10 and §12. See Article 90 of the Rome Statute.
24 U.N. Doc. A/RES/60/288, The United Nations Global Counter-Terrorism Strategy, 20.09.2006, p. 2.
25 U.N. Doc. A/49/10, Draft Statute for an International Criminal Court, Report of International Law
Commission on the work of its forty-sixth session, 2 May-22 July 1994, Official Records of the General
Assembly, Forty-ninth session, Supplement No.10, Yearbook of the International Law Commission, 1994,
vol. II (2), p. 38. The Annex refers, for example, the Convention for the Suppression of Unlawful Seizure
of Aircraft of 1970, the Convention for the Suppression of Unlawful Acts against the Safety of Civil
Aviation, 1971, the International Convention against the Taking of Hostages, 1979 and the Convention for
the Suppression of Unlawful Acts against the Safety of Maritime Navigation, 1988, pp. 67 ff.
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Similarly, the Preparatory Committee on the Establishment of an International Criminal
Court created by the UN General Assembly in 1996 – with the purpose of preparing a
widely accepted consolidated text, serving as a basis for negotiation for the
establishment of an international criminal court - suggested the inclusion of the crimes
of terrorism among others (Article 5, subparagraph e))26
as an offense covered by the
conventions mentioned in the Commission's draft statute (paragraph 2), but it went
further by specifying these crimes as follows:
“Undertaking, organizing, sponsoring, ordering, facilitating,
financing, encouraging or tolerating acts of violence against
another State directed at persons or property and of such a
nature as to create terror, fear or insecurity in the minds of public
figures, groups of persons, the general public or populations, for
whatever considerations and purposes of a political,
philosophical, ideological, racial, ethnic, religious or such other
nature that may be invoked to justify them” (paragraph 1).
“An offense involving use of firearms, weapons, explosives and
dangerous substances when used as a means to perpetrate
indiscriminate violence involving death or serious bodily injury to
persons or groups of persons or populations or serious damage to
property” (paragraph 3).
The dissent among States at the Rome Conference prevented the incorporation of the
crime of terrorism in the Statute, but States in resolution E of Annex I to the
Conference Final Act recognized that "terrorist acts, by whomever and wherever
perpetrated and whatever their forms, methods or motives, are serious crimes of
concern to the international community". At the same time, the States, deeply
apprehensive about the persistence of this serious threat to international peace and
security, recommended that a Review Conference pursuant to Article 123 of the
Statute27 should consider the crimes of terrorism to achieve a consensual definition and
their inclusion in the list of the most serious crimes28
26 U.N. Doc. A/CONF.183/13(Vol. III), Report of the Preparatory Committee on the Establishment of an
International Criminal Court, United Nations Diplomatic Conference of Plenipotentiaries on the
Establishment of an International Criminal Court, Official Records, Rome 15 June-17 July 1998, United
Nations, 2002, p. 5 and p. 21.
. However, this topic was not
discussed at the Kampala Review Conference of 2010. Undoubtedly, the main difficulty
lies in the absence of an universal legal and political definition enshrined in a
27 Article 123, paragraph 1 provides that "seven years after the entry into force of this Statute the
Secretary-General of the United Nations shall convene a Review Conference to consider any amendments
to this Statute. Such review may include, but is not limited to, the list of crimes contained in Article 5."
28 UN Doc. A/CONF.183/13 (Vol. I), United Nations Diplomatic Conference of Plenipotentiaries on the
Establishment of an International Criminal Court, Official Records, Rome 15 June-17 July 1998, United
Nations, 2002, pp. 71 and f. At the Rome Conference, several States supported the court's jurisdiction
over the crimes of terrorism, ibid., Vol. II (for example, Algeria, §18, p. 73, Kyrgyzstan, §71, p. 77, Costa
Rica, §74, p. 77, Armenia, §83, p. 78, Albania, "institutionalized State terrorism" §12, p. 82, India, §52,
p. 86 and f., Tajikistan, §17, p. 92, Russian Federation, "most serious terrorist crimes", §20, p. 115,
Congo, §49, p. 117, Sri Lanka, §35, p. 123, Turkey, "Terrorism shouldn't have been included among
crimes against humanity, since it was often the root causes of such crimes", §41, p. 124).
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comprehensive convention on international terrorism, prescribing that large-scale
terrorist acts constitute an international crime.
Several authors stress that acts of international terrorism as the 11 September 2001
attacks could qualify as crimes against humanity under Article 7 of the Statute and be
tried by the ICC. Mireille Delmas-Marty argues that paragraph 2 of this article which
establishes the notion of an attack directed against a civilian population as an element
of crimes against humanity could have been applied to these terrorist acts (2013: 561).
In this regard, Vincent-Joël Proux adds: “other acts of international terrorism, which do
not compare in magnitude to the events of September 11th
The arguments put forward in favor of including the crime of terrorism within the
jurisdiction of the Court relate to the limitations of national judiciary systems and to the
fact that such acts possess features which are common to the most serious crimes
under the Statute.
, yet still constitute an
affront to the principles of humanity, should be prosecuted under this mechanism”
(2004: 1085). Lucy Martinez contemplates the possibility of individual acts of
international terrorism falling under crimes against humanity or war crimes, under the
condition of the existence of an armed conflict (2002: 50). In turn, Surendra Kumar
although arguing that crimes with the magnitude of 11 September attacks could be
considered crimes against humanity, minor terrorist acts may not reach the threshold
and, therefore, not fall under the jurisdiction of the ICC. Moreover, the author sustains
that while some terrorist acts, to some extent, can be perceived as a crime of genocide
– the conviction for such acts will always depend on whether the evidence is sufficient
to meet the elements of the crime of genocide - or as a war crime - when committed in
armed conflicts, terrorist acts may not always hold these characteristics (2008: 200-
202). In this sense, Surendra Kumar proposes an amendment to the Statute, “the need
of the hour is that crimes of terrorism, inducing suicide terrorism should be
incorporated as a separate category and deserves separate contemplation and
prosecution” (2008: 202).
The Netherlands proposed an amendment to the list of such crimes in 2009 and
explained the problematic as follows:
“We have all committed ourselves to cooperate fully in the fight
against terrorism, in accordance with our obligations under
international law, in order to find, deny safe haven and bring to
justice, on the basis of the principle of extradite or prosecute, any
person who supports, facilitates, participates or attempts to
participate in the financing, planning, preparation or perpetration
of terrorist acts or provides safe haven. Yet, at the same time,
there is all too often impunity for acts of terrorism in cases where
states appear unwilling or unable to investigate and prosecute
such crimes. (…) In the light of the absence of a generally
acceptable definition of terrorism, the Netherlands proposes to use
the same approach as has been accepted for the crime of
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aggression, i.e. the inclusion of the crime of terrorism in the list of
crimes laid down in article 5, paragraph 1, of the Statute (…)”29
.
According to this proposal, the crime of terrorism would be integrated in a new
subparagraph (subparagraph e) of Article 5, paragraph 1. Furthermore, this article
would include a third paragraph that would reproduce ipsis verbis the content of the
second paragraph concerning the crime of aggression in the Statute:
“The Court shall exercise jurisdiction over the crime of terrorism
once a provision is adopted in accordance with articles 121 and
123 defining the crime and setting out the conditions under which
the Court shall exercise jurisdiction with respect to this crime.
Such a provision shall be consistent with the relevant provisions of
the Charter of the United Nations” (Article 5, paragraph 3).
The proposal also provided for the establishment of an informal working group on the
crime of terrorism at the Kampala Conference tasked to assess to what extent the
Statute would require changes as a consequence of the introduction of the crime of
terrorism within the jurisdiction of the Court as well as other relevant questions linked
to the extension of its jurisdiction.
If the attacks of 11 September 2001 relaunched the question on whether large-scale
terrorist acts could constitute “international crimes” and fall within the jurisdiction of
the ICC, presently several arguments can be enunciated that support the inclusion of
terrorism as a crime within the jurisdiction of the Court.
The Security Council referred to these attacks as a threat to international peace and
security (resolution 1368 (2001)). In several resolutions, this organ reaffirmed that
terrorism in all its forms and manifestations constitutes one of the most serious threats
to international peace and security. The UN Global Counter-Terrorism Strategy of 2006
referred to this phenomenon in the same terms30
The seriousness of this threat is accentuated by its different and multiple forms and
manifestations, being also perpetrated by non-state actors, groups resorting to
different methods and with different motivations.
.
It is important to underline that terrorism can not and should not be associated with
any religion, nationality, civilization or ethnic group - as mentioned by the Security
Council in Chapter VII decisions and by the General Assembly in the above-mentioned
Strategy31
29 ICC-ASP/8/43/Add. 1, Report of the Bureau on the Review Conference, Annex IV, 10.11.2009, pp. 12 and
f.
- currently, the actions of several extremist groups, most of them
considered terrorist groups, in which nationals of States Parties may be participating
and whose acts may occur in the territories of these states is an argument in this
sense.
30 U.N. Doc. A/RES/60/288, The United Nations Global Counter-Terrorism Strategy, 20.09.2006, p. 1.
31 Ibid., p. 2.
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It is undoubtedly significant that the ICC Prosecutor, Fatou Bensouda, has initiated an
investigation (January 2013) due to the existence of evidence indicating that war
crimes had been committed since January 2012. These acts are mainly attributed to
the National Movement for the Liberation of Azawad (MNLA), the Defenders of the Faith
group (Ansar Dine), the Organization of Al-Qaida in the Islamic Maghreb (AQIM) and
the Movement for Unity and Jihad in West Africa (MUJAO)32, the last three terrorist
groups are ideologically inspired and linked to al-Qaida33. Likewise, it is significant that
the Prosecutor conducts a preliminary examination concerning the activities of the
jihadist group Boko Haram, a terrorist group linked to al-Qaida34, which according to
the report could have committed crimes against humanity since July 200935
The acts committed by the jihadist group “Islamic State”
.
Nevertheless, if the Prosecutor decides to prosecute, formulating an accusation, it is for
the Pre-Trial Chamber and, eventually, the Trial Chamber to corroborate these
assessments.
36, a splinter group of al-Qaida,
against Iraqi security forces and civilians were condemned by the Security Council. This
organ, and several State Parties, qualified these acts as terrorist attacks/acts37
In this regard, it is important to mention resolution 2170 (2014), in which the Security
Council:
. The
proclamation of a transnational caliphate by this group – comprising northern Syria and
eastern Iraq, with expansionist tendencies, threatening neighbouring countries
including Jordan, a State Party to the Statute – could increase the perpetration and the
magnitude of terrorist acts and diversify the characteristics of such acts.
“Deplores and condemns in the strongest terms the terrorist acts
of ISIL and its violent extremist ideology, and its continued gross,
systematic and widespread abuses of human rights and violations
of international humanitarian law”.
“Recalls that widespread or systematic attacks directed against
any civilian populations because of their ethnic or political
background, religion or belief may constitute a crime against
humanity, emphasizes the need to ensure that ISIL, ANF [Al Nusra
Front] and all other individuals, groups, undertakings and entities
32 ICC, The Office of the Prosecutor, Situation in Mali, Article 53 (1) Report, 16.01.2013, pp. 13-28. This
investigation follows a preliminary examination based on the Mali government's referral dated of 13 July
2012 in accordance with Article 14 given the impossibility of pursuing or prosecuting those responsible for
crimes against humanity and war crimes especially in the northern part of the territory. See Referral
Letter, Republique du Mali, Ministère de la Justice, 13.07.2012.
33 The Security Council linked the Ansar Dine group on 20 March 2013 and the MUJAO on 5 December 2012
to al-Qaida. The AQIM had originally been associated with the name Salafist Group for Preaching and
Combat on 6 October 2001.
34 On 22 May 2014, the Security Council placed Boko Haram in the list of entities associated with Al-Qaida.
35 ICC, The Office of the Prosecutor, Report on Preliminary Examination Activities, 2013, §206 and §209-
§219.
36 Since June, the designation replaced the previous self-designation of the group of "Islamic State of Iraq
and the Levant", also known by the acronym ISIS (Islamic State of Iraq and Syria) or ISIL (Islamic State
of Iraq and the Levant).
37 U.N. Doc. SC/11437, Security Council Press Statement on Iraq, 11.06.2014. On 30 May 2013, the
Security Council included this group and the al-Nusra Front in the list of terrorist organizations linked to
al-Qaida.
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associated with Al-Qaida are held accountable for abuses of human
rights and violations of international humanitarian law (…)”.
It is also relevant that the Security Council alludes to the possibility of certain acts
constitute crimes against humanity and, at the same time, to the existence of other
types of international crimes, while reaffirming, however, that the acts of ISIL can not
and should not be associated with any religion, nationality or civilization.
However, not all terrorist acts can be covered by the provisions and respective
elements relating to the most serious crimes of international concern.
Whilst the qualification as a war crime implies the existence of an armed conflict, the
crime of genocide - although alluding to the "intent to destroy”, which is also a
characteristic of terrorist acts - requires that this intent aims to destroy in part or in
whole a national, ethnical, racial or religious group as stated in Article 6, which might
not be the purpose of certain terrorist acts or it might not be unequivocally proven.
With regard to crimes against humanity, the Statute’s definition states that the attack
must be widespread or systematic and this prevents a large-scale attack that does not
possess these characteristics from being subsumed under this article. In addition, the
definition states that an attack against any civilian population means a course of
conduct pursuant to or in furtherance of a State or organizational policy. But it may be
difficult to establish a link between the conduct and a policy of a State or an
organization, since terrorist acts can be perpetrated by isolated individuals. The crime
of aggression can only be committed by a person in a leadership position of an act of
aggression; as it requires an act of aggression by a State it would not apply to non-
state entities.
Besides, the principle nullum crimen sine lege provides that a person shall not be
criminally responsible for a conduct unless it constitutes, at the moment it takes place,
a crime within the jurisdiction of the Court (Article 22), this could mean that the
perpetrators of terrorist acts, shielded by this principle, would go unpunished.
The underlying ideas of terrorism are the creation of feelings of terror, fear and
insecurity in individuals and the perpetration of indiscriminate violence involving the
use of different types of weapons. Hence, the proposal of the Preparatory Committee
appears the most appropriate solution, but the definition enshrined in paragraph 1
should be further broadened to include non-state entities. Terrorist acts such as the use
of a conventional explosive combined with radioactive material in order to disperse it
over a wide area, exposing victims to radiation (the so-called "dirty bomb") or the
intentional release of pathogenic microorganisms could be covered by paragraph 3 of
the Committee’s proposal. At the same time, in line with the Commission and the
Committee, the insertion of the reference to treaties on terrorism could circumvent the
existing gap concerning a comprehensive international convention on terrorism and a
binding and consensual definition. Also a procedure that would enable the inclusion of
future conventions, which is justified by the increase in the number of conventions on
this matter in recent years, should be incorporated.
Alternatively, although the amendment proposal submitted by the Netherlands did not
gather sufficient support for its consideration at the Kampala Conference and it was
withdrawn in June 2013, within the Working Group on Amendments established by the
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Assembly of States Parties as a mechanism for discussing amendment proposals38
, the
proposal could be an intermediate solution to resolve this impasse, similarly to what
happened with the crime of aggression.
4.2. The ICC and the Responsibility to Protect
The rethinking of ICC’s action with a view of protecting populations from international
crimes should be implemented in articulation with a "responsibility to protect" of the
international community.
Similarly to the ICC, this responsibility focuses on the crimes of genocide, ethnic
cleansing, crimes against humanity and war crimes. This concept was developed by the
"International Commission on Intervention and State Sovereignty" (ICISS) and
presented in the report "The Responsibility to Protect" of 2001. Its relevance was
acknowledged by the UN Member States in the final document of the 2005 World
Summit, which incorporated its general features: the responsibility to protect resides
primarily at the State level and encompasses the prevention of such crimes, including
its incitement through appropriate and necessary means. When appropriate, the
international community should encourage and assist a State so that it can exercise
this responsibility; if national authorities are unwilling or are unable to protect its
population, the international community should take appropriate collective measures to
protect it from genocide, war crimes, ethnic cleansing and crimes against humanity in a
timely and decisive manner under Chapters VI, VII and VIII of the UN Charter39
The UN Secretary-General, Ban Ki-moon, has clarified the responsibility to protect
concept and, as the Prosecutor of the ICC, Fatou Bensouda, has defended this
articulation. The Secretary-General affirmed, in the report "Implementing the
Responsibility to Protect" of 2009, that an important measure under the pillar on the
protection responsibilities of a State - which include the prevention of such crimes and
their incitement – concerns first of all the accession to the Statute as well as to relevant
international instruments and the incorporation of international standards in national
legislation to ensure that the crimes and their incitement are criminalized under
national law and practice
.
40. Ban Ki-moon stressed that the threat of referrals to ICC
may have a preventive effect41
The deepening of the foreseen preventive facet by the Court is essential, making the
most of its permanent character – unlike the international ad hoc criminal tribunals,
implementing, thus, a preventive justice system, also through the encouragement and
provision of assistance to States Parties in order to build capacity to protect their
populations, when such need exists.
.
In other words, "prevention" should be regarded as a dissuasive and as a deterrent
measure. As Ban Ki-moon underlines:
38 ICC-ASP/12/44, Report of the Working Group on Amendments, 24.10.2013, §4.
39 U.N. Doc. A/Res/60/1, World Summit Outcome, 24.10.2005, §138 and §139.
40 U.N. Doc. A/63/677, Implementing the responsibility to protect, Report of the Secretary-General,
12.01.2009, §17.
41 U.N. Doc. A/66/874, Responsibility to protect: timely and decisive response, Report of the Secretary-
General, 25.07.2012, §29.
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“by seeking to end impunity, the International Criminal Court and
the United Nations-assisted tribunal have added an essential tool
for implementing the responsibility to protect, one that is already
reinforcing efforts at dissuasion and deterrence”42
.
In the same vein, Phakiso Mochochoko, Director of the Jurisdiction, Complementarity
and Cooperation Division of the ICC, affirms:
“Prevention is key to all our efforts. For the Office, this preventive
role is foreseen in the Rome Statute Preamble and reinforced in
the Office’s prosecutorial strategies. In fact, the Preamble makes
clear that prevention is a shared responsibility in writing that State
Parties are `determined to put an end to impunity for the
perpetrators of these crimes and thus to contribute to the
prevention of such crimes`. The Office of the Prosecutor will make
public statements referring to its mandate when violence escalates
in situations under its jurisdiction; it will visit situation countries to
remind leaders of the Court’s jurisdiction; it will also use its
preliminary examinations activities to encourage genuine national
proceedings and thereby attempt to prevent the recurrence of
violence. Given that the commission of massive crimes can
threaten international peace and security, the Security Council can
complement the OTP’s [Office of the Prosecutor’s] preventive
efforts”43
.
In this context, the Prosecutor could play a significant role in the preventive efforts
since he/she may initiate an investigation proprio motu based on information on crimes
(Article 15). The Office of the Prosecutor, as a separate and independent organ, is
“responsible for receiving referrals and any substantiated information (...), for
examining them and for conducting investigations and prosecutions before the Court”
(Article 42, paragraph 1). It is important to note, however, that a greater celerity and
agility on the part of these entities is needed in order to prevent violence, i.e., in the
pre-violence stage or when it is unfolding, to prevent further occurrence of crimes,
restraining it within a short period of time.
The establishment of the Scientific Advisory Board on June 25, 2014 by the Office of
the Prosecutor represents a major change. This board will meet annually and make
recommendations to the Prosecutor about the most recent technological developments
as well as new scientific methods and procedures that can reinforce the Office's
capabilities in the collection, management and examination of scientific evidence
42 U.N. Doc. A/63/677, Implementing the responsibility to protect, Report of the Secretary-General,
12.01.2009, §18.
43 ICC, The Office of the Prosecutor, Phakiso Mochochoko, Address on behalf of the Prosecutor, Open Debate
of the United Nations Security Council on “Peace and Justice, with a special focus on the role of the
International Criminal Court”, 17.10.2012.
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relating to an investigation and prosecution44
A joint study conducted by experts from Oxford University and the Australian
Government suggests that the Court's preventive dimension should be implemented
through encouraging the Statute’s ratification, namely among non-signatories,
strengthening capacities at the national level, raising awareness activities to inform
populations on crimes under the jurisdiction of the Court, developing clear and more
objective criteria for Security Council referrals and guaranteeing a more consolidated
alignment between preventive instruments as non-military coercive measures and
mediation and criminal justice mechanisms
. But the creation of an early warning and
situation evaluation capability that could materialize in the establishment of a specific
organ by the Prosecutor or by the Assembly of States Parties, with competence to
establish subsidiary bodies, would be indispensable. This organ would pay particular
attention, but not exclusive, to the phenomenon of fragile, failed or collapsed states
that are unable to meet their international commitments. This organ could assist in the
detection, bringing to the attention of the Prosecutor and of the Office relevant
situations and support and assist the Court in the determination whether the State, due
to a total or substantial collapse of the national judicial system or its unavailability, is
unable to conduct an investigation or prosecution (Article 17, paragraph 3).
45
As for the materialization of this interconnection, the Security Council referral
. These measures could be implemented in
the articulation process of the ICC with the responsibility to protect.
46
Although the resolution does not explicitly allude to a responsibility to protect by the
international community, it refers in the Preamble "recalling the Libyan authorities'
responsibility to protect its population”. This decision imposed an obligation on the
Libyan authorities to cooperate and provide the necessary support to the Court and the
Prosecutor. In resolution 1973 (2011), the Council reiterated the authorities’
responsibility to protect the Libyan population. In addition, it authorized coercive
military measures and recalled the decision to refer the situation to the ICC,
emphasizing that those responsible for or complicit in attacks against the civilian
population, including aerial and naval attacks, must be held accountable.
of the
situation in Libya in 2011 took on a paradigmatic significance for two reasons. Firstly,
resolution 1970 linked the Court's role to the responsibility to protect and, secondly,
the resolution was unanimously adopted, despite the reluctance of the United States,
the Russian Federation and China regarding the ICC’s mission, permanent members of
the Council, which seems to indicate a change in the perception of the Court.
Carsten Stahn (2011) affirmed regarding resolution 1970 that:
“This resolution marked the first incident in which the ICC was
expressly recognized in Council practice as a core element of
preventing and adjudicating atrocities in line with the ‘R2P’
[responsibility to protect] concept (…) With the Security Council
44 ICC, Press Release, The Office of the Prosecutor of the International Criminal Court Establishes a Scientific
Advisory Board, 27.06.2014.
45 Oxford Institute for Ethics, Law and Armed Conflict, Australian Government, Australian Civil-Military
Centre, The Prevention Toolbox: Systematising Policy Tools for the Prevention of Mass Atrocities, The
International Criminal Court, Policy Brief Series No.5, September 2013, p. 3.
46 The importance of the “responsibility to protect” was highlighted for the first time in resolution 1674
(2006).
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referral, international justice has become one of the primary
means of constraining violence and securing accountability, not
only in the context of hostilities, but also in ensuring justice after
conflict”.
Nevertheless, the author warned that the Libyan case became a test for the
management of the idea of "shared responsibility", after the detention of Saif Al-Islam
Gaddafi by the Libyan authorities (Stahn, 2012), who is still not under the custody of
the Court, despite several unsuccessful attempts to challenge its jurisdiction.
The articulation between the ICC and the responsibility to protect, more specifically, the
role of this jurisdictional organ will inevitably be conditioned by the Security Council,
i.e., by its decision to refer situations relating to non-states parties under Chapter VII if
one or more crimes under ICC jurisdiction appear to have been committed, after its
determination of the existence of a threat to peace under Article 39 of the Charter. The
lack of a Security Council decision with respect to failed states and the divergences
among permanent members on the interpretation of “threat to peace” will certainly
hinder the referral of certain situations to the ICC.
In fact, the Security Council lacks objective binding criteria to determine a threat to
peace and is held hostage to political discretion. The establishment of criteria in this
regard and the introduction of changes concerning the right of veto (Santos, 2012:
560-561) would avoid situations in which the Council is unable to refer the case to the
ICC due to the threat or use of the veto, as in the case of Syria. Even recently, in May
2014, the Russian and Chinese vetoes prevented the adoption of a resolution in this
regard.
The process should, therefore, be allied to an uniform application to similar situations
by permanent members and to previous changes to the veto system to avoid such
situations. It is important to note that the ICISS in its report "The Responsibility to
Protect" declared:
“(…) the Commission supports the proposal put to us in an
exploratory way by a senior representative of one of the
Permanent Five countries, that there be agreed by the Permanent
Five a “code of conduct” for the use of the veto with respect to
actions that are needed to stop or avert a significant humanitarian
crisis. The idea essentially is that a permanent member, in matters
where its vital national interests were not claimed to be involved,
would not use its veto to obstruct the passage of what would
otherwise be a majority resolution. The expression “constructive
abstention” has been used in this context in the past (…)”47
.
Among the Security Council reform proposals it should be referred the introduction of a
voluntary conduct limiting the exercise of the veto right in situations of genocide, war
47 International Commission on Intervention and State Sovereignty (2001), The Responsibility to Protect,
§6.21, p. 51.
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crimes, crimes against humanity or ethnic cleansing or the elimination of this right,
which appears infeasible, or the need of current and eventual new permanent members
to justify this action.
This articulation is justified by the observation of common denominators, at the
beginning of a timid practice – which should be explored and deepened – and by the
possibility of contributing to the consolidation and enabling a broader exploration of the
Court's role and to increased human rights protection.
This jurisdictional organ could be relevant in the prevention prior to the occurrence of
violence or when it is unfolding as a reaction mechanism - which could occur alongside
an intervention with use of force by the international community. The objective is to
end violence through its intervention by putting those responsible under its custody.
This action is justified by the fact that a State’s judicial system may be unable to
function in times of conflict or even in the reconstruction phase, after the international
intervention with use of force, i.e., in the reconciliation and criminal retribution process.
Regarding justice and reconciliation, the ICISS warned of the possibility that in many
situations the state in whose territory a military intervention took place may have
never had a non-corrupt or properly functioning judicial system48
The effects of the “responsibility to protect” and the mission of the ICC will have a
greater impact if this concept acquires the status of an international norm (Santos
2012: 562). Although the relationship between the ICC and the Security Council is
viewed with scepticism and concern, which is to some extent justifiable due to the
Security Council’s political nature, a tripartite cooperation in this context may be
beneficial.
.
5. Conclusions
An effective international public order is desirable. The sustainability of an order with
such features, however, requires a permanent construction process in order to meet
adequately the increasing and different challenges and to overcome emerging
vulnerabilities. International criminal law embodied in the ICC will be crucial to achieve
this aspiration.
By resorting to “a graphical representation” it can be concluded “that the substantive
law that the ICC applies is a smaller concentric circle within a larger circle, which
represents the total international criminal law” (Bacelar Gouveia, 2013: 784) and
important limitations can be pointed out to the ICC such as the possibility of its activity
be constrained by the Security Council, tensions deriving from the complementary
nature of its jurisdiction and interpretive questions raised by certain provisions of the
Statute, but focusing only on those facts entails the risk of obtaining a reductive
assessment of the merits and potential of the ICC.
The Statute’s regulatory project and, specifically, the Court may be more successful
and influence the construction of an international public order in a more effective
manner if the process of permanent construction of this body takes into account the
need to fill gaps and the challenges of the contemporary world.
48 Ibid., §5.13, p. 41.
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In this sense, there should be clarification of ambiguous aspects by the Court relating
to the crime of aggression and crimes against humanity, as underestimating these
aspects could hamper the efficient and expeditious delivery of justice. In the case of
the crime of aggression the evolutive process cannot be oblivious to the Security
Council’s determinations. In the case of crimes against humanity, the Court shall
specify the content of Article 7, a task that would be facilitated by the entry into force
of a future international convention on the prevention and punishment of such crimes.
The Court should also explore new facets and deepen those foreseen in the Statute,
making the most of its independent and permanent character, which allowed its
detachment from a “victor’s justice” connotation attributed to the international ad hoc
criminal tribunals.
The distinct and intricate situations of passivity, inaction or impunity on the part of
States that require the protection of the human dignity, which result from new
challenges, imply a greater involvement of the ICC. Thus, a rethinking of its
jurisdiction, extending its scope to the crime of terrorism, subjecting the perpetrators
of terrorist acts to international justice is necessary. This inclusion is justified by the
increasing dissemination of terrorism at the global level and by the fact that its
different forms and manifestations may not be covered by the provisions and elements
of crimes prescribed in the Statute. Simultaneously, this article proposes an articulation
of the ICC’s mission with the "responsibility to protect" of the international community
which should be expressed in the different dimensions of this responsibility: prevention,
reaction and rebuilding a lasting peace.
Although the jurisprudence is still scarce, namely concerning convictions, it cannot be
ignored that the threshold of the first decade of the 21st century marks a turning point
in the activity of the ICC. The gradual confluence around the Court by States Parties,
by non-party States and by the Security Council demonstrates the growing recognition
of the Court’s relevance by the international community as well as the application of
the system envisioned in the Statute.
These reasons and the potential of the ICC allow for the prospect of a passage from the
present adolescence (Soares, 2014: 10) to adulthood characterized by increasingly
confident steps, a maturing process leading to a consolidated and more effective
criminal justice system.
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OBSERVARE
Universidade Autónoma de Lisboa
ISSN: 1647-7251
Vol. 5, n.º 2 (november 2014-april 2015), pp. 45-58
“WAR IS A RACKET!”
THE EMERGENCE OF THE LIBERTARIAN DISCOURSE ABOUT WORLD WAR I IN
THE UNITED STATES
Alexandre M. da Fonseca
alexandremarquesfonseca@gmail.com
BA, Languages and International Relations, Faculty of Arts, University of Porto, Portugal. MA,
Applied Languages in International Trade / History of Political Thought, University of Rouen and
École Normale Supérieure (ENS) of Lyon, France. PhD candidate, Democracy in the 21st
century,
Center for Social Studies, University of Coimbra (Portugal).
Abstract
"It is not a coincidence that the century of war coincided with the century of central
banking,” wrote Ron Paul, the libertarian candidate "sensation" for the presidential elections
in 2008 and 2012, in the book End the Fed. This discussion explores in short, the powerful
pamphlet by Major General Smedley Butler, "War is a Racket", demonstrating, specifically,
who profited economically and who, in turn, bore the weight and violence of WW1, assuming
that a war is never fought with the acquiescence of the population. However, this
monograph goes further, looking for a reinterpretation of the official American history of the
First World War through the lens of libertarian discourse. The aim is thus to understand,
from another perspective, the fundamental cause of the paradigm shift from nonintervention
to intervention taking place during this war, linking it to the project which led to the creation
of the League of Nations and the growing importance of the US in the world. Finally, a
fundamental connection will be established, exploring the theories argued in the book A
Foreign Policy of Freedom, between the policies of Woodrow Wilson and the foreign policy of
the United States throughout the 20th century and the beginning of the 21st
.
Key Words:
Ron Paul; First World War; Woodrow Wilson; Libertarianism; Foreign Policy
How to cite this article
Fonseca, Alexandre M. (2014). "«The war is a racket!» The emergence of the libertarian
discourse about world war I in the United States". JANUS.NET e-journal of International
Relations, Vol. 5, N.º 2, november 2014-april 2015. Consulted [online] on date of last visit,
observare.ual.pt/janus.net/en_vol5_n2_art3
Article received on July 14, 2014 and accepted for publication on October 15, 2014
JANUS.NET, e-journal of International Relations
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"War is a racket!" The emergence of the libertarian discourse about the world war I in the United States
Alexandre M. da Fonseca
46
“WAR IS A RACKET!”
THE EMERGENCE OF THE LIBERTARIAN DISCOURSE ABOUT WORLD WAR I IN
THE UNITED STATES
Alexandre M. da Fonseca
“Possibly a war can be fought for democracy;
it cannot be fought democratically”
Walter Lippmann
On the centenary of the beginning of WW1, many nations and organizations have
prepared initiatives and commemorations with the intention to remember (or not to
forget) the horrors of this war. Few, however, seek to reconsider the foundations of the
war. Ron Paul, former Congressman and libertarian Republican candidate for the US
presidency (2008 and 2012), is one politician that brings into question the discourse,
more or less official, of the war, regarded as the "war to end all wars" (Butler, 1935:
13; Paul, 2007: 367).
Interestingly, in 1935, General Smedley Butler, who had participated in the WWI -
among many other campaigns1 - published a small pamphlet "War is a Racket"2
Far from seeking to classify General Butler as a libertarian, the objective of this text is
to identify and comprehend a libertarian discourse about WW1. In a first part, the
intellectual influences of Ron Paul are considered, confronting these with his public
positions, domestically and abroad: a policy based on a restrictive reading of the
Constitution, a minimalist government, the rejection of any market manipulation, and
defense of a "sound currency".
.
Besides describing the artillery armament compositions that, later, would be used in
World War II (1935: 2-3), Butler makes one of the first significant objections to the
"military industrial complex", accusing those who "for 33 years deceived him in order to
serve the interests of US corporations' profiting(eering) with the business of war (Paul,
2011: 82; Fleming, 2003: 42; Keene, 2010: 513).
In the second part, the discourse of Paul (2007: 267, 347) on WWI will be analyzed, as
well as the reasons why he argues that Wilson was the first "neo-conservative"
1 The general participated in many military actions. He fought in Cuba during the Spanish-American War, in
the Philippines during the Philippine-American War, in China during the Boxer Rebellion, the Banana Wars
in Central America (Honduras and Nicaragua), the taking of Veracruz in Mexico (where he earned his first
Medal of Honor, the highest American medal awarded to a military member, by the President of the
United States in the name of the U.S. Congress), and the occupation of Haiti, earning his second Medal of
Honor. He also participated in the First World War and, again, in China.
2 It is interesting to compare this charge of Butler, with the French "Indignados", for whom "c'est la dette
du racket" was attributed. Both charges could quickly be read as "populist"; however, they should be
considered the seeds of concern in the important discussion of "democracy".
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Alexandre M. da Fonseca
47
American president. According to Paul (2011: 50; 2007: 75), WWI was the first
American intervention that “derailed” the country from the traditional non-
interventionist course, in accordance with the "Founding Fathers" vision, to the role of
"global police force".
For the former congressman and presidential candidate, the truth is that, since this
moment (WWI), no substantial distinctions exist between the Republican and the
Democratic Party in US foreign policy3. Perhaps because of intellectual honesty and
resilience (or stubbornness)4
, but expressly for foreign policy, Paul, as a presidential
candidate, received more political support and funding from American military
personnel than the other candidates during both campaigns (Egan, 2011).
Notwithstanding some of his other "radical" positions, the arguments about US foreign
policy deserve attention and pose pertinent questions about the "democratic"
mechanisms that led the country to war.
The Intellectual Influences of Ron Paul
The former congressman is regularly branded as a founder or inspiration of the
controversial "Tea Party" political movement (Botelho, 2010: 107). The reality is,
however, far more complex and, despite some common ideas, there are certain
positions of Paul that diverge fundamentally from this movement5
Paul is, first and foremost, a "rare animal" in American politics, maintaining
independence from the Republican Party "establishment". He has even voted against
the party line on key issues such as the so-called "Patriot Act" and the wars in Iraq and
Afghanistan (Botelho, 2011: 108). Why?
. One of them is,
unquestionably, his vision of US foreign policy (Ibid.:108; Mead, 2011: 6, 7; Benton,
2012; Paul, 2011: 49).
To understand this independence, it is useful to appreciate the intellectual and political
ideas influencing the senator's outlook. Ron Paul, in the book, End the Fed, outlines a
precise description of how his intellectual journey, readings and moments, shaped his
worldview, in which, contrary to liberal doctrine, economics and policies are absolutely
inseparable.
Specifically, the Austrian School of economics, of which von Mises and Hayek are the
greatest exponents, is the political school of intellectuals who provided "the answers for
which he longed". Incidentally, Paul admits, "even the experts took literally centuries to
understand the nature of money" (2009: 37).
3 Although, it must be pointed out after the First World War, the United States reverted to traditional
isolationism. Among the factors were the depression of 1930, "the memory of tragic loss the First War",
the investigation of senator Nye, the publication of the book Merchants of Death, and the said "War Is a
Racket" (Fleming, 2003:488). Thus, Paul´s position is not entirely accurate, since "Wilsonianism" did not
arise from Wilson, who witnessed the League of Nations rejected by public opinion (Fleming, 2003: 477-
9; Bagby, 1955: 575; Keene, 2010: 520). Only after the Second World War, the USA assumed, in full, a
new role in the world and became increasing bi-partisanship in the foreign policy.
4 Paul is even known as "Dr. No" for voting against all bills that are not explicitly authorized by the
Constitution, but also by maintaining an incredible consistency of positions for more than three decades in
Congress (Botelho, 2010: 108).
5 Despite his son, Rand Paul, Senator for Kentucky, being touted as the current central figure of the Tea
Party.
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Alexandre M. da Fonseca
48
When the US left the gold-dollar standard and officially dismantled the Bretton Woods
system, for Paul, understanding the nature of money and the economy turned out to be
more important than ever6
Another inspiration for Paul is the late economist Murray Rothbard, author of several
books on the US Federal Reserve, the role of government in the devaluation of the
dollar, the cause of the Great Depression, and economic bubbles (Paul, 2009: 47).
Ultimately, the rejection of any kind of government intervention is the major issue that
unites economists, like Mises, who believes that "Socialism always fails because of the
absence of a free market to structure the price of goods" (Ibid.: 42)
.
7
Likewise, Paul, like the Austrian economists, rejects government intervention at a
political level. The key, says Rothbard (2011: 11), is the "right to be free from
aggression... and not be robbed by taxes and government regulations". Alternately, as
Paul explicates, the only political and economic philosophy worth expounding is the
proper defense of "individual liberty, private property and sound money" (Ibid.: 49).
.
Paul's Foreign Policy
Many libertarian theories seem problematic. For example, arguing that the state is
always the "bad guy"8
That being said; this discussion will not, in this context, undertake a critical analysis of
Libertarianism. Consistency exists between Paul's discourses on domestic and foreign
policy and is, therefore, mentioned. H. Rockwell notes in the foreword of Foreign Policy
of Freedom, written by the former congressman (including his Congressional speeches),
that Ron Paul "binds the national and international issues from the libertarian point of
view".
negates centuries of social contract tradition, the basis for the
hegemonic model of understanding the contemporary relationship between state and
citizens.
Furthermore, according to the Paul (2008: 28), this was also the view of the "Founding
Fathers" who "recognized that the government is no more honest or competent in
foreign policy than in domestic policy" because, "in both instances they are same
people operating with the same incentives". Nonetheless, reducing Paul's suspicion to
the government, nor with politics, or with any other institution that deserves mistrust
might not be fair.
The fundamental point the former congressman's argument is this: The rejection of the
state´s right to do what its citizens cannot do (Paul, 2013). This idea essentially implies
a rejection of what Max Weber called "the legitimate monopoly of violence" - violence
to tax or confiscate property, to print money, to physically assault or to start wars
(Ibid.).
6 According to his autobiography, this event led him to run for Congress (Paul, 2009: 38).
7 However, unlike the current majority consensus around the functioning of the so-called "free market",
Paul (2007: 275) criticizes the deep "lip service ... Given to the free market and free trade, [while] the
entire economy is run by special-interest legislation favoring big business, big labor and, especially, big
money".
8 Paul was known to have a poster in his office, that read, "Do not steal. The government hates
competition".
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Alexandre M. da Fonseca
49
According to Paul, the rejection of the state's right is how the libertarian philosophy
converges, economically and as a policy, at the international and domestic political
level (Paul, 2012). Furthermore, Ron Paul's follows a strict interpretation of the US
Constitution, which he claims has been disregarded throughout most of the twentieth
century and continues today, principally to declarations of war:
“Instead of seeking congressional approval of the use of the US
Armed Forces in service of the UN, presidents from Truman to
Clinton have used the UNSC as a substitute for congressional
authorization of the deployment of…armed forces” (Paul, 2007:
145).
“Citing NATO agreements or UN resolutions as authority for
moving troops into war zones should alert us…to the degree to
which the rule of law has been undermined. The president has no
war power; only the Congress has...When one person can initiate
war, by its definition, a republic no longer exists” (Ibid.: 117).
The non-interventionist crusade against "world government"
Quid so what about the democratic process? Paul has been described as an
"isolationist" (Botelho, 2010: 108; Mead, 2011: 6) who rejects all multilateral
institutions in which the US participates and seeks to "avoid contact with the world"
(Mead 2011:6). Paul confirms the rejection of these institutions (2007:126). However,
the charge of avoiding contact with the world is unsubstantiated.
Paul reiterates that the "Founding Fathers" wanted "peace, commerce and honest
friendship with all nations, alliances with none". Resurrecting a warning of Adams: "she
[America] does not go looking for monsters to destroy. She will command... by
sympathy her example" (Paul, 2008: 15). Likewise, he concludes, "I favor the total
opposite of isolationism: diplomacy, free trade, and freedom of travel" (Ibid.: 14).
Paul is an "exemplar"9 (Edwards, 2011: 255) that believes the exceptional mission of
the United States is not - unlike many politicians - a willingness to go to war. He
rejects, specifically, the transfer of national sovereignty of what Robert Cox dubbed
"nébuleuse" and what he refers to as the "One-World Government" (Paul, 2007: 222).
After all, if Paul rejects, in principle, the government, he certainly rejects "the biggest
government of all, the United Nations, which constantly threatens our freedoms and the
sovereignty of the USA?" (Ibid.: 210)10
The Ron Paul opposition to world government is not only confined to the United
Nations. He disputes all institutions that "threaten the national independence of the
.
9 Whether or not one agrees with the argument of exceptionalism (American or any other nation), and
although Ron Paul seems unconcerned by this principle, the choice of a (not intervention) mission
"exemplar" avoids the "need" for US military engagement in other countries.
10 Botelho (2010: 108) states, "His (Paul's) economic liberalism leads him to advocate the withdrawal of the
United States not only from the World Trade Organization and, paradoxically, NAFTA". For Paul, what is
paradoxical is the existence of agencies that regulate the supposed "free market". As he states: "One-
world government goals are anathema to non-intervention and free trade" (Paul, 2007: 222).
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50
United States" and whose support always comes from the "elites and never from
ordinary citizens" ultimately for the benefit of "well-connected international
corporations and bankers" (Paul, 2007: 143, 155, 302).11
Additionally, the transfer of sovereignty and involvement in economic, political or
military alliances, for Paul, is contrary to the letter of the Constitution, although, this is
not his only objection to American foreign policy. The problem is that the US, while
participating in the formation of the said "World Government", concurrently pursues a
policy of unilateral imperialism, with presence in "140 countries and 900 bases" (Paul,
2012) and "dictating...to the other sovereign nations who they should have as a leader
... and what form of government they should establish" (Paul, 2007: 124):
Expatiating the warnings of
the Founding Fathers, Paul opposes all complex alliances "with the United Nations, IMF,
World Bank and WTO" (Ibid.: 222).
“Unilateralism within a globalist approach to government is the
worst of all choices. It ignores national sovereignty, dignifies one-
world government, and places us in the position of demanding
dictatorial powers over the world community… An announced
policy of support for globalist government, assuming the…role of
world policeman, maintaining an American world empire, while
flaunting unilateralism, is a recipe for disaster” (Ibid.: 241).
Paul labels this policy "military Keynesianism" (Ibid.: 81) which is a justification for the
continued presence in other countries under the pretense of "nation building" and
preventive war. However, as the former congressman states, "fabricating and exploding
bombs and missiles can not raise the standard of living for American citizens" (Ibid.:
81). Although war increases GDP - besides all the moral reasons to oppose it12 - this
"imperial" policy creates a type of tax on all American citizens,13
and war becomes
ubiquitous, restricting the "possibility of living in a free society "(Paul, 2011: 49).
“The enemy within” - The Federal Reserve and the Military-Industrial
Complex
Who ultimately benefits from this policy? Why and how could the US invade and
establish a presence in so many countries during greater part of the 20th century and
early 21st century? Leaving aside political justifications, called hypocrisy by the former
Congressman, what "logistics" or power allowed construction of an "Empire"? Those
"guilty", for Paul, are easy to find: the Federal Reserve and the "military-industrial
complex" (Paul 2007:58, 157, 261).
11 A similar criticism is pointed at foreign aid. Paul states that behind the noble ideals and objectives are
"foreign dictators, international bankers and industrialists who enrich some Americans" (2007: 47).
Likewise, and in accordance with libertarian principles, to "help those who seek to be free to expropriate
funds from innocent Americans is unjustifiable" (Ibid.: 57).
12 For Paul the results of this policy are that: "Innocent people die, property is destroyed, and the world is
made a more dangerous place" (2007: 82).
13 And the world as demonstrated later in the discussion.
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a) The Federal Reserve
The Federal Reserve was created in 1913, with the "Federal Reserve Act" signed by
President Woodrow Wilson. According to Paul, "after the creation of the Federal
Reserve, the government... found other uses for the elastic money supply14
Without fear or responsibility of bankruptcy or fiscal ruin and with the possibility of
expanding the existing money through inflation and debt creation, "each special
interest has the possibility to get what it wants". As discussed later, Paul identifies
President Wilson as the man responsible for this change and the creation of a
"welfare-warfare state" (2007: 103). However, there is another juggernaut that
feeds this power to create money from nothing.
...
(which) would prove useful to finance the war" (2009: 52). Having the ability to
"print money... tax limits were removed for war" (Ibid.), i.e., the choice of classical
economic theory, between producing guns or butter was, "no longer necessary"
(Ibid.: 55; Lewis, 2014).
b) The military-industrial complex
As stated earlier, it was Gen. Butler that identified the "military-industrial complex"
(1935: 1-5). For Paul, however, the link between foreign policy, bipartisan support
(2007: 13; Cox, 2000: 220; Anderson, 2008: 4) and actual industry, is much stronger.
As he affirms, instead of rejecting the "search for monsters abroad", "every week, the
US must find an infidel to assassinate... and (that) keep the military-industrial complex
humming" (Ibid.: 92; Eland, 2007: 3).
Like external alliances and the Federal Reserve, the military industry "enjoys a better
standard of living at taxpayer expense due to the interventionist policy and constant
preparation for war "(Ibid.: 225). It is ordinary citizens who lose, the libertarian
believes. Similarly, it is an industry in which even Hollywood is engaged in order "show
the good side of the army" with public money (Paul, 2007: 155; Wolf, 2012;
Giambrone, 2013).
If war, as Joseph Goebbels declared, is not waged with the people's consent, the
question that Paul seeks to answer is why, and, especially, when the policy
recommended by the "Founding Fathers" is altered to allow "corporate and banking
influence over foreign policy to replace the wisdom of Washington and Jefferson" (Paul,
2007: 217). This moment was, for America, the First World War and the presidency of
Woodrow Wilson.
And everything Wilson changed?
In the book, A Century of War, Denson states that, "revisionism is necessary because
the truth is often the first casualty of war" (2006: 11). In commemoration of the
14 "Money supply", is the amount of money available in the economy. With the creation of the Federal
Reserve, the ability to decide how much money could be made available to the economy, either by
shortening or increasing the money supply, without being subject to any form of "ballast" was
established, hence, its "elasticity".
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centenary of WW1, what is the importance of looking for another explanation for the
first "total war"? What changed with the Wilson presidency and the participation of
America? Ultimately, who was president Wilson? Moreover, what were the reasons for
US entry into the war?
Through the libertarian lens, the challenge is to understand why Ron Paul accuses
Wilson of being the first interventionist president and "neo-conservative". Furthermore,
and contrary to conventional belief, why is Wilson not considered a naive idealist and
why were the American military exploits directed for economic interests rather than
moral principles? For the Libertarian, it was Wilson, by certain fundamental decisions,
which restricted the freedoms of Americans and allowed the state to grow to
unbearable levels.
In actuality, until 1917, the American public opposed entry into the war (Keene, 2010:
509; Fleming, 2003: 33). Since the Monroe Doctrine, the American policy was to avoid
intervention in European conflicts.15
Officially, the reason for going to war was the sinking of the Lusitania in 1915 and the
subsequent decision, in 1917, of indiscriminate German submarine warfare against
belligerent and neutral ships; the last straw finally exhausting Wilson's patience.
However, is this the whole story? How can a libertarian interpretation illuminate the
black holes of WWI?
President Wilson, who won the 1916 reelection
with the slogan "keep the country out of war," hesitated at length before leading the US
into a distant conflict (Keene, 2010: 508; Cooper, 2011: 420-2).
Wilson – idealistic interests or self-serving idealism?
Kissinger, in the book, Diplomacy, challenges the "neo-Wilsonian" impulse to shape
American foreign policy more by values than interests (Ikenberry, 1999: 56). Though,
for Paul, there is nothing "neo" in this impulse, as American foreign policy
(intervention) has never been dominated by "values" or morals (Paul 2007: 218).
Indeed, President Wilson is, in Paul's view, far more pragmatic than he might initially
appear (Ibid.: 250, 339; Cox, 2000: 235-6)16
For the libertarian, Wilson's vision was clear: "orchestrating US entry into WW1 ... to
implement a strategy of world government under the League of Nations" (Paul, 2007:
283; Cox, 2000: 237; Anderson 2008: 4). Paul rejects the historical narrative,
according to which there was something moral in Wilson´s conduct. The very "mission"
to spread democracy around the world - by force, if necessary - is classified, at least,
as hypocritical (Ibid.: 339; Denson, 2006: 24-5)
.
17
Incidentally, before the Great War, it was the president who had "broken through Latin
America", invaded Haiti, Mexico, Dominican Republic, the Philippines, and supported
the Spanish-American War (Eland, 2007: 14; Hallward, 2004: 27; Paul, 1987: 50;
Butler 1935: 3; Fleming 2003: 22, 469). Can all these incursions be truly justified by
.
15 Maintaining, however, a "paternal supervision" of Latin America (Gilderhus, 2006: 6).
16 There are, however, different interpretations, even libertarian, of Wilson's character. Take, for example,
Anderson (2008: 3) and Denson (2006: 25).
17 Belgium, for example, as Fleming states, "was as democratic as Germany, [it] had a parliament that...
attributed to three votes to the wealthy... a similar system to that of Prussia" (2003: 60). On the other
hand, the same Fleming (Ibid.: 58) notes that in view of the colonized countries like the Congo, Belgium
(and other colonial powers), in the face of atrocities committed, would hardly seem democratic.
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idealism? Were there were other interests "far less idealistic" (Cox, 2000: 222) that
shaped Wilson's US foreign policy?
Furthermore, was Wilson, seen as an ardent democrat, internationalist, and exponent
of international liberalism, in fact, an elitist aristocrat with racist positions against the
national determination of certain people (Cooper 2011: 433, 474; Fleming, 2003: 74)?
This question, amplified by his biographer, Michael Cox (2000: 235-7), considers
certain views of the American president:
“We should… not forget that Wilson did nothing for the Irish or the
Chinese at Versailles; that 20 years earlier he had endorsed the
brutal American takeover of the Philippines; and that he was not in
favor of independence for all peoples, especially if they were brown
or black”.
“Wilson had far more in common with the patrician views of…
Hamilton and… Madison - neither of whom could… be regarded as
genuine democrats - than he did with the populist Jefferson… If
Wilson had a restricted concept of democracy… he had forthright
views about race”.
The war economy
What finally motivated Wilson in his crusade, after being re-elected and promising not
to enter WW1? The response of the General Butler is definite: "money". Corroborated
by other authors (Fleming 2003: 80-1, 84; Cooper, 2011: 421, 426; Keene, 2010:
510), Denson also explicates that when the "allies refused to pay their debt [of war],
the US would be on the brink of economic disaster" (2006: 25). This theory is, likewise,
confirmed during episode related by Butler, in the pamphlet "War is a Racket":
“The President summoned a group of advisers. The head of the
commission spoke. Stripped of its diplomatic language… he told
the President and his group:
‘There is no use kidding ourselves any longer. The cause of the
allies is lost. We now owe you (American bankers, American
munitions makers, American manufacturers, American speculators,
American exporters) five or six billion dollars. If we lose (and
without the help of the United States we must lose) we, England,
France and Italy, cannot pay back this money… and Germany
won't" (1935: 13).
Was this a war to save democracy or the financiers? But financial interests were not the
only priority during the Great War. CJ Anderson (2006: 1) and Fleming (2003: 53-4)
argue that, "Britain became involved in the war for economic reasons and the navy"
since "German industry had overtaken the English, and the German navy constituted a
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real threat to the Royal Navy, the last hope of the country for world domination" (2003:
53-4).
Ron Paul also traces the American "obsession" for oil to the First World War. He
believes that the US, from WWI onward, began the "gradual involvement in the
international arena with the objective of controlling global economic interests, with a
special emphasis on oil" (2007: 218).
Furthermore, the former congressman believes that, the "chaos" that exists in the
"Middle East has a lot to do with securing the oil fields for the benefit of Western
nations" (Ibid.: 325). Ironically, when Britain seized the oil fields, declaring themselves
"liberators", "jihad was declared against them, forcing them to leave" (Ibid.: 334).
The first propaganda war?
How was it possible to convince citizens and, in particular, young Americans to fight a
war in Europe, away from national shores? How was a war fought for economic
interests that, in the end, benefited only big industrialists and bankers, "sold" to
Americans? What threats or events were used to beat the "drums of war" even harder?
The First World War was perhaps the first war entirely promoted by propaganda, in
which agents such as Lippman and Bernay, hired by Wilson, proved crucial in
persuading the public of the "German danger" (Redfern, 2004: 3; Anse Patrick and
Thrall, 2004: 2; Keene, 2010: 510; Fleming, 2003: 55, 90). Others also identify the
emerging mass media as responsible for the creation of the fear campaign and the
"necessity" of the United States going to war (Anderson, 2008: 2).
However, the sinking of the British cruise ship Lusitania by a German U-boat persuaded
the unconvinced. This was the "special” event, without which it would be more difficult
to sell a policy of preventive war where members of 'our' army would be killed." Such
incidents, "served to promote a war that our leaders wanted" (Paul, 2007: 274).
Moreover, if there was anyone still in doubt, "Beautiful ideals were painted for our boys
sent to die. This was 'the war to end all wars' "(1935: 9). Butler also mentions the war
ribbons - nonexistent until the Spanish-American War - "that facilitated recruitment".
(Ibid.) If perhaps all this were not enough, young men were compelled to "feel
ashamed if they did not enlist in the army" (Ibid.).
In this way, conscription was introduced for the first time as "patriotic duty" (Paul
2011: 34; Paul, 2007: 285). A service that is, in the eyes of Paul, intolerable and one
of the greatest examples of what former congressman called "Wilson's devastating
attack" (Ibid.: 30) on individual liberties of Americans.
The war, "big government" and the erosion of liberties - chapter 1
Paul, like other libertarians (Eland, 2007: 5-6, 8; Denson 2006: 25, 99; Anderson,
2008: 4), consider Wilson's presidency and, in particular, World War I, the first moment
of extensive government growth in the United States. This war was the first chapter of
what libertarians regard as the "advent of permanent 'big government'" and its
intrusion into the lives of American citizens.
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Likewise, this war, though fought abroad, led to a significant concentration of power in
the hands of Wilson and the government, that controlled "almost all production of war"
and "assumed new powers... to control dissent" (Eland, 2007: 8; Keene, 2010: 508;
Cooper, 2011: 451-2, 459-62). Moreover, the same author adds that war
"strengthened his presidency", and that as a general rule, "any war centralizes power".
This considered, Denson (2006: 30) recalls Tocqueville's warning about the costs of
war:
“No protracted war can fail to endanger the freedom of a
democratic country…War does not always give over democratic
communities to military government, but it must invariably and
immeasurably increase the powers of civil government”.
Consider now how many "non-military wars" the US conducts against terrorism, drugs,
and poverty. This is not counting military incursions, the preparation for constant war
and the climate of fear, fostered by the government and media. As Paul (1987: 51)
says, "in times of war, individual freedoms are threatened at home".
Although the term "individual freedoms" can be considered vague, the libertarian
discourse has a fundamental importance. By clearly recognizing the first stage - of what
could culminate in drone wars, massive surveillance programs, military alliances and
"Empire" America - advocating a instinctive distrust of government is not only a
reminder of the price of security but also the price of what citizens consider as
"freedoms".
The challenge of libertarianism
This article argues that two distinct phenomena are interconnected in the figure of Dr.
Ron Paul - his candidacy for US President in 2008 and 2012 and the immense campaign
- culminating in the emergence of libertarianism as a moving and meaningful discourse
in American politics.
In the first part of this article, the theoretical lines that guide "Paulist" action and
discourse were defined. In the second part, the libertarian narrative on Wilson's
policies, with special attention to the First World War, identified as the moment when
"the Republic became an Empire" and the "wise" policies of the Founding Fathers were
ignored and rebuffed, was assessed.
If the libertarian rhetoric against the Federal Reserve (and the bankers) is dismissed as
populist, selfish, or even cynical, for undervaluing foreign aid and the problems of other
nations (or conversely, even something as naïve as imagining that the disappearance of
the state would imply a "dilution" of power and therefore greater "freedom"), it does
have its merits, particularly in civil rights and to foreign policy concerns.
Surprisingly, even though the libertarian movement in the US is identified with "the
Right", in foreign policy, it unites with "the Left" by rejecting the role of the United
States as the world police force (Edwards, 2011: 266). While not necessarily agreeing
with what the US role in the world should be (and vice versa), both (the Left and
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Libertarians) agree that the current US mission is unacceptable and undermines not
only American citizens, but also everyone else.
Finally, for the global anti-war movement, the biggest lesson from Ron Paul should be
considered. In his own words (2007: 326-7),
"(those) who want to limit the costs of war and militarism... have
to study the monetary system, through which government...
finance their adventures abroad without the responsibility of
informing the public of their costs or to collect the funds needed to
finance this effort".
If, for many, it is now easier to understand the links between the banks, the
government and the war - and the financial crisis - a small share of the credit is due to
Ron Paul and the libertarian movement.
The liberalists, likewise, help to expose the "vicious circle" of the dollar as the world
reserve currency, which is trusted mainly due to confidence in US military power. At
the same time, the dollar serves to amplify that military power, manipulated by the
Federal Reserve, and jeopardizing the vast majority of citizens, creating a "tax" through
inflation (Paul 2007: 328), but especially removing any decision-making power over
key decisions in everyone's life.
Although Paul rejects the democratic model preferring the Republic, and even rejecting
the cosmopolitanism of a world government, his advice can be understood as a call for
a more transparent policy, built on ideas and coherence - a model that the ex-
congressman and former presidential candidate always follows. In short, a system that
is more "democratic", in the fullest sense of the word.
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Butler, Smedley (1935). “War Is A Racket”. [Em linha], [Consultado em
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OBSERVARE
Universidade Autónoma de Lisboa
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Vol. 5, n.º 2 (november 2014-april 2015), pp. 59-73
WAR AS A CONTINUATION OF POLITICS BY OTHER MEANS ... UNMANNED
João Paulo Vicente
joao.vicente.6@gmail.com
Lieutenant Colonel Aircraft Pilot. Staff Officer in the Planning Division, Headquarters (HQ),
Portuguese Air Force. Researcher, Research Center for Security and Defense in the Institute of
Higher Military Studies. BA in Military and Aeronautical Sciences, Portuguese Air Force Academy
(1995), MA in Peace Studies and war in New International Relations, Autonomous University of
Lisbon (2007), MA in Military Operational Art and Science, Air University, Alabama, USA (2009).
PhD in International Relations, specializing in Security and Strategy Studies, Faculty of Social and
Human Sciences, New University of Lisbon (2013).
Abstract
The growth of US combat capability due to the operational introduction of drones is the
most significant of any weapon system in recent decades. Under this new operating model,
the drones are proliferating a myriad of essential activities in the battle space, while
relieving the pilot of the risk of monotonous or dangerous missions, who operates thousands
of miles away in an air-conditioned cubicle, executing the attack on a high-definition
monitor.
By analyzing the current situation, from the standpoint of the conduct the United States of
America (USA), indications reveal change in the nature of the political debate influenced by
the widespread employment of drones. Namely, judging specifically how drones affect the
strategic culture of states by the use of coercive force to achieve political objectives and, in
particular, the almost irresistible political temptation to employ air power as a principal
military response. In this context, the issue at stake is whether Remote Control Air War
strengthens the capacity of deterrence and compulsion of future opponents, or if, on the
other hand, lowers the bar for the use of force, making hostile conflict more likely.
The focus of this discussion is on the argument that drones provide the ability to employ
military capabilities in a conflict, without the need to build a broad political or public
consensus. Likewise, while making the political decision-making process easier and
spontaneous in order to use force, the planning and execution of military strategy is made
more difficult, the result of the complexity and uncertainty of “boomerang” effects.
Keywords:
War, Drones, Remote Control Air War, Selective Executions, Air Power
How to cite this article:
Vicente, João Paulo (2014). "War as a continuation of politics by other means... unmanned".
JANUS.NET e-journal of International Relations, Vol. 5, N.o 2, november 2014-april 2015.
Consulted [online] on date of last visit, observare.ual.pt/janus.net/pt_vol5_n2_art4
Article received on July 29, 2014 and accepted for publication on October 9, 2014
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War as a continuation of politics by other means... unmanned
João Paulo Vicente
60
WAR AS A CONTINUATION OF POLITICS BY OTHER MEANS ... UNMANNED
João Paulo Vicente
1. Introduction
In November of 2001, somewhere in the desert of Afghanistan, the world witnessed the
birth of a new and overwhelming chapter in the history of air power. Muhammad Atef
became the first target from an unmanned American aircraft; a drone designated “The
Predator”. From that moment a new technology and concept of operations flourished,
producing impressive and disproportionate effects, prompting an almost irreversible
temptation by politicians to the nascent resource of Remote Control Air War.
The growth of US combat capability due to the operational introduction of drones is the
most significant of any weapon system in recent decades. Namely, the ability to remain
airborne with a predetermined objective for more than 24 hours while executing
constant surveillance and carrying precision weaponry, over a ton, ready to be dropped
on targets of opportunity. Under this new operating model, the drones are proliferating
a myriad of essential activities in the battle space, while relieving the pilot of the risk of
monotonous or dangerous missions, who operates thousands of miles away in an air-
conditioned cubicle, executing the attack on a high-definition monitor.
To the extent this operational indispensability is increasing, a three-dimensional
profusion of Remote Control Air War is developing. Specifically, in the diversity of
shapes and sizes, the broadening the spectrum of missions and user base, and the
increasing levels of autonomy on par with the prospect of weaponization. It is exactly
the irresistibility of this surgical non-apocalyptic approach, and the reduced costs, that
may make this propagation permanent with destabilizing effects for international
relations.
By analyzing the current situation, from the standpoint of the conduct the United States
of America (USA), indications reveal change in the nature of the political debate
influenced by the widespread employment of drones. Namely, judging specifically how
drones affect the strategic culture of states by the use of coercive force to achieve
political objectives and, in particular, the almost irresistible political temptation to
employ air power as a principal military response. In this context, the issue at stake is
whether Remote Control Air War strengthens the capacity of deterrence and
compulsion of future opponents, or if, on the other hand, lowers the bar for the use of
force, making hostile conflict more likely. It is also important to consider while
removing the human cost to the offender; the employed application of armed drones
becomes a sufficient expression of the political will to wage war.
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João Paulo Vicente
61
The focus of this discussion is on the argument that drones provide the ability to
employ military capabilities in a conflict, without the need to build a broad political or
public consensus, making the political decision-making process easier and spontaneous
in order to use force. However, a strategic analysis of the campaign of "selective
executions" will assist in identifying aspects of the "boomerang effect" that threatens
the operational effectiveness of Remote Control Air War, prospectively making the
future security environment, by its very nature complex and adverse nature, increasing
hostile and dangerous.
2. The Political Temptation For Remote Control Air War
American politicians have always admired the military capability to find and destroy
targets from a distance (Zenko, 2010a). However, the American policy trend toward
limiting the military footprint whenever confronted with challenges that threaten
national interests is taken to the extreme with recourse to drone attacks. The fact that
these systems are a low-cost option, always available, and with high operational
efficiency is not distinct from this trend.
From this standpoint, the Predator is a technological evolution for the Obama
Administration analogous to what the cruise missile was to President Clinton in the
1990s: a form of flexing foreign policy muscle without the inherent costs of employing
ground forces. This political objective is one of the catalysts for the preeminence of
future use of drones and, above all, to advance development of more capable systems,
particularly in terms of reach, persistence and autonomy.
The relevance of the political preference for Remote Control Air War can be verified by
noting that at the end of 2011 the USA employed drone attacks, simultaneously and
continuously, in six different theaters, in addition to surveillance missions in at least a
dozen countries, including the domestic level. In this context, operations in permissive
air environments, where the threat to the drones is minimal and in some cases with
tacit or explicit local government support, maximizes the persistent capability to collect
intelligence and identify emergent targets.
The employment of drones translates into a smaller military “footprint" that may be
politically attractive. The concept of remote operations and the characteristics
associated with these systems to perform long-range attacks allow a reduction in the
need for forward operating locations for power projection. Without the need for this
strategic requirement international interference, the obligation to gather consensus,
and build coalitions that support the use of force is reduced. Likewise, consulting
Congress to obtain political legitimacy to carry out actions of Remote Control Air War is
bypassed.
In addition, this technology is extremely enticing, both politically and militarily, in so far
as it conveys a false impression that a war is no longer costly. The decision to wage
war always had serious consequences. However, it is now possible to start a conflict
without having to deal with some of the more severe implications, like sending ground
troops. One of the factors of war deterrence assumes high costs translated into "blood
and treasure”. To reduce the shedding of "blood", war is made less harsh, less
demanding and more socially acceptable, limiting the onus just to "treasure". Thus,
Remote Control Air War fits into a long Western tradition of finding relatively safe
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methods to employ lethal force, such as artillery and aerial bombing, leading to the
belief that avoiding military casualties is more valued than casualties among the
opposing civilian population (Olsthoorn et al., 2011).
On par with the reduction of the individual requirement of the combatants, warfare at a
distance requires less societal acceptance, making it a primary policy option. The use of
cruise missiles on Somalia and Sudan during the Clinton presidency proves this
observation. Also, American terrestrial intervention in Kosovo only occurred when the
"guarantees of impunity" were pooled. (Ignatieff, 2000: 179) Thus, to remove the
danger of loss of life, the employment of drones maximizes this concept of operation
with impunity.
The perception of a war without costs, as pointed out by Andrew Callam (2010), may
be due, firstly, to the fact that it is a conflict fought covertly, away from the view of
society. In spite of the information age, it is difficult to gain access to remote areas or
obtain images about the attacks, which helps to insulate the public from the damage,
preventing a transparent and impartial assessment of such conduct, in particular the
target typology and damage caused to the civil population. Secondly, the elimination of
human risk for the USA makes war more acceptable, decreasing the general objections
to its occurrence and prolongation.
On the other hand, the political-military interaction that precedes the war may also be
affected. Up to this point, this collaboration sought to establish the most appropriate
strategy for political objectives in such a way as to minimize the cost in "blood and
treasure.” While the military is looking for the human resources needed to achieve the
established goals, politicians try to minimize the impact associated with massive
armies. However, removing the human variable from the equation transforms the
political-military calculation, a judgment each time more rational and less subjective.
This change in the nature of political debate, the calculation of human risk to the
economic cost of the intervention, may relegate the need for military consultation prior
to the decision of the use of force to the background.
By virtue of providing a real-time common operating picture to decision-makers, it is
possible that the decisions are ethically more consensual (Cummings, 2010). The
greater granularity of information will mean greater accuracy, thus increasing
understanding of the operational environment. This faculty, resulting from the
application of automated analytical tools, allows a faster evaluation of operational risk
and mission strategy, particularly in the process of target selection, facilitating the
political decision for the use of force. The proclivity for Remote Control Air War can,
however, affect the consistency of air policy. The Kosovo conflict reflects this typical
moral conditioning imposed on air strategy, extreme discrimination and proportionality,
to justify a fight with reduced risk. However, conducting attacks above 15,000 feet,
outside the envelope of antiaircraft threats, reveals a greater concern for the safety of
the pilots than for the judgment of the bombardment.
On the other hand, the ability to "humanize" the error will decrease even as the
collateral damage will continue to exist. Conceptually, it is easier to accept collateral
damage caused by a manned aircraft, whose pilot makes decisions in a fraction of a
second while subject to the rigors and threats of fighting, than admit errors caused by
the use of drones. The extreme concern to limit the collateral damage leads to the
establishment of complex protocols for selection and executing attacks on targets.
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However, the inherent precision of drones associated with a typology of ever smaller
and more diffuse targets, causes greater risk taking, especially for attacks in urban
areas, contributing to a higher probability of unwanted effects. Thus, the reality
presented in question will contribute to increasingly isolating society from military
actions by reducing the supervision of political action. This erosion of verification and
accountability of political action, essential pillars of waging war in a democratic society,
can foster willingness for lethal force.
An indication of the slow-down of political control on the consent and authority for the
use of force was demonstrated in the conflict of Libya in 2011, when Obama argued
that authorization was not required from Congress to employ U.S. forces in conflict.
One of the instruments available to ensure a greater political consideration in the use of
force between the President and the US Congress is the "War Powers Resolution" of
1973, which requires the Administration to consult the Congress prior to employment of
American armed forces in hostilities. There are, however, situations in which the
President may employ military force without the prior approval of the Congress. For
example, when the country has been or is in the process of being attacked, when an
treaty obliges the defense of an ally, in cases of extraction of citizens at risk, in isolated
punitive attacks, or in operations where the surprise prevents a wider public debate
(Lugar, 2011: 5).
During the initial phase of the operation in Libya (Operation Odyssey Dawn), the
actions of American forces were significantly more intensive, sustained and dangerous
than in the later phase, Operation Unified Protector, commanded by NATO, in which the
United States played a supporting role. During this stage, according to the perspective
of the Obama Administration, American participation was limited by three factors:
military means employed, the nature of the mission, and the risk of escalation. In
statements to Congress, Harold Koh (2011) defended the Administration's position on
why the operation in Libya did not qualify as "hostilities" under the "War Powers
Resolution.” Firstly, it was a mission with limited objectives. Secondly, because the
exposure of U.S. forces was limited, risk for casualties was minimized. Thirdly, the risk
of escalation was reduced since land forces would not be used. Finally, the employment
of military resources was limited to the suppression of enemy air defenses to ensure
the flight exclusion zone and the Predator attacks on targets in support of the mission
of protecting civilians.
From this perspective, the use of drones supported two of these positions; the limited
exposure of the forces and the minimized risk of conflict escalation. However, the scope
to employ force is substantially and dangerously extended by facilitating the frequency
of Remote Control Air War. The recently introduced resolution about the "introduction
of American forces in hostilities" can be reductive in the case of the use of drones, to
the extent that it eliminates the concern of human losses. Although forces are exempt
from physical risk, the number and nature of drone attacks can contribute significantly
to increasing the stakes of hostilities.
The political calculation about definition of hostilities has focused mainly on the
probability of occurrence of low levels of American forces, minimizing other relevant
considerations for use of force (Lugar, 2011: 6). From this prospect, the conflict of
Libya does not constitute any of the exceptions mentioned, being that American aircraft
participated in the attacks and the American support to NATO forces was crucial,
specifically at the level of logistics, command and control, and support for deficient
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operational areas such as information, surveillance, airborne refueling, or space
capabilities.
As instruments of coercive diplomacy, in the context of deterrence and compulsion, the
employment of unmanned drones to fight in order to reduce the potential costs of the
threat and use of force, can have major implications (Nolin, 2012: 13). Chiefly, in
situations of added significant asymmetry between the actors in dispute and whereas
the personnel costs are virtually zero, the credibility of such threats will be
strengthened, since the use of force will occur with greater ease, and without the time-
consuming political and public scrutiny associated with the use of force by traditional
means. Similarly, it is expected that possessors of combat drones will become more
daring and increasingly use Remote Control Air War, in a preventive manner and as the
primary instrument of conflict resolution. To simultaneously fight in six different
locations on the planet, without any direct risk to its forces, the US seems to validate
the hypothesis that aerial warfare has become more productive with the emergence of
drones, confirming a greater inclination to employ this military instrument to achieve
limited national objectives.
In this sense, the drones provide politicians an increase of control that extends to three
levels (Dawkins, 2005: 21-24): the control of opportunity and pace of operations to the
extent that minimize external interference, the control over the political debate
regarding the use of force, and the perception of precise control from the strategic level
to the tactical employment of forces, greatly diminishing the considerable interference
in all details of the conduct of war. Therefore, the exclusive use of this form of air
power becomes a political solution, increasingly prominent, less demanding, easily
justified, and acceptable. By limiting casualties and eliminating the possibility of
prisoners of war, the drones allow the missions to be planned and executed in remote
areas in a more subtle way. The possibility of performing an operation to attack without
the prior media exploitation also maximizes the operational surprise.
To assess in greater detail the temptation for the employment policy of Remote Control
Air War, the particular case study of the American counterterrorist campaign will be
examined.
3. A new concept of operations: "The only game in town"
On November 3, 2002, in the wilderness of Yemen, a Predator controlled by the Central
Intelligence Agency (CIA) followed a car with six passengers. One of the occupants,
Qaed Salim Sinan al-Harethi, deemed responsible for the attack on the USS Cole, was
on the President´s Al-Qaeda most sought after hit list. In an uninhabited area, a
Hellfire missile was fired on the vehicle killing the six occupants; the first action of
"targeted killing" (“selective execution") in history by the use of drones. In August
2009, a leading Pakistani Taliban, Baitullah Mehsud, was resting on the terrace of a
dwelling, together with his wife. Without advance notice, a missile launched from a
Predator destroyed the house killing the terrorist, wife, and bodyguard. The execution
in September 30, 2011 of Anwar al-Awlaki in Yemen, one of the most influential
operational members of Al-Qaeda, has raised the bar of this modality, since it was the
first intentional killing of an American citizen.
These three examples, from more than four hundred attacks carried out by the USA
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since 2002 outside of theaters of operation such as Pakistan, Yemen, and Somalia,
mainly by CIA-operated drones, mirror the geographical spread, the frequency of
attacks, and demonstrate the emerging status of the prime modality of "selective
executions" in the use of Remote Control Air War. Since June 2004, the Bush
Administration authorized 45 attacks in northwest Pakistan. During the first term of the
Obama Administration this number increased fivefold, in attempt to preserve political
capital from the risk and cost associated with alternative military strategies based on
massive employment of land forces.
The need for the US to be "agile and accurate" in the use of military power is achieved
with the use of drones and by Special Forces (Obama, 2009). From the viewpoint of the
Administration, the selective attacks are strategically sensible. Specifically, the drones
provide an unbeatable ubiquity and persistence, together with precision weapons;
afford leverage and a window of opportunity to act. Compared with other military
options, the elimination of risk to American forces makes these capabilities especially
desirable. Additionally, drones reduce the danger to civilians in comparison with
traditional bombing alternatives, since an improved visualization of the target allows
better decisions, with pinpoint accuracy.
It could be argued that this offensive counterterrorism strategy has delivered
immediate results in the elimination of terrorists. The continuous pressure on terrorist
havens, unpunished until recently, makes an action, movement, and contacts with
allies difficult, forcing the terrorists to devote more resources to survival. Also, the
psychological effect on the terrorist caused by the uncertainty of the next attack and
survival, constrains operations. Empirically, the operational results arising from the
employment of unmanned drones indicate that obtaining the same results by
alternative means would require a large scale military force with associated political,
economic, and social drawbacks. In this way, the strategic consequences that derive
from the use of force are smaller than those resulting from the projection of armies,
which are usually perceived as foreign occupation. In addition, wars of occupation tend
to be expensive and to ignite the resentment against the United States.
Similarly, it is argued that drones reduce the escalation of the conflict, making the
platform an essential tool in counterterrorism strategy (Anderson, 2010). The logic is
simple: decimating the principal leadership with the most experience in the network
degrades the command and control ability of Al-Qaeda. The zenith of this program
occurred with the death of Osama Bin Laden, with recourse to an action of "selective
enforcement", in which Special Forces were used to ensure positive identification of the
target and its extraction.
The attrition of Al-Qaeda leadership hinders the reconstitution of the organization and
reduces operational efficiency. For example, of the 30 primary members of Al-Qaeda in
Afghanistan and Pakistan, drones have killed 20 since 2010 (Nolin, 2011: 19). Contrary
to popular belief, the number of trained terrorists is quite limited (Byman, 2006). When
an experienced terrorist is eliminated there is a direct impact on operations as it takes
several months to train a replacement with sufficient experience to be effective.
Regardless, the organization continues to recruit terrorists but they lack the requisite
experience and leadership to constitute a significant threat.
Other academics, citing testimonies of Al-Qaeda operatives, go further by proposing the
hypothesis that there would be a greater threat to the world of nuclear terrorism
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without the use of this modality (Zenko, 2010b). From this standpoint, the drone
attacks are an essential tool for killing terrorists who provide operational support to
international terrorism, this option considered morally justified to prevent future
terrorist attacks. Everyone seems to agree that killing the insurgents does not
automatically lead to victory, but as Steven Metz (2000: 55) emphasizes, "a resolution
of the root causes is easier with the insurgent leaders outside of the scene."
4. The "boomerang" effects from the "selective executions" campaign
These optimistic propositions view the use of drones as the most effective and
necessary way to use military force against insurgents. However, the official American
support for the conduct of this operation mode is somewhat paradoxical. Firstly, an
expansive interpretation of the legal framework is transmitted while simultaneously
maintaining limited criteria. Secondly, a modality of action is legally justified while
taking place covertly. Finally, factual details about the decision-making process and the
conduct of the intelligence services are limited to the public while an image of
transparency is advocated.
Bergen et al. (2011) have questioned whether the drone campaign, although useful in
the short term, may undermine American efforts to stabilize the region, creating a
long-term gain for Al-Qaeda. Peter Singer (2009: 312) asks whether or not this mode
of warfare contributes to an increase of revolt and membership in the terrorist cause,
while Jane Mayer (2009) argues that the global employment of drone attacks will make
retaliation inevitable.
The public debate on the effectiveness of the employment of unmanned drones in lethal
attacks on terrorists has not yet been proved an unequivocal strategic success. In the
same way, it is not clear what the achieved outcomes, with the attrition imposed on
terrorist leadership beyond the impact that civilian casualties, have on the recruitment
of new terrorists, as well as the escalation of attacks that destabilize Pakistan. In the
case of lethal offensive actions, circumscribed to limited areas, with access to real-time
images of the results of the attacks, the direct effects are measurable. However, these
attacks have costs psychological and physical, direct and indirect, and cumulative and
interrelated. These consequences will be felt at multiple levels (tactical, operational and
strategic) and in multiple dimensions (political, economic, civil and military). Because
military interventions should not be considered an ephemeral moment, it will be very
difficult to foresee a conflict in which there is no need for contact on the ground
between the parties in opposition. For this reason, the unique aspect of Remote Control
Air War in irregular conflict intensifies difficulties regarding the stabilization and
reconstruction efforts, to the extent that it does not allow the establishment of trust
through direct contact with the populations.
The lack of a comprehensive strategy to deal with a conflict makes limited use of
military force more attractive, at the expense of lengthy and other seemingly
ineffective instruments of national power. The use of the military instrument, quickly
launched with high readiness, deflects the need to develop other instruments of power
and provide them with sufficient resources to implement a long-term plan to address
the fundamental causes of the conflict. As pointed out by Robert Gates (2007), one of
the most important lessons of the wars in Afghanistan and Iraq is that successful
military action is not enough to win. The perception is that the military instrument is
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suitable to defeat states, particularly for regime change, but inadequate to combat
ideas.
For some analysts, the primary recourse for drones is an inconstant way of dealing with
the problem of terrorism (Thiessen, 2010). The problem lies in the fact that the drone
attacks are used as a substitute for other operations to capture terrorists alive. The
information obtained by interrogation of more than a hundred terrorists captured after
the September 11, prevented, according to CIA sources, numerous terrorist attacks.
Still, the nature of the target´s remote location makes capture difficult without risking
heavy American or host nation casualties, and this must be considered.
On the other hand, attacking the tribal areas in Pakistan strengthens the same forces
that the United States is trying to defeat, by alienating "hearts and minds" in an
unstable Muslim state with nuclear weapons. Unsurprisingly, the insurgents exploit the
resentment of the population reaffirming themselves as a resistance force against the
injustice of a Remote Control Air War campaign, which, at the same time, increases the
power of attraction for new recruits. It is this balance between the neutralization of
insurgent groups and the cost of encouraging more insurgents, which must be found.
Concurrently, reports grow about the increase of anti-American opposition between the
Afghan population and Pakistani and European immigrants in the West, as well as
between the members of elite Pakistan security services (Gerges, 2010). Political
objectives are harmed because of the negative image that emerges in the stricken
areas, and that image expands globally. This trend can be worrisome since for some
countries, especially those affected, as the American image is irretrievably linked to
Remote Control Air War. The fact that the Predator has become for many Muslims the
epitome of the arrogance of American power may, in the long term, obfuscate the
operational effectiveness of this combat mode.
The indicators presented as a whole seem to support a phenomenon of a loss of moral
authority of those conducting Remote Control Air War, particularly in a campaign to win
the “hearts and minds" of the local population. This perception than may be much
greater than actual civilian casualties. In this way, without the need for direct contact
with the people, the air attacks can only surgically remove insurgents. Thus, a state
that seeks to impose its will on the opponent, without risking the lives of soldiers, will
lose the strategic value of gained moral superiority (moral high ground). This argument
leads William Arkin (2008) to agree with the possibility of drones posing a long-term
risk: the perception of air power and the user as inhuman.
The strategic consequences arising from direct combat between human
beings and Remote Control Air War are disparate. The employment of manned
aircraft exposes human resources to the rigors of combat and
transmits a
perception of greater political determination and willingness to accept the risk of
casualties.
Despite the impunity with which manned aircraft conduct
attacks, resulting from air superiority, the operational risk to personnel in
Afghanistan an
d Iraq is still substantial. The number of shot down aircraft,
the possibility of capture, and the insecurity experienced on air bases,
which were the target of several deadly attacks, confirm this threat. This
risky interaction between combatants contributes to the enemy focusing efforts in
the area of direct conflict (McGrath, 2010: 15). However, the extensive use of
Remote Control Air War, seen in absolutist perspective, seems to indicate that while
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one side sees the war as a tool, a means to an end, the other regards it from a
metaphysical perspective, represented in the exaltation of the act of dying for a
cause. For this reason, the perception of a lack of political determination to risk the
lives of its citizens in combat can also contribute to streng
thening the opponent´s
resistance, developing a media information campaign to attract new members to
the cause.
Other critics synthesize this imbalance between the costs and benefits of the attacks
(Kilcullen et al., 2009). Firstly, the drones create a siege mentality among civilians.
Second, the outrage is not only located in tribal areas and but extends throughout
Pakistan and in the international community. Finally, using technology to replace a
strategy, without a concerted information campaign addressed to Pakistani public is
problematic. Thus, the decision to escalate the attacks may generate a greater number
of terrorist actions in the face of dissatisfaction giving reason to the argument to those
who advocate a possible "boomerang effect" in which attacks can create more terrorists
than those who are killed.
In this sense, the attacks cause an increase in the number and the radicalism of
Pakistanis supporting extremism, decreasing the strategic objective of making Pakistan
a more cooperative and capable regional ally. Thus, the collateral damage and the
perception of the constant violation of sovereignty also contributes to an increase in
feelings of anger that unites the population around extremists and causes the spread of
attacks in other areas of the country and the globe. (Kilcullen, 2009)
In this framework, it is difficult to find unanimity about the effectiveness of this mode
of warfare. Recent studies show that the number of terrorist attacks in Pakistan have
decreased to the extent that there is an escalation in the program of "selective
executions" (Qazi et al., 2012), looking for a way to defend a negative correlation
between the attacks of drones and the increase of militant violence (Johnston et al.,
2013). Although there is difficulty gathering consensus about the cause for anti-
American attitudes, it can be seen that these explanations are based on the assumption
that individuals form their opinion about the USA primarily as a reaction to what the
USA is and does (Blaydes et al., 2010). However, these authors advocate that the
level of anti-Americanism among Muslim populations is not an organic result
in response to acts of the USA. Rather, the level is mainly dependent on the
intensity of anti-American messages disseminated by prominent elites of a
given country. Namely, the anti-American rhetoric works as a political
instrument to obtain the support of sections of the population, made more
pronounced where there is political competition between secular and Islamic
factions.
The "selective executions" campaign is politically attractive because the reduced costs
favor domestic support while at the same time demonstrating political will. However,
the unwanted effects only appear in the long-term. In addition to the indispensable
military value, the truth is that Remote Control Air War is a provocative symbol of
American power, without constraints to respecting the sovereignty of states and
eliminating the collateral damage. This conduct may offer to other actors in the
international system incentive to imitate such behavior. However, what is at stake is
not the weapon system, but the actual operational employment of that system. To the
extent that the employment of Remote Control Air War is presented as a product of
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American “exceptionalism” stating it as wise, legal, ethically correct, and with surgical
precision, doubts arise about the impact of this conduct on other international actors.
In other words, being that the United States is an example of world leadership, can it
pledge that the submitted legal, moral, and political justifications will be equally
applicable to other countries, when they resort to Remote Control Air War to confront
threats to their safety? Additionally, to what extent will the US be morally able to
condemn such conduct?
A recently published study by the Stimson Center (2014) summarizes these concerns
and recommends several steps to ensure greater transparency and accountability on
the conduct of "selective executions". Among them is the need to perform a cost-
benefit analysis about the function of lethal drone attacks in selective counter-terrorist
actions; the importance of explaining the legal basis for the conduct of the attacks, as
well as the approximate number, location and affiliation of the targets of the attacks;
the identities of civilians killed and the number of attacks carried out by military forces
and the CIA. In addition, the United States must make a commitment to the
development of international standards for the use of lethal force outside the theaters
of traditional operations. In this way, it will be possible to establish precedents that
may be accepted by the international community, to regulate the future employment of
Remote Control Air War.
5. Conclusion
Considering war as the continuation of political relations, the preeminence of Remote
Control Air War can contribute to altering strategic culture if states use this type of
coercive power to advance political goals.
In reality, the political irresistibility, resulting from the associated cost reduction for the
use of force, is expressed by the increasing intensity on the level of discrimination for
individual targets. It is, similarly, conveyed by the increased frequency of attacks and
the greater geographical range for selective employment of deadly force. Nevertheless,
this tempting policy causes “boomerang” effects, signifying that to democratize and
civilize means more war. These effects threaten to transform the way states, non-state
organizations, and the individual face the conflict by constantly changing the threshold,
frequency, actors, and effects of the conflict. This makes the future security
environment, by its very nature complex and adverse, increasingly hostile and
dangerous.
While war was once reserved for the achievement of vital state interests, Remotely
Control Air War promotes enlargement of state interests by favoring the military
response option to achieve peripheral interests while decreasing the political
constraints, both military and civilian. In this way, and regarding the costs of political
action, it is assessed that this method streamlines the political decision-making
process, or bypasses it, since it is possible to employ military capabilities in a conflict
without the need to build a broad political consensus and endure public scrutiny.
These remotely operated systems offer strategic alternatives and flexibility to employ
assets without the burden of positioning forces in hostile territory, therefore, increasing
the freedom of political maneuver. Decreasing the need of forward operating bases to
support military detachments reduces the strategic requirement of building regional
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partnerships. Thus, the strategic and moral incentives to make this modality
increasingly precise and remotely operated are increasing as large-scale wars decrease
in number and intensity. Furthermore, the cost reduction of political action that can
provide preventive military action, in areas of strategic interest, puts into perspective
an increase of regional conflict and with it greater civil damage.
Due to operational and political benefits, the drones will constitute an essential capacity
to increase the situational awareness in the battle space, while, simultaneously, provide
for the application of lethal force in a discreet way. This capability may create change in
regional power dynamics providing small and medium-sized powers an affordable
capability, associated with the projection of power, putting an adversary´s Center of
Gravity at risk without traditionally prohibitive costs. Thus, an upturn in an offensive
posture is expected, although to some extent preventive, by virtue of the reduced
employment cost of these capabilities. Instead of deterring potential aggressors, it
seems more likely, the prospect of an arms race in search of leveling the asymmetry,
increasing the proliferation of drones with potentially more damaging forms of
employment. In this case, the adverse effects of persistent surveillance and precision
create a presumption of infallibility that can motivate risky political decision making,
like attacks in urban areas.
With regard to the strategic effectiveness of the Remote Control Air War on non-state
actors, it is dependent, like other military instruments, on the amplitude of the actor’s
objectives. The American escapade in Iraq and Afghanistan discouraged any interest to
invade or occupy tribal regions in Pakistan or countries like Somalia, Yemen, or Libya.
However, the need to replace the conventional option for a political and publicly
acceptable solution, catapulted the use of drones to an urgent operational requirement.
In this looming strategic synthesis, the modality of "selective executions" induces a
panoply of "boomerang" effects, which translates to a higher possibility of terrorist
retaliation. Specifically, these effects are expressed in the recruitment of new
insurgents, a greater complexity of the political relationship in regards to American
strategy in the geographical areas of the attacks, and the greater regional
destabilization in countries such as Pakistan or Yemen. Regardless of the ability to
establish a direct causal relationship, an erosion of American credibility in the region is
anticipated, which will gradually spread throughout the world.
The spread of this capability to new theaters and the range of tactical-level targets can
accelerate the local, national, and international opposition, contributing to the
destabilization of domestic governments in whose territory attacks occur. Therefore,
the willingness and ability of these governments to take effective action may be
reduced against the insurgents. On this view, the focus of the campaign on the targets
of strategic interest, rather than the widespread removal of operational targets, will
offer lower unwanted effects. Similarly, the transfer of the program by the CIA to the
armed forces can provide the much-needed transparency and accountability to this one
embodiment still shrouded in secrecy.
Additionally, the weaponization of drones, as a consequence of technological
proliferation, may be readily available to smaller powers in the medium term. Given the
number of countries, and organizations that have drones with range and payload
capacity to carry substantial conventional or mass destruction weapons, it is possible to
anticipate the spread of this threat at a global level. A natural extension of the user
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base for terrorist groups, criminal organizations and even to individuals, can spread the
danger of threats facing the United States.
Unlike nuclear weapons, which by its consequences discourage use, the cost of utilizing
Remote Control Air War is relatively low, encouraging developed nations to coerce and
impose their will on other nations with increasingly limited risk. The circumlocution of
interventions in remote areas of the globe, confirm a foreshadowing, in embryonic
form, of future air strategy, forcing a reconsideration of the relationship between war
and peace in democratic societies. Therefore, the unusual combination of
characteristics such as the distance between combatants, combat asymmetry,
autonomy in the use of force, and minimization of political and personnel risk, affirm
the modality of Remote Control Air War as politically enticing. That said, Remote
Control Air War is not an end in itself, but primarily, a fundamental tool to achieve
certain political ends. Moreover, this mode is not a magical solution to the political goal
of determining the objectives for the use of military power.
As the aircraft was one of technological solutions that made it possible to balance the
asymmetry created by the increase in firepower and entrenchment characteristic of the
First World War, the drones have emerged as a possible solution to the contemporary
tactical problems generated by location, identity and reduced signature of targets in
remote global locations. Hence, to expect that these systems become the strategic
solution for current and future wars, will certainly be a misjudgment. Moreover,
profound consequences will accrue to accentuate the erosion of the sovereignty of
states and the consequent increase of instability in international relations.
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OBSERVARE
Universidade Autónoma de Lisboa
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FROM WAR TO PEACE. THE CONTRIBUTION OF MILITARY CORPS WITH POLICE
FUNCTIONS: THE GNR IN IRAQ
Pedro Miguel Duarte da Graça
duartedagraca@gmail.com
Major, Permanent Staff of the Officer Corps, Republican National Guard (RNG). Director, 1st
Auditor, Security, Military Science, and Police Criminology. BA, Military Science / GNR.
Course of Maintenance of Public Order in Angola. Battalion Commander, Multinational
Stabilization Force in Iraq/ Multinational Specialized Unit. MA, Studies of War and Peace in New
International Relations, Autonomous University of Lisbon, Post Graduate, Law and Security.
Current decorations: Military Order of Avis - Degree Knight, Military Merit Medal -3rd
Degree,
Military Exemplary Behavior Medal- Silver and Copper Degrees, Special Service Commissions
Commemorative Medal with "IRAQ 2004" and "ANGOLA 2006" device, Distinguished Service to
Public Safety Medal – Silver Degree, Application of Public Security Medal with star, Military Gold
Distinguished Service Medal with Palm - collective.
Abstract
The nature of conflict is changing. The occurrences of formal international intervention, in a
complex theater of operations with operational requirements, necessitate the engagement of
international forces with military and civilian capabilities, namely a distinctive type of police
force. Since the end of the last century, the Portuguese Republican National Guard (GNR)
has deployed to stabilize various conflicts throughout the world.
The GNR contributed when UN resolutions mandated constabulary requirements, but this
participation was never framed within a multinational force of NATO. However, the GNR
works under the same NATO doctrine for force employment constituted on the basis of
military units with police functions, called the Multinational Specialized Units.
The Guard is a military organization with the expertise to contribute to peace. This unique
competence stems from capabilities over the entire spectrum of police functions within
unstable environments, including a unique ability to overcome the Security Gap. Likewise,
by concurrently deploying with the military forces, the GNR demonstrates the ability to use
force in a legal manner by fostering a comprehensive approach within the security and
judiciary system.
This holistic capacity goes beyond a purely institutional approach. By executing police
functions in unstable environments the GNR contributes to the pursuit of credible
Portuguese foreign policy interests in Peace-Enforcement Operations..
Key Words:
Military, Police, Unstable Environment, Peace, Security Gap
How to cite this article
Graça, Pedro Miguel Duarte da (2014). "From war to peace. The contribution of military
corps with police functions: the GNR in Iraq". JANUS.NET e-journal of International
Relations, Vol. 5, N.º 2, november 2014-april 2015. Consulted [online] on date of last visit,
observare.ual.pt/janus.net/en_vol5_n2_art5
Article received on August 6, 2014 and accepted for publication on October 2, 2014
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75
FROM WAR TO PEACE. THE CONTRIBUTION OF MILITARY CORPS WITH POLICE
FUNCTIONS: THE GNR IN IRAQ
Pedro Miguel Duarte da Graça
Introduction
In 2003, with the advent of war in Iraq, Portugal established a political position in the
future of conflict by deploying supporting forces for Operation Iraqi Freedom. The ad-
hoc military coalition was formed outside of NATO article invocation but based on
Alliance doctrine. Within the Portuguese foreign policy framework, the choice of a
constituted force fell on the Republican National Guard (GNR).
Much has been written and said regarding the sending of this military corps to Iraq,
allegedly to the detriment of the armed forces (FFAA). If the reasoning of this
institutional analysis argument is illogical, then there must be a better reason,
functional, envisioning a comprehensive approach (NATO, 2010b: 2-11). This method
is specifically oriented to state-building and the creation of a jus post bellum required
of modern conflicts, while safeguarding these processes in an unstable environment.
(Kaldor, 2006: 6)
Ten years have passed since GNR involvement in the Iraqi conflict. However, the
present discussion is of singular scientific relevance because it goes beyond the
institution regarding the role of police in unstable international environments and the
Guard's contribution to the pursuit of Portuguese foreign policy (Guedes A. M. & Elias
L., 2010).
I. Peace Studies
The Norwegian Johan Galtung, considered the creator of the mid 20th
Later, the author designed another model, the Violence Triangle, coinciding with the
earlier Peace Triangle. Each vertex indicates a type of violence: direct, structural
(1969) and cultural (1990), which opposes a form of peace. To summarize, direct
violence (personal) is an act of intentional aggression, structural violence (indirect) is a
reflection of the social structure, and cultural violence (symbolic) inculcates the
legitimization of direct and structural violence (Galtung, 1996: 2).
century Peace
Studies, adopted, conceptually, a dual vision of peace: negative peace “(...) absence of
war (...)" and positive peace "(...) integration of human society (...)." (1964: 2) The
objective of Peace Studies is to understand violence and non-violence, beyond studies
of war (Galtung, 1969: 168-174; Boulding, 1990: 4-5).
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The socially productive field of Peace Studies confirmed the theoretical underpinnings
for the UN on the issue of peace as a practical framework commensurate with
institutional suppositions. This basis resulted in the document, "An Agenda for Peace:
Preventive diplomacy, peacemaking and peace-keeping." (UN, 1992) incorporating the
concepts of peacebuilding and peace enforcement, reflecting Galtung´s theory, "Three
Approaches to Peace: Peacekeeping, Peacemaking, and Peacebuilding." (Galtung,
1975)
Illustration 1 – Triangle of Peace
Source: Galtung (1990) – adapted
Kofi Annan’s approach to security builds on Galtung´s concepts; to focus the same
security theory on the State, including the individual, designated as human security
(UN, 2000). In this context, Galtung identifies military training as essential to deal with
violence and police training for the maintenance of public order. He argues in a conflict:
“[m]ilitary training is indispensable: to contain violence.
Knowledge of the means of violence and the mentality behind their
use is needed. But, for ‘crowd control’ police training may be
better, more based on a show of authority and minimum use of
violence (…) come active nonviolence training, also training to
train the local population, and training in conflict mediation
techniques (…)" (Galtung, 1996: 270).
The UN welcomed the concept of Galtung’s positive peace. Given the need to achieve
security and to ensure peace - acknowledging the current threats - begs the question:
how can peace enforcement operations be designed in response to an unstable
environment, and how are operations outlined and enforced by NATO (or were, at the
time)?
Visible
Invisible
Direct Violence
-
Negative Peace
Cultural Violence
-
Cultural Peace
Structural Violence
-
Structural Peace
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II. Peace Enforcement - The Unstable Environment
1. Security Threats
The emergence of "new wars" (Kaldor 2006), more than the originality thereof,
identifies the risk associated with the decline of the State, based on latent threats from
the Cold War, finally confirmed. (Rasmussen, 1999: 43)
Currently, the UN defines the threats (UN, 2004: 12) and identifies a serious concern
with six types:
(i) War between states;
(ii) Violence within states like civil wars, massive human rights violations, and
genocide;
(iii) Economic and social threats such as poverty, infective contagious diseases, and
environmental degradation;
(iv) Nuclear, radiological, chemical and biological weapons;
(v) Terrorism;
(vi) Transnational organized crime. (Idem: 32)
These "new threats", are a mixture of
"(…) war, crime and human rights violations (...)" (Idem: 12),
require an approach between the mission of the soldiers and the
police, the context in which "[the] army and the police seem to be
changing roles (...)" (L'Heuillet, 2004: 199).
Within unstable and unpredictable environments, the growing number of transnational
risks and consequent challenges seem to justify the emergence of a third approach.
This role must have the capacity to act on internal state security, while being prepared
to deal with threats and external influence internally, such as the transnational
organized crime, drug trafficking or terrorism. (Lutterbeck, 2004) These forces are, in
essence, the product of the 19th and 20th
century struggles between the internal
Westphalian and international orders. They evolved maintaining law and order on a
domestic level as a primary objective yet able to act in external conflicts. Descendants
of the French Gendarmerie, these forces, organized militarily with police functions,
prove to be an excellent instrument for effective post-conflict intervention.
As Richard H. Solomon identifies, particularly in the Iraq conflict, the specific problem is
that:
"(...) military peacekeepers are able to stop conflict by separating
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combatants or by ousting hostile, repressive regimes; like always,
they are not trained or equipped to restore self-sustaining order
and stability to the society in the post conflict environment"
(Perito, 2004: ix).
The basic principle of conquering, the main task of the armed forces, is not enough to
establish order. Another force must uphold order while respecting civic freedom. This
requires a holistic, comprehensive and integrated approach rather than an exclusively
military response. In post-conflict, the Gendarmeries emerge, demonstrating a unique
aptitude to betake minimum force in situations of maximum violence (Zimmermann,
2005), ensuring public order through the rule of law.
Military organizations with police functions "(...) can serves as a bridge between the
military and civil police and can handle tasks that do not clearly fall within either camp"
(Perito, 2004: 5). This link, of an institutional and functional character, can and should
be maintained in different phases of the conflict, especially in situations where the
Western world needs a new approach to the use of forces in post-conflict operations
(Field & Perito, 2002-03).
2. Peace Enforcement, Unstable Environment - an approximation
The national legal system, by Decree 87/99, of December 30, 1998, defines the
counties whose classification allows identification of operating environment
permissiveness. This classification is graded "A" to "C”, the latter being more complex
and unstable. The peace enforcement operations fall under the class "C":
"The countries or territories in a state of war, armed conflict or internal widespread
insecurity and even those where serious health conditions”12
Within peace operations, including peace enforcement, forces encounter the condition
of the Security Gap.
.
III. Security Gap
Current conflicts increasingly require an approach that, among others, integrates the
military instrument and the police, "(...) between soldiering and policing" (Kaldor, 2006:
133). Peace operations are the preferred method supported by the international
community in recent years and "(...) have increasingly required the participation of both
military personnel and civilian police" (Oakley, Dziedzic, Goldberg, 1998: 6).
The Security Gap is the inability to perform the most basic functions of the State to
protect its citizens. The multinational forces’ responsibility - to restore law and order,
and the law with justice - objectively encounters three facets of the Security Gap: The
Deployment Gap, the Enforcement Gap, and the Institutional Gap (Idem: 8-16).
1 Article 1, part c of Portª. nº 87/99, December 30th.
2 Serious health conditions - Article 2 and 3 of Portª. nº 87/99, December 30th.
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Illustration 2- Conceptual Framework
Source – (Oakley, Dziedzic, Goldberg, 1998: 5)
Order, law, and justice are necessary for ensuring peace. (i) Order draws the direct
level violence - physical aggression, verbal or psychological - away from rapid and
dramatic effects. (ii) Law and justice deal with the level of structural violence (indirect),
aiding in the consolidation of a fair social structure by diminishing the asymmetry
between the real and the potential. (iii) Law and justice also act at the level of cultural
violence, promoting values, norms and behaviors that delegitimize the direct and
structural violence.
An international force with military capability is required to restore order.
Subsequently, order obliges the law as the essential foundation of police functions. The
time lag between the two capacities is called deployment gap, and can be reduced, if
possible by the integration of these forces.
In the next phase, it is necessary to carry out functions that are not purely performed
by either the military or police instrument. In this case it is essential to ensure a
functional and institutional continuity in unstable environments, surmounting the
enforcement gap.
The third stage emphasizes the rebuilding of local structures. To this end, the
institutions with expertise in the required field should be involved in each area,
corresponding to its core business. For this, it is necessary to fill the institutional gap,
by using forces for missions that meet daily in their home countries, utilizing a
comprehensive approach in order to create the conditions for the development of a
sustainable and secure peace.
Bridging security gaps requires forces with military unit capacity and police
functionality. They might be designed in unstable environments with the military
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instrument performing police functions, fulfilling the ground work permanently linked to
the legal system, in the promotion and construction of the security system. A military
corps with police functions is known as Gendarmerie, Carabinieri, Guardia or
Constabulary. (Jayamaha et al., 2010: 148; Oakley, Dziedzic, Goldberg, 1998: 519-
520, 330; Perito, 2004: 5).
The security gap is also filled by basic police services, although with less efficiency in
more polarized cases (Elias, 2006). In both situations, what is in question is state-
building backed by an emerging jus post bellum (Guedes, 2011).
IV. Military Corps With Police Functions
The origin of police institutions dates back to the fourteenth century French
Maréchaussée during the Hundred Years War. These marshal troops had a dual
function, maintaining order and judicial procedure. Today these functions reflect
juridical-policing.
Over time, these troops earned an actual military status and designation -
Gendarmerie. This original model gave rise to similar institutions in several countries,
such as the Royal Guard of Police in Portugal, the Carabinieri in the Kingdom of
Sardinia, the Marechaussee in Holland and the Guardia Civil in Spain. As common
characteristics, the military and the police functions are identified, in both cases avant
la lettre.
The Anglo-Saxon countries, often cited, have a different description: Constabulary3
. As
the American Robert Perito states,
“[t]he ambiguous and conflicting definitions of a constabulary can
be clarified by looking at the specific organizations and functions of
constabulary forces in democratic countries [, like] France, Italy,
the Netherlands, Spain (…)" (Perito, 2004: 37).
These definitions differ from terms such as paramilitary, militarized or military police,
the latter as police responsible for discipline within the armed forces (Scobell &
Hammitt, 1998).
1. Military
The "military corps" classification denotes a unit of professional soldiers, with an
institutional culture subject to political power. The corps centers on three elements:
duties, by statutory approach; constraints, with regard to the restriction of rights;
ethics, through principles.
2. Police Functions
3 In the former USSR, these forces were dubbed "Troops of the Interior Ministry."
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According to the doctrine, police functions are categorized as judicial and
administrative. The latter police function subdivides into "general" and "special"
administration (Correia, 1994: 407).
Repression of illicit criminal activities falls under the judicial function. Carrying out
criminal investigations requires an adept criminal police organization (OPC), exercising
functionally under Judicial Authority.
General police responsibilities cover necessary safeguards to public order and security.
Special police exercises authority in relation to a particular branch of the law (Castro,
2003: 97).
The Republican National Guard, as a military body, implements the aforementioned
police functions. The GNR possess the
"(…) ability to adapt to different scenarios and different situations.
In short, they have a versatility incomparably greater, in the
classical sense, than either the armed forces or the civilian police"
(Branco, 2010: 37).
3. Continuity, Proximity, Duality
A military corps with police functions is characterized by a military nature and
operational versatility, both military and policing. The Gendarmeries, the model for
Republican National Guard, is still characterized by three principles: continuity,
proximity, and duality (Branco, 2013). The first two refer to the functional genesis of
Gendarmeries while duality is consequential.
Continuity presupposes: (i) an established standing, by the permanent connection
between the military and civil institutions; (ii) the versatility to transition between the
military and police functions; (iii) the ability to manage performance in unstable
environments.
Proximity results from force dispersion throughout the national territory like a spatial
network. The features of this employment, like a "power grid", are the effective
knowledge of the terrain, the people, and the infrastructure. Likewise, proximity
"(...) which, combined with the continuing availability that
characterizes the ‘gendarme’ and in conjunction with the principle
of the barracks, creates a closeness to the public" (Idem: 207).
Duality is a consequence of the military bodies with police functions sharing power with
constabularies. This principle comes from the decentralization of institutional police
power while conversely strengthening the judiciary in exercising control of police
activity and of penal action, the latter, by OPC's choice of those specifically considered
competent for criminal investigation.
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V. Multinational Specialized Unit (MSU)
The complexity of theaters of operations and concurrent demands demonstrate that the
occurrences of formal international control require the commitment of international
forces with military and civilian capabilities.
From the experience of the Stabilization Force in Bósnia (1998), NATO identified the
need to fill the gap that existed between the military and non-military, between the
activities of military forces and the civilian police, who were unarmed and unable to
enforce the law, perpetuating the Security Gap (Paris: 2004).
The proposed course of action advocated the use of military units with police functions
(Gendarmeries or Carabinieri type). The Italians, already developing the Multinational
Specialized Units model (Carabinieri: 2003; Paris: 2004), immediately accepted the
idea. Generally, the concept integrated: (i) Unit - groups formed on a temporary basis,
to fulfill a mission as part of a military force, and to act within the framework for a
peace operation; (ii) Multinational - based by virtue of the composition of a military
corps with police functions from several countries; (iii) Specialized – as a specialized
capability of the military instrument allowing the Joint Force Commander (JFC) to act
before the Security Gap occurs.
NATO, through the MSU, integrates an expertise that actuates redirection of negative
peace to a positive peace, through the distinctive competence of military units with
police functions.
VI. The GNR In Operation Iraqi Freedom
1. Situation
After combat phase completion in May 2003, the United Nations, through resolution no.
1438, and later, resolution no. 1511 created a peace enforcement mission to Iraq. The
purpose of this mission was for the development of security conditions and stability to
allow humanitarian aid and reconstruction of the country. The Portuguese Government
decided to participate in the mission, but faced a difficult problem, since the president
as Supreme Commander of the Armed Forces, refused to approve these operations in
Iraq. The solution was simple. The government, after the Lajes Summit, was keen to
join the US-led coalition and agreed to support the effort by sending the GNR, since
this organization depended organically (as presently) on Ministry of Internal
Administration (MAI) and not the presidency.
On 15 July 2003, the Portuguese government, by Port.ª n.º 1164, decided to "(…)
provide support to coalition forces in the maintenance of peace and order in Iraq (...).",
setting the duration for six months, with the possibility of an extension for the same
period. The order described Iraq as a type "C" country. A force was constituted for this
purpose, called the Sub-group ALPHA, composed of a maximum of 140 military
personnel.
The Republican National Guard remained in Iraq through four rotations in the period
between November 12, 2003 and February 10, 2005.
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2. Operational Area (OA)
The GNR area of responsibility (AOR) encompassed the entire province of Dhi Qar
covering approximately 200 km by 140 km with 1.8 million inhabitants. The principal
cities were Ash Shatrah, Suq Ash Shuyukh, and the capital, An Nassiriya.
3. The Capabilities of the GNR MSU company
Analyzing the ability4
of the GNR MSU Company, the following are noted:
Doctrine
The GNR used NATO doctrine, employment of a military force with police functions.
(Carabinieri, 2003: 3-4; annex A; NATO, 2001: 4-10, 4-11; 2010a: 3-9; 2010b: 2-8)
Organization
Sub-group ALPHA consisted of the following composition: a commander and deputy
commander, four platoons (a support and three intervening), a Section of Special
Operations (SOE), a team of Inactivation of Improvised Explosive Devices (EIEEI), and
a team of instructors.
Training
In addition to standard vocational training, the GNR received additional operational and
tactical military training. The standardization of military doctrine was necessary for
mission accomplishment and crucial for ensuring, particularly, "force protection" before
any attack.
Equipment
The equipment was functionally identical to the Italian kit, both military and the police.
Both contingents possessed non-lethal /less lethal weapons. The system of
transmissions/communications was a decisive capability (GNR, 2010: 36).
Leadership
The Portuguese contingent fell under the US chain of command, with the Secretary of
Defense of the United States (SECDEF) on top, followed by the commander of Central
Command (CENTCOM), and the commander of the Combined Joint Task Force
(COMCJTF). Operational control was exercised over the MSU regiment by the
Multinational Division on South-East (MND), through the Italian brigade. Operational
command was exercised within the Portuguese chain of command. Because of prior
4 “(...) Set of elements that are articulated in a harmonious and complementary manner and contribute to
the realization of a set of operational tasks or effect that is necessary to reach, encompassing parts of
doctrine, organization, training, materiel, leadership, personnel, infrastructures, interoperability, among
others."(MDN, 2011: 4), (DOTMLPI).
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experience, the GNR seamlessly integrated into the different forms of military and
police authority.
Staff
Recruitment was carried out on a voluntary basis. After the expansion of auxiliary
diagnostic tests, the appointment proposals ensued. (GNR, 2010: 14) All chosen
personnel were dedicated professional military soldiers, grouped hierarchically into
officers, sergeants and guards/regulars. Additionally, one physician deployed during the
first, second and third contingent. Finally, this staff was experienced. As Portuguese
police officers, all personnel held an extensive background in law enforcement,
authority, and criminal investigation.
Table 1 - Active Guard per contingent
Contingent Date
Active
Officers
Sergeants
Regulars
Total
First
NOV03-MAR04
6 12 110 1 129
Second MAR04-JUL04 5 14 121 1 121
Third
JUL04-NOV04
5 13 109 1 128
Fourth
NOV04-FEV05
5 13 109 127
Total
21
52
449
505
Source: GNR (2010)
In terms of morale and welfare, the unit generated a "Committee on Monitoring and
Support for Families of Military serving in Iraq".
Infrastructure
Sub-group ALPHA deployed initially to Libecchio Base in An Nassiriya, and subsequently
to barracks at Camp Mittica, in Tallil, the former Iraqi Air Force base. Regarding
barracks, the Portuguese contingent received five brick accommodations, formally
belonging to Iraqi Air Force officers, five kilometers from the province capital (Cruz,
2010: 346).
Interoperability
Interoperability depended on the following factors:
(I) Force employment of the same type, military units with police functions;
(II) Standardization and normalization of NATO military doctrine, allowing the
interoperability of operational and logistical tactics, techniques and procedures;
(III) A modular and flexible organization (MSU), based on the organic type common
to NATO countries;
(IV) Identical military and police training;
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(V) Previous joint training with the Italian forces reinforced during missions;
(VI) Functionally identical equipment, the light infantry security force utilized less
non-lethal / less lethal weapons and armored vehicles of the same make and
model;
(VII) Clear delegation of authority: Operational Command, Operational Control and
Tactical Control;
(VIII) Force constitution with military personnel integrating the respective national
military corps, with daily experience in employing police functions, a
comprehensive approach to the police and judiciary system;
(IX) The presence of Portuguese liaison officers connected at different levels and
sharing information.
(X) The interoperability of Portuguese communications systems with
communications centers common to the Italian and Romanian forces allowing
enhanced command and control (C2) and information sharing.
4. Operational Activity Established in Iraq
During the mission, Sub-Group ALPHA was assigned the following operations/policing
tasks (Cross, 2010: 347-349; Silverio, 2004: 3-5):
Guards
In addition to other missions, the police ensured 24-hour force protection, guarding the
GNR work and living installations, first in Libeccio and later, Tallil Base, Camp Mittica.
Radio On Call (ROC)/ Quick Reaction Force (QRF)
The force appointed for this service consisted of a reserve prepared to operate statically
or dynamically. The first task consisted in maintaining a prevention unit at Camp Mittica
and Tallil Base ready to respond to unexpected situations, typically related to a serious
disruption of public order. The QRF strengthened or replaced the local police. Likewise,
the unit remained ready to provide support to a force on an external mission. The
second task was support, in the vicinity of the unit tasked with a mission (GNR, 2004).
Re-establishment and maintenance of the public order
These operations attempted to reestablish law and order to guarantee the state social
stability (GNR 2004). The GNR succeeded during several interventions.
Check-points / Road blocks
This task implemented the monitoring and supervision of cars, individuals, and
transported materials, related to serious crimes (GNR, 2004), specifically, arms
trafficking and works of art.
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Escorts
These missions safeguard the movement of personnel outside the unit, namely:
Portuguese dignitaries visiting the Portuguese contingent, the commander, MSU
instructors, Italian army leadership, detainees, and others.
Physical Security
Service conducted to guarantee "(...) security, locations, areas, itineraries, facilities or
entities (...)" (GNR, 1996b: IX-106) during the local and national electoral processes
predominantly occurring in the province of Dhi Qar.
Inactivation of Unidentified Explosive Devices (UXO)/ Explosive Ordnance
Disposal (EOD)
The Portuguese and the Italian EOD developed a strong link by the interoperable nature
of this function. The teams executed the destruction of explosive substances seized in
police operations, inactivated explosive devices, implemented preventive recognition of
explosives, and expanded technical advice related to the work. The most relevant
example occurred on November 10, 2004 when the team neutralized a car bomb filled
with 65Kg of explosives.
High-risk operations (Search and Seizure)
High-risk police operations aim to impede violent criminal activities. Performed by the
Special Operations Section, these tasks consisted of searching for objects related to
crime, seizing possible evidence, and detaining suspects (GNR, 1996b: IX-37-59).
These missions included high-risk entry into residences with considerable security to
comply with judicial mandates.
Female inspections
In regards to contact between men and women, well-defined social standards in Arabic
culture require consideration. Without ostracizing the force and simultaneously
transmitting modern police values, the creation of a female inspection team composed
of three military females was established (the only women in the MSU regiment). The
mission of this team required the search of Iraqi women whenever necessary.
Essentially, there were two situations: daily inspection of self-employed Iraqi women
who worked in Tallil and support of police operations throughout the MSU regiment.
Service Auto GRILL
Ensuring a regular supply of fuel to the population required the stemming of price
inflation and smuggling. This operation verified compliance by checking the amount of
fuel remaining in the tanks, compared to the amount recorded as output with the sale
receipt, the selling price, and the arrangement (GNR, 1996b: I-5 - I-12).
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Patrols
These duties included standing and vehicle patrols, as a means of proximity policing.
The patrols protected the local population and property by ensuring compliance with
the legal mandate, encouraging the normal societal functions. Essentially preventive in
character, patrolling constituted an excellent way of obtaining information (GNR,
1996b: I-13). The two main objectives of patrolling included: monitoring and advising
the Iraqi police regarding the police roles and providing security to the same, as well as
the province and city.
Security Sector Reform
In the Dhi Qar province, the local and traffic police lacked technical training and respect
from the population. The Coalition Provisional Authority guided and defined a program
in which the reorganization, training, and monitoring of the police fell under the
responsibility of the MSU. The GNR participated and helped develop Security System
Reform in three areas: creating instructional materials and physical conditions for the
performance of police functions, concomitant with the training and mentoring.
Formation / Training
The Portuguese and Italian police administered the training. The Portuguese team
consisted of three instructors, a sergeant and two guards, which commuted daily to the
traffic police and the training premises in An Nassiriya. The program contents were:
human rights, prisoners' rights, police ethics, and technical police work, and other
subjects.
After the classroom training, the Iraqi police returned to regular police duty. In the first
phase, the trainers, and subsequently MSU patrols, accompanied the Iraqi police,
verifying an increase in the quality of the work and respect for the police. The
Portuguese cooperated actively in Iraqi police training, instructing over 1800 police
officers in less than a year.
Mentoring
This duty verified work conditions, analyzed needs, and identified manpower
requirements per squadron. Likewise, mentors conferred and monitored the delivery of
identity cards, uniforms, and weapons, particularly, to the police stations in the
localities of Al Islah, Sayyid Dakhil, Al Fuhood, Al Fudlija and Al Tar. After providing the
real conditions for the performance of the functional police training, the second phase
of training focused on police ethos and the respective procedures. The GNR’s
comprehensive approach to police work and the judicial system ensured the successful
development of this mission.
Military Missions
The GNR was not in Iraq to "execute military tasks", due to domestic political pressures
adduced. However, based on military training, the GNR exercised force protection,
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when attacked, on the basis of the military techniques, tactics, and procedures or when
assigned a mission critical to force protection5 6
Surveillance missions and linkages between fixed or mobile forces - anti mortar patrols:
Following the incidents of 14, 15 and May 16, 2004, anti mortar patrols commenced to
prevent mortar attacks. The teams accomplished this duty in vehicle patrols, within a
five-mile radius around the outer perimeter of the Tallill base. The Portuguese patrols
discovered at least two positions used for launching mortars and rockets.
. They fulfilled:
Special operations missions: During the incidents on May 14-16, 2004 and, the SOE
supported the exfiltration of units subject to enemy fire.
“Under constant fire by 100 militiamen, Carabinieri parachutists
and Portuguese gendarmes arrived at the Libeccio base in a
column of 16 military vehicles and two Centauros to facilitate
evacuation” (Cappelli, 2005: 60).
This type of mission occurred again on August 5-6, and 29, 2004.
Missions securing rear areas: Assessing the incidents from April 6, May 14-16, and
August 5-6, the taxonomy below correlates the operations/ policing tasks performed by
the GNR in Iraq with the respective apex of the Violence Triangle and corresponding
Security Gap.
Table 2 – Correlation of GNR tasks in Iraq with the Violence Triangle and The Security Gap
Operation/ Tasks
Violence
Security Gap
Direct
Structural
Cultural
Deployment
Enforcement
Institutional
Guard duty
X
X
Radio On Call
X
X
X
X
Reestablishment and
maintenance of public order
X X X X
Check-point/ Road Blocks
X
X
X
X
Escort
X
X
X
X
Physical Security
X
X
X
X
Explosive Ordinance Disposal
(EOD)
X X X X
High risk operations
X
X
X
X
Female Inspection
X
X
X
X
X
Auto GRILL
X
X
X
X
X
Patrol duty
X
X
X
X
X
Formation/training
X
X
X
Mentoring X X X
5 Article 150 of the RGSGNR, Order No. 10393 of the GNR Commander-General of 05 May 2010, DR, 2nd
series - number 119 - June 22, 2010
6 It may be worthwhile in this context to compare the missions of the GNR in Iraq, with the Portuguese
Special Forces in Afghanistan (Pires, 2011).
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An analysis of the overall mission concludes that the GNR tasks correlated to the areas
of the Violence Triangle, specifically, in the vertices of structural and direct violence.
Despite accomplishing fewer specific tasks related to cultural violence, the “seeds” of
new cultural awareness should minimize future violence across the spectrum.
Regarding the Security Gap, the activity of the GNR contributed to eradicating the
institutional gap and the enforcement gap. This observation is due to two factors: (i)
the GNR aiding in the consolidation of the social structure, based on daily experience
from Portugal, by using a comprehensive approach to the security and legal system;
(ii) the continuity of the Guard’s versatile implementation derived from the ability to
transition between the military and police duties, and institutional positioning by
permanent connection between the military and civil institutions. Although not tasked
to fill the deployment gap, the GNR remained prepared.
Sub-group ALPHA operated as a rapid intervention motorized unit, always available to
respond to operational requirements and proficiently handle threats to peace, in the
context of assigned missions (Silverio, 2004: 5).
The Portuguese contingent, throughout the period in Iraq, maintained a high level of
readiness and availability, while surviving several attacks with zero casualties. Due the
successful deployment, the GNR received public praise from several international and
national organizations, honoring the country and the Guard organization. The unit was
awarded the first Portuguese Gold Medal for Distinguished Service with a Palm leaf for
action in support of peace missions7
. As stated by the former Prime Minister, Pedro
Santana Lopes,
"We are proud of the role that GNR Sub-group Alpha performed in
this process (...) Portugal demonstrated, once again, that it is an
important contributor to the maintenance of international peace
and security (etc.)”8
.
VII. Conclusion
In recent years, the Republican National Guard intervened in various conflicts around
the world. This participation was always after a mandated resolution, but never framed
in a multinational Force of NATO. However, the GNR worked under doctrine for the
employment of trained forces, on the basis of military organizations with police
functions, called the Multinational Specialized Units.
The Guard, as an operational military and police capability with continuity, can
integrate with an enabled international organization to use force. The permanent
connection between the military and civil institutions ensures this continuity by the
smooth transition between the military and police tasks, and the performance of the
latter in an unstable environment.
7 Diário da República, December 16, 2005, Notice No. 11435 (2nd series).
8 Public elections in Iraq, January 30, 2005.
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The training guarantees the integration of military doctrine in conjunction with the
armed forces. This preparation for permanent military and international joint missions,
where only the territorial scope of activity may change, applies the comprehensive
approach to the security and judiciary system.
As a military unit, the GNR provides a continually committed capability in a diverse
range of conflicts. The Guard works to achieve peace; the regular functioning of
democratic institutions, including peace enforcement operations in countries classified
as "C”, in compliance with police functions.
The GNR demonstrates a unique capacity to cope, across the entire spectrum of police
functions, with direct, structural and cultural violence, within an unstable environment.
This capability is derived from military training, giving it a distinctive competence.
Paradoxically, the refusal of the President of the Republic to consider Iraq in what he
considered to be an illegal intrusion, gave the GNR the opportunity to show their value
in the military field, as well as police work.
The Guard can assist other institutions, including the courts, the military, and the police
in the strict and narrow sense, to better fill the Security Gap. The GNR helps to
eradicate violence, contributing to peace: (1) by the ability to act in conjunction with
the military instrument in the first phase of the conflict (deployment gap); (2) The
capability to ensure the institutional continuity between the functional military / civilian
police, in an unstable environment without breakdowns or setbacks, with recourse to
force in a legal manner (enforcement gap); (3) capacity arising from daily tasks in the
performance of police duties, in the framework of its mission in the security system,
with the permanent connection to the judicial system, with different levels of authority,
allowing a comprehensive approach in the promotion and construction of the secure
system (institutional gap).
The NATO doctrine used to fill the Security Gap is the Multinational Specialized Units.
The Republican National Guard has all the characteristics necessary to constitute or
integrate into an MSU. It is a military organization performing the police role, with the
capacity to act in an peace enforcement operation overcoming the Security Gap with
practical experience working under MSU doctrine.
The GNR is a credible instrument in support of Portuguese foreign policy in peace-
enforcement operations, oriented to state-building by the creation of a jus post bellum.
(Silverio, 2014) This contribution is genetic; a military body with police functions. In
the case of Iraq, intervening in a devastating post conflict scenario at the international
level, the Guard provided the necessary support. The GNR fulfilled the police functions
demanded of it, successfully defending against several surprise attacks while planning
missions to deal with high levels of violence, with zero casualties; a truly remarkable
achievement.
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OBSERVARE
Universidade Autónoma de Lisboa
ISSN: 1647-7251
Vol. 5, n.º 2 (november 2014-april 2015), pp. 94-107
ON THE DUAL AND PARADOXICAL ROLE OF MEDIA:
CONVEYORS OF THE DOMINANT IDEOLOGY
AND VEHICLES OF DISRUPTIVE SPEECH
José Rebelo
joserebelo@yahoo.com
PhD and aggregated in Sociology. President of the Scientific Council.
Director, PhD Program for
Communication Sciences, ISCTE-Lisbon Institute University (Portugal)
Director of TRAJECTOS - Journal of Communication, Culture and Education
Member of the Opinion
Board for Portuguese Radio and Television (RTP, SA)
Abstract
This article aims to evaluate the dual function exercised by traditional media - TV, radio
and press – as a place of ideological production, assuming the power of communication
as a method of naturalization, and as a place of confrontation, giving voice to alternative
projects. First, the function of ideological production, in regards to the national and
international media coverage of the financial crisis in Portugal, warrants consideration.
Furthermore, the role of media confrontation is illuminated by the coverage of protests in
Portugal and Brazil. Concluding, if traditional media convey dominant norms and
hierarchies, notwithstanding the pressure on social networks, this mode indicates a
deviation, thus contributing, even if indirectly, to a redefinition of people and culture.
Keywords:
Naturalization, power/anti-power, dissent, crisis, Cultural Studies
How to cite this article:
Rebelo, José (2014). "On the dual and paradoxical role of media: Messengers of the
dominant ideology and vehicles of disruptive speech". JANUS.NET e-journal of
International Relations, Vol. 5, N.o 2, november 2014-april 2015. Consulted [online] on
date of last visit, observare.ual.pt/janus.net/pt_vol5_n2_art6
Article received on September 28, 2014 and accepted for publication on October 24,
2014
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On the dual and paradoxical role of media:
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José Rebelo
95
ON THE DUAL AND PARADOXICAL ROLE OF MEDIA:
CONVEYORS OF THE DOMINANT IDEOLOGY
AND VEHICLES OF DISRUPTIVE SPEECH
José Rebelo
1. Introduction
On December 16, 2001, António Guterres presented his resignation as prime minister
of Portugal, on the pretext that the country "was in a quagmire.” Durão Barroso, his
successor, wasted no time in drawing the public's attention to the difficulties of the
country that according to him was "on the rocks.”
The crisis with national boundaries, therefore, requires a national solution. Later, Prime
Minister José Sócrates, implemented a solution for the development of significant public
works capable of invigorating, upstream and downstream, a productive Portuguese
structure. Except, suddenly, the Lehman-Brothers group went bankrupt, the North
American financial system tottered and, rapidly, the storm reached Europe.
At this moment, a remarkable reversal of discourse occurred: great entrepreneurs,
businessmen, bankers, the heralds of an unbridled liberalism - who preached the
virtues of the market and vehemently resisted (revolted against) state control -
considered an obstacle to development - demanded, immediately, state intervention.
"The cohort of the mighty," wrote Alain Badiou in Le Monde on October 17, 2008, "the
firemen of the monetary blaze, Sarkozy, Paulson, Merkel, Brown and Trichet plunge
into the central pit of billions to implore: ‘Save the banks’.” Moreover, Badiou ironically
resumed, "This noble humanist and democratic cry gushed from the chests of all
politicians and media outlets.”
In Portugal, the politicians quickly embraced the hypothesis of the international origin
of the crisis and followed the same path: save the banks and revive the economy by
accelerating public investment. Billions of euros flowed into the empty Portuguese Bank
of Business (BPN) coffers. In an extreme application of old Keynesian theory, projects
of transport networks modernization multiplied: the motorways rending deserted fields;
vital implementation of the high-speed train (TGV); construction of the new airport that
can no longer be postponed.
The euphoria, however, did not last more than two years. It remained only for the
moment in which, in European forums, the apparent lack of revenue followed: the
external State debt continuously increased and family indebtedness exceeded
acceptable limits.
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Also changes of direction: a ruthless recession replaced the unbridled expansion that
affected, in particular, the weaker economies of southern Europe.
In Portugal, the "Stability and Growth Programs" emerged: the PEC 1, PEC2, PEC3, and
the PEC4 signifying sacrifices and more sacrifices; taxes and more taxes, cuts and more
cuts. This program befell on the public witnessing the plundering of their meager
savings and, likewise, before a political class that, taking advantage of unpopular
measures, revealed the possibility of returning to power.
The PSD/CDS returned, in June 2011, in the form of a center-right coalition.
The change of government left policies unchanged. Contrary to the promise, the
austerity remained and increased. The new leaders declared that knowledge of the
dossiers indicated that the crisis in the country was even worse than they thought. Why
was the crisis worse?
Was this due to the global crisis?
No, it was not.
The international origin subtly replaced by a national reason. The fault no longer
resided abroad but on the errors that the previous government and the Portuguese
people living beyond their means for decades. Not a single reference to the earlier
voracious advertising campaigns that offered next day credit.
No, it is not.
The Portuguese have been enticed by consumerism and, now, the time had come to
pay the bill. It was a heavy bill, and as confirmation, came the announcements of more
taxes, more cuts, and more unemployment.
In April 2013, the figures relating to the budget implementation revealed government
discouragement. Despite the exacerbation of austerity measures, all the predictions
failed regarding the public debt, the budget deficit, the gross domestic product (GDP)
growth, and others.
The dance continued and the pundits reverted blame, again, to the international crisis
arguing that the sluggish Portuguese economy resulted from the European crisis, which
prevented the absorption of Portuguese exports...
The months passed and, behold, as if by magic, "signs of improvement” appeared: a
slight reduction in the unemployment rate, an increase in exports, and the descent of
GDP slowing. The official discourse revealed the "signs", adding, however that the
indications should be interpreted with caution. Prudence faded as the elections for the
European Parliament approached.
By March 2014, precautions were no longer necessary. Officially, the “crisis” becomes
ascribed to the past. However, do the Portuguese live worse? Does it matter? What is
certain is that, according to the government sources, the country “was saved from
bankruptcy.” The message that the country is better off ignores the problem that the
Portuguese people are worse off. Some voices abroad, salute “the tremendous effort of
the Portuguese population" and the "remarkable results" thus obtained. With the
emergence of spring, the sound of drums and trumpets proclaim the end of the
"protectorate” regime. Portugal must be the master of its destiny, affirmed in spheres
of power.
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Rapidly recalling some facts that marked the political, economic, and financial history in
Portugal in recent years, allows:
1. The introduction of fundamental concepts, such as public problem and occurrence.
2. Measure the role of the media in the relationship between public issues and episode
as well as the responsibility held by the processes of massification, the
institutionalization of public problems and events.
2. The media as a place of ideological production
According to Gusfield, cited by Louis Quéreé during a prominent conference at Porto in
February 1999 and published in a special issue of the magazine Speech - Language,
Culture and Society, from the Open University (Quere, 2001: 97-113), the verification
of a public problem implies:
1. That it is assumed as a problem, by society as a whole.
2. That it arouses a contradictory and conflicting debate.
3. That it is linked to a public action aimed at resolution.
Nevertheless, the public contribution to the definition of the problem is much smaller
than assumed. In other words, the institution of an issue as a problem is, mainly,
external for most. Often, the strategies supporting collective assumptions for the
purpose of placing them at the center of debates are exterior to society, as are the
public actions, or the simulation of actions, which are proposed for resolution.
Ordinary life consists of endless twisting or a zigzagging between problems. Societal
problems of unemployment, insecurity, lack of housing, and crisis loom large. However,
not all problems are societal problems. "Societal problems" exist to the extent they
affect the public directly, the true entities. They are not "societal problems" to the
extent that the origin is external. These are assumed problems that follow a process of
naturalization. It is precisely this naturalization process that causes a loss of the idea of
externality, which makes the public unaware of the agenda that, if not imposed is at
least insinuated. This unawareness creates, following Pierre Bourdieu, a kind of
complicity between dominant and dominated, establishing by means of which the
dominated, neglecting the dominated condition, "forgets and ignores himself,
submitting to (the dominant) in the same way that contributes, recognizes, and
incorporates it" (Bourdieu, 1982: 119).
The media outlets - newspapers, radio stations, and television - are at the core of this
naturalization processes by manufacturing accessions or forging consensus. This
process is not the Kantian “common consensus,” but hidden strategies that Antonio
Gramsci considers "hegemonic.” Consensus, or citing Jacques Ranciere, pseudo-
consensus, from the March 2010 conference at the University of Lille titled “Y a-t-il des
crises politiques?”, means imposed agreements, monopolies of meaning exercised by
oligarchies of specialists.
Imperceptibly, the main media outlets convert a fragmented history, according to
interests and opportunities, sometimes monstrously, like an incessant continuity of
disguised mutations. This conversion creates a specious “indivisible unity”, using the
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concept of Edmund Husserl, which occurs without interruptions, without gaps. There is
a form of consented unity with a sense between “what has happened” and “what will
happen” (Rebelo, 2006: 20).
In the beginning, the crisis was Portuguese, later, international. Subsequently, the
crisis became Portuguese again and then, again, international. To, finally, delve into the
realm of things past, and resolved.
Who will believe such variation?
It is the shuttle of news and commentaries, or the supposed news and the alleged
commentaries. Today, the pages of the newspapers, the radio shows, and television
broadcasts abound in a version, insatiably repeated, presented as indisputable, and
unquestionable. Tomorrow, this same version begins to languish until disappearing and
replaced by another, equally incontestable and equally indisputable, all without
outcome. Without the passage, the moment of qualitative change, or the Kairos
moment as stated by Louis Marin, during the seminar about Semantique des Systemes
Representatifs at the Ecole des Hautes Etudes en Sciences Sociales, Paris, in the
academic year 1990/1991, is captured by the reader, the listener, or by the viewer.
It seems like the media narrative never ends, because, regardless of the version, the
interpretation will invest systematically, as Jean-Pierre Esquenazi (2002: 78)
underlines, in a triple scheme:
- A device of institutionalization that is reflected in the operations of classification,
ordering, and typification of experiences that loses, thus, originality in order to
dissolve within paradigms exterior to the subject.
- A device of rationalizing an explanation, linked to a normative vision, in an attempt
to impose a particular social order, to the reproduction of existing hierarchies.
- A device of repetition. “Through repetition”, notes Pierre Moscovici, "the idea
disassociates from its author; transforms into evidence regardless of the time, the
place and the person; ceases to be the expression of the originator and becomes the
expression of the thing that speaks." (1981: 198-199)
Each media outlet, by its scenographic space, (Goffman, 1991: 134) builds, thus, a
discursive identity, generating, in turn, a social fantasy that it hopes to convey to the
mass of recipients.
In 2013, Irina Fresco Veríssimo presented her Master's thesis in Intercultural Relations,
at the Universidade Aberta (Lisbon, Portugal), with the title “Representation of the
Portuguese in the European media discourse: the news about the financial crisis”. This
argument analyzed the way in which some European newspapers identified the crisis in
Portugal. The assessed corpus, composed of 25 articles published in El País, Le Figaro,
The Times, Irish Independent, and in the Gazeta Wyborcza from Poland, from March
23rd to July 10th, 2011, occurred, specifically, between the resignation of Prime
Minister José Sócrates and the presentation of the “budgetary adjustment” by the then
Minister of Finance, Vítor Gaspar.
The thematic categories attributed or associated with Portugal stood out, in order of
importance: “Despair/Apathy,” “Overspending/Debt,” “Political Instability,” "Stubborn,”
"Lack of Rigor/Disorganization/Dishonesty,” “Ineffective Justice /Corruption,” “Lazy,”
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“Uncompetitive Labor Market,” “Mismanagement of Public Bodies,” “Inadequate Real
Estate Market.”
Veríssimo noted that the categories were rarely paired to a particular case. The
statements were based, rather, on general considerations, in boldness that dispenses
reasoning. In other words, something to the effect: It is said, and, because it is said, it
is true. Additionally, the author identified that, "on the assumption that Portuguese
people are melancholy, journalists continually employed expressions such as ‘drama’,
‘unhappy fate‘, ‘agony’, or ‘without hope’.” However, in only two of the analyzed
articles, the Portuguese people were provided an opportunity to express their feelings
about the situation. “The remaining portrayals of the mood of the Portuguese
population" Veríssimo continues, “are made from the very perception of journalists.”
For example, in Le Figaro on 25 March:
“All eyes are now turning to Lisbon, where the drama continues to
unfold.”
The same can be said for “Laziness,” a characteristic that, in four of the analyzed
articles, lacked a justifiable socio-economic indicator. In this regard, the following
portion from the Polish daily, Gazeta Wyborcza on April 16th opined:
“The Greeks who demonstrate in the streets or the members of the
opposition in the Portuguese parliament are fully aware of the fact
that without EU membership their lives would be even worse. The
anger behind these protests was caused by a deterioration of the
situation due to the fact that the European funding will cease to
flow freely, at a time when young people are being called on to
work more and pay for the laziness of their parents’ generation,
which ignored the need to save for a better future.”
The despondent and lethargic Portuguese people, who do not try to change, became
entangled in a web of consumerism. These liabilities are the main reason for the crisis
according to El País on April 24th:
“Debt is the word that best fits the enigma of a socio-economic
country. More than 2.4 million Portuguese owe approximately
€120 billion in mortgage loans, as a result of the social model
promoted in recent years aspiring to: a new house, new car, cheap
credit, and late modernization. The crisis abruptly ended the
mirage (...).”
A point of view, such as this, is not easy to eradicate. Boggled, the Times on June 5th
stated that, in spite of the crisis and austerity measures, people still “go to the cinema,
eat breakfast in town, go to the theater.”
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How can Portugal abate the crisis? There is only one way, the international rescue.
However, the Portuguese Prime Minister hesitated. Peremptorily, Le Figaro lectured on
March 25th:
“Two days of EU summit meetings in Brussels, under constant
market pressure, was not sufficient to convince the Prime
Minister José Sócrates to seek official aid from the EU and the IMF.
(...) The money is there to help Portugal, the political will too, but
for now, Europe can only watch, arms crossed, the Portuguese
descent into hell, threatened with bankruptcy, if they fail to appeal
for the international rescue.”
This hesitation before the inexorability of redemption, however, was of little value. In
fact, and as pointed out by the Gazeta Wyborcza on April 11:
"(...) the creditors had to fight for a long time with the Portuguese
government of José Socrates to accept the extended hand.”
The image is strange: creditors extended a hand to help and the political leader of the
indebted country hesitant to accept the aid. It is no wonder, therefore, that the prime
minister received the epithet "stubborn.”
The conclusion of the process appeared in The Times on April 7th:
"Portugal, land of melancholic songs of fado, accepted its
unfortunate destiny last night: they will have to swallow their pride
and accept an aid package. There is no alternative.”
Are public bodies so badly managed? Is justice ineffective? Still, the Times, on June 5th
Likewise, the overwhelming majority of the articles, and especially when the opinions
came from newspapers published in countries less affected by the crisis, like England
and France, presented the Portuguese, Irish, Greek and Spanish situation
indiscriminately. There were plenty of expressions, even pejorative acronyms - the
"PIGS" – used to classify southern European countries, which, in Angela Merkel´s
opinion, according to the Gazeta Wyborcza on June 2nd, deserved no assistance as
,
anticipated the solution: “A center-right government will be well received by investors,
who have lost faith in Portugal.” For the Times, a new government is the solution to the
lack of labor market competitiveness such as the inadequacy of the real estate market.
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long as they enjoy "a lot of holidays" or never stop "passing the time.”1
Naturally, each of the countries included in the constructed amalgam, sought distance
from the other. The resolution appeared simpler when demonstrating that the origins of
the crisis were different in nature and exhibited diverse levels of severity. An almost
fratricidal strategy of denouncing commenced, where states in a worse condition
received condemnation from the others. On March 25, the Irish Independent, the most
widely read newspaper in Ireland, speculated:
“Portugal has significant problems - high levels of indebtedness,
anemic growth and a challenge of immediate liquidity”.
Three weeks later, the same newspaper unloaded, now in a more explicit manner,
associating Portugal and Greece:
“(...) that wasted millions of dollars on cronies’ projects and local
electoral promises.”
Nonetheless, the explanatory framework that permeates the evoked international
coverage conjugates, in large measure, the discourse that, at the same time with the
same theme, dominated the Portuguese press with the uppermost expression. The
Portuguese media replicated many of stereotypes used in the international press.
Regarding the root causes of the crisis, the Portuguese media often referred to a
collective entity - a “we” – as ultimately responsible for the debt. The Portuguese media
also generated attempts of demarcation, especially in relation to the Greeks. The
destabilization of Greek society by new and increased debilitating austerity programs
became a consistent theme, supported by images of street violence, bank robberies,
and looted supermarkets in the main Greek cities. In contrast, the Portuguese
population was presented as calm and understanding, committed to overcoming a
period viewed as provisional.
The official discourse, amplified by the media, not sparing efforts to press this
transitory idea, indicated the widespread desire to correct mistakes of the past. Hence,
a considerable investment was made in the creation of euphemisms hiding drastic
measures directed against broad and the poorest sectors of the population. Indeed,
terms and expressions, loaded with ideology, were insistently repeated in Portuguese
media, a kind of media litany or rhetorical chorus (Derrida, 2004: 134). Subject to the
process of naturalization, these terms and expressions crept up gradually, in the
1 In an article published in Le Monde, on November 12, 2012, Ulrich Beck refers to Angela Merkel in this
way: “There are many who see the German Chancellor as the queen without a crown of Europe. When it
is a matter of knowing where the power comes from, it is referred to one of the characteristics that best
defines a Machiavellian ability.” The sociologist and German philosopher continues: "Merkel prefers - and
here lies the whole Machiavellian irony of her posture - the provision of Germany to grant credit depends
on the acceptance, by indebted countries, of the imposed conditions of German stability policy. It is the
first principle of Machiavelli: when it comes to helping indebted countries with German money, the Angela
Merkel´s position is neither an honest yes nor a categorical no, but a 'yeno' between the two".
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language of everyday life, instilling Orwellian newspeak.
Examples:
- Lead the Constitutional Court (which, in practice, corresponds to overburdening the
Constitutional Court with the consequences of the decision regarding the clearly
unconstitutional government qualifications);
- Return to the markets (given as an example of the success of government policy in
the financial sector);
- Adjustments (signifying civil servant wage cuts and, in general, expenditure
reductions in education, health, and social assistance).
- Convergence measures (which translates into professional status realignment in the
public and private sector, always in the direction of lower status);
- Oversized state (designating the alleged unjustified or overspending in operating the
state apparatus, officially attributed to the previous government, obviously the other
political party);
- Extraordinary Contribution to Solidarity and sustainability rate (reductions in
pensions);
- User fees (which affects access to emergency services in public hospitals);
- Professional requalification (removal of a job and dismissal of the worker);
- Impairments (referring to fraud committed by particularly significant financial
groups);
- Flexibility (amendments to labor laws that facilitate redundancies and respect term
contracts);
- Untruths (misrepresentation);
- Budgetary Consolidation (tax increases).
From November 2007 to September 2009, the word “crisis” appeared on 1252 news
programs from Portuguese public television channels (Andringa, 2009: 81-88). The
continual statements - the "CRISIS" this and the "CRISIS" that - in all its anaphoric
dimensions, avoided questions about the genesis and consequences of the crisis. This is
a "CRISIS" that the public embodies and uses to explicate everything that surrounds
society. The "CRISIS" which, Jacques Ranciere argues, "functions, in the media space,
as an interpretative mechanism that is part of the dominant discourse."
It is the duty of critical sociology, in the Habermasian sense of the term, to deconstruct
this fusion of media versions that seamlessly succeed one another, each time imposing
a "truth"; the "truth.” Its purpose is to dismantle this palimpsest. Denounce assumed
evidence. Oppose apparently neutral logic, according to which the event updates the
public problem (the closure of a factory, for example, strengthens the idea of the crisis)
and, conversely, the public problem is the explanatory framework of the event (it is
because of the crisis that the factory closed).
3. The media as a place of confrontation
To deconstruct, to disassemble, to denounce, and to counter: all objectives of the
proposed model of critical sociology. The model of critical sociology, applied to the
media, can go further, reflecting profoundly on the media´s role in structuring public
opinion.
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That is if the media constitute a central device for the naturalization/socialization of the
ideas and projects of a hegemonic inclination, as advocated. Likewise, the media also
represent a decisive factor for the spread of ideas and projects against hegemons.
On the basis of Cultural Studies initiated at Birmingham, England in the 1980s by social
scientists like Hoggart and Stuart Hall; evidently the media field sometimes lacks
coherence, harmony, and perfect articulation. More than the expression of a dominant
class, the media reflect short-term alliances between class factions that can neutralize
or open gaps, divisions.
Conversely, the media are not just mere technological expedients for the transmission
of events: firstly, because the occurrence does not exist de per si (in isolation), and
secondly because the media are, simultaneously, subject and object of their
environmental surroundings.
Let us consider in detail the fundamental importance of each aspect of the sociology of
the media.
1. An event occurrence is situated at the focal point of its perception. This perception
depends on the journalist's view, his Lebenswelt, to quote Habermas2
2. While it is true that the media contribute to the ranking of discussion topics in the
public space
, as well as the
editorial strategies of the requisite media organization, with which the journalist
tends to develop mimetic mechanisms. Protagonist of a double relationship - the
culture in which he is part and the collective work he has a part in- the journalist,
thus, plays a Gatekeeping function, as named by David White in his famous work
from 1950, by filtering the events to mediate and defining criteria which emphasize
or minimize via its pagination / alignment.
3, the fact remains that the same media are, likewise, influenced and
penetrated by this public space. A kind of symbiotic relationship exists between the
media agenda and the public agenda in which each contaminates and, at the same
time, is contaminated by the other without being able to determine precisely who
contaminated whom.4
Hence, in the media field, contradictory strategies sometimes erupt, whether claiming
decision autonomy, infiltrating subcultures, echoing the voice of minorities or
guaranteeing the cry of dissent is heard.
Organizations such as "Anonymous," "Hacktivism," "Indignados" or "Occupy Wall
Street" know how to capture critical media attention on a national and transnational
scale. Their efforts are renown worldwide.
Such movements, favor discursive strategies and demonstrative actions that violate the
norm, and deliberately provoke the targeted individual or social / political group.
2 Translated as "life-world" or "experience of the world," this concept, largely addressed by the German
philosopher in Théorie de l'act communicationnel, is associated with that deep level of a community where
root languages, standards and behaviors exist.
3 If you do not tell us how to think show us what to think, as underlined by Bernard Cohen in The Press and
Foreign Policy, pp. 120/121.
4 At this point, we turn away from authors such as Becker, McCombs and McLeod who attribute the
prevalence to the media agenda: "There is a relationship between the agenda of the media and the public
agenda, the first one that starts the process" (Becker, McCombs and McLeod, "The Development of
Political Cognitions," in Political Communication Issues and Strategies for Research, Sage Annual Reviews
of Communication Research, Vol 4, p 38; apud Enric Saperas, The Cognitive Effects of Mass
Communication, p 56.).
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Reject the polemic but gamble on satire.
The movements reject the polemic because accepting it implies legitimate recognition
of the opponent, which solicits debate. On the contrary, these movements gamble on
satire, assuming the devaluation of the opponent by relegating it to a lower level and,
therefore, preventing a response. It is not important to overcome the opponent by
argument, only to overwhelm him with ridicule.
There are the major media outlets, newspapers, radio stations, TV channels, ceding
spaces and / or broadcasting times for extraordinary accounts - the unexpected, the
publicity of caricature, the misshapen, and the grotesque.
Portugal experienced such situations. The draconian Economic Assistance Program,
between Portugal the European Union, the incursions of the European Central Bank and
International Monetary Fund triggered protests and flash mobs against the so-called
"troika.”
The challenge began with small groups associated under a self-designated platform,
"Screw The Troika." By diffused contours, politically situated left but difficult to classify,
such a platform breathed its first breath on 15 September 2012. Through social
networks, petitions circulated calling for public meetings in Lisbon and other cities. The
appeal spread like an oil slick, and at scheduled times, hundreds of thousands appeared
to affirm indignation. To everyone’s amazement, particularly the promoters, more than
half a million demonstrators concentrated in the Portuguese capital. Many young and
old, right and left, stripped of political label, demonstrated for the first time with one
common trait: railing against government decisions, accused of reducing wages,
pensions or retirement, and from creating more unemployed people. Never seen,
improvised posters and loose slogans appeared spontaneously. Each protester arrived
carrying handmade placards with well-prepared slogans, disavowing the national
situation and ridiculing those responsible.
Even though the mobilization process started initially on the Internet, it never would
have reached such a dimension without significant media support. For days on end, the
event was announced providing details for the venue and predictions made about the
eventual success of the initiative. Eventually, the contestation became naturalized.
Thus, to naturalize it, is to eventually institutionalize it, by removing the burden of risk
likely to distract those unaccustomed.
Then an uninterrupted series of mini confrontations commenced.
Many members of the government were harassed by groups of young people singing
"Grândola Vila Morena" during official ceremonies. The object could not have been
clearer: confront government officials with the music of José Afonso symbolizing the
April revolution. The practice even earned the moniker, "grandolar." More so, the
reproduction, by newspapers, television channels and radio stations in countless texts
and images, of the constant and disturbing "grandolar”, contributed to the initiative's
success.
Similarly, the Finance Minister Vitor Gaspar became a laughing stock; roars of laughter
by half a dozen supporters underscored each pause during a book presentation speech
he delivered. The screens of different television channels, instantly captured the event,
the face of a stunned, lost minister, not knowing what to say or where to look.
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Examples of these types of instances, triggered spontaneously via the net, conquer
vast spaces and times in the main traditional media, and there is no shortage around
the globe.
The affirmation of social networks as a mobilizing force verified, already, in February
2003, when millions of people around the world suddenly took to the streets. This act
was due not to traditional partisan convocations, but the messages, appeals and
petitions against US intervention in Iraq that swarmed the web, a hallmark and
structuring of new social movements.
The 3rd
Let us take a detailed look at the latter case whose size, so extraordinary and amazing,
is not unrelated to the importance that the main Brazilian media outlets gave it.
-generation mobile phones, which appeared on the market in the late nineties,
accentuated the trend. These devices undoubtedly constituted the catalyst for the Arab
Spring captured by many news reports. The movement was followed by the "Indignant"
in Madrid, the movement "Occupy Wall Street" in New York, and "Furious June" in
Brazil.
It all started on June 3, 2013 when, responding to a call made through social networks,
a few hundred people gathered in the cities of Sao Paulo and Rio de Janeiro. The
immediate reason for the protest: The expected increase in the price of public
transport. The profound reason: The malaise caused by the vast sums spent by the
government preparing for the 2014 World Cup. Two weeks later, on June 20, the
number grew to 100,000 demonstrators, concentrated on Avenida Rio Branco and in
Rio de Janeiro, and as many on Avenida Paulista in São Paulo.
However, 24 journalists were injured or detained by the police forces of São Paulo. One
of the injured was a reporter for the influential newspaper Folha de São Paulo. The
image of the bloodied face of the reporter became the top story on Brazilian television,
and this led the newspapers to reverse judgment of the demonstrations immediately.
Indeed, the same media organ that, days earlier, urged the police to stop the violence
in the streets, now, accused that same of instigating gratuitous violence. To make
matters worse, another image, no less impressive, of a young demonstrator hit with
pepper spray, was stamped on the front page of the New York Times.
As stressed by Eduardo Santos, professor of International Relations at the Federal
Fluminense University, in an article published in the Journal Liinc on “Political
representation crisis in Brazil and the protests of June 2013”, in addition to
newspapers, radio and television information, “(...) various groups, in a diffuse manner,
as it were, from the first demonstrations spread information, some in real time, and
without investigating the situation in the streets, utilized tools like YouTube internet
videos, or social networks like Twitter and Facebook. Anyone interested reported and
continued to report, with an amazing collection of photos, texts and updated images
available on mobile devices” (2014: 86-95).
The excitement caused by media coverage of police intervention did the rest. As
recognized by Eduardo Santos, in less than a month “there were demonstrations in 438
cities in the country, with an estimated share of two million people and extensive media
coverage.”
The last example of the dual and paradoxical role of media, marked by the current
competition between traditional media and new media, and as simultaneous voice of
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power and counter-power, was the execution ceremony of Saddam Hussein. On
December 31, 2006, the standard TV channels broadcasted the official images with the
greatest dignity, as it was believed to have happened. In absolute silence, the
executioners, modest to the extreme, even put a scarf around the neck of the
condemned so the looped rope would not hurt him.
Except some, in the group of executioners, recorded the whole execution, making use
of discreet phone recordings. Only hours after the execution, the illegal version
circulated on YouTube. The televised version had been completely sanitized. Hussein
and his executioners had exchanged insults and chanted revenge songs. The day after
the same stations that had spread the official version did not refrain from circulating
the "illegal" version.
Decidedly, like society, the media are fighting for ground. It is a place of confrontation
with different projects and various strategies, conveying the dominant norm.
Nevertheless, the media, too, by underscoring diversions, eventually contribute, even if
indirectly, to a redefinition of people and ways of life that, peripherally, invades the
center of symbolic origination.
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Bourdieu, Pierre (1982). Ce que parler veut dire, l’économie des échanges
linguistiques, Paris: Fayard
Bourdieu, Pierre (1996). Sur la télévision, Paris: Liber – Raisons d’Agir
Castells, Manuel (2013). Redes de Indignação e Esperança, Lisboa: Fundação Calouste
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Chomsky, Noam (2013). Occupy, Lisboa: Antígona
Derrida, Jacques e Habermas, Jürgen (2004), Le Concept du 11 septembre, Dialogues à
New York (octobre-décembre 2001) avec Giovanna Borradori, Paris: Galilée
Esquenazi, Jean-Pierre (2002). L’Écriture de l’Actualité. Pour une sociologie du discours
médiatique, Grenoble: PUG
Goffman, Erving (1991; 1ª ed. 1974). Les Cadres de l’Expérience, Paris: Éditions de
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Habermas, Jürgen (1987). Théorie de l’agir communicationnel, Paris: Fayard
Maigret, Éric (2003). Sociologie de la Communication et des Médias, Paris: Armand
Colin
Moscovici, Serge (1981). L’Âge des Foules, Paris: Fayard
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Trajectos, Nºs 8/9, pp. 17-27, Lisboa: ISCTE/Fim de Século
Santos, Eduardo Heleno de Jesus (2014). “Crise de representação política no Brasil e os
protestos de junho de 2013”, in Revista Liinc, Vol. 10, nº 1, pp. 86-95, [consultado
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OBSERVARE
Universidade Autónoma de Lisboa
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Notes and Reflections
CITIES AND REGIONS: PARADIPLOMACY IN PORTUGAL
Helena Santos Curto
hscurto@gmail.com
Professor, Management and Economics, Autonomous University of Lisbon (UAL) Portugal.
PhD in Economics, MBA in International Management, UAL
Integrated researcher, Observatory of Foreign Relations (OBSERVARE)
Project coordinator, "Cities and Regions: paradiplomacy in Portugal"
Luís Moita
lmoita@universidade-autonoma.pt
Director/Professor, Department of International Relations, Autonomous University of Lisbon
(UAL) Portugal. Director, Observatory of Foreign Relations (OBSERVARE)
Coordinator, Master in Peace and War studies, Scientific Council member, UAL.
Professor, Institute of Higher Military Studies, and lecturer, National Defense Institute
Vice-Rector, UAL (1992-2009) and Coordinator, Socrates Institute for Continued Training
Integrated researcher, "Cities and Regions: paradiplomacy in Portugal"
Brígida Rocha Brito
brigidarochabrito@gmail.com
Professor, Department of International Relations, Environment and International Cooperation,
(UAL) Portugal. PhD in African Studies and sociologist. Post Doctorate in African Studies
(CEA/ISCTE-IUL). Deputy Director, Janus.net, e-journal of International Relations
Direction Team member and researcher, Observatory of Foreign Relations (OBSERVARE)
Integrated researcher, "Cities and regions: paradiplomacy in Portugal."
Célia Quintas
quintascelia@yahoo.com
Professor, Department of Communication Sciences, Admin and Sports Management,
(UAL), Portugal. Sociologist with a PhD in Economics, UAL
Adjunct Professor, School of Business Sciences, Polytechnic Institute of Setubal, Portugal
Associated researcher, Observatory of Foreign Relations (OBSERVARE)
Integrated researcher, "Cities and regions: Paradiplomacy in Portugal."
Maria Sousa Galito
PhD, Political Science and International Relations, Catholic University of Portugal (UCP)
maria.sousa.galito@gmail.com
Auditor, National Defense Course, National Defense Institute, Portugal
Associate researcher, Observatory of Foreign Relations (OBSERVARE)
Integrated researcher, "Cities and regions: paradiplomacy in Portugal."
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109
1. An Ongoing Research Project
The research unit, OBSERVARE, has formulated a working group for the research
project designated Cities and Regions: paradiplomacy in Portugal. This project is
linked to one of the three major lines of inquiry by the Scientific Council of OBSERVARE
entitled Peoples and States: Constructs and Interactions, envisioning a
contribution to understanding the role of international actors seen in its genesis,
dynamic and evolutionary dimension, and manifold relationships.
From the outset, the concept of "paradiplomacy" refers to the study of the relationship
of external social actors on international relations distinctive from the central powers of
national states. The contemporary global setting facilitates the emergence of numerous
agents of internationalization. The monopoly of central governments over foreign policy
or "foreign affairs" has abated while the world observes a dispersion or dissemination of
this activity by centers endowed with relative autonomy. It is a phenomenon with
reasonably innovative contours, deserving attention in the scientific area of
international relations, enabling improvement in the interpretation of the facts and a
deepening comprehension of the mechanisms created by these new practices.
Besides the cities, regions also play important roles today as agents of
internationalization. It is true that the term "region" embodies different meanings, and
these are used to designate portions or fractions of traditional national territory. It can
signify subsets of states or redefinitions of new spaces that are organized
independently of national borders as in the institutionalized case, euroregion or non-
institutional informal macro-regions that are multiplying in geopolitics and
geoeconomics globally. In any event, the regions also conduct paradiplomacy, meriting
specific analysis.
This study highlights the role of cities, specifically, noting the intensity of the
urbanization process in modern societies. Likewise, cities are growing increasingly
important as the "we" in the web of globalization. Today, they are the fundamental site
of internationalization and a relevant agent of the new non-state "diplomacy", or more
precisely, paradiplomacy. In the domains of transport and communications networks,
or socio-cultural spheres on the economic terrain, and in action already properly
termed "politics", the interactions between the large conurbations constitute a topology
with impact on international life. Hence, the interest in ascertaining the respective
strategies, the internationalized forms of action, as well as understanding those
institutional environments where the referred interactions are structured.
Thus, t
This research project - Cities and regions: paradiplomacy in Portugal - originates
with these observations and conjectures, logically focusing on the Portuguese
his study recognizes the utility of these processes for the scientific advancement
of international relations. The multiplicity of protagonist social actors of
internationalization is emphasized, surpassing the supposed state monopoly of external
action. New agents of paradiplomacy trying to discover the strategies and the
institutional holders at the local or regional level are identified. New ways emerge for
understanding the networked systems that progressively structure the international
setting.
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110
experience and favoring empirical studies and measurable data that capture
transnational local and regional dynamics.
2. Objectives
The overall project objective focuses on the analysis and evaluation of the role of non-
state actors in networks of internationalization, including Portuguese cities and regions,
taking into account the adopted intervention methodologies, instruments of
internalization, active partnerships and the resulting products in order to pursue the
following specific aims:
- To deepen the theoretical framework concerning the concept of paradiplomacy
- To study the level of internationalization of the Portuguese public-private actors,
with the exception of the central powers;
- Investigate the roles of some urban municipalities and autonomous regions as actors
in international relations;
- Identify levels of actor intervention with international partners based on the
identification of pursued methodologies: town twinning, initiatives of subnational
"foreign policy", signing protocols for sectorial collaboration, developmental
cooperation, attracting investment and tourism, socio-cultural projection, etc.
- Identify the institutional instruments of paradiplomacy: foreign relation offices,
institutional visits, organizing events, among others.
3. Project Justification
The present study falls within the field, relatively recent in international relations, of
paradiplomacy, which is identified as the capacity held by non-state actors to establish
international cooperation agreements, from exclusive interests, regardless of state
actions.
It is a growing discipline, since the logic of economic globalization and the need to
enhance the competitiveness and dynamism of the processes of cultural globalization
leads to the proliferation of international partnerships and the spread of networks.
It is within this context that three lead actors emerge, whose performance is driven by
specific objectives, resulting in structured practices: municipalities, the Euroregions,
and Eurocities. The first appears on the global scene as conventional cooperation,
intervening through protocols and establishing partnerships with counterparts. The
Euroregions and the Eurocities, resulting from cooperation agreements between local
governments of cross-border territorial areas, seek to intervene geographically in
sectorial areas, and are potentially confluent in promoting development and diminishing
socio-spatial disparities. Given that these zones are characterized by independence in
relation to central governments, following principles of territorial identity, they are of
particular interest for the study.
In this sense, the purpose of this research team is to analyze networks and
partnerships in relation to specific situations, shared strategies, and expected results.
Given the thematic scope of analysis, a comparative approach is applied between two
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111
Euroregions, a set of Eurocities, a sample of urban municipalities, and two autonomous
regions, according to the systematization that is specified below.
A. Euroregions are cross-border cooperation structures that result from agreements
between local governments of adjacent areas:
A.1. Euroregions AAA (Algarve-Alentejo-Andalucia);
A.2. Atlantic Axis (Galicia and Northern Portugal).
B. Eurocities are new models of relationship and international cooperation:
B.1. Chaves and Verin;
B.2. Valença and Tui;
B.3. Elvas and Badajoz;
B.4. Vila Real de Santo António-Ayamonte and Castro Marim.
C. Municipalities, in the role of decentralized cooperation entities of the State,
acquiring increasing importance, are large urban centers and the intermediate urban
centers according to the criterion of role recognition in this context:
C.1. Lisbon, a capital city;
C.2. Porto, north central axis;
C.3. Guimarães, European capital of culture and sport;
C.4. Braga, European youth capital;
C.5. Aveiro, for investment in network technology development, based largely on the
"Aveiro Digital City" concept.
D. Autonomous regions, which are geographically separated in relation to continental
territory and central power, adopting differentiated strategies and cooperation models:
D.1. The autonomous region of Madeira;
D.2. The autonomous region of the Azores.
The networks and international partnerships of cities allow deeper concurrent
methodologies and experience sharing with the aim of sustainable development.
Networks of cities, since the 1980's, have assumed various settings and feature a
greater global or regional character. They also vary as to goals. The International
Association of Educating Cities associative movement numbering more than 400 local
organizations and the Organization of World Heritage Cities, exclusive to cities included
on the UNESCO World Heritage List, highlights this trend. In these cases, the networks
are aimed at the optimization of territorial management, in a world where the
boundaries between territories become increasingly fluid while exhibiting a
transnational character (Simões (2010).
4. Theoretical foundation
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The present work assumes paradiplomacy as a multidimensional phenomenon, the aim
being to identify and analyze methods of paradiplomatic cooperation, taking into
account various axes and identified dimensions.
The diplomatic paradigm in the international relations underwent a gradual but
significant shift, conceivably as early as the end of World War I. Beginning in the
1970's, and notably after the fall of the Berlin wall (1989) and the disintegration of the
Soviet Empire (1991), instruments of diplomatic power transformed significantly.
"In the post-cold war world, for the first time in history, global
politics has become multipolar and multicivilizational" (Huntington,
1996: 21).
Nowadays, diplomacy no longer refers to the pursuit of national interests and to the
practice of persuasion alone, but also to the management of global issues. Thinking on
a planetary scale creates new needs, additional requirements of geographical
differentiation, and drives local expertise. Likewise, the relevant actors are not only
states, but also cities and strategic regions with specific foreign policies, in which
increasingly relevant actors operate and face challenges that relate to changes
experienced by the people in these areas. In this regard, classical diplomacy is no
longer adequate to respond to the challenges of the present time (Burt, 1998: 25).
Thus, in contemporary society, the concept of "paradiplomacy" arises from globalization
where networks constitute a central element of competitiveness. In this context, non-
state actors emerge on the world stage with a growing importance, largely by the
ability to form transnational networks and partnerships in order to enhance their action
through the identification of common interests and potential synergies. In this sense,
Santos Neves (2010: 28) explicates:
“Paradiplomacy demonstrates that external action will be
increasingly a multidimensional process with several actors, where
the public and private sectors, as well as the third sector, have to
participate and coordinate their different skills in the context of
long-lasting partnerships. The existence of knowledge networks
involving the coordination and collaboration between governments,
companies, NGOs, universities and trade unions is, therefore, an
essential factor for ensuring effective external action, not only for
the purposes of implementation as planned.”
Also, Aldecoa et al., (1999) point out two fundamental factors for the increasing
importance of this phenomenon: the rise of NGOs and the increase in international
activities of non-state actors, which are, among others, cities and regions.
Additionally, the sub-national paradiplomacy allows different public and private actors
to participate in the increasingly sophisticated multi-dimensional dynamics of external
action. This dynamic of networks – global, multidimensional, and interdependent
systems of economic liberalism or capitalism – also generates specific localization
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phenomena and micro centrifugal processes of decentralization where multinational
companies participate, and, correspondingly, cities and global regions.
“The explicit inclusion of cities in international relations through
networks or direct negotiations with multilateral and regional
organizations, transnational corporations and other cities or
regions is generating significant transformations under the point of
view of economic and political autonomy of localities. This
phenomenon of international action of cities has created reticular
spaces of cooperation that transcend the classic landforms of
political-administrative division and territorial continuity”
(Senhoras, Moreira and Vitte, 2008: 5).
In the European Union (EU), a regional bloc that is passing through a stage of
advanced integration between countries, subnational paradiplomacy assumes a
prominent role, developing direct negotiations of maximum strategic interest with
multinational companies. In this context, cross-border regions and cities further a
special relationship between the two countries, particularly between neighboring
peoples. Based on proximity, the potential mutual benefit from common interest and
the tangible need of interaction spurs paradiplomacy. The founders of the European
project identified this tendency early on.
“Currently, the borders of the European Union assumed,
fortunately, a permeable space between the markets, realizing an
old ambition of the founding fathers of the European project”
(Mendonça e Moura, 2010: 9).
Based on profound change evidenced in relations between Portugal and Spain after
accession to the European regional bloc (both in 1986), neighboring markets opened
their doors to trade flows never before realized and the cross-border regions (Galicia,
Castile/Leon, Andalusia, and Extremadura) gained special importance for Portugal. In
fact,
“(…) cross-border regions of Portugal and Spain (our main trading
partner), assume major importance as a natural market for both
countries, particularly as platforms for the development of their
regional and international business” (Horta, 2010: 4).
As a result, broadening the relationships between the principle locations (district
capitals, towns, and villages) along the border, promoted the interactions between
national companies who welcomed the opportunity to expand their businesses.
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5. Methodologies
The project envisions establishing privileged partnerships with other research centers
and embedding into reputable national or international universities with scientific
studies in the area of international relations. Likewise, integrating with associations and
other entities motivated by common interest in the study of paradiplomatic networks is
planned.
The following methodology is framed by empirical studies using primary data collection,
through surveys and interviews with identified actors, in particular, representatives of
the identified Euroregions, Eurocities, municipalities, and the Madeira and the Azores
autonomous regions.
Complementarily, and following a systematic principle, documentary analysis and
assessment of online resources, such as organizational web pages and established
networks will be conducted. In order to better understand the whole process of
globalization led by non-state actors, further research will be derived from sources that
enable a theoretical and conceptual foundation of the problem under study. To carry
out the activities inherent to the fieldwork, a team of Bachelor and Master's assistant
researchers will be recruited and trained.
6. Expected results
In terms of expected results, with the development of this project, the following
deliverables are highlighted:
− Publication of scientific articles and dissemination, estimating twelve articles
following the research period; six scientific and six for propagation, with a biennial of
four articles;
− Creating a project page on the internet of interactive character, which allows viewing
through cartography, other appropriate info graphics (charts, photographs), and
data analysis of the main, intermediate, and final results of the investigation;
− Participation in twelve national and international conferences, one every six months;
− Organization of two workshops at intermediate stages of the development of the
activities planned in conjunction with international partners;
− Book publication, in Portuguese, English or French, according to the geographical
location of stakeholder participation in the project;
− International conference organization in the project´s final phase with dissemination
of results and a public presentation of the book, which provides for the participation
of the different types of actors studied;
− Production of annual activity reports, five in the interim and a final.
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How to cite this article:
Curto, H. S.; Moita., L.; Brito, B. R.; Quintas, C.; Galito, M. S. (2014). "Cities and
Regions: paradiplomacy in Portugal." Notes and Reflections, JANUS.NET e-journal of
International Relations, Vol. 5, N. 2, November 2014-Abril 2015. Consulted [online] on
the date last consulted, observare.ual.pt/janus.net/pt_vol5_n2_not1