in our book Human rights and international responsibility of the State, 1977) review, to better illustrate, the following: “In the primitive world, every harm caused or injury suffered by man was repelled by his social or family group, through a vegetative, automatic, unconsidered response, constituted by revenge.” This is how the rule of Justice was understood. “Pain sovereignly governs the legal sentiment of primitive man. Injustice is appreciated not according to its cause, but according to its effect, not according to the circumstances relative to the person of its author, but from the angle of the person who feels himself to be a victim… Passion imposes atonement even on the innocent,” wrote the German jurist Rudolf von Jhering (1818–1892) (1818-1892).
“This regime of responsibility – I continue – that our first villages seem to have known (indiscriminate in its sources, collective in the distribution and claim of burdens, and retributive in terms of its content), did not vary much during the time of the barbarians.” However, “to limit the effects of revenge, known among the Germans as faidathese imagined pecuniary compensations (price of blood or wergeld), fixed according to uses. The Celts of Ireland call them “price of honor.”
Thus, in the face of the current omission or blatant denial of justice by the international community, which systematically rejects its “responsibility to protect” while condemning States that dare to do so; or, in the face of the bureaucratic apathy of the body called to save the pillar of support of the international legal system or of the international law born in 1945, I refer to the late created International Criminal Court (1998) and its duty to guarantee the right to peace and the prohibition of war by enforcing the principle of respect and effective universal protection of human rights, I refer to the International Criminal Court; It is worth asking if in the cases that we witness in the world today – Ukraine and Venezuela, which are emblems – are the most primitive known formulas of responsibility reborn in their progression, the barbaric ones, the faida and the wergeld?
The arrival of Rome and Christianity was necessary for such premises to change, firstly, through the individualization of those responsible, and the limitation of the exercise of freedom, in accordance with Justinian’s legislation, when “it seeks only the harm of others”; all of which must be evaluated and made a reality by a third party, the judge or magistrate.
In this order, Carl Schmitt (1888-1985) was right again, when he warned that the architectural logic of the institutional – the norms of international law, European law, which radiated over civilized and uncivilized nations, and were the result of the agreement or consensus between two or more sovereignties in a world of coordination and parity between their States that waged war as peers – collapsed when the United States promoted the categorical primacy of the economic. It leaves politics behind, as a subsidiary, after the end of the First World War.
It was argued that this was a question for Europeans to resolve. More often than not, from the anchoring of the economic – typical of the secular Anglo-American Calvinist tradition (Max Weber, “The Protestant Ethic and the Spirit of Capitalism”, 1905) – it became conditioned to European politics and its performance. Sovereign powers were de facto dissolved. It is true that it helps Europe financially through the Dawes Plan and the Young Plan, even helping the defeated Germany to pay its reparations for the damage it caused during the conflagration (1914-1918).
After the Second Great War (1939-1945), the same logic prevails with the Marshall Plan, which injects Europeans with 13 billion dollars and these are reorganized based on the Economic Community of Coal and Steel, born from the Treaty of Paris of 1951. But, as Benedict XVI indicated, congratulations to Europe to the great leaders of the dopowar Focused more on political integration and, yes, on Franco-German reconciliation, containing the purely utilitarian North American approach to prioritize a federal union and shared values, such as those of the constitutional and democratic State of Law, they established the bases of the current European Union.
The liberal vision of contemporary international law – regardless of its deviations – could be preserved in that kind of emerging European international state law, consistent with the ethical values adopted by the United Nations; giving direction to the primary idea of sovereignty, but as an extension of freedom, that is, of its integrating virtue based on the supreme principle of justice. And, as Werner Goldschmidt (1910-1987) taught, this is what “establishes the freedom of human development.” Its objective is, exactly, to assess the distributions of power and impotence in the international sociological order and the accuracy and effectiveness of the norms that describe them, formalizing them at the legal level, within constitutional law and international law.
It goes without saying that the crisis of international law, whose respect is trembling from the different fronts of power in this current ellipse of uncertainty, encouraged by these to gather greater power, confronting each other over the order of deconstructive conduct that has advanced since 1989, finds its real turning point in the year 1960. The arc is set by Martti Koskenniemi, a Finnish jurist, starting in 1870 (The mite civilization of the Nazis2001). You are right.
The mother test on the validity and effectiveness of the international legal system has been represented – it was our doctoral thesis – by the institute of responsibility of the State and its rulers for their illicit acts – crimes and crimes – international. It is the heteronomous or institutional determination of the behavior incurred by a State or an individual. This is the certain and non-hypothetical possibility of requiring him to respond, that is, to repair the damage that he has caused with his behavior when it can be attributed to him, according to the rules of international law itself, excluding the internal law of the respective State. The different realities are sensibly found naked. The paths towards global irresponsibility or the logic of responsibility based on an eye for an eye, a tooth for a tooth have taken an open path.
Doctrinal exercises and jurisprudential teachings on this matter fill the libraries and their shelves. International arbitration and judicial decisions fulfilled and executed peacefully are innumerable. But the same cannot be said in relation to the facts that involve, since the birth of the UN, its cornerstone: the proscription of war and peace, the peaceful resolution of controversies as necessary and instrumental contexts for the realization of the true global public order, that of the international protection and tutelage of human rights.
Decisions continue from the angle of power and the possibilities or impossibilities of consensus between the supreme distributors of power and assigners of power within the governing body that is the Security Council. It deprives the pro princes rule, that is, in favor of the State and its rulers to the detriment of the foundational imperative norm pro homine et libertatis. Hans Kelsen’s suggestion, after the Second War, that the declaration of internationally illicit or criminal behavior of a State be left in the hands of a supervisory and independent judicial body, such as the Permanent Court of International Justice transformed into the International Court of Justice, was discarded.
That from the top of the regulatory pyramid the legality or illegality of the behavior attributable to any of the permanent members of said Council, supreme distributors, can be declared has been a chimera. The exceptions prove the rule. But it is not only that, but the group of middle powers and the rest of the member states of the UN, recipients of spaces of freedom and discretion, limited, all to one, since 1951 have prevented the issuance of a legally binding international treaty that makes the rules of law on the international responsibility of States and their governments a factual reality. Such reasons are only invoked dialectically and for the consumption of world opinion in order to satisfy it, through the media and social networks, for the only virtual settling of accounts between the major powers and the intermediate ones or aspiring to greater power.
The tortuous path of justice
The work to codify the practices that had crystallized as customary norms on the subject of State responsibility for internationally wrongful acts dates back to the League of Nations. The UN restarted them in 1949, appointing its first rapporteur in 1955, FV García Amador, a Cuban jurist who was especially concerned with the diplomatic protection of foreigners. He is succeeded by the Italian jurist Roberto Ago (1907-1995), who gives a twist to the topic and presents a fairly complete text, containing articles that discern the seriousness or not of violations of international law, in order to demand responsibility whether aggravated or not.
Sensibly, the path traced by Ago slows down, because the States are wary of what has been said and are jealous of their sovereignties, within which the most ominous attacks on human conscience bubble. Democratic governments, the “civilized” ones that European jurists of the generation of the jurist Frederic De Martens or Fedor Fedorovich Martens (1845-1909) would say, are scarce in 2026 and within the UN as a whole.
The violation of mandatory norms or international public order is reduced in its treatment and diluted between the lines. All crimes are overcome through monetary compensation. Nothing else. And what is noteworthy is that it was only in 2001 when a timid agreement was reached by the international community around a text of articles on the International Responsibility of the State for internationally illicit acts in the International Law Commission. It then adopts, as a recommendation, the UN General Assembly (Resolution 56/83, of December 12, 2001).
Only in this way can it be understood that, when the Report of the Independent Investigation into the genocide in Rwanda in 1994 was presented to the Security Council, and it was confirmed that it “had the power to have prevented at least part of the Rwandan tragedy”, none of the powers that comprise it took responsibility. Neither the organization nor its committed authorities were required to respond, in accordance with the norms of international law. Only “the lack of political will to act in crises was described as the most dangerous obstacle to the work of the United Nations in peacekeeping” (Minutes of the Security Council, 4127th meeting, Friday, April 14, 2000).
The case is repeated 25 years later, after the damage due to risk and cross-border effect caused by the universal pandemic of Chinese origin in 2019, with millions of deaths. No one has claimed from the risk-generating power its duty to fully repair the material and human damage caused by the Wuhan Institute of Virology, even if its activity is considered scientific and legitimate. Hence, it is necessary to revisit the origins of this ominous drift in order to better resolve it in the future.
