2023/1 – Guerra e diritto

Keywords: War and politics, just war, modernity, international law, Italian constitution.

War and peace are, even in Hans Kelsen’s legal theory, two closely related concepts. The essay shows how, nevertheless, the specific relevance of these concepts emerges, in the development of Kelsen’s thinking, at distinct and rather distant moments in time, and how the positions they occupy, within the categorical architecture of the reine Rechtslehre, turn out to be quite heterogeneous. Two additions (Parerga) complement the research and enrich its results, from different perspectives of analysis: the first, philosophical, concerns the fundamental relationship between “ought” and “legal duty”; the second, philological, concerns the controversial relationship between “state of law” and “state of peace”.

Keywords: Hans Kelsen, War, Peace, Pure Theory of Law, International Law.

The interpretation and the application of international criminal law raises several issues, namely those connected with the margin of appreciation recognised to the judiciary in interpreting its provisions. These are not all set out in Treaties but, instead, derive also from customary international law, where this margin is even wider given that interpretation does not deal with texts but with practices which have to be ascertained in their turn, and whose content is therefore also interpretatively determined. The article then examines the issue of the respect of the Principle of Legality in international criminal adjudication, as well as the incidence of the margin of appreciation of International Courts on national judiciary, especially in the light of the Rome Statute of the International Criminal Court and its subsequent implementation obligations. Under this respect, the article examines the aims of the draft Italian Code of International Crimes delivered in May 2022 by the Committee of Experts appointed by the Italian Minister of Justice, which aims at fully implementing the Rome Statute as well as customary international rules into the domestic legal system.

Keywords: International Criminal Law; Margin of Appreciation; War Crimes; Crimes against Humanity; Principle of Legality in International Criminal Law Adjudication; Italian Criminal Legislation.

Information technology is now constantly being used in armed conflicts.  It has profoundly innovated the “classic” tools of warfare. It is enough to think of the improvement of missile targeting systems, the possibility of encrypting strategic communications with systems that were unimaginable a few years ago, or the ability to attack a target thousands of kilometres away thanks to a satellite-controlled drone. But beyond this, information technologies are today both an instrument and a target of war. It is in the latter sense that contemporary warfare has in some cases become a war so different from previous forms that it deserves to be called cyberwarfare. It is a non-virtual war, which presents dangers and problems that are difficult to solve, even from a legal point of view, since it is part of a scenario in which the distinctions of the old international law, such as those between civilian and military, neutral and belligerent, prisoner and combatant, have disappeared.

Keywords: War, ICT, cyberwarfare, hacker, international law.

This brief article focuses on a comprehensive idea on the likely ‘costs of the war’. The first cost to be considered at macro level is the loss of cooperation between states. In other words wars are often expected to undermine trust and ‘rules of the game’ between sovereign states. Secondly, a widespread economic sluggishness can be predicted. Third, in the long-run a higher economic inequality is to be expected because of the deterioration of human capital. In general, the war also induces some re-balancing between productive and unproductive activities. A growing unproductive burden in the economy (in particular military expenditures) constitues a clear-cut cost which turns to be detrimental for whole society in spite of some private gains.     

Keywords: costs of the war; military burden; deterrence; productivity; loss of cooperation

Armed conflicts, relying on new technologies and controversial propositions about how to interpret relevant legal norms, have been reconfigured around threat anticipation. In line with the objective to anticipate threats, drone programs as well as AI decision support systems significantly rely on surveillance and data collection, and the use of force is only a small part of the operations they either consist in or lead to. Neglecting the predominance of surveillance systems in anticipatory warfare, the media and public discourse as well as scholarly debates tend to focus on strikes and targeted killings rather than on the surveillance apparatuses and their effects. The broader and long-term implications of surveillance on the battlefield, as a result, are widely overlooked and the primary focus on strikes and targeted killings has allowed operating states to escape criticisms of violations of sovereignty that go beyond the use of force. Building on seminal reports, this paper first accounts for some of the societal rearrangements, behavioural changes, and psychological ramifications that surveillance systems on the battlefield engender for the affected individuals and communities.
The paper then conceptualises and legally translates these effects as rituals of sovereignty by contemplating how this sort of situation would be defined by human rights courts. Other scholars have proceeded this way to explore sovereignty questions raised by combat drones, but existing studies are mostly limited to drone strikes and targeted killings. By omitting to consider drone programs holistically and limiting the analysis to lethal strikes, the extension of the state’s jurisdiction is extremely difficult to recognize. Very differently, when drone programs – equipped or not by AI decision support systems – are studied as a whole, as surveillance systems that have effects on societies, human bodies and behaviors, this paper submits that the operating state’s extraterritorial jurisdiction and thus the extension of sovereign power can easily be recognized.

Keywords: Surveillance; battlefield; sovereignty; extraterritoriality of human rights; artificial intelligence; drones; anticipatory warfare

In questo recente volume Gerald Postema presenta una teoria matura e compiuta della rule of law. Come l’Autore spiega nell’epilogo, si tratta dei risultati di una ricerca condotta nell’ultimo decennio, di cui abbiamo letto alcune anticipazioni in lavori quali Fidelity in Law’s Commonwealth (Postema 2014). Qui era già prospettato l’ethos della fedeltà al diritto, una delle chiavi della rule of law come modalità specificamente giuridica non solo di governo, ma anche di associazione o appartenenza (membership). La fedeltà al diritto sta ad esprimere il legame orizzontale che il diritto crea, espressione di un ethos giuridico che accomuna operatori giuridici e laici. Con immagini efficaci, dunque, il diritto non è solo muro di protezione e briglia di controllo del potere ma anche vincolo di reciprocità tra le persone (bulwark, bridle e bond).