Coloquio Philosophical Foundations of International Criminal Law: Its Intellectual Roots, Related Li
Los días 25 y 26 de agosto participé en un coloquio en Nueva Delhi, organizado por el CILRAP (Centre for international Law Research and Policy) sobre Philosophical Foundations of International Criminal Law: Its Intellectual Roots, Related Limits and Potential.
Mi contribución se llama "The Ciceronian Foundations of Modern ‘Feindstrafrecht" y el abstract es el siguiente:
Cicero was a politician, a professional advocate and a true patriot. He claimed that the political community (res publica) was the supreme good: anyone who defended it deserved eternal life as a reward (Scipio’s dream = On the Republic, 6), while those who tried to undermine it were tyrants and did not belong to human society. Consuls should make of the salvation of the republic their overarching principle (On the laws 3.3.8). Based on these premises, he gave his support to decisions no matter how illegal. The senatorial decree which is a forerunner of the modern “State of Emergency” (the so-called senatus consultum ultimum), even if of very dubious constitutional validity, is considered by him as an essential pillar of the republic (In defence of Rabirius). The killing of a political rival should be pardoned for this very same reason: he was a menace to the republic (In defence of Milo, 80). Pro Sestio 99-100. In a nutshell: Cicero transformed the political conflict into a just war against a foreign enemy (Against Catiline 2.1.1; Philipics 13.35).
There is a certain similarity between these Ciceronian ideas and the concept of “Enemy Criminal Law”, devised as an “ideal-type” by Gunther Jakobs in 1985. In Ancient Roman law, citizens were protected by the right to prouocatio, which meant that they could not be put to death unless by the assembly or a jury of citizens. Cicero argued that he who has conspired against the Republic has voluntarily forfeited his citizenship, and could be dealt with accordingly, that is, as an enemy of Rome (Against Catiline, 1.10.28; 3.6.15). His justification was almost the same as the one Jakobs has offered: the state (the Republic in Cicero) has the right to protect itself in order to avoid being destroyed – what Jakobs encapsulates as the so-called “right to security”.
A last further point: one must bear in mind the distance which separates the “criminal law of the enemy” from the State of Emergency: this last one has a definite time-frame, for it responds to specific circumstances. Cicero’s approach as well as Jakobs’ ideal-type is completely different for they see the danger coming not from specific circumstances but from certain persons, because of their moral condition, which is claimed to be corrupt and therefore potentially damaging. There is no possible reconciliation when the salvation of the Republic is at stake. Although Cicero was an adherent to Platonism, he did not believe in reformative punishment.