Capítulo, Cicero: Bellum Iustum and the Enemy Criminal Law, Morten Bergsmo and Emiliano J. Buis (eds

Pedro López Barja de Quiroga acaba de publicar "Cicero: Bellum Iustum and the Enemy Criminal Law" en Morten Bergsmo and Emiliano J. Buis (eds.): Philosophical Foundations of International Criminal Law: Correlating Thinkers, Torkel Opsahl Academic EPublisher, Bruselas, 2018. ISBNs: 978-82-8348-117-4 (print) and 978-82-8348-118-1 (e-book).

En este libro, en el que participan más de veinte autores de Europa, Asia y América, se hace un amplio recorrido sobre los fundamentos del derecho penal internacional, analizando a los principales pensadores que se han ocupado de este tema, desde Platón a Foucault, pasando por Vettel, Hobbes, Kant, Wittgenstein o Arendt, entre otros.

Aquí os dejamos la introducción al capítulo:

There never was anything that could be included in the modern category of international criminal law in Roman history. Rome punished its enemies but did not take them to trial. It was the privilege of the general, when entering the city in triumph after victory, leading an impressive parade of captives and spoils, to either kill or spare the lives of the defeated and brutally humiliated enemies. No justification was needed, even ifsome was offered in particular cases, as when Vercingetorix was executed as a treacherous rebel.

Other times, however, Rome acknowledged the violation of proper conduct in war. In five cases, at least, Roman offenders were handed over at Roman initiative to a foreign nation: 321 (both consuls to the Samnites, Caudine Forks), 236 (M. Claudius Clineas, Corsica), and 137 (consul Mancinus, Numantia). These three high magistrates had signed peace treaties and returned home only to discover that the Roman senate did not uphold them. Religious scruples were bypassed through the simple method of handing over the magistrates to the enemies. The remaining two cases concerned injuries suffered by foreign ambassadors: in 266 two senators were sent to Apollonia, whose legates they had struck, and in 188 two men were sent to Carthage for the same offence. In both cases the offenders were returned unharmed. There is one more instance, probably the most famous: in 55, Cato the Younger suggested that Julius Caesar should be handed over to the Gauls, for massacring the Usipetes and Tencteri, two German tribes, when their leaders had come to him as an embassy seeking a truce. Needless to say, the proposal was laid to rest.

This chapter begins with the intriguing relationship between the two poles that underpin this reflection, namely ‘just war’ (bellum iustum in Latin) on the one hand, and ‘enemy criminal law’ (Feindstrafrecht in German) on the other. This relationship can be characterised as a specular one, for one mirrors the other. ‘Just war’ renders the enemy a citizen who can be submitted to trial, implying that there is a common law binding on States. On the other side, Feindstrafrecht renders the citizen an enemy who is not to be protected by the same law as the rest of the citizens. We may have a precedent for this ‘specular relation’ between war and justice in the way crimes were punished in modern Europe. As Michel Foucault pointed out, kings were the ones who decided upon war but also upon their subjects’ lives. Kings waged war against those who had committed a crime, for they had implicitly put their power into question. They were ritually killed to restore the natural order of things.

As it is well known, bellum iustum goes hand in hand with empires, for it provides a justification for expansion and conquest. Rome is no exception, even if it did not invent the concept. As an advocate of both ‘just war’ and the (avant la lettre) ‘enemy criminal law’, Cicero – the Roman philosopher and politician (106 – 43) – is in a unique position to illustrate their relationship. He was a successful advocate and ascended to the top of the Roman political hierarchy (the consulate) in a very difficult period. He suffered the calamities and atrocities of several civil wars and was killed as a consequence of the proscription by Mark Antony and Octavian (who would be Emperor Augustus). His head and left hand were exposed to the public on the rostra, the tribunal in the Forum where orators used to stand up when speaking to the people. He was not very much interested in the military, for clearly he had a talent for words, not for war, but he had time to think about the Roman constitution, including its past history as conqueror of the peoples and territories surrounding the Mediterranean Sea. Traditionally, historians have portrayed him as a writer without ideas of his own, only capable of translating Greek concepts and reflections into good Latin.8 Since much of this Greek ‘original’ is now lost, attempts to reconstruct a Greek model for every Ciceronian idea were essentially futile. Fortunately, the perception of Cicero has changed in these past few years. Now, scholars begin to acknowledge his contributions as a thinker and philosopher.

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