When the State Is a Criminal (English)
“When the State Is a Criminal” is the headline for a permanent opinion column to appear at this location. As at the Forum in ancient Rome, where the accused was publicly confronted with the charges against him, our goal is to air charges against a perpetrator who all too often escapes justice by hiding behind the shield of “sovereignty”, namely the nation-state.
The present system of nation-states, which traces its historical roots to Europe and now fills the globe with more than 200 states, recognizes no superior authority, neither God - who for some time now has played no truly significant role in politics - nor any other source of higher law. That is the essence of the principle of sovereignty. The nation-state is Hobbes' Leviathan. In its relations with its fellow states it knows only international treaties and a very imperfect and incomplete concept of international law, which is the law of, by and for the nation-states and nothing more. Upon closer examination, we may say that the current era of the nation-states resembles that period which the Middle Ages designated as the “interregnum”, an age of terror and anarchy marked by a near total breakdown in authority in which only “might made right”. This state of affairs is scantily veiled by constitutions establishing systems of law based on varying power relationships within the nation-states. In the final analysis, relations between the nation-states are determined by the expediencies of interests and power. The phraseology of democracy and human rights serves little more than to generate a rhetorical fog blurring these hard facts.
The true nature of this system, however, cannot be concealed. And the 20th century revealed its real face as the century of the world wars, of war crimes of monsterous dimensions, of the Holocaust, of expulsions and “ethnic cleansings” on nearly every continent. The Germans have played their historical role in all of this as both perpetrators and victims. Out of dire necessity, however, a concept has arisen which is beginning to put limits to the notion of god-like sovereignty, namely the crime known as genocide.
Genocide in the world of the nation-state is akin to what is defined in ordinary criminal law as murder: the application of violence in order to deny of the right of an individual to exist. The difference is that the intention of the perpetrator, which in almost all cases is a nation-state, is to eliminate not individuals but entire groups of people by denying them any future existence in the nation-state and/or to rule over them as a group of second-class or unfree persons and sometimes to expell them forcibly from their homeland. In any case the intention is to deny a group of people their rights, to be rid of them permanently and to erase their role in history.
In the political journalism of the last century this phenomenon has become known as “transfer” or “ethnic cleansing”. Both terms are self-revealing in their cynicism. In normal practise only objects such as money and goods can be “transferred”. An entire group of people is thus reduced by the state to the status of an “object”. In normal usage the verb “to cleanse” has to do, for example, with the removal of dirt or pests from a dwelling. A state which expells an entire group of people thus in effect places them in the same category as dirt or vermin. Goebbels referred to Jews as “rats”. A nation-state which employs or sanctions such methods separates itself from the community of civilized humanity.In the chapter entitled “The Prevention of Genocide” in his book L'Etat Criminel (“the criminal state”) Yves Ternon reminds us: “The Armenians were forgotten. One failed to realize what the first discriminatory measures against the Jews in Germany meant. And then came the genocide.”It would be a similar act of collective and selective amnesia if the new Europe, the European Union, were to admit to its ranks new member states which refuse to acknowledge or distance themselves from acts of genocide they have carried out. The EU would thus make itself into an accessory to the legalization of genocide. It would thus set an encouraging example for current and future political criminals who, especially in the Middle East but also elsewhere, seek justification for their attempts to suppress, remove or otherwise deny the natural human rights of groups of people they view as undesirable.
The development of international law limiting the sovereignity of the nation-states must continue to move forward. This includes not only human rights conventions and the U.N. Convention on Genocide , but also the actions of courageous individuals such as the Greek judges in the case of the villagers of Distomon murdered by German troops in the Second World War. The ruling of the Aeropag , the highest court in Athens, calls the semi-sacred principle of the sovereign immunity of the nation-state into question. Whether the Ruling of the Aeropag will ultimately remain standing or not, it has set a precedent and will find imitators. In any case it markes a significant step away from the notion that international law is merely the law of the nation-states. And what has been applied to Germany can be applied to the immunity of other nation-states as well.
Since nowadays public image has become so vital, even for the nation-state, we suggest the introduction of the following five rating categories:
1. For those nation-states which have violated such principles of international law but have fully distanced themselves from these acts and have attempted or are attempting to make restitution insofar as possible.
2. For those nation-states which have committed such violations but have only partially distanced themselves from these acts and have not made restitution.
3. For nation-states which have committed such acts and insist on their legitimacy.
4. For such hypocrits among the nation-states who apply a double standard, insisting on the obligations resulting from the committment of particular violations but sweeping others under the rug - for whoever applies a double standard based on opportunism cannot expect that others will take them at their word in an emergency situation when it really counts.
5. For those nation-states which, for whatever reasons and with whatever justification, are currently preparing or carrying out acts of genocide.
We live in the age of “globalization” in which in particularly the progress in information technology is bringing people throughout our world into ever closer contact with each other. This process of globalization is unstoppable. Up until now, however, it has meant mainly a globalization of markets, of business and financial forces in which the economically and financially powerful and unscrupulous have played the decisive roles.
As yet, there has been no political globalization.
The alternatives seem to be
either the globalization of political norms
based upon hegemonic acts of an overwhelming power
or on the basis of a new, binding international law of the peoples, as a ius cogens.
Dr. Rudolf Hilf