Planting trees together, ploughing fields, building houses, jointly creating some­thing from nothing, all bring people together as little else does. I was privileged to build two houses together with Nino. One was this Journal – EJIL. Bruno (Simma) and I had no doubt that it should be Nino we should turn to as our Italian ‘partner’. He embraced the project with his typical enthusiasm and commitment. He had more ideas per gallon than all of us put together. The Italians have a wonderful saying: Nove parlano, Uno fa. Nine talk, one does! Nino was one of those Ones. Indeed, he did the work of all the other nine put together. And of course it was infectious. Those of you with some experience in these matters know how meetings of journals, institutes and the like proceed. The French idiom ‘Il faut’ goes into overtime. One needs to do this, and one needs to do that. A nice way of being creative, engaged and, yet, lazy and un­committed at the same time. Nino would collect all the ‘Il fauts’ like the discarded wine bottles at our meetings and then just do them! Whether it was organizing, or writing.

I attach at the end of the Editorial in the Current Volume of EJIL a list of his contributions to EJIL over the years – some iconic, all memorable. His imprint on the Journal is still everywhere, years after he left to build yet another house, the Journal of International Criminal Justice.

We also established together the Academy of European Law – now in its 23rd year. He took charge of the Human Rights section, I led the EU part. The same enthusiasm was on display there too. Here is a tiny, telling anecdote. At a certain point we had to dismiss an employee of the Academy who simply was not up to the task. Nino just could not do it. He called me, his Co-Director, for a little talk. ‘Joe, you’re an Old Testament type. You have to do it’… I did.

I invite students, colleagues, friends to contribute Moments of Nino – stories and recol­lections, which illuminate not his professorial or judicial or diplomatic prowess, but Nino’s human side and his great humanity. Please use the comments box below!

In 2003 Nino was invited as a Distinguished Global Fellow to NYU Law School. It is customary to invite senior judges, present or past, domestic and international, to that position. For a week or two they participate in seminars, give lectures and associate with colleagues. One fixture in the calendar is a public interview ‘To Be a Judge on [this or that Court]’. The purpose of the interview is not to discuss fine points of law, nor even to gain insight into the procedure of this or that Court or Tribunal, but pri­marily to get to know the person behind the judicial robes.

The following is a transcript of the interview I conducted on 4 September 2003 with Nino. It is only very slightly edited. I have not corrected the usual little lexical gremlins which creep into free flowing discussion. I believe that in this unadorned way one can hear the authentic Nino – self-deprecating, earnest, passionate, with a twinkle in his eye, and that wonderful child-like little smile and giggle.

 Professor Joseph Weiler [JW]: Good evening Ladies and Gentlemen, this is the third in our series of encounters with international and constitutional court judges. It’s a great priv­ilege and honour to have with us Professor Antonio Cassese, who was the first President of the Tribunal for the former Yugoslavia.

Tell us first of all a little bit about your background as a child, where were you born, where you went to school, what kind of school you went to – in short, the early Cassese. We want to get a feel for this person sitting next to me.

 Professor Cassese: I was born in Atripalda (a village of 10,000 inhabitants) in 1937, but my family moved when I was a child to Salerno – which is a small town near Naples – in 1937, and that means that I have a very vivid recollection of the war, because as you know in September 1943 the American troops landed in Salerno, my hometown. And so, therefore I was six, but I remember the war very well, everything – every moment of bombing and the first time I saw my mother crying, and the first time I saw my father terrorized. He escaped and we went away to the countryside just a few days before the landing. But before the landing there had been a lot of bombing (by Americans) of Salerno. We went to the countryside and we happened to be with some relatives – an uncle of mine who was a member, a Captain, a member of the Italian army. You know that during the armistice in September of 1943, the Italians, actually the Italian army disbanded and most people actually did not know what to do. Some of them took part in the partisan warfare, and my uncle decided to stay, just to be in hiding, and so we were in a small farm when a battalion of Germans went through. We thought we were safe, but they actually went through the farm where we were staying, and they spent the night there. So I remember again. There were a lot of weapons there. My uncle, the Captain, and other people had collected all those weapons, bombs, machine guns, and so on. So we thought we were to be killed by the Germans. Again we escaped in the night, and again I saw my father trembling and terrorized because of this new danger of the Germans. So, a lot of recollections of the war.

JW: What did your father do?

 Professor Cassese: My father was a historian who actually wanted to become an academic. But he was very shy and so he decided to work as a director of a public record office in Sal­erno where all the records are kept of the criminal trials against people who were insurgents in Italy in the 19th century. There had been a lot of cases where farmers had gotten together to fight for land distribution, sort of a socialist fighting, and always of course it ended up in bloodshed. Those sorts of rebellions were crushed and my father was very eager to study the episodes which took place between 1830 and 1850 in Italy, through the records which he could find in the public record office of which he was a director. So he spent all his time writing and working.

JW: And your mother?

 Professor Cassese: My mother was a teacher at the high school. She taught Latin and Greek. She was more present and more affectionate than my father because my father, as I said, was always working and studying. I went to high school in Salerno, this small town in southern Italy. It was a very poor area of Italy, and culturally not very developed. That area and the whole of Italy during fascism had been dominated by the Italian phil­osopher Benedetto Croce, a leading man whose moral authority was however gradually eroded in the late 1940s by Communist thinkers and philosophers. My father joined the Communist party in 1943 and became a leading scholar among the members of the party…

At the age of 17 I decided to follow in the footsteps of my brother Sabino and move to Pisa. Pisa was the only university in Italy to which people could gain admission through a very tough exam competition. Very few were selected and they got special classes, they had a special faculty. I was a student of Pisa University and at the same time a student of the ‘Scuola Normale Superiore’ set up by Napoleon. The idea was of selecting people in Italy as members of the leading classes. I was lucky enough to be selected, and spent four years as a student doing law.

 JW: When had you decided you were going to be studying law? Was that also in the footsteps of Sabino?

 Professor Cassese: Well actually yes and no. I had decided to do literature and phil­osophy. My brother and my father, but more my brother who is a very tough man, said ‘look, don’t waste your time, you’ll never get any money, there’s no future if you do Ital­ian literature and if you study philosophy there’s no future if you want to get a job ‘. In southern Italy most people from poor classes would become either priests or members of the military, or members of the police, or, like in my case, they would go to the north or central part of Italy to make a living.

In my case I could not become a priest. Although I was Catholic in origin, pretty soon I decided that I was agnostic; my mother was horrified. She once told me ‘You were an angel, and now you are a devil, because of Pisa, this Pisa institution, there are too many Communists there, and you have become agnostic because of Communism.’

JW: And your choice to specialize in International Law, when did that crystallize?

Professor Cassese: In Pisa we were lucky enough. At that stage in the 1950s (I attended university from 1954 to 1958), Pisa was the university where the best profes­sors would teach before being appointed in Rome. It’s no longer valid now, but in the 1950s, normally professors started out (once they got their professorship) in small uni­versities, say in Sicily, small peripheral universities. Gradually they would move on to more important universities as a stepping stone to Rome (which was number one) and they went to Pisa. I was so lucky that I got the best professors. One in particular, who was professor of public law, Massimo Severo Giannini – I wanted to be his student. But my brother had already been his protégé because he started two years before me, and so therefore I said I’ll move to a different area. Two branches that I did enjoy studying were Constitutional Law and International Law. Why? Because they were technical areas of law, but with close links to politics and reality. I was always divided between the tech­nical part of law, being a good technician who knows the legal technicalities and can use the scientific tools very well, and on the other hand, law as part of the [general] context. In Italy at that stage, most professors of law had only studied law as an abstract body of ideas and notions. You may know the German tradition, what they call the ‘Gesetzes­jurisprudenz’, so the jurisprudence based on notions and abstract theories.

JW: Who were the influences on you in your formation as an International Lawyer? Who were the great Internationalists with whom you studied or from whom you learned most? Which were the books that were fundamental to how you developed as an International Lawyer?

Professor Cassese: Since I could not do Constitutional Law (because the professor of Constitutional law had just moved to his hometown) I opted for International Law. My professor was Giuseppe Sperduti, who was a top technician in the area of International law. He was a member of the European Commission for Human Rights, and a very active member. He taught me that there was a whole area of International Law – Human Rights Law – which is promising and extremely important. However, I was not under his influ­ence because I felt that we were too different.

JW: As you were growing up, when you graduated, who were your intellectual influ­ences? Who were the jurists that you read?

 Professor Cassese: I prepared my exam with Professor Sperduti when I was in my third year by reading a book in German, which I regard as a masterpiece still, Verdross’ Völkerrecht.

Verdross was a famous Austrian professor and his book has now been updated. I still think that this is the best textbook in Public International Law. After my exam, my professor said ‘why don’t you write a book review of the latest edition?’ I published that book review. So, this was under the influence of Verdross, who is again a very strange animal in a way. He was somebody who had a very complex personality. He was a pupil and protégé of Hans Kelsen, the formalist. He was a Catholic, very close to natural law doctrines. In his books there was a combination of formalism and natural law theories. There was some ambiguity in this attitude. At one stage he was very close to Nazi politicians. That’s why later on, he never became a member to the International Court of Justice. [See the European Tradition of Inter-national Law symposium on Verdross in 6 EJIL (1995) 32.]

Later on I met quite a few famous scholars; in Geneva I met Paul Guggenheim and Fitzmaurice. Great men, but actually none of them had that much influence. They were all excellent scholars, top flight. However the only man, who was the great sort of love of my life, was a Dutch professor, Bert Röling. He was not a great scholar. In 1946, he was appointed by the Dutch government as a member of the 11-member Tokyo tribunal, at the age of 39. He had started off as a criminal judge and a professor of criminal law. Then he went to Tokyo, and spent two and a half years in Tokyo. He came back to the Netherlands and moved to International Law because he thought International law was more exciting than Criminal Law. When I met him in 1973, he was already a famous professor of law. As I said he never developed a fully-fledged theory of International Law, though his major works are as profound as books by Roberto Ago and Fitzmaurice, to mention a few. However, he was the only man who had a vision. Let me give you an example: his dis­senting opinion in the Tokyo Trial. He wrote a wonderful booklet which came out in 1960, ‘International Law in an Expanded World ‘. To my mind this was really a turning point in legal literature. This book was written 10 years after the famous book in German by Carl Schmitt. In my mind his book published in 1960 was more important. Why? Because International Law was put into an historical perspective. This had already been done by Carl Schmitt, but in a different way. Röling thought that International Law had developed from the Peace of Westphalia in 1648, in three different stages. The first stage was the ‘Christian states’. Then the ‘Civilized states’. Why? This first stage lasted up to 1856, when the Ott oman Empire was admitted to the charmed circle of the European states, Europe being the centre of the world. The European states decided to admit Turkey into this charmed circle. Why? As a Turkish diplomat put it, ‘We are now considered to be equal to the Europeans in social butchery, because we made wars and we showed that we are good butchers in war, as good as the Europeans.’ So Christian states, European states, gave admission to a Muslim country, the Ottoman Empire, only because of this reason. Then, according to Röling, you have a third stage, starting after the Second World War with the UN Charter, the ‘Peace Loving countries ‘. The new standard and yardstick for admission into the world community is to pursue the idea of peace.

 JW: But the subject of our interview is you not the world….

Professor Cassese: No, but I’m not very interesting. [laughter] What I found fascinating about this booklet, for the first time he looked at International Law from the view point of what he used to call the ‘underdogs ‘, the have-nots, the developing countries. He decided we need a new design of the international community geared to the promotion of the developing countries. He spoke for the first time, a Dutchman, a European, talking to the people of developing countries. It’s no coincidence that Georges Abi-Saab – who is the leading scholar on developing countries – felt that this book is really the most significant. He told me ‘I agree with you that this is a wonderful book that opened the minds of many people. Let us look at International Law as it applies not only to current legal standards, let us look at International law because we want to change International Law and create what Bert Röling used to call the “natural law of the nuclear age”.’

JW: Did that approach, the periodization, the three stages, etc, the International and expanding law, influence your own International Law in a Divided World. Was it like writ­ing the successor to Röling?

Professor Cassese: Yes indeed.

JW: Was he alive when you did that?

Professor Cassese: Yes, whilst I was writing. He died in 1985. Actually he committed suicide because he had cancer and was suffering too much. He decided to take some poison, but he died in a very dignified manner, and was a great man. He influenced me through this new vision of International Law, which is as I said not International Law seen from the viewpoint of Europe and Americans, no longer the Eurocentric view of International Law, but International Law for the have-nots. He taught me so many things. I remember once I gave a paper, and he was there. The paper was on ‘The Principles of International Law’ and my paper was on humanitarian law and the famous principle of prohibiting weapons causing unnecessary or superfluous suffering. I worked a lot on state practice. I went through all state practices. At the end it was decided that this principle had never been applied and it was pointless to discuss this principle prohibiting unnecessary suffering because states had never applied this principle, and they don’t care. They only pay lip service. My argument was that principles are extremely important, because one day a principle can pave the road, one day a court, a scholar, a judge may rely upon the principle and flesh out the principle. Now in reflection I think that general principles in International Law can be regarded as the six characters in search of an author [to borrow from Pirandello, the Italian playwright]. I think these principles are looking for a court. And one day a court may jump in and say ‘oh look this is a wonderful principle ‘. Actually one such court was a Tokyo district court which in the Shimoda case applied that principle of unnecessary suf­fering, saying that the use of atomic weapons in Hiroshima and Nagasaki was against that principle. When we were discussing humanitarian law Bert said to me ‘Stop thinking that soldiers must be regarded as heroes. Soldiers are human beings. You have to understand that they prefer to kill somebody else than be killed.’ And so this human realistic view of military people not as heroes, but people who fight and want to live their lives, is pro­foundly human. So this great man would teach so many things because of his vision. He is a unique international scholar. He was the great influence of my life.

JW: How in your formation did your linguistic ability develop? You were reading in German, and Italian, and French, and English, when did this happen?

 Professor Cassese: At University. In Pisa we were told – because we were students of law and philosophy – we were told by the boss, ‘look here you don’t do politics, you stop talking politics, and you forget politics, and you learn German, because German is a key language for all of you. Whatever your discipline, you have to learn German.’ So we had to learn German and it was very hard.

JW: And French and English?

 Professor Cassese: Not so important, no they didn’t care. [laughter] For somebody who is studying philosophy and Greek literature, and the humanities, German is important. Actually, I found later that German is crucial for those who study criminal law. I also studied French and English at University.

JW: So now let’s fast forward, and before we get to your period on the Tribunal, you had an experience as the President of the Torture Committee established by the Council of Europe. Very briefly, tell us just a little bit about that experience.

Professor Cassese: The Convention was a very short convention, setting up a committee against torture and inhuman degrading treatment. It was a committee consisting of law­yers, medical doctors, specialists in prisons, and so on, who would inspect the various establishments of contracting states.

JW: And the contracting states were the states of Council of Europe?

Professor Cassese: Yes, now about 44 states, all members of the Council of Europe have joined this convention. Before there were about 20–25 member states, including Turkey.

JW: And you would announce one day to a state, ‘we are here, we are going to carry out an inspection ‘. There was no preparation? Would you go to a police station, to a prison?

Professor Cassese: We would go to the capital first, as soon as we were elected as the members of this committee. I was elected by the Council of Europe and the groups elected me as President. We decided that we needed a lot of training, especially be­cause of our different individual training. So we learned a lot from the International Committee of the Red Cross. We went to Geneva, and people from Geneva came to Strasbourg and taught us how to go to the prison. And they are extremely competent and knowledgeable in how to inspect a prison and talk to a detainee without any person attending you. So we learned the ropes, and we decided you can’t go straight to the UK and start visiting police stations and prisons without warning the authorities, if only 24 hours before going there. We normally went through the Home Office and Foreign Min­istry and would have very quick talks with the top people and then start visits without announcing where we would go.

JW: Tell us a little bit about actual experiences. Which countries did you visit? What was memorable for you?

Professor Cassese: Turkey of course. I was President of the Committee only for four years and then I dropped out after four years because it was too exhausting. This is one of many defects. I lack detachment. I get so involved, psychologically and physically involved, that I spend all my time there. Turkey was very crucial, and for this reason we went to Turkey on four occasions. Each year we decided to go there. By contrast, during my period we went only once to the Ukraine, once to France, once to Spain, and I went to Cyprus and Greece.

JW: It’s remarkable that Turkey accepted the convention, and accepted the discipline, and accepted that you would go to visit them.

 Professor Cassese: Yes, but the rule was that this Convention was accepted by all these countries because of the political pressure by the Council of Europe. Also, because there was a clear clause in the Convention that had been suggested by the Swiss, in particular a Swiss millionaire Gautier, a very good man whose dream had been to set up such a Convention, so we realized his dream. The idea was that you go there and you follow the ICRC methods, namely you don’t disclose the results of your visit. You go there, you talk, you spend two or three or four weeks, a month visiting all the worst places in the country, and then you go back to Strasbourg to draft a detailed report with all your criticisms and suggestions. This report would be confidential and sent to the authorities, and this report would remain confidential. So, this was the basic idea. That is why all the states accepted. But then, we were rather astute and lucky. The first country we visited was the UK, and during the visit in the UK, we found a lot of rather awful things, par­ticularly in prisons. Those prisons we visited were horrifying, really dreadful. We made very nasty and critical comments. You make comments on the spot. At the end of the visit you go to visit the top ministers and say, ‘Hey look, we have just visited this place, and the most horrible things we have seen are those ones, and we make these sugges­tions, but we will go back to Strasbourg and issue a detailed report, running 100 to 150 pages.’ But in the UK, I told my colleagues, why don’t we try to be naïve and astute at the same time, ask the Minister of Foreign Affairs and Home Affairs to set an example. ‘When we send the report, why don’t you set an example and you make it public?’ When they saw that we had been critical, they said ‘We can make it public on condition that we also make public our critical comments on your report.’ I said I agreed, and the re­port was made public. After that it was very easy for us to go to other countries and say ‘Look you can’t be less democratic, and open, and transparent than the British.’ And it worked very well, except for Turkey. Turkey for six years had refused to make our reports public, and as a result, we issued our own weapon. We had this rule of confidentiality and the other weapon was that when the state fails to cooperate or implement the recommendations of the Torture Committee, then you may go public and publish a short statement. We made two public statements on Turkey in my four-year period. We also disclosed, without mentioning the particular names of places where we had found tor­ture, horrible cases of torture. Of course the Turkish government was taken aback. But in a matter of six or seven years eventually it accepted the idea of going public. So now all countries have accepted the idea of giving up the confidentiality rule, except for Russia. For the time being, I think Russia is the only country.

 JW: Let’s now get to the Tribunal for the former Yugoslavia. Tell us first about the appoint­ment process. How come you got to be appointed? How did it work in Italy?

 Professor Cassese: I had just quit the Torture Committee, so one day the Minister of Justice, who happened to be a very good Professor of Criminal Law and former Presi­dent of the Italian Constitutional Court, phoned me. I was of course extremely flattered to get a phone call from the Minister of Justice. He didn’t go through the various sec­retaries, but simply said ‘Hello Nino, how are you?’ And he said, ‘look I must appoint someone to replace you in the Torture Committee and I would like to know how much you got there because there is a man whom I would like to appoint to get rid of him, because he’s a pain in the neck, so how many thousand dollars did you get?’ And I said ‘not one penny. Actually we didn’t get any salary. So therefore tell him that he will not get any salary. You do this because you believe in fighting for human rights ‘. And he said, ‘Well I’m so sorry, anyway, I will try to convince him. By the way, since you are free now, and you are going back to academia, and you are a Professor, would you be prepared to accept to become a Judge on the International Criminal Court for the Former Yugo­slavia?’ I said, ‘Yes and I can accept being nominated by you, but of course I don’t stand any chance of being elected by the General Assembly.’ The judges are elected by the UN General Assembly after a screening process. So governments nominate judges and then the Security Council makes a screening to see whether they have the right proportions – common law countries, civil law countries, people with international experience, former judges. There were 50 people, and then the Security Council reduced this number to 25.

JW: Were there politics in that process or was there some sort of professional air? Were countries lobbying at all?

Professor Cassese: Maybe I am being naïve. I thought because I saw this secret list of peo­ple who had been nominated and how they had been selected by the Security Council, and actually I think they went for quality and political distribution. And for the first time they nominated four carefully selected people from Muslim countries, and none of them was a Muslim. One from Malaysia who was not Muslim, one from Nigeria who was a Protestant, from Pakistan he was a Farsi, and Abi-Saab from Egypt was a Coptic. So it was very strange. Probably it was made on purpose to avoid having someone who could be accused of siding with Muslims against the Croats who are Catholics or the Serbs who are Orthodox.

JW: So it went well for you in the General Assembly?

Professor Cassese: In the General Assembly, yes, only because there was an excellent ambassador who was a specialist in lobbying, Ambassador Fulci. He had tremendous power because he lobbied all the small islands. He had a lot of close links with most ambassadors so he was extremely powerful. So it was because of his diplomatic capacity that I got a lot of votes.

JW: So now you go to The Hague and you get elected as President. How did that happen?

 Professor Cassese: There were 11 in The Hague and of course we met on the 16th of November 1993 in a horrible hotel, a sort of gloomy and pompous hotel. When we met we had a nice chat and then we realized we had nothing. No facilities, no court room, no building, no money, nothing, no budget, no secretaries, no law clerks. And they told us we would meet in the building of the International Court of Justice, and there were three secretaries with three-month contracts, so most judges got scared. And I remember when I met the then Foreign Minister Pieter Kooijmans, who is now a judge on the ICJ [1997 – 2006], and whom I had known for many years because we were both experts in torture, [laughter] I mean fighting against torture. So Pieter Kooji­mans and I had met many times in official capacities. He told me ‘Nino, the two people who can be elected President are Sir Ninian Stephen [a most distinguished judge from Australia, who was really number one I think] and you.’ But Sir Stephen said he was not interested because he said, ‘I would like to suggest that we should go home and wait for the General Assembly to adopt a budget. What is our purpose of being here?’ And I said ‘No, we are here and we must fight and set up a real tribunal, and show that we can do something serious.’ So therefore some people felt it was better to have some sort of fighter instead of a more distinguished judge of great standing. He had been the Governor of Australia for many years. A great man, but probably they needed someone who could work very hard, and probably that’s why I was selected. After a few days all of them went back home. And I remember, just to give you an example, that when we were sworn in on the 17th of November in 1993, there was a formal ceremony with the UN Legal Counsel and the Secretary General, we were to wear some robes, and there were no robes, and we borrowed the robes of the Dutch Bar Association, and the French Judge, who was very pompous, he came to see me and said ‘It is outrageous, for the first time in my life that I don a gown that is neither French nor International. I am disgusted.’ He was really upset. And I said in French the equivalent of ‘beggars can’t be choosers.’ Simply like that, we have no gowns, no robes.

JW: And you are already sitting, and presumably by now you have your international gowns?

 Professor Cassese: No not yet, not until 1995. We had meetings on the colour and so on, whether the collar should be red or black. It was a lot of fun. [laughter]

JW: I remember when you were appointed, you might have forgotten it, but I was then at Harvard. And you wrote to me and said, ‘Look there are three or four legal issues I really need some research done quickly, have you got some bright students?’ It is often said that in the area of international criminal law, you either have lawyers with criminal law experi­ence but very vague ideas about international law, or vice versa. But few or no people with a good grasp of both…. What was your experience at the time?

 Professor Cassese: Well most people had criminal law experience. The Chinese judge was a judge, Judge Li, who had been legal advisor to the Foreign Ministry in Beijing, who had no judicial experience. Georges Abi-Saab and I myself had no judicial experience. The new French judge Claude Jorda had actually been a Chief Prosecutor in Bordeaux and then in Paris. He was a socialist and an excellent prosecutor, since the rightists had taken over, they wanted to get rid of him, and he told me he said, ‘I have been a Chief Prosecutor in Paris, it’s a very powerful position, with a lot of political implications, and they want to get rid of me, and they want to offer me to come over to The Hague.’ And I said ‘Of course I would be delighted if you could come’ because I knew he was a top man.

JW: Did you feel disadvantaged because you did not have criminal law experience?

 Professor Cassese: Yes of course, because I had to learn. I had already started as soon as I had been elected in September. I had begun studying, reading books and so on. Our advantage, I felt, was that we had this international dimension, international experience. The excellent judge from Pakistan, who had always been a Pakistani judge, he would always move around with his Pakistani codes of criminal procedure. On any topic we were discussing he would say ‘In Pakistan, we are doing this and that. I would suggest that we take up this rule applicable in the Pakistani law.’ But this was not a Pakistani tribunal, this was an International Tribunal. So in a way, we lacked judicial ex­perience. We were naïve, we had no competence whatsoever. Judicial experience of course is crucial. On the other hand, we were not in any way parochial. We did not have that sort of narrow-minded approach typical of somebody who has always been a judge in his own country. Probably the only one who had this international dimension was Sir Ninian Stephen because of his tremendous international experience. Therefore there was a combination of judicial experience, not so much as a criminal judge, but as a member of the High Court. When I phoned you to ask for help, I thought one of my first tasks should be to prepare a lot of background material, manuals on notions of criminal law, international criminal law, and international humanitarian law. I remember one of your best students prepared an excellent memo on Command Responsibility, with all the documents. So we got a 35-page memo with all the relevant cases, Trial in Absentia, whether or not it was possible for us to think of trials in absentia, the difference between international and internal armed conflicts. I thought that each of us should be so modest as to accept to prepare, to start doing homework. I don’t know how many judges actually read those papers, very few of them.

JW: That we will not tell my former student… [laughter]

 Professor Cassese: And also, I insisted that we people from civil law countries – there were five of us from civil law countries, five to six from common law countries – we would like to come to the UK or the US and watch trials. Actually we went to London, we came to New York, we went to Washington. There was Abi-Saab, the Egyptian, a Frenchman; and I, the Italian. We spent quite a few weeks in New York, London, and Washington just watching trials, to see how common law jury trials worked.

JW: So now in those early years, it seemed as if it could have been a frustrating experience for you because you, if anything, were getting the small fry, the Lieutenant Kellys, the Sergeant Joes, and the real big reputed war criminals were not being touched. Can you capture for us that early period?

 Professor Cassese: I think the prosecutor adopted a pyramid approach. Namely you start because you have more intelligence about the small fry and then you climb up the pyramid and then you target the leaders. At that stage, I think it was probably very difficult to right away target Milošević or Tudjman. Eagleburger, when he was still Secre­tary of State, he had made a public statement saying we have evidence that Milošević, Tudjman, Karadžić have committed crimes against humanity and war crimes. However I don’t know to what extent it was possible to start compiling evidence about those people. So we started out with Tadić, who was a minor defendant, and had been appre­hended in Germany. And the Germans from the outset were extremely cooperative. They decided immediately to hand over Tadić. We got Tadić, and Tadić was very useful because we moved on from Tadić to Karadžić and Mladić. And the Chief Prosecutor brought indictments in July of 1995 against Karadžić and Mladić. And this was crucial be­cause it was really a turning point. Later on, other prosecutors went on. It was a question of evidence. I had quite a few discussions, and had rightly been accused by Richard Gold-stone as overstepping my authority as judge, and he’s right. At the outset we thought we were to discuss generally, not cases; the judge could not discuss the case with the prosecutor. But probably the prosecutor can informally discuss the main policy of the tribunal. At that stage we discussed the various problems, and all the judges pushed a lot for the prosecutor to indict the major people. But we were aware. And I think this was a good argument put forward by Richard Goldstone, that of course for the victims, what victims say of rape, and killing of civilians and so on; it does not matter whether the defendant, the rapist, the murderer, is a leader, a general, or the political leader of the country. They want to see, this man may be a small fry. So for them, for the victims, it is crucial to make no distinction between the leader and the minor defendants.

JW: What was the most important case that you sat on?

Professor Cassese: Probably Tadić. Because I pushed so much and we exploited the Tadić case to draw as much as possible from a minor defendant to launch new ideas, and be creative. Actually, Tadić offered us the opportunity to pronounce on the legality of the Tribunal, whether the Tribunal had been set up in conformity with the law, the question of whether it would be appropriate to make a distinction between war crimes committed in internal or civil war and international conflict, and also the question of the extent to which a civil war may turn into an international war. Let me give you an example; Tadić was a Bosnian Serb who killed quite a few Bosnian Muslims. So therefore everything happened within a time frame, with Bosnia as a government. So clearly it was an internal armed conflict. At one stage in 1999, we had to decide whether Tadić had been acting as a de-facto state official acting on behalf of Milošević, turning therefore the internal conflict into an international one. I think two important positions are Tadić in 1995, where for the first time we got rid of this unacceptable dis­tinction between internal and international as far as war crimes are concerned. And in 1999 we decided on what condition somebody acting within an internal armed con­flict may in reality act on behalf of a foreign country. That’s why we took up Nicaragua and criticized the ICJ in Nicaragua. To be honest, I’m very proud of what we did with Tadić in 1995. I remember when the case was brought before the Court of Appeal, and there was a very distinguished defence counsel. They said ‘you can’t apply some rules because these alleged crimes have been committed within an internal armed conflict, and you can’t apply Article II of your statute which deals with breaches of the Geneva Convention’s manual, because these pertained to an international armed conflict.’ So we were stuck. So we said that we have no jurisdiction because this is an internal armed conflict, we can’t apply rules which only apply to international armed conflict or shall we move forward and be creative? At that point I said to my colleagues, should we stick to the traditional concept that war crimes can only be committed in international armed conflict? This to me is crazy! A rape is a rape; a murder is a murder, whether it is committed within the framework of an international armed conflict, a war proper, or a civil war. The doctrine that had been upheld by everybody, including the International Committee of the Red Cross, was that if you kill civilians, you rape women, you murder wounded POWs in an internal armed conflict – this is not a war crime. It is simply a violation, a violation of Article 3 common to the four Geneva Conventions. The conse­quence is that the soldier acting on behalf of the central authority, who rapes women belonging to the civilian population of the insurgents, will never be punished. Whereas if the rape or murder is committed by the insurgent or rebel, he will be punished be­cause he has taken up arms against the central authority. And he has no incentive to comply with humanitarian law. But because he knows that in any case he will be pun­ished for taking arms against the central authority, he goes and kills and rapes and will be punished after the war. So I said ‘why don’t we jettison this stupid distinction?’ My colleagues said ‘yes we agree with what you are saying, it’s very nice, but how can you create this criminal offence? Nino, if you can show that there is some custom in inter-national law supporting your views, we will go along with it. But try to find some sort of evidence.’ So I took six months, and set up a team. One of the best members of our team was an American girl, Betsy Andersen, who is now working somewhere in New York. And she helped me go through state practice and we came up with a lot of evidence… well some evidence. [laughter] I was delighted when I discovered cases where the Americans had complained because of what Saddam Hussein did against the Kurds in Northern Iraq and the use of chemical weapons. I thought this was an in­ternal armed conflict, something which happened within a state, and foreign countries including the United States are saying Iraqi authorities had breached International Law. That means that this is evidence and that you may one day be brought to trial. This is a very compelling piece of evidence; that some states consider that a breach of inter­national humanitarian law within a state and civil war may amount to a war crime. Of course we also looked at the laws applicable within former Yugoslavia. The International Committee of the Red Cross used to tell us to take Yugoslavia as an example of humani­tarian thrust. They were the best ones in legislating humanitarian law. So we picked up some pieces of legislation and said: if people from Bosnia and Herzegovina who have allegedly committed crimes, they are expected to know their own legislation, which was so forward looking, really one of the best ones in the world because of the broad sweeping scope. In a way, they should be expected to be aware that, say, a Bosnian Serb raping a Bosnian Muslim woman in an internal conflict, does something that cannot be condoned, which may be regarded as a criminal offence.

JW: Last week when you visited my seminar, you were speaking of something similar and said ‘Well it was illegal but legitimate.’ Maybe it helped in this case when you stretched the law that you don’t have a sense of committing a real foul injustice towards some­body. What was your hardest moment on the court? Hardest with your legal conscience, your hardest moment as a lawyer?

Professor Cassese: Not as a lawyer, but as a human being, the hardest moment was on the 16th or 17th of July when we were in The Hague, and we learned of the Srebre­nica massacre. And I told myself ‘My God, we are utterly pointless.’ I mean what was the meaning of us sitting there in The Hague; they didn’t care about us, what was our effect? I had been preaching about the important role of the ICTY, not only to put a stop to atrocities, but to deter future atrocities. But none of it had an effect because they had massacred 7500 people.

JW: Wasn’t this the case where the UN failed to intervene and stop the massacre?

 Professor Cassese: Yes. The Dutch battalion was reluctant; the major powers did not act swiftly. This was really an excruciatingly sad moment. Really you could cry. And I thought I’ m getting a salary? For what? For nothing! Because I am not being effective. And more so because I had been told a few months before by the French Ambassador, he told me that some Serb generals had met with some French generals, and because of the Tri­bunal they were getting cold feet, and they say to themselves, let us be careful because if one day we commit crimes we will end up in The Hague. This is what I had been told in 1994. But gradually they realized that we were not effective, which is why they became bold and committed horrible crimes. So this was really a very low point. I even said to myself that well probably we should pack up and go home.

JW: What was your most glorious, triumphant, or happy experience as President?

Professor Cassese: I had some good satisfactions. On the 10th of September in 1995, a Sunday, I got a phone call. I was all alone at the Tribunal working, because, you know at The Hague you have nothing to do. [laughter] So I was working and I got the phone call and someone with a heavy Russian accent asked if I could put him through to the President. And I said it’s me. And he said he was phoning on behalf of the Rus­sian Ambassador and he would like to see you. And he came ten minutes later and he said he just got a short cable from Moscow, and the short cables are the most im­portant, and the cable gave instructions to come and see you and to ask you to annul the arrest warrants issued against Karadžić and Mladić. He was a very good ambas­sador, very clever, and I said of course this could only be done by a Judge, a judge who is confirmed at the request of the chief prosecutor, and he would never do so, and I would be strongly against it as well. So therefore I told him there is no hope, but if he wished me to get in touch with Richard Goldstone, let us phone him. And of course Richard agreed with me, and I asked him to have a word with the Russian Am­bassador, and he gave a nice explanation. And at 2:15 he said goodbye and I said ‘I’m so sorry because you are nice, but my reply can’t change.’ And he said, ‘No no, I’m very happy. In Moscow they’ll realize they got, in a matter of two hours, a response from me on a Sunday, it’s high efficiency.’ [laughter] Actually because of these warrants, we prevented Karadžić and Mladić from attending first the Geneva conference and then Dayton. That was a huge satisfaction, that you in a way prevent people from attending. It was a tiny victory, but a symbolic victory.

JW: We’re almost at the end of our time. Could you tell us, looking back to the totality of your life, where do you place this experience for you? How important was it for you? A reflection of what it meant to you, that period as the President of the Tribunal?

 Professor Cassese: Well to me it was personally a great experience; first to be on the Torture Committee, and then to be on the Tribunal. For an academic who spent a lot of time work­ing and studying human rights and humanitarian law, it was of tremendous importance to see how this model of law is applied, either in various countries at prisons, detention camps, asylum seekers camps, and so on, and how humanitarian law is applied in a criminal court, and to what extent you could be creative and improve upon the existing body of law. It was a very important experience. Of course I made a lot of mistakes.

JW: What was the biggest mistake you made?

 Professor Cassese: Oh I don’t know, there were many… [laughter]

JW: One if you could, you would now change?

 Professor Cassese: I would recite to my colleagues a short story, by Bertolt Brecht, about this strange little man called Mr. Keuner and one story which was to me important. One day this small man meets someone else, and this other person asks, ‘you look terribly busy, what are you doing?’ ‘I am preparing my next mistakes.’ [laughter] Actually, I told my friends they were most welcome to attack me, because I know every day I make mis­takes. One crucial mistake I made was in Florence in July 1996 at a conference. There were about 45 foreign ministers, and I decided to go to the limit of my authority as Presi­dent. The President, I, was not only a judge, the President may be a judge when he sits in a court as the presiding judge of the appeal chamber, but he has a lot of diplomatic and political tasks to fulfil. There I said ‘I’m fed up of the misbehavior of major powers, they don’t do anything about Karadžić and Mladić.’ I prepared a statement on the need to arrest Karadžić and Mladić, and I said also you need to issue sanctions against those who have been accused by the chief prosecutor of committing some horrible crimes. I even suggested a few sanctions, and I remember a few minutes after I started talking there was a deadly silence. And then at the end I saw the presiding foreign minister was the Italian minister. He was pale and he said, ‘Well as a result of what you said, we have to reconsider our position.’ But he was really angry. And the Ambassador from Bosnia and Herzegovina came to see me and he said, ‘The Americans are furious with you because you have overstepped your authority by suggesting to politicians what to do. That’s not your job. You can’t tell the Italians, the Americans, and the French to take some sort of actions.’ On the other hand, I thought this was my moral duty, to make use of my judicial authority and as President of the Tribunal. So, at the end of the day I had mixed feelings. I was to some extent proud of what I had done, but I was also aware that this backfired. This probably was my major mistake.

JW: I have a feeling that you don’t regret it all that much. [laughter] The purpose of these sessions is not to go deeply into some fine legal point, but to get to know the person behind the name, to ‘de-reify’ as some theory-prone colleagues of mine would say, the notion of the judge, and to really see the flesh and blood. We’ve seen a great deal of that today. On behalf of all of you, I would like to thank Judge Cassese for a wonderful hour and a half. Thank you very much. [applause]

Annex: Publications of Antonio Cassese in the European Journal of International Law

The Nicaragua and Tadić Tests Revisited in Light of the ICJ Judgment on Genocide in Bosnia, 18 EJIL (2007) 649 http://www.ejil.org/pdfs/18/4/233.pdf

When May Senior State Officials Be Tried for International Crimes? Some Comments on the Congo v. Belgium Case, 13 EJIL (2002) 853 http://www.ejil.org/pdfs/13/4/1564.pdf

Terrorism is Also Disrupting Some Crucial Legal Categories of International Law, 12 EJIL (2001) 993 http://www.ejil.org/pdfs/12/5/1558.pdf

The Martens Clause: Half a Loaf or Simply Pie in the Sky?, 11 EJIL (2000) 187 http://www.ejil.org/pdfs/11/1/511.pdf

A Follow-up: Forcible Humanitarian Countermeasures and opinio necessitates, 10 EJIL (1999) 791 http://www.ejil.org/pdfs/10/4/610.pdf

The Statute of the International Criminal Court: Some Preliminary Reflections, 10 EJIL (1999) 144 http://www.ejil.org/pdfs/10/1/570.pdf

Ex iniuria ius oritur: Are We Moving Towards International Legitimation of Forcible Humanitarian Countermeasures in the World Community?, 10 EJIL (1999) 23 http://www.ejil.org/pdfs/10/1/575.pdf

On the Current Trends towards Criminal Prosecution and Punishment of Breaches of International Humanitarian Law, 9 EJIL (1998) 2 http://www.ejil.org/pdfs/9/1/1477.pdf

The Israel-PLO Agreement and Self-Determination, 4 EJIL (1993) 564 http://www.ejil.org/pdfs/4/1/1219.pdf

Ian Brownlie, Treaties and Indigenous Peoples (book review), 4 EJIL (1993) 129 http://www.ejil.org/pdfs/4/1/1187.pdf

James Crawford, The Rights of Peoples (book review), 4 EJIL (1993) 132 http://www.ejil.org/pdfs/4/1/1190.pdf

Realism v. Artificial Theoretical Constructs: Remarks on Anzilotti’s Theory of War, 3 EJIL (1992) 149 http://www.ejil.org/pdfs/3/1/1172.pdf

Can the Notion of Inhuman and Degrading Treatment be Applied to Socio-Economic Conditions?, 2 EJIL (1991) 141 http://ejil.oxfordjournals.org/content/2/1/141.full.pdf + html

Remarks on Scelle’s Theory of “Role Splitting” (dédoublement fonctionnel) in Inter­national Law, 1 EJIL (1990) 210 http://www.ejil.org/pdfs/1/1/1126.pdf

Places of Worship: Piazza Duomo Milano

The experiment continues. This issue’s Last Page features a poem by Jonathan Shaw, On Reading Horace Odes 3.2 with Rusty Latin. For the most part we have had very positive reactions to both the Last Page poems, and to Roaming Charges. I would be worried if the reactions were universally favourable. Blandness we do not like at EJIL. As far as the Last Page is concerned, I make another plea – Poets of the World (of inter­national law) Unite! Send us your poems; encourage others to do so.

Roaming Charges still perplexes some: Nice photos, but how exactly does it relate to International Law? To EJIL? First, give yourself some time. As the series continues, the picture will begin to emerge. We deal in EJIL with the world we live in. Often with its worst and most violent pathologies; often with its most promising signs of hope for a better world. But, inevitably, since our vehicle is scholarship, we reify this world. Roaming Charges is designed not just to offer a moment of aesthetic relief, but to remind us of the ultimate subject of our scholarly reflections: we will be alternating between photos of places – the world we live in – and photos of people – who we are, the human condition. We eschew the direct programmatic photograph: people shot up; the ravages of pollution and all other manner of photo journalism. As we roam around the world we aim for images which charge us – please and challenge, even irritate at the same time – photos which have some ambiguity, are edgy and relate in an indirect way, both to the current circumstance but also to the permanent and enduring. We would welcome photo submissions from our readers too!

In our occasional series, Critical Review of International Jurisprudence, Sonia Morano-Foadi and Stelios Andreadakis reflect on the potential of the EU Charter of Fundamental Rights and the EU’s accession to the European Convention of Human Rights to achieve a more harmonious and convergent human rights system in Europe, based on a careful study of the divergent approaches of the ECJ and the ECtHR in the specific area of expulsion/deportation of third country nationals from the European territory.

In our rubric Critical Review of International Governance, Abigail Deshman sets out to identify the questions raised and the answers provided by a rare case of horizontal review between international organizations: the Parliamentary Assembly of the Council of Europe’s criticisms of the transparency and accountability of the World Health Organization during the H1N1 pandemic.

Two EJIL: Debates! this time. The first, between Roda Mushkat and Kevin Tan, revolves around an analysis of the process leading to the signing of a path-breaking agreement between China and the United Kingdom regarding the future of Hong Kong, offering insights on the development of governance systems that regulate com­plex interaction between states. In the second debate, Bas Schotel, responding to the article by Sarah Nouwen and Wouter Werner published in 21:4 EJIL (2010), focuses on the use or abuse of law by the International Criminal Court in recent cases through its portrayal of parties to a conflict as an ‘enemy of mankind’.

Impressions, our book review rubric which invites distinguished scholars to reflect on a book that strongly influenced their intellectual development, continues in this issue with a contribution by Philip Allott (see free full text here). In precisely the spirit of Impressions, Allott starts his reflections with the statement: ‘A book can change a mind, but only if that mind is ready to be changed.’ He then goes on to illustrate this point by recounting the long-lasting impression Plato’s Republic made on him.

The table of contents of this new issues is below:

European Journal of International Law

Vol. 22 (2011) No. 4

Contents

Editorial: Nino – In His Own Words; In this Issue; The Last Page and Roaming Charges 931

Articles

Jaye Ellis, General Principles and Comparative Law 949

Thilo Rensmann, Munich Alumni and the Evolution of International Human Rights Law 973 Anastasios Gourgourinis, General/Particular International Law and Primary/Secondary Rules: Unitary Terminology of a Fragmented System 993

Daphné Richemond-Barak, Regulating War: A Taxonomy in Global Administrative Law 1027

Critical Review of International Jurisprudence

Sonia Morano-Foadi and Stelios Andreadakis, The Convergence of the European Legal System in the Treatment of Third Country Nationals in Europe: The ECJ and ECtHR Jurisprudence 1071

Critical Review of International Governance

Abigail C. Deshman, Horizontal Review between International Organizations: Why, How, and Who Cares about Corporate Regulatory Capture 1089

Roaming Charges: Places of Worship: Piazza Duomo Milano 1115

EJIL: Debate!

Roda Mushkat, The Dynamics of International Legal Regime Formation:

The Sino-British Joint Declaration on the Question of Hong Kong Revisited 1119

Kevin Y. L. Tan, The Dynamics of International Legal Regime Formation: The Sino-British Joint Declaration on the Question of Hong Kong Revisited: A Reply to Roda Mushkat 1145

Roda Mushkat, The Dynamics of International Legal Regime Formation: The Sino-British Joint Declaration on the Question of Hong Kong Revisited: A Rejoinder to Kevin Tan 1149  

EJIL: Debate!

Bas Schotel, Doing Justice to the Political. The International Criminal Court in

Uganda and Sudan: A Reply to Sarah Nouwen and Wouter Werner 1153

Sarah M. H. Nouwen and Wouter G. Werner, Doing Justice to the Political: The International Criminal Court in Uganda and Sudan: A Rejoinder to Bas Schotel 1161

Impressions

Philip Allott, On First Understanding Plato’s  Republic 1165

Book Reviews

Antonio Cassese, Five Masters of International Law: Conversations with R-J Dupuy, E Jimenez de Arechaga, R Jennings, L Henkin and O Schachter (Jan Klabbers) 1175

Sir Hersch Lauterpacht, The Function of Law in the International Community

(Isabel Feichtner) 1177

Samantha Besson and John Tasioulas (eds), The Philosophy of International Law (Isabelle Ley) 1180

Peter G. Danchin and Horst Fischer (eds), United Nations Reform and the New Collective Security; Spencer Zifcak, United Nations Reform: Heading North or South? (Anne-Laurence Graf-Brugère) 1184

Gerd Hankel, Das Tötungsverbot im Krieg (Sigrid Mehring) 1189

Olivier Corten, The Law Against War (Irène Couzigou) 1193

Jane McAdam (ed.), Climate Change and Displacement. Multidisciplinary Perspectives (Jenny Grote Stoutenburg) 1196

Peter H. Sand, Atoll Diego Garcia: Naturschutz zwischen Menschenrecht und Machtpolitik (Ebrahim Afsah) 1200

Gregory C. Shaffer and Ricardo Meléndez-Ortiz (eds), Dispute Settlement at

the WTO: The Developing Country Experience (Mary E. Footer) 1204

Rüdiger Wolfrum, Peter-Tobias Stoll and Holger P. Hestermeyer (eds), WTO: Trade in Goods (Sungjoon Cho) 1209

Michael P. Scharf and Paul R. Williams, Shaping Foreign Policy in Times of

Crisis: The Role of International Law and the State Department Legal Adviser

(Andre Stemmet) 1211

Giuseppe Martinico and Oreste Pollicino (eds), The National Judicial Treatment of the ECHR and EU Laws. A Comparative Constitutional Perspective (Alessandro Chechi) 1214

Briefly Noted

Ulrich Fastenrath, Rudolf Geiger, Daniel-Erasmus Khan, Andreas Paulus, Sabine von Schorlemer and Christoph Vedder (eds), From Bilateralism to Community Interest. Essays in Honour of Judge Bruno Simma (Alexandra Kemmerer) 1218

The Last Page

Jonathan Shaw, On Reading Horace Odes 3.2 with Rusty Latin 1219

]]> http://www.ejiltalk.org/ejil-22-issue3-is-out-in-this-issue/feed/ 1 http://www.ejiltalk.org/antonio-cassese-1-january1937-22-october-2011-rip/ http://www.ejiltalk.org/antonio-cassese-1-january1937-22-october-2011-rip/#comments Mon, 24 Oct 2011 09:52:30 +0000 Prof. Joseph Weiler http://www.ejiltalk.org/?p=3922 The Editor-in-Chief, the Board of Editors, the Scientific Advisory Board and the entire EJIL family mourn the death of Antonio Cassese, a founding Editor of the European Journal of International Law. Nino Cassese played a decisive role not only in the establishment of EJIL but also in its continuous evolution and success. He was a regular contributor to EJIL, some of his articles becoming iconic. An illustrious jurist, judge and teacher, he will be remembered for his profound humanity and generosity of spirit. We extend our heartfelt condolences to the family.

JHHW

Messages of condolence from EJIL authors and readers sent to ejil {at} eui(.)eu will be forwarded to the family.

The Resolution called for, inter alia, the creation of two states, the internationalization of Jerusalem and … wait for it … an economic Union within the whole territory! ‘De Facto Solidarity’ was not, apparently, invented with the Schuman Declaration.

Arab states spoke forcefully against the Resolution and, obviously, voted against it en bloc.  Not only did they not recognize Israel in the sense of declining diplomatic relations – they argued the very illegitimacy of Israel as a state. In furtherance of this position, in the lawfare (only the term is new, not the praxis) that immediately erupted, Arab scholars spent much ink on dismissing any legal significance to that Resolution – essentially arguing the general non-binding nature of General Assembly resolutions. (You don’t see that argument about UNGA Resolution 181 being made too often today by the Arab protagonists in the ongoing lawfare.)

Many Israeli scholars readily conceded the point. Indeed, they argued, it was not within the power of the General Assembly as such legally to sanction the creation of a new state, though, of course, the Resolution was politically very important. Israelcame into being, it was argued, when it declared independence on 15 May 1948 upon termination of the British Mandate over Palestine. The birth of the new state under international law was the result, it was claimed, of the widespread and representative recognition of it by the states of the world community. On this reading, Israel came into being not on the morrow of the November 1947 Partition Resolution, but in May 1948. Politically, the timing of the declaration of independence was not without internal Israeli controversy, with some noted intellectuals, a minority (among them Martin Buber) seeking some kind of settlement talks with the Arabs before taking that decisive step. Equally interesting was the content of the Declaration. It embraced, inter alia, the UN Partition Plan: 

THE STATE OF ISRAEL is prepared to cooperate with the agencies and representatives of the United Nations in the implementation of the Resolution of the General Assembly of November 29, 1947, and will take steps to bring about the economic union over the whole of Eretz-Israel. (see here)

 The Arab invasion of Israel on the morrow of the Declaration put an end to all of that. There is much historical controversy regarding that period and like most literature about the Conflict you can guess the conclusion simply by looking at the name. Many scholars are, demoralizingly, both partisan and entrenched in their views.  But legally speaking, I have no doubt in my mind that had the nascent Palestine declared its independence at the same time as Israel did, it would have been recognized by an even greater number of world states, and Palestine would have been born then and there in the now defunct Partition boundaries. Even if this would not have prevented the war of the Arab states against Israel, the outcome of that war would not have been an Armistice Agreement with Jordan but with Palestine. Why did this not happen? I leave that to the historians to duke out. Still, one cannot but express some sadness given the last 60 years and more of bloodshed.

 Israel’s first bid to become a Member of the UN in the Autumn of 1948 failed in the Security Council. It was only a year after its establishment, in May 1949, that Israelwas admitted to the UN (UNGA Resolution 273 of 11 May 1949).

It is clear, thus, that one should not conflate admission to the UN with the birth of a new state. Admission to the UN is, of course, the most emphatic proof of statehood (though the Taiwan mess is a reminder that even the most perspicacious propositions can have some cloudiness), but it is not necessary. Statehood without membership has not been all that uncommon in the history of the Organization. Israel was a state before it was admitted to the UN.

It is also curious to see that the debate between the declaratory and constitutive schools of recognition still rages both in the literature and in the practice and statements of states. (I find the Lauterpacht solution as unconvincing today as it was when he articulated it, though it too, strangely, has not yet been fully interred.)  If one is to take an empirical and legal realist approach, it would seem that the birth of states is not all of the same cloth. In some situations, such as decolonization, recognition is, indeed, declaratory. But in more controversial situations, want it or not, recognition, widespread and representative, if not ontologically constitutive, is legally a necessary condition. It is really hard to explain the different paths of, say, Bangladesh and the Turkish Republic of Northern Cyprus with any other hypothesis. Does anyone doubt that if the TRNC had received widespread recognition it would have been a member of the club?

And so it was with Israel, and so it is and will be with Palestine. I refer you to the exchange in EJIL in 1990 between Francis Boyle (see here) and James Crawford (see here) following the 1988 Palestinian declaration of independence. In determining the subsequent legal status of ‘Palestine’, from a legal realist perspective, all legal arguments become secondary in the face of the practice of recognition/non-recognition. Had there been widespread and representative recognition at that time, it would have been Palestine, not ‘Palestine’. Justly or unjustly, that recognition was not forthcoming, and a birth turned into a miscarriage.

 To judge from press reports the Palestinian Authority is planning a different approach to that of Israel. It appears that they plan to collapse the process into one step – seeking admission to the UN and folding recognition into that vote. It is a somewhat risky policy. If successful and Palestineis admitted, its statehood would be confirmed ipso facto and ipso jure. Likewise, even if unsuccessful, one should, legally, be able to count all favourable votes on admission, as a priori recognition. (How could you vote for admission without implying recognition?) However, how would one assess the no votes – against recognition? Against membership? And would not failure to be admitted be interpreted as failure to achieve statehood? Never a dull moment in the Middle East.

An Annual Junior Faculty Forum for International Law is a new and much needed venture in the international law calendar to be convened by Dino Kritsiotis, Professor of Public International Law at the Universityof Nottingham, Anne Orford, Michael D. Kirby Professor of International Law at the Universityof Melbourne, and myself. The Forum is designed as an annual event to allow international legal scholars, in the first six years of their academic career, an opportunity to discuss a working paper, idea or set of arguments, by being paired with a senior scholar in the field of international law who will be assigned to comment on the paper when it is presented to the Forum. The inaugural Forum will be hosted by the Jean Monnet Center for International and Regional Economic Law & Justice at NYU. It will take place in New York City in May 2012, and, to mark the importance of this initiative, selected presentations from the inaugural Forum will be invited to appear in EJIL.  Full details and application procedures may be found at www.annualjuniorfacultyforumil.org

The Last Page and Roaming Charges

We have had nice reactions (not by everyone) to The Last Pages and Roaming Charges. I would like to remind those of our readers who also dabble in poetry or photography not to hesitate and submit their work for consideration. Kindly email: ejil{at}eui.eu.

Eric Stein RIP

It is with infinite sadness that we mark the passing of Eric Stein, my friend and mentor of many years. As a scholar Eric made signal contributions to the fields of International, comparative and European law. His career spanned the vital moments of  the 20th century: a Jewish escapee  fromCzechoslovakiato theUSAhe served with the American Army inEurope, was involved with both the nascent UN and then, prophetically, with the nascent project of European Integration. As a human being, his life, alongside his wife Virginia, was rich and marked by an uncommon generosity of spirit and endless intellectual curiosity and energy. He died a young 98 years old. In our Last Page we publish a Poem written by Eric Stein.

In our occasional series, The European Tradition in International Law, orchestrated for this issue by Christian Tams, tribute is paid to the singular life and work of the international scholar and political activist: Walther Schücking. Following Christian Tam’s Introduction, Frank Bodendiek, Mónica García Salmones, Ole Spiermann and Jost Delbrück depict a vibrant portrait of Schücking’s multi-faceted life: the scholar, the idealist, the judge, in other words: the intellectuel engagé.

To follow, we invite you to pause for a moment and contemplate Roaming Charges: Moments of Dignity – Polish Youth on Warsaw’s Pilsudski Square.

Our journey in international law continues with two occasional series: Critical Review of International Governance and Critical Review of International Governance and Jurisprudence. The first features an article by Ronagh McQuigg, who seeks to answer the ever-green question: ‘How Effective is the United Nations Committee Against Torture?’ In the second, Stefano Piedimonte Bodini examines the legal implications of anti-piracy operations within the framework of the European Convention on Human Rights.

In this issue’s EJIL: Debate!, Alexander Orakhelashvili replies to Dapo Akande and Sangeeta Shah’s objection – which they formulated within the framework of a symposium on sovereign immunity published in EJIL issue 21:4 (2010) – to his position that a state engaging in violations of jus cogens has no entitlement under international law to claim immunity before foreign courts. The rejoinder offered by Dapo Akande and Sangeeta Shah shows that the conceptualization of state immunity, beyond the question of primacy of jus cogens over state immunity, is in itself an issue open to debate that EJIL is happy to host. This, in our view, is one of those occasions where we are reassured that the debate format can yield results which otherwise would be hard to come by.

In this issue we publish a Review Essay by Reut Yael Paz that touches on a son’s captivating account of the life of his father, both being eminent international lawyers: Elihu Lauterpacht’s The Life of Sir Hersch Lauterpacht. Furthermore, for the first time, we publish a more comprehensive Literature Review Essay by Stephan W. Schill on the literature and sociology of international investment law.

The  issue concludes with the poem The Poplars of East and West by the late Eric Stein

We are always open to suggestions from our readers and authors who would like to propose interesting symposia and serve as ‘curators’.

In our occasional series, The European Tradition in International Law, it is the heritage of the late French international lawyer, René-Jean Dupuy, that is analysed. Pierre-Marie Dupuy (a founder of EJIL) opens with a vibrant portrait of his father’s intellectual legacy in counterpoint with that of another giant of international law, his friend Wolfgang Friedmann. Alix Toublanc, Evelyne Lagrange and Julien Cantegreil, representing the French new international scholarship, then explore René-Jean’s Dupuy’s contribution to the shaping of contemporary international law and an understanding of its challenges.

In this issue we feature one central article: Steven Ratner’s important piece concerning the International Committee of the Red Cross’ strategies to foster compliance with the laws of war. It is part of a new interest in, and approach to, the question of compliance, an instance of which in the field of human rights we noted  in an article by Ryan Goodman some time ago. Ratner’s article repays careful study.

In this issue’s EJIL: Debate! Susan Marks and Steven Wheatley return to the challenges posed by the ideal of democratic legitimacy as applied to contemporary global governance through international law. Jean d’Aspremont, in his reply to Susan Marks, cannot but reassert the troubled and troubling democratic credentials of international law.

Take note of the Review Essay by Michael Waibel, reviewing six different books which have as their common objective the demystification of treaty interpretation: Carlos Fernández de Casadevante Romani, Sovereignty and Interpretation of International Norms; Richard Gardiner, Treaty Interpretation; Robert Kolb, Interprétation et création du droit international. Esquisse d’une herméneutique juridique moderne pour le droit international public ; Ulf Linderfalk, On the Interpretation of Treaties. The Modern International Law as Expressed in the 1969 Vienna Convention on the Law of Treaties; Alexander Orakhelashvili, The Interpretation of Acts and Rules in Public International Law; and Isabelle Van Damme, Treaty Interpretation by the WTO Appellate Body.

Our hope is to privilege this form of Review Essay covering different books (in different languages!) and encourage interested reviewers to write to our Book Review Editor to discuss future such projects.

Impressions – Karl Doehring RIP

Karl Doehring, the distinguished German international lawyer, passed away on 24 March  in Heidelberg. I got to know him years ago, at the beginning of my career, when I spent a semester as a Humboldt Fellow at the Max Planck in Heidelberg. It was an interesting experience. The highlight of the week was the famous Referentenbesprechung which confirmed, in part at least, some of our fast-held caricatures of Germany. It was impressively, enviably, oh so serious. That’s what academic discourse should be, week in week out. It was also impressively, laughably, hierarchical. The order of intervention was as rigid as an invitation list to a ball in the court of Louis XIV. I was young, and worse, foreign and, worse still with poor German – the lowest in the pecking order.  It was a bit familiar – as the fifth child among six, one is trained to fight for one’s place at the table. You would think that I would not even be a blip on the Doehring radar. Quite the opposite:  he took a surprising interest in me and we had many (a combative) conversation. He seemed to like sparring with me. It was flattering. He took me seriously. He was genuinely interested in what I had to say. I was to learn that throughout his academic career he took a similar interest in younger scholars. He was very conservative – which required courage in the politically correct milieu of  international lawyers. I respected him for that too. I was fascinated by his military career during World War II. He talked about it openly and naturally. He had nothing to hide.

It turns out that in this issue we may be publishing the last thing that Karl Doehring wrote. In our book review section we are starting an occasional new rubric, Impressions. With Impressions, as the name indicates, we wish to provide a forum for a more per­sonal, historical-contextual approach to book reviewing. We have asked some of our older, possibly wiser, scholars of public international law to revisit a book which very much influ­enced their thinking, a book that indeed made a lasting impression on them. Rather than presenting a critical assessment of the book, our reviewers will be asked to offer personal reflections on the impact a book has had on their own think­ing as well as its past and continued relevance for public international law scholarship.

Karl Doehring opens this series writing on Georg Dahm’s Völker­recht. Dahm’s book is everything that Doehring says about it, which goes to show that even a disgusting human being, as Dahm turned out to be during the Nazi period, can produce a first-class book. History is full of such. But Karl Doehring (and his family) who faced the same temptations and seductions which Dahm faced, and resisted them, is proof that even in the most difficult of times, one can acquit oneself with honour and dignity.

 Roaming Charges

If you are holding EJIL in your hands, you will not be able to miss Roaming Charges: Berlin. After all, when is the last time you found two full-size colour photographs in a learned journal? Roaming Charges, like the poem on our Last Page, is to be a new feature of EJIL aimed at enhancing that ‘book experience’ – a moment of reflection as well as aesthetic pleasure disconnected from any specific research interest and the usual cerebral activity of reading a learned article. It will feature different locales or scenes from around the world, which, in their way, have something to say – without words – about our present condition. ‘Roaming’,  ‘Charges’, and those irritating ‘Roaming Charges’ – the title of this feature  was chosen because of the multiple and at times conflicting meanings, feelings and associations the words, jointly and severally, evoke and which we hope to capture in our choice of photographs. Take a moment – enjoy, reflect. If you are online, pause before the next click.

The Last Page

We conclude with a poem, Midas, by Laura Coyne.

The European construct has played a decisive role in the history of the last 60 years. It has created the framework for post-war reconstruction and has ingeniously provided the inspiration and mechanisms for a historical reconciliation between nations which hitherto had gone to war with each other – the horrors of which surpass even the worst of today’s excesses –  in every generation for the previous two centuries.  This cannot but give inspiration and a sliver of hope in the face of our own intractable conflicts. The European Coal and Steel Community, the 60th Anniversary of which we mark this year, incorporated the Schuman Declaration and combined peace and prosperity in its blueprint, whereby peace was to breed prosperity and prosperity was to consolidate peace. It has all worked out splendidly – revisionist history notwithstanding. Europe has also been a catalyst (not more) – at times the ‘prize’ – for the achievement and subsequent consolidation of democracy, first in Greece, Spain and Portugal, and later across Eastern Europe.

It is against this most consequential background that we must assess the current circumstance of Europe. It is at a nadir which one cannot remember for many decades and which, various brave or pompous or self-serving statements notwithstanding, the Treaty of Lisbon is not about to redress.

Let me mention what in my view are the three most pressing and profound manifestations of the current weakness, some would say crisis, of  Europe. 

1.  Democracy, or rather the partial absence of which, continues to beset the Europe of 27. The manifestations of the so-called Democracy Deficit are persistent and no endless repetition of the powers of the European Parliament will remove them. In essence it is the inability of the Union to develop structures and processes which adequately replicate at the Union level even the imperfect habits of governmental control, parliamentary accountability and administrative responsibility that are practised with different modalities in the various Member States. Even the basic condition of Representative Democracy that at election time the citizens ‘…can throw the scoundrels out’  – that is, replace the Government – does not operate in Europe. The form of European Governance, indeed Governance without Government, is – and will remain for a considerable time, perhaps forever – such that there is no ‘Government’ to throw out. Dismissing the Commission by Parliament (or approving the appointment of the Commission President) is not quite the same, not even remotely so. Startlingly, political accountability of Europe is surprisingly weak. In European governance, who has ever paid a real price for failure (rather than misconduct)?

Likewise, at the most primitive level of democracy, there is simply no moment in the civic calendar of Europe where the citizen can influence directly the outcome of any policy choice facing the Community and Union in the way that citizens can when choosing between parties which offer sharply distinct programmes. The political colour of the European Parliament hardly gets translated into the legislative and administrative output of the Union. The Political Deficit, to use the felicitous phrase of Renaud Dehousse, is at the core of the Democracy Deficit. The Commission, by necessity, cannot be ‘partisan’, neither can the  Council, by virtue of the haphazard political nature of its composition. So where does that leave us?  Democracy without Politics? Is that not an oxymoron? Thus the two most primordial norms of democracy, the principle of accountability and the principle of representation are compromised in the actual practices of the Union.

Further, as more and more functions move to Brussels, the democratic balances within the Member States have been disrupted by a strengthening of the ministerial and executive branches of government. Certain groups are privileged and others underprivileged. The value of each individual in the political process has inevitably declined, including the ability to play a meaningful civic role in European governance.

2.        The second weakness is a manifestation of an equally persistent and at times shameful European lack of both capacity and resolve (and a lack of resolve to have capacity) to defend and protect the values it professes to hold most dear. It is only our propensity for amnesia which enables us to avoid this problem – to look in our collective mirror without shame. Consider the evidence. In the 1990s, in the heart of Europe, not even 500 km from Rome, for the second time in the same century, Europe allowed that which one had vowed would never be allowed to happen again, something the European Construct was meant to guarantee would never happen again: the genocide (so qualified by the World Court in The Hague) of a non-Christian religious minority. When finally the endless talking came to an end and the resolve was found to prevent the Bosnian genocide from repeating itself in Kosovo, Europe discovered that it had no capacity and, once again, the ‘cavalry’ from across the Atlantic had to be called in. Europe alone could not plan, target, let alone execute, this relatively simple operation. The numbers tell the sad story. Each of the European states participating in the action to prevent a Kosovar humanitarian disaster executed at most several hundred aerial sorties. The Americans executed in excess of ten thousand.

Kosovo represents, in my eyes, a deeper failure. I refer to the Srebrenica incident where Dutch soldiers within reach, and with full knowledge of the worst atrocity of that war, did not intervene to put a stop to it. Make no mistake: these could have been Italian or British soldiers or soldiers from any other of our Member States. And make no second mistake: these immobile soldiers were, like all of us, firm believers in human rights, solidarity and all the other values we profess from morning to evening. Their values were just fine. It is their virtue, our virtue, which was lacking. They lacked the courage that is born from a conviction that some things, like preventing a mass slaughter of the innocent for the simple reason that they do not share your faith, is worth dying for, is worth killing for. They are the product of a culture in which it would appear that nothing is worth dying for or killing for, and if it is, it should be others who do the dying and killing.

If anyone wants to entertain the illusion that Kosovo was an aberration, we now have Libya with a repetition of at least part of the Kosovar pathology: without massive American military involvement, Europe, let us be clear, would have simply been unable to undertake any action in so-called Mare Nostrum.

It is not only a question of arms. All the Lisbon efforts to strengthen and give coherence to the international manifestation of European Union were shown up in their embarrassing poverty. Not only was it the expected absenteeism from the Libyan crisis management of the European Presidents (we now have two, no less!)  and its ‘Foreign Minister’ replaced by the usual Member State leaders – Merkel, Sarkozy and Cameron (with an embarrassing, if understandable, reluctance to involve the Italian government; Spain has long disappeared as a serious international player) – but even these leaders were unable to find an accord and the world was treated to a divided vote among the pillars of European integration within the Security Council. I recommend placing a bet with some London bookie on the chances of Germany gaining a seat on the Security Council. A penny might win you a million.

3.   The third and final manifestation of the current sad European circumstance is the evidence of a continued slide in the legitimacy and mobilizing force of the European construct and its Institutions. I pass over some of the uglier manifestations of European ‘solidarity’ both at governmental and popular level as regards the Euro-crisis and look instead at two deeper and longer-term trends. The first is the extraordinary decline in voter participation in elections for the European Parliament. In Europe as a whole the rate of participation is below 45 per cent, with several countries, notably in the East, with a rate below 30 per cent. The correct comparison is with political elections to national parliaments where the numbers are considerably higher. What is striking about these figures is that the decline coincides with a continuous shift in powers to the European Parliament, which today is a veritable co-legislator with the Council. The more powers the European Parliament gains, the greater popular indifference to it – and this is the presumed vox populi.

No less worrying is a seemingly contagious spread of ‘Anti-Europeanism’ in national politics. What was once an ‘English disease’ seems to have taken root in several other Member States where political capital is to be made among non-fringe parties by anti-European advocacy. Here is another case of amnesia. We seem to have air brushed out of our historical consciousness the rejection of the so-called European Constitution, an understandable amnesia since it represented a defeat of the collective political class in Europe by, yes, the Vox Populi, albeit not speaking through, but instead giving a slap in the face to, the European Institutions.

II

I want to offer some reflections on these three manifestations of this European circumstance. But first, some words of caution. There are many factors which explain complex political and social phenomena of the type I have described above. In my reflection I will not be offering ‘the explanation’ since, indeed, there is no single explanation, but rather one factor which to my mind has not received sufficient attention, namely political and institutional culture, and especially what is, in my view, the abiding effect of the early political culture of the Union. I want to identify, in particular, two signal early features of that political culture.

In analysing the legitimacy (and mobilizing force) of the European Union in particular against the background of its persistent democracy deficit, political and social science has long used the distinction between Process Legitimacy and Outcome Legitimacy (aka input/ouput, process/result, etc). The legitimacy of the Union more generally and the Commission more specifically, even if suffering from deficiencies in the democratic process, are said to rest on the results achieved – in the economic, social and, ultimately, political realms. The idea hearkens back to the most classic functionalist and neo-functionalist theories – ‘James, please clear up that Spillover….’

But there is a third type of legitimation which, in my view, played for a long time a much larger role than is currently acknowledged. We may call this destiny legitimation, or mission legitimation or, more colourfully, Political Messianism. The justification for action and its mobilizing force, derive not from process, as in classical democracy, or from result and success, but from the ideal pursued, the destiny to be achieved, the Promised Land waiting at the end of the road. In messianic visions the End always trumps the Means. Mark Mazower, in his brilliant history and historiography of 20th-century Europe (Dark Continent –Europe’s Twentieth Century, 1998), shows how the Europe of Monarchs and Emperors which entered World War I was often rooted in a political messianic narrative in various states (in Germany, and Italy, and Russia and even Britain and France). It then oscillated after the War towards new democratic orders,  that is a shift to process legitimacy, which then retreated back into new forms of political messianism in Fascism and Communism. As it oscillated back after World War II it would seem that an interesting choice was made, not often noted.

On the one hand, the Western states, which were later to become the Member States of the European Union, became resolutely democratic, their patriotism rooted in their new constitutional values, narratives of glory and empire abandoned and even ridiculed, and messianic notions of the state losing all appeal. And yet, their common venture, European Integration, was in fact a political messianic venture par excellence. The hallmarks are easily detected as we would expect in its constitutive document, the Schuman Declaration. It is manifest in what is in the Declaration and, no less importantly, in what is not therein. Nota bene: European integration is nothing like its European messianic predecessors – that of monarchies and Empire and later Fascism and Communism. It is liberal and noble, but politically messianic it is nonetheless.

The rhetoric speaks for itself:

World peace cannot be safeguarded without the making of creative efforts proportionate to the dangers which threaten it….

The contribution which an organised and living Europe can bring to civilisation is indispensable …

…a first step in the federation of Europe [which] will change the destinies of those regions which have long been devoted to the manufacture of munitions of war…

[A]ny war between France and Germany becomes not merely unthinkable, but materially impossible. 

This production will be offered to the world as a whole without distinction or exception… 

[I]t may be the leaven from which may grow a wider and deeper community between countries long opposed to one another by sanguinary divisions.

It is noble, inspiring, Churchillian one might even say, with a tad of irony. Some old habits, such as the White Man’s Burden and the Missionary tradition, die hard:

With increased resources Europe will be able to pursue the achievement of one of its essential tasks, namely, the development of the African continent.

It is a compelling vision that has animated generations of European idealists, where the Ever Closer Union Among the People of Europe, with peace and prosperity an icing on the cake, constitutes the beckoning Promised Land. It is this compelling vision which explains in part why for so long the Union could operate without a veritable commitment to the principles it demanded of its aspiring Members – democracy and human rights. They had to become Members of the European Convention of Human Rights, but not the Union itself. They had to prove their democratic credentials, but not the Union itself. The difficult path to (partial) democracy is not accidental, if we examine the Declaration with an eye, this time, to what is not to be found in its magisterial narrative. 

In its original and unedited version it is quite elaborate in operational detail. But you will find neither the word democracy, nor human rights. It’s a Let’s-Just-Do-It type of programme animated by great idealism (and a goodly measure of good old State Interest, as a whole generation of historians, such as Alan Milward and Charles Maier among others, has demonstrated). The European Double Helix has from its inception been Commission and Council: an international (supposedly) a-political transnational administration/executive (the Commission) collaborating not, as we habitually say, with the Member States (Council) but with the Governments, the Executive Branch of the Member States, which for years and years had a forum that escaped in day-to-day matters the scrutiny of any parliament, European or national.  Democracy is simply not part of the original vision of European Integration.

Shocking? Is it altogether fanciful to tell the narrative of Europe as one in which ‘doers and believers’ (notably the most original of its Institutions, the Commission, coupled with an empowered executive branch of the Members States in the guise of the Council and COREPER), an elitist (if well-paid) vanguard, were the self-appointed leaders from whom grudgingly, over decades, power had to be arrested by the European Parliament? And even the European Parliament has been a strange vox populi. For hasn’t it been, for most of its life,  a Champion of European Integration, so that to the extent that, inevitably, when the Union created fears (only natural in such a radical transformation of European politics) the European Parliament did not feel like the place that citizens would go to express those fears and concerns.

In the face of all this it seems to me rather plausible that a huge part of the legitimating and mobilizing force of Europe derived from its Messianic vision for, after all, results and outcomes would takes years and even decades to materialize and operate as legitimating agents.

But that very fact must be part of the explanation of the decline in European legitimacy and mobilizing pull which is so obvious in the current circumstance. It is part of the phenomenology of political Messianism. It always collapses – in part because of its success. The European construct is decidedly a victim of its spectacular success in the realms of prosperity and peace where the Promised Land has already been entered. Just as Paradise becomes such only when it is Lost, it is the Promise, that which one does not have, which makes the Land alluring. And once the Land has been entered, reality never matches the dream. The emblematic manifestation of this is the difference between the 868 inspiring words of the Schuman dream and the 154,183 very real words of the (defunct) European Constitution. If political Messianism is not rapidly anchored in the legitimation that comes from popular ownership, it rapidly becomes alienating and, like the Golem, turns on its creators.

Democracy was not part of the original DNA of European Integration. It still feels like a foreign implant. With the collapse of its original political Messianism, the alienation we are now witnessing is only to be expected.        

 III

The second story, brief and rude, is usually considered a historical curiosity, but it, too, had a profound effect on the political culture of the Union and European Integration. I refer to the saga of the European Defence Community. A Treaty was actually signed in May 1952 but failed to be ratified in the French Parliament in May 1954 and the project was abandoned.

My contention is that this ‘childhood’ trauma has had profound effects, not just material but principally political and cultural. It became part of European faith that defence, security and military matters had to be kept separate from the European construct – in a ‘it is not politically feasible, it is not politically desirable’ unholy alliance of arguments. It has bred amazing pathologies, not least wasteful replications of the defence efforts of the Member States coupled with a total reliance on American force. If America has become the Policeman of the World, it is in part because Europe allowed it to become so – since when in trouble Europe itself would call not its own police but 911. Paradoxically, the failure to cooperate has also weakened each state individually, since the magnitude of expense simply removed certain projects from national agendas.

Even worse, Europe failed to develop, slowly and painfully, the habits of cooperation, consensus-building, etc. in this field which remained outside the European construct. Like its democratization, it had to graft alien bodies – European Political Cooperation, Third Pillar, Common Defence and Security, etc. etc.

Worst of all, it developed a whole new rationalization   – the Civilian Power – in a laughable attempt to justify the failure of its own early project. Here there has been a veritable Spill Over also into national politics. Reasonable people can debate the extent of any existential threat to Europe. But there can be no debate that at times, unless one is a pacifist (a comfortable luxury when your friendly neighbour is not), the only way to prevent the worst kind of trampling on the most hallowed values might require decisive use of force.  The consequences of this failure are to be found in the graveyards of Bosnia, Darfur and elsewhere.

IV

There are no easy fixes to these problems. That is the nature of problems which are not rooted in institutional arrangements but are a reflection of what has become part of a deep-seated political culture.