Constitutionalism, Declinations of the Pacifist Principle, and Armed Conflict.
The concept of war, long considered almost an abstraction in European countries, has sadly returned to the fore with Russia's invasion of Ukraine. The implications of these events in the framework of comparative public law were addressed by Arianna Vedaschi of Bocconi’s Department of Legal Studies in an article (“Constitutionalism, Declinations of the Pacifist Principle and Armed Conflict”, in Italian) that concluded the proceedings of the annual seminar of the Italian Association of Comparative and European Public Law and then published by the journal DPCEonline.
Arianna Vedaschi looks at the metamorphosis of the concept of war and the consequent implications of the idea of defense, security and peace through the lens of comparative constitutional law, exploring the implications of the “pacifist principle” in the contexts of contemporary armed conflicts, with particular reference to the Russian-Ukrainian crisis. The history of attempts to limit or regulate war through international law highlights a shift in the way war has been perceived and addressed since 1945. But the Italian Constituents were already clear-minded about the need to make it possible for Italy to join the Atlantic bloc, its condition of defeated nation notwithstanding. On this premise, Vedaschi argues for an integrated interpretation between the first and second parts of Article 11 of the Italian Basic Law, i.e. the rejection of war of aggression and the prohibition on the use of armed force (the so-called “pacifist principle”) which requires a comprehensive reading with the part that calls for membership in international organizations.
In Germany, the decision to send arms to Ukraine and allocate 2 percent of GDP to defense represents a momentous turning point in the country's defense policy, marked by the passage of a constitutional reform that allows borrowing to enhance defense capability. However, the question of the constitutional legitimacy of sending arms to Ukraine has raised debates in several European countries. In Italy, support for the attacked country, including by sending arms, has been the subject of lively debate both in the political arena and among scholars. Unlike those who consider it a violation of the pacifist principle, Vedaschi, based on a comprehensive interpretation of both the first and second parts of Article 11, considers it compliant with the constitutional dictate.
On the contrary, according to Arianna Vedaschi, “the victims of an aggression have the natural (moral and legal) right to defend themselves and to fight not only to end the conflict, but to obtain acceptable conditions of peace (e.g., in relation to the territorial arrangement prior to the invasion). In parallel, third countries that are not directly attacked, as members of the international community, are not only entitled to act in collective security circuits to safeguard compliance with international law, but may even turn out to be obliged to intervene, in terms of international responsibility, to respond to the violation.”
Democratic-liberal constitutions do not define the concept of war, leaving it to international law. However, in recent decades, the use of armed force has taken complex forms, often hard to square with the traditional dichotomy between domestic and international conflicts. Significant examples include peacekeeping missions, peace-enforcement and international police operations such as “extraordinary renditions” and “targeted killings” in the fight against terrorism.
According to Vedaschi, “the emergence of hybrid conflicts not only confirms the disappearance of a Cartesian space-time horizon, but features an intrinsic contamination of categories and, therefore, leaves ample room for analysis, even on the purely definitional-conceptual level, oriented toward understanding what factors integrate the non-traditional part of the conflict and how these same factors interact with institutional arrangements.”
The constitutions of Western democracies grant the power to deliberate a state of war to representative assemblies, but in practice we have often witnessed executive activism, unfortunately not always notable for its transparency. Thus, the need for reforms to adapt constitutional norms to modern emergency realities becomes evident.
The emerging picture also implies important choices on the part of the European Union, which is showing a transition from a peacekeeping entity to a more militarily active counterpart. The question of the legitimacy of the use of armed force is analyzed in relation to constitutional principles and international law, considering the restrictions imposed by the UN Charter and national constitutional laws.
