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THE CRIMINALIZATION OF WAR

The juridical negation of war

In some celebrated pages of Der Nomos der Erde, Carl Schmitt argued that the conclusion of the First World War coincided with the end of the centrality of Europe and the passing of the jus publicum Europaeum. This marked the end of an international order conceived of in spatial terms—as established at Westphalia—which, in the celebrated formula of Emmerich de Vattel, sought to mettre la guerre en forme.¹ It was replaced at Geneva in the second decade of the twentieth century by the League of Nations, a universalistic and ‘de-spatialized’ institution which came into being at the instigation of the United States and was dominated by the cosmopolitan credo of Woodrow Wilson. Its declared aim was to ensure a lasting peace throughout the world, and not only in Europe. In Schmitt’s view, international law as formulated at the Geneva conference table no longer served to ‘ritualize’ warfare between the states of Europe so as to limit and moderate it and prevent the sort of ‘war of annihilation’ experienced in the wars of religion. Instead, the League of Nations set out to ‘be simultaneously a European order and a universal and global order’. At Geneva, in the name of the universalistic dogma, ‘there was much talk about the proscription and abolition of war, but none about a spatial bracketing of war’.²

The League of Nations, according to Schmitt, was doomed to failure because the new institution was an attempt to abolish war simply by declaring it illegal. In reality, he maintained, ‘any abolition of war without true bracketing resulted only in new, perhaps even worse types of wars, such as reversions to civil war and other types of wars of annihilation’.³ In common with universalistic pacifism, the grandiose design of making ‘aggressive war’ an international crime was bound to fail, for it was viewed not only as a crime to be imputed to the nations at war, but also as involving the penal responsibility of individual persons. In Schmitt’s opinion, the criminalization of wars of aggression is a return to the notion of bellum justum and the whole medieval issue of justa causa belli which had been elaborated by Francisco de Vitoria to justify the conquest of the New World by the Catholic powers.⁴ It was no coincidence, he adds, if authors such as the Belgian Ernest Nys and, in particular, the American internationalist James Brown Scott had gone out of their way to revive the doctrines of Vitoria in the first decades of the twentieth century.⁵

This neo-scholastic philosophy lay behind the Western internationalist doctrine which, in the first decades of the twentieth century, sought to rid itself of the legal notion of justus hostis intrinsic to the jus publicum Europaeum. What was being rejected was the Westphalian principle of the legality of war between states, conducted by sovereign authorities which could lay claim to equal rights, including the right to use force to assert the interests of the state. This was replaced by an ethico-political evaluation of the ‘causes of war’, which gave a negative connotation to the notion of ‘aggression’ (le crime de l’attaque), even though in the Judeo-Christian tradition, and in particular in medieval Catholic theology, this notion had no such negative overtones. The medieval doctrine of the bellum justum made explicit provision for the possibility of a ‘just aggression’. In much the same way as the Jewish doctrine of the milchemet mitzvà (‘obligatory holy war’), the theory of a just war considered wars of aggression to be morally acceptable—bellum justum offensivum—if waged by Christian rulers against any rulers and peoples who refused to recognize the authority of the Church. Turks, Arabs and Jews were thus automatically deemed to be hostes perpetui.

According to the new doctrine, Schmitt maintained, the aggressor was no longer a justus hostis but a ‘criminal’ in the full penal sense of the term; an ‘outlaw’, indeed, on a par with a pirate, with no claim to rights of any kind, just like the infidels under the doctrine of the bellum justum. Thus the procedural guarantees that European international law had come up with for the ‘state of war’, in an attempt to contain the most devastating and sanguinary consequences of armed conflicts, were lost to view. Instead, alongside the medieval model of a ‘discriminatory war’, ‘confessional civil war’ as waged between religious factions in the sixteenth and seventeenth centuries made its reappearance.⁶ As Schmitt laments, this involved the destruction of a ‘marvellous product of human reason’ which had only been achieved by dint of ‘laborious legal work’ and thanks to which there had been no war of large-scale annihilation on European soil for more than two centuries.⁷

Such a reconstruction of the history of modern international law begs some important questions. In particular, one must doubt whether the jus publicum Europaeum really introduced any significant elements capable of attenuating violent warfare during the two centuries in which it was in force, in spite of the attempt, dating from the treaty of Münster in 1648, to set up a system of collective security designed to stop individual states from having recourse to the use of force.⁸ One only has to think of the Napoleonic wars, which hardly receive a mention in Der Nomos der Erde, or the military expansionism of the European colonialists, principally the British Empire. Schmitt treats the colonial wars as an adiaphorous phenomenon with respect to the European scenario, since he believes that the juridical ritualization of European warfare required a spatial delimitation which, by its very nature, excluded the limiting of colonial conflicts. And we could add that the First World War, with its eighteen million victims—ten million of them civilians—and over twenty million wounded, was itself an irrefutable indictment of European international law, which patently failed to contain the devastating effects of new weapons and military strategies.

Nonetheless, there is some corroboration for Schmitt’s thesis in the conviction that gradually gained ground in the first decades of the twentieth century that new international institutions were called for: the Westphalian system of sovereign states had led to a situation of anarchy that the treaties and multilateral diplomacy of the ‘Concert of Europe’ had been unable to redress. This involved moving beyond the jus publicum Europaeum and its excessive pluralism and particularism. It also required a drastic revision of the notion of the sovereignty of nation-states, making way for the construction of institutions which were ‘supranational’ and not simply inter-state. This point is forcefully made by the foremost European jurist of the twentieth century, Hans Kelsen, in his essay Das Problem der Souveränität, and again in his celebrated manifesto for ‘legal pacifism’, Peace through Law, which takes its cue from Christian Wolff and Kant.⁹ It became necessary to dispense with not only the traditional normative and institutional structures pertaining to states, but also the hidebound European strategies of the balance of power, with their attendant diplomatic formalities such as the protocol of ‘declaring war’.¹⁰ A stable, universal peace could only be achieved by means of a global legal system able to transcend the particularism of state sovereignty and vest the legitimate use of force in a supranational authority—a ‘universal state’—unfettered by the domestic jurisdiction of the individual states. It was also essential to affirm the ethical and political primacy of the international legal system as civitas maxima, recognizing all members of the human community as its subjects.¹¹

In the framework of these very general premises, it may be instructive to consider to what extent—in the context of the legal prohibition of war that asserted itself in the course of the twentieth century at the instigation of the victors of the two world wars—the identification of ‘aggressive war’ as an international crime produced the results its advocates had claimed for it. An analogous question can be raised concerning international criminal justice. But we might also ask whether, on the contrary, these institutions did not in fact bring nearer the apocalyptic vision Carl Schmitt evokes repeatedly in Der Nomos der Erde: a comprehensive discriminatory war—or ‘global civil war’ (ein globaler Weltbürgerkrieg)¹²—no longer subject to the legal limitations of the ‘old inter-state war’, and hence sanguinary and destructive in the highest degree.

According to this prophecy, the doctrine of universalism, more ethical than juridical, preached by the Western internationalists—primarily the United States—gave rise to international institutions which were incoherent in normative terms and politically ineffective. It was the failure or impotence of these institutions which ended up by legitimizing the global use of force in the name of civilization, or humanity, against enemies branded as the new barbarians or infidels.¹³ In the light of an abstract, moralistic notion of world order, modern warfare turned, under the impulse of American imperialism, into ‘global war’ legibus solutus (‘beyond the law’). Having suffered military defeat, the enemies of humanity were to be indicted as barbarian aggressors and subjected to exemplary punishments, sanctioning their moral worthlessness and exclusion from the civil world, putting them beyond the pale of any peace treaty or amnesty, and even denying them any right to humane compassion. In a word, they became ‘bandits’ to be exterminated in the name of the victors’ justice.¹⁴

The failure of universalist institutions and the normalization of war

There is nothing to be gained by presenting a brief, highly charged denunciation of how juridical–institutional universalism came to grief in the twentieth century. It would be all too easy to cite empirical evidence for the way military violence triumphed in the Second World War just as it had in the First, and how, in spite of the United Nations, one armed conflict after another broke out in the 1950s, ’60s and ’70s. One need look no further than the attack on Vietnam launched by the United States, and the Soviet Union’s offensive against Afghanistan. Or again, the ‘new wars’ launched at the turn of the new millennium: from the Gulf War in 1991 to the two ‘humanitarian wars’ in the Balkans, the aggression against Afghanistan by the United States following the terrorist attack of 11 September 2001, and the ‘pre-emptive war’ launched by the United States and Britain against Iraq in 2003.

In the course of these conflicts, hundreds of thousands of innocent people have lost their lives, been mutilated or wounded, or had their families and property destroyed. Hundreds of thousands more civilians have died from hunger or disease on account of the embargoes imposed by the West—above all the one on Iraq following the war in 1991. In contrast, the military losses sustained by the Western forces have been very limited, and in some cases nil. To the scourge of war we have to add the ongoing ethnocide of the Palestinian people, the continuous violence being inflicted on the Chechens, Kurds and Tibetans, and lastly the atrocities of international terrorism. The escalation of hate, grief, destruction and death has had its counterpart in the inertia or sheer impotence of the international institutions which are supposed to safeguard peace.

One might say that war has been totally ‘normalized’, both in practice and, all the more, in the way it is being explicitly endorsed by the leading Western powers. The ‘industry of collective death’ has never been so flourishing, in spite of the generous but ineffective campaigning of the pacifist movements. The production and commerce of arms, including nuclear weapons, is no longer under the control of the so-called ‘international community’. Indeed, the use of arms depends on the decision to kill, which the major powers take in the light of their own strategic interests. A collective death sentence is pronounced, with total impunity, against people (in their hundreds, even thousands) who are neither guilty of any crime nor morally reprehensible in any way whatsoever. War has come to be seen as the supreme expression of scientific and technological progress, unstoppable and invincible. It has become an ‘intelligent’, ‘surgical’ activity, technologically sterilized and sublimated, in which death, the mutilation of bodies, the devastation of everyday life, and terror are the familiar ingredients of a ritual spectacle which fails to provoke any emotional reaction. Collective killing, whether in the name of public authority or in the service of private interests, has once again become a prized and noble undertaking, affording financial reward, social standing and public acclaim.

In spite of all this, I do not believe any decisive arguments can be inferred—in the normative and institutional domain—from the simple fact that violent warfare was never stopped during the twentieth century and that, on the contrary, it actually erupted in forms of exceptional virulence in the last years of the century, following the collapse of the Soviet empire and the end of the juxtaposition of the two superpowers. If this were not the case, it would be all too easy to share Schmitt’s pessimism and regard his critique of Anglo-American institutional universalism as an acute and far-sighted diagnosis. But the fact that violence and bloodshed remain at the centre of human history can hardly come as a surprise to any realistic spectator of international relations. And besides, Schmitt’s own criticism of the discriminatory ruthlessness of the United States’ warmongering cannot be ingenuously accepted as deriving from limpid pacifist and anti-imperialist motivations.¹⁵

Today ‘pre-emptive’ global war, as theorized and practised by the United States and its closest Western allies, seems to be part and parcel of the development of globalization processes that are increasingly dividing the world between the rich and powerful, on the one hand, and the poor and weak on the other, while so-called ‘global terrorism’ has become the no-less-sanguinary-and-nihilistic counterpart of the neo-colonial conflict which sets the West against the countries that resist its claim to planetary hegemony.¹⁶ In these circumstances, it is not easy to imagine a reform of international institutions such that they could condition the hegemonic strategies of the major powers—the United States in particular—by disciplining and limiting the use of international force. The recent failure of the (highly prudent) project of reform of the United Nations proposed by Kofi Annan and his High-Level Panel is just one more confirmation of the stalemate.¹⁷ The only function which international institutions seem able to carry out today—and this may be precisely why they are kept in being—is that of adapting to the status quo and legitimizing it. Confronted by a concentration of power which increasingly takes on the form of a neo-imperial world constitution, the international institutions are once again revealing their inability to stand up to the powers that be. As Alessandro Colombo has written, in a historical condition like that of the present, in which the distribution of power and wealth is as unequal as it could possibly be, even the fundamental principles which have regulated international society for centuries—state sovereignty, the legal equality of states, non-interference in internal jurisdiction, the regulation of warfare—tend to become the instruments of the strongest.¹⁸

Leaving this turbulent and alarming scenario to one side, and remaining as far as possible in the normative and institutional domain, I intend to explore one key question: whether the definition of a ‘war of aggression’ as an international crime, and the recourse to international criminal jurisdiction in order to repress crimes against peace and other grave international crimes, has given rise to a unitary and coherent legal system. I shall ask whether the criminalization of war has produced a normative system designed to submit the use of force to general rules and established procedures: a system, that is, with the potential not to guarantee a stable and universal peace—a Kantian ideal which really has very little political or theoretical interest—but to limit the most destructive effects of violent warfare on persons, property and the natural environment. In other words, I wish to ascertain whether the universalist institutions created by the powers that emerged victorious from the two world wars have achieved the objectives which, as was generally maintained in the first decades of the twentieth century, had not been secured under the ‘anarchic’ Westphalian system by means of the allegedly sterile formalisms of the jus publicum Europaeum.

War as a state crime

The use of military force by individual states was not ruled out by the Covenant of the League of Nations, as it was to be twenty-five years on by the Charter of the United Nations. In founding the League, the victors of the First World War—Britain, France, Italy, Japan and the United States, the latter energetically represented by President Woodrow Wilson¹⁹—were intent on controlling the use of force by subjecting it to precise procedural conditions. Articles 10–17 of the Covenant prescribed a sort of cooling-off phase lasting three months, after which it was legitimate, on certain conditions, for a state to have recourse to arms.²⁰ In this case, its act of war was in practice recognized, if not as actually just, at least as legally justified: one of the conditions for legitimacy was prior reference of the controversy to the League’s Council or the Standing Court of International Justice, or else to a tribunal of arbitration.

Obviously, the resolutions passed by the League’s organs had to be acted on by all the contenders, but there was no provision for direct intervention against any country which, by irregular conduct, precipitated a war of aggression. The Assembly and the Council—the latter with the five founding nations as permanent members²¹—were empowered to advise member states as to the sanctions to be adopted against the aggressor, and indicate measures to be taken to assist the state which was victim to the aggression. However, neither of the two organs had the power to send in troops or organize a collective military reaction.²² Moreover, as everybody knows, both the Assembly and the Council had to reach unanimous decisions, with the understanding that states directly involved in a particular controversy were obliged to abstain from casting a vote.²³ Thus each state possessed the power of veto.

The core of ‘permanent members’, and in particular the powers such as France and Britain which had won the war, exercised a decisive influence on the League’s decisions, and it never managed to operate as a proper collective organ, whether in the Assembly or in the Council. A series of violations of the international order and authentic wars of aggression thus came to be tacitly tolerated: from the Italian occupation of Corfù to the Japanese invasion of Manchuria and China—as well as the continuous violations by Germany of the Treaty of Versailles, culminating in the invasion of Poland in 1939. As for the sanctions agreed against Italy for her invasion of another League member, Ethiopia, they were deliberately left unenforced.²⁴ And finally, the expulsion of the Soviet Union for its attack on Finland had absolutely no consequence. By December 1939, the Second World War was under way and the League of Nations was already practically dead and buried.

The League of Nations was thus a dramatic failure as the first attempt to set up a universal institution under a steering group of the major powers, with the aim of contrasting ‘wars of aggression’ on the basis of what was in any case an extremely prudent restriction of states’ national sovereignty. Just as the Holy Alliance of a century before had failed to usher in political and normative compromise between the particularisms of national sovereignties, so too did the universalism of a cosmopolitan project (championed by Wilson), and the ambition of guaranteeing world peace by recourse to the collective action of nations on a purely voluntary basis.

When the Covenant was approved in Geneva, the formal equality of states on the grounds of equal sovereignty was still too strong a principle for there to be an explicit legal prohibition of war. But the idea of an ethical and legal condemnation of wars of aggression took hold in the heart of Europe thanks to the strong pressure of the internationalist culture that thrived on the other side of the Atlantic. On the initiative of a group of intellectuals in the United States led by James T. Shotwell, a member of the US delegation to the Paris peace conference, a Council session held in June 1924 produced an official document entitled Outlawry of Aggressive War. Known as the ‘Shotwell project’, its central thesis was the definition of ‘aggressive war’ as an international crime, accompanied by an analytical specification of the various acts of aggression and the sanctions (essentially economic) to be taken against the aggressor.²⁵ A state was deemed an aggressor for being the first to have recourse to hostile military action, with no provision for any justa causa for going to war.

The Geneva protocol of 1924 was not adopted, partly on account of the opposition of the British government. Nevertheless, the US advocates of the outlawry of aggressive war did not throw in the towel, and under the so-called Kellogg-Briand Pact signed in Paris they succeeded in obtaining the absolute prohibition of war as a political instrument available to nations. This Pact—essentially the brainchild of the United States—was signed in Paris in August 1928 by the delegates of fifteen nations, including the major powers that had won the Great War. By 1939, over sixty states had ratified the Pact, including Germany, Italy and Japan. It is considered, and not only by Carl Schmitt, the normative marker of an irreversible mutation in international law, and of a new conception of war that had gained international consensus. There can be no doubt, for example, that the experience of international criminal jurisdiction, starting with the Nuremberg trials against the Nazi criminals, took this pact as a decisive normative premise.²⁶ In the preamble and the two articles of the Pact, the signatory nations recognize their ‘solemn duty’ to ‘promote the welfare of mankind’, committing themselves to a ‘frank renunciation of war as an instrument of national policy’, condemning ‘recourse to war for the solution of international controversies’, and hence recognizing that the ‘solution of all disputes or conflicts which may arise among them, shall never be sought except by pacific means’. Naturally, within the space of a few years, the outbreak of the Second World War gave the lie to these high-minded intentions, and the whole gamut of problems posed by peace and war came to a head once again, in more dramatic terms than ever.

In the summer of 1944, as World War II was coming to an end with its cortège of tens of millions of victims—among them millions of Jews and hundreds of thousands of Rom and Sinti exterminated by the Nazis—the representatives of the governments of the United States, Britain, the Soviet Union and China gathered at Dumbarton Oaks, near Washington, DC, to lay the foundations of a new international organization. With few exceptions, the project drawn up at Dumbarton Oaks contained all the essential elements of what was to become the Charter of the United Nations. When, in April 1945, the Conference of the United Nations met in San Francisco to approve the Charter of the new organization, the fifty or so states that had accepted the invitation of the sponsoring governments, in the persons of Roosevelt, Churchill and Stalin, found themselves confronted by a veritable ultimatum: either they accepted the guidelines laid down by the major powers at Dumbarton Oaks, or they would be excluded from the treaty.²⁷ With only a single exception—Article 51 on the right of states to legitimate defence—every attempt to avoid having the workings of the new organization depend on the categorical decisions of the major powers was thwarted. The pursuit of power on the part of the United States, Britain and the Soviet Union predominated over the sovereignty of all the other nations, and any allusion to peoples, nations or ethnic groups with no political representation at the conference was simply ignored.

The Security Council is invested with the full decision-making powers of the United Nations: it is not, like the Council of the League of Nations, a purely deliberative organ. One whole chapter of the Charter, the Seventh, is devoted to the scope for organization and military direction attributed to this organ once it has decided on an international enforcement action.²⁸ The Security Council does not deliberate unanimously, as was the case for the Council of the League of Nations, but decides on the basis of a qualified majority and on condition that no contrary vote is cast by any of the five permanent members recognised in Article 23 of the Charter—namely the victorious powers in the Second World War, France included. Lastly, in spite of being invested with vast discretionary powers for politico-military intervention,²⁹ the members of the Security Council are not obliged to abstain when it comes to consideration of the use of force to solve controversies in which they themselves are involved, as had been the case with the League of Nations.³⁰ It follows that the five permanent members of the Security Council can, both de jure and de facto, take advantage of the powers of this organ, while their power of veto makes them immune to any initiatives that might be directed against them.³¹

The structure of the United Nations was established according to the idea that a stable and universal peace could be ensured by the overwhelming military force of the major powers, always available for use against any possible ‘aggressor state’. Peace, as Winston Churchill told the House of Commons on 24 May 1944, would be guaranteed by the ‘overwhelming military power’ of the new ‘world organization’.³² Wars of aggression are legally proscribed right from the preamble to the Charter, with war being styled a ‘scourge’ from which the United Nations intends to free humankind for ever. And the use of force by states is explicitly forbidden by the fourth section of Article 2, while Article 39 authorizes the Security Council to take measures, implying the use of force if necessary, against a state which violates or threatens to violate international peace.

In order to realize this aim, the Charter provided for the institution of a permanent army under the authority of the Security Council and a Military Staff Council made up of the chiefs of staff of the permanent members of the Security Council. This was conceived, at least in theory, as an international police force through which the major powers would carry out their role as ‘peace lords’: in fact, their power of military intervention was not subjected to any precise legal limits, and the sovereignty of all the other nations was thereby drastically curtailed. Nor was there any provision for sanctions if the peace should be violated with acts of aggression carried out not by an intermediate or minor power, but by one of the major powers which had won the world war.³³ Moreover, in such cases not only was the transgressor able to fall back on the power of veto, but the permanent army at the service of the Security Council (thus in reality an instrument of its permanent members) would have had, as it were, to fight against itself or divide into two opposing factions, one at war with the other. In practice, the power of veto and the absence of the obligation to abstain when involved in a controversy requiring the use of force made it impossible for a conflict among the permanent members to be regulated by means of coercion against their will.

In all likelihood, it was this opacity concerning its basic functioning that gave rise to what most observers denounce as the most serious distortion in the normative framework of the United Nations to have emerged in its first sixty years of existence. This is the non-application of the provisions of Chapter 7 of the Charter—in particular articles 43 and 47, regarding the constitution of a military contingent under the authority of the Security Council. As a result, it has become customary for the Security Council to delegate the use of force to the major powers whenever this is deemed necessary, contracting out the power of making ‘legitimate’ recourse to warfare, even in its most aggressive and devastating forms—precisely that form of warfare which the United Nations claimed to have ‘outlawed’ for ever.

As has been ably demonstrated, over the last few decades the Security Council has limited itself to distributing ‘letters of marque’, giving a free hand to those major powers that were interested in conducting military operations of peace enforcement, or indeed insisted on doing so.³⁴ The patina of international legality conferred each time has, we might say, simply transformed the pirates into privateers. The paradigm for this, as Richard Falk has argued,³⁵ can be found in the Gulf War of 1991, and the same has occurred in Somalia, Rwanda, and Haiti, and in the war of Bosnia-Herzegovina (1991–95) as well as, a posteriori, in the war over Kosovo (1999). In all these cases, as Gaetano Arangio-Ruiz has emphasized, any nation which declared itself ready and willing to do so was authorized to use its military forces, under its own command, while on the part of the Security Council there has been ‘no effective direct exercise of military coercion’.³⁶ In reality, the Security Council has renounced its primary function—the control and limitation of the use of international force—and shown itself ready not only to authorize the use of force beyond the provisions of the Charter, but also to legitimize ex post facto the military conduct of the major powers, including the use of quasi-nuclear weapons of mass destruction such as ‘fuelair explosives’ and the murderous daisy-cutter bombs, quite apart from countenancing the extermination of innocent civilians.

On top of all this, in the UN Charter we find no definition of the notion of a ‘war of aggression’, and this, at least in theoretical terms, makes the Security Council the unchallengeable arbiter in resorting to or renouncing the use of force against aggressor states that violate or threaten to violate world peace. There is no reference to such a definition even in Article 51, which authorizes a state that has come under attack by another state to resist with the use of force until such time as the Security Council shall intervene. From the text of the Article one can merely deduce that the aggression must consist in an ‘armed attack’, not simply a threat of attack, and this should at least rule out the idea—resolutely defended by the United States and Israel—of the legitimacy of ‘preventive or pre-emptive self-defence’.³⁷ In reality, the lack of a precise notion of ‘war of aggression’, as the voluminous literature devoted to interpreting Article 51 and the innumerable theoretical and practical controversies which have resulted go to show, has rendered this Article a favourite tool in the hands of the major powers to justify their wars, in the name of an ever more elastic notion of ‘self-defence’.³⁸

Very belatedly, in December 1974, the UN General Assembly attempted to fill this normative vacuum by issuing Resolution 3314 (XXIX), giving an elaborate definition of ‘aggression’. Aggression is referred to in the preamble as ‘the most serious and dangerous form of the illegal use of force’,³⁹ while Article 1 describes it in lapidary fashion as ‘the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State’.⁴⁰ Article 3 gives a wide-ranging analytical specification of possible modes of aggression.⁴¹ However, an important caveat is introduced in Article 2, where it is specified that aggression is not to be automatically imputed to the state that is the first to use military force against another state. The Security Council, taking into account the circumstances, and whether the consequences of the attack are of sufficient gravity, may decide that the first to use force is not in fact guilty of the crime of aggression.⁴²

As has been observed, this definition—produced by the General Assembly and not the Security Council, and hence not mandatory—is incomplete, and was always intended to be so.⁴³ Article 4 actually states that it is not to be regarded as exhaustive, since the crime of aggression can be combined with other alleged transgressions in war at the discretion of the Security Council.⁴⁴ Moreover—and this is a particularly grave omission—the resolution does not contemplate any sanction against those committing a crime of aggression. Article 5 limits itself to two utterly banal considerations in the wake of the sentence pronounced by the Nuremberg Tribunal, namely that ‘a war of aggression is a crime against international peace’ and that it incurs ‘international responsibility’.⁴⁵

Antonio Cassese has argued that, in this and other cases, one can see the tendency of the major powers to ensure that the notions of ‘act of aggression’ and ‘war of aggression’ should not be clearly defined, thereby making it impossible to enforce the provision laid down in Article 2, section 4 of the UN Charter forbidding nations to use force. In his view, this tendency prevailed because the major powers,

when it comes to actively applying this measure, aim to keep a large degree of freedom of action both at the individual level, and collectively through the United Nations Security Council. The definition of ‘aggression’ has been left in a sort of limbo with respect to its characterization both as a state crime and as an international crime imputable to individuals.⁴⁶

More generally, Giorgio Gaja has pointed out the existence of an ‘evident paradox’: while the prohibition of the use of force is a fundamental principle of international law, and violation of this principle is considered one of the most serious examples of ‘international crime’, it is practically unknown for one state to ask for sanctions to be imposed on another state or its citizens on the basis of an accusation of aggression.⁴⁷ The criminalization of aggressive war has thus failed to produce any significant developments—not in normative terms, not in the structure of the international legal system, and still less in dissuading nations from having recourse to the arbitrary use of force.

War as a crime for which individuals are indictable

The new concept of war that gained ground in the first decades of the twentieth century did not just postulate a war of aggression as an international crime imputable to states: it also introduced, as we have seen, the possibility of individuals being indicted for this and other international crimes. And this has played a fundamental role in moulding international criminal justice.

Up to the end of the Second World War, international institutions had never prosecuted individuals in law. Indeed, from the dawn of modern international law and its founding fathers Hugo Grotius, Alberico Gentili and Baltasar Ayala, internationalist doctrine had excluded the possibility of individuals being considered subjects in the international legal order, whether in conjunction with, or in place of, the nation-states. International courts of justice had never been invested with obligatory jurisdiction, and had in fact been confined to relatively marginal issues. To maintain a world order, the major powers had had recourse to political and military force, treaties and diplomacy, rather than to legal instruments. This was the case, in particular, for the Holy Alliance, the League of Nations and the United Nations.

From the first decades of the twentieth century, commentators in the West began to argue the case for extending the judicial function to the international arena. As we have noted—and as Carl Schmitt insisted—the dress rehearsal for this radical doctrinal departure was the incrimination of Kaiser Wilhelm II of Hohenzollern as a war criminal at the end of the First World War. In its indictment of the venerable emperor, Article 227 of the Versailles Treaty accused him of ‘supreme offence against international morality and the sanctity of treaties’, a formula dictated by Wilson.⁴⁸ This accusation, with its rhetorical and scrupulously non-legal language, did not refer to the traditional notion of ‘war crimes’, involving violation of the so-called jus in bello. Such a violation concerned the conduct of belligerents that infringed the norms of the ‘law of warfare’, meaning the proper conduct of war on land or at sea, the rights of prisoners, and so on.

Having achieved victory in the First World War, the Entente allies were determined to criminalize and punish warfare as such—specifically as an act or series of acts of aggression—and insisted that individuals, cited by name, be held responsible for this crime.⁴⁹ Article 227 required that the kaiser should stand trial, together with high-level German political and military figures, before an international court composed of judges representing the five victorious powers (Britain, France, Italy, Japan and the United States). Furthermore, other articles in the Treaty required Germany—although no such obligation was to be found anywhere in either international treaties or customary law—to hand over some 900 named individuals accused of violating laws and war customs, so that they too could be tried.⁵⁰

As is well known, the trial of Kaiser Wilhelm II and his collaborators never took place. He had taken refuge in Holland, and that country refused to extradite him, rightly arguing that there was nothing in international law that could countenance the incrimination of a head of state as being personally responsible for an international misdemeanour. According to the international legal order as it stood, the only subject in law was the state: only a state could be indicted for international wrongdoing, and any sanctions imposed, whether economic, financial, territorial, military or other, had nothing to do with criminal law. For its part, the German government refused to hand over the 900 individuals, but did consent to having them tried on German soil, in front of the Supreme Court in Leipzig, which was agreed to by the victorious powers. But only a few of the accused actually stood trial, and only light sentences were handed down. Yet, in spite of this paltry result, the whole affair had significant consequences in normative terms. Article 3 of the Fourth Hague Convention, 1907, stated that only states—not individuals—could be called to answer for violations of the law of warfare, whereas the precedent set by the Versailles Treaty made this principle partially inoperative.⁵¹

The real origin of international criminal jurisdiction can be identified with the institution, in 1945 and 1946 respectively, of the Nuremberg and Tokyo Tribunals. The creation of these two criminal courts had been anticipated, in the theoretical sphere, by Hans Kelsen’s essay Peace through Law, which appeared in 1944. Kelsen set out an institutional strategy for attaining peace, borrowing from Kant (notably the celebrated pages in Zum ewigen Frieden) the ideal of perpetual peace, with federalism as a model, and indeed the idea of making individuals, as well as states, subjects in international law.⁵² Kelsen maintained that, in the aftermath of the Second World War, his project for a ‘permanent league for the maintenance of peace’ stood a good chance of being accepted by the victorious major powers. In his project, one important innovation was grafted on to the old model of the League of Nations—namely the attribution of a central role to judicial, as opposed to normative and executive, functions.

In Kelsen’s opinion, the principal cause for the failure of the League of Nations lay in the fact that at the summit of its power structure was a Council representing a sort of worldwide political government, rather than a Court of Justice. In the light of his normativism, this was a serious ‘error of construction’ because it meant that the international order lacked any neutral and impartial judicial authority. Peace could only be guaranteed by a court of justice able to settle international controversies by applying international law objectively, free of any political conditioning.⁵³ There was one other aspect which Kelsen, true to the Kantian conception of international law as ‘cosmopolitan law’ (Weltbürgerrecht), considered crucial: it was necessary to establish the individual penal responsibility of whoever violated international law in carrying out government activities or directing military operations. The court was to indict individual citizens who were guilty of war crimes, and their countries were to be held responsible for making them available to the court.⁵⁴

It was this sort of legal internationalism, albeit in a very different form to that contemplated by Kelsen, which guided the victors—the United States, the Soviet Union, Britain and France—in instituting the Nuremberg International Military Tribunal. Agreement was reached in London on 8 August 1945, just two days after the atomic bomb was dropped on Hiroshima, and two days before the bombing of Nagasaki. The Tribunal held its opening session in November 1945, and hearings continued until October 1946. Of the twenty-two accused, three were cleared, six were convicted and given life imprisonment or shorter prison sentences, and ten were given the death sentence, which was carried out immediately. For the first time in the history of humankind, a war of aggression was considered not as a generic breach of international law involving the liability of the state qua state, but as an authentic ‘international crime’ for which individuals too were held penally responsible. Article 6(a) of the Tribunal’s Statute gave an explicit definition of ‘crimes against peace’, placing them under the jurisdiction of the court alongside ‘war crimes’ and ‘crimes against humanity’. They consisted in actions such as ‘planning, preparation, initiation, or waging of a war of aggression, or a war in violation of international treaties, agreements, or assurances, or participation in a common plan or conspiracy for the accomplishment of any of the foregoing’.⁵⁵ Robert Jackson, chief US prosecutor to the Nuremberg Tribunal, had this to say in his opening speech to the court:

Any resort to war—to any kind of a war—is a resort to means that are inherently criminal. War inevitably is a course of killings, assaults, deprivations of liberty, and destruction of property. An honestly defensive war is, of course, legal and saves those lawfully conducting it from criminality. But inherently criminal acts cannot be defended by showing that those who committed them were engaged in a war, when war itself is illegal. The very minimum legal consequence of the treaties making aggressive wars illegal is to strip those who incite or wage them of every defense the law ever gave, and to leave war-makers subject to judgment by the usually accepted principles of the law of crime.⁵⁶

In one of the best-known passages of the trial’s summing up, war is declared to be ‘essentially an evil thing’:

Its consequences are not confined to the belligerent states alone, but affect the whole world. To initiate a war of aggression is not only an international crime; it is the supreme international crime, differing from other war crimes only in that it contains within itself the accumulated evil of the whole.⁵⁷

In the text of the Nuremberg sentence and in the intentions of the Tribunal judges, a war of aggression as the prominent instance of the category of ‘crimes against peace’ does indeed seem to be clearly conceptualized, even if it is set down in very general terms and without specifying the subjective elements in the criminal conduct.⁵⁸ Aggressive war—i.e., a war that is not purely defensive—is not only an international crime but, as we have seen, is the ‘supreme international crime’ inasmuch as it is the root of all the negative consequences of warfare. All who incite to warfare or decide to go to war or fight are indictable for this ‘supreme crime’, because they are personally responsible for killings, acts of aggression, limitations of liberty and the destruction of property. Whoever knowingly fights an illegal war relinquishes any claim to legal immunity or extenuating circumstances: he or she is simply a criminal to be subjected to judicial punishment.

Thus we are confronted by a notion of war opposed toto caelo to that of the European warfare limited by the jus publicum Europaeum. In the latter conception, war was seen as the sovereign right of states, with antagonistic relations between states being regulated and limited by law, and hence rendered legal. By virtue of Resolution 95(1) of the UN General Assembly, incorporating the principles set out in the Statute and the judgement of the Nuremberg Tribunal, the new notion of war may be considered as confirmed by a customary international norm. In common with every other principle which the UN Commission on International Law derived from the Statute and the sentence of the Tribunal, the new legal conception of warfare is valid erga omnes.⁵⁹ Among these principles, we can single out individual responsibility for violating criminal norms of international law, the non-extenuating nature of acting in obedience to higher orders, and the concepts of ‘crimes against peace’, ‘war crimes’ and ‘crimes against humanity’.

The ‘dual-standard system’ of international criminal justice

For decades, the principles established by the Tribunals of Nuremberg and Tokyo were not put into effect. Only once was an attempt made to cite the Nuremberg trial as an international legal precedent: in August 1949 Ethiopia asked Italy to extradite the marshals Pietro Badoglio and Rodolfo Graziani as war criminals. Ethiopia wanted to bring them before an international tribunal made up of a majority of non-Ethiopian judges which would have followed the principles and procedures laid down in the Statute of the Nuremberg Tribunal. As one might expect, this attempt met with no success.⁶⁰

The two international Tribunals have come in for scathing criticism, notably by Hannah Arendt, Bert Röling, Hedley Bull⁶¹ and Hans Kelsen. The severest critique of all, which has found almost universal consensus, is the one formulated by Kelsen. The punishment of war criminals—not only Nazis—was supposed to be an act of justice and not the continuation of hostilities by means purporting to be judicial, but in fact betraying the desire for revenge. For Kelsen, it was incompatible with the function of justice that only the defeated nations were obliged to submit their citizens to the jurisdiction of a criminal court. The victorious nations should also have accepted that citizens of theirs who had committed war crimes should be brought to trial. And such a trial should take place in front of a proper international court in all senses, meaning an independent, impartial body with wide-ranging jurisdiction, not the tribunal of the military occupiers with its highly selective competence.⁶² In a famous essay, Kelsen argued forcefully, for these and other reasons, that the Nuremberg trial was not to be taken as a legal precedent, and could not be considered as a model to be imitated.⁶³

It was not only Kelsen who was in no doubt that the Allies had also been guilty of serious violations of international law, and that the principle must be respected by which the same conduct must be judged according to the same legal criteria. But the tu quoque argument, often used by the defence counsel of the accused, was systematically rejected by the court, on the grounds that, according to its Statute, it was competent to judge only German war crimes, and none which might have been committed by the Allies. For this reason, any line of argument or testimony which highlighted crimes committed by the victorious powers was deemed ‘irrelevant’ by the court, and opposed or ruled out of court.⁶⁴

In spite of this series of criticisms, almost half a century after the experience of the Nuremberg and Tokyo Tribunals, international criminal jurisdiction has been revived in the form of the ad hoc International Criminal Tribunals convened at The Hague for the former Yugoslavia (ICTY, 1993) and at Arusha for Rwanda (ICTR, 1994). The institution of these Tribunals by the UN Security Council was itself controversial.⁶⁵ But there is one crucial novelty: although the statutes for these tribunals were drawn up taking the principles of Nuremberg as precedent, the competence of the prosecutors and judges is restricted to crimes of jus in bello—i.e. war crimes, crimes against humanity and the crime of genocide. As we have seen, the competence of the Nuremberg Tribunal concerned above all ‘crimes against peace’, with a war of aggression being designated as ‘the supreme international crime’ deserving the death sentence, and yet this case in point does not figure in the statutes of the two ad hoc Tribunals. As we shall see, it is also substantially lacking in the statute of the International Criminal Court (ICC), itself based in The Hague.⁶⁶

Furthermore, in terms of war crimes and crimes against humanity, the Geneva Conventions, drawn up in 1949, created a particularly ambitious repressive system. Every country which ratifies the Conventions is obliged to search for, arrest and put on trial people accused of serious violations of international law, or else to hand them over to another state requiring their extradition, on the basis of the principle aut dedere aut judicare. What is more, the Geneva Conventions introduced the highly innovative notion of ‘universal jurisdiction’, which enables any contracting state to try somebody irrespective of their nationality, the nationality of the victim, or where the crime was committed.⁶⁷ And lastly, under the Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity adopted by the UN General Assembly and introduced in November 1970, war crimes and crimes against humanity have been declared imprescriptible.⁶⁸ None of this has ever been contemplated for the crime of aggression.⁶⁹

In practice, a dual-standard system of international criminal justice has come about in which a justice ‘made to measure’ for the major world powers and their victorious leaders operates alongside a separate justice for the defeated and downtrodden. In particular, international crimes of jus in bello, which are normally considered less serious than the crime of aggression, have been prosecuted relentlessly and in some cases punished with great harshness, in particular by the Hague Tribunal for the former Yugoslavia. At the same time, aggressive war, a crime predominantly committed by the political and military authorities of the major powers, has been systematically ignored. Even though it was described at the Nuremberg Tribunal as the ‘supreme international crime’, those responsible for such crimes retain impunity, occupying the summit of the pyramid of international power. On this subject, Antonio Cassese has pointed out that

Not surprisingly, since 1946 there have been no national or international trials for alleged crimes of aggression, although undisputedly in many instances States have engaged in acts of aggression, and in a few cases the Security Council has determined that such acts were committed by States.⁷⁰

We can illustrate three main instances of this normative and judicial pathology which the adepts of the internationalist doctrine have tended to overlook.

The International Criminal Tribunal for the Former Yugoslavia.

The first instance concerns the new ad hoc criminal Tribunals. The conduct of the Hague Tribunal—and its Chief Prosecutor’s Office in particular—during the Kosovo war unleashed by NATO in March 1999 against the Yugoslav Federal Republic, provides an eloquent example.

The NATO attack, agreed without the authorization of the Security Council and ignoring any reference to international law, has been judged by the most authoritative Western international jurists as a serious breach of the UN Charter.⁷¹ Moreover, the military intervention was condemned by such major powers as the Russian Federation, India and China, who were sceptical of the ‘humanitarian’ motivations adduced by the aggressors. The Security Council chose not to declare the military attack illegal and punish it, and in any case would not have been able to, in view of the inevitable veto from the United States, as well as Britain and probably France. For its part, thanks to its ‘special’ nature and selective competence, the Hague Tribunal not only placed both aggressors (the political and military authorities of NATO) and victims (the citizens of the Yugoslav Republic) on the same legal standing, but actually established a close collaboration with the aggressors.

To appreciate the gravity of this conduct we have to bear in mind at least two circumstances. First of all, the Hague Tribunal had been pushed for, equipped, assisted and amply financed by the United States. Secondly, in the last stages of the war in Bosnia, a close collaboration on judicial matters had developed between the Chief Prosecutor’s Office and the NATO forces deployed in the former Yugoslavia. The military personnel of the NATO contingents Implementation Force (IFOR) and Stabilization Force (SFOR) acted as a police force, carrying out investigative activities, pursuing incriminated persons, and proceeding to arrest them on behalf of the Tribunal. Following the NATO attack on the Yugoslav Republic in March 1999, not only was this collaboration not terminated, but the Prosecutor’s Office of the Tribunal actually formalized and intensified its dealings with NATO authorities at the highest level, going so far as to improvise an indictment of the president, Slobodan Milošević, together with other leading members of the Yugoslav government, while the NATO bombing was still raging.

But that is not all. Under the Tribunal’s Statute the Chief Prosecutor’s Office was able to disregard the fact that NATO’s leading political and military authorities could be held responsible for the crime of ‘aggressive war’, but it also ignored the violations of the international law of warfare committed by NATO military personnel during the seventy-eight days of uninterrupted bombing, carried out in more than 10,000 raids by up to 1,000 Allied planes. The Hague Tribunal had complete jurisdictional competence with respect to these violations, and it was its clear duty to investigate, and where appropriate indict, those responsible.⁷²

Three formal denunciations were in fact presented to the Tribunal—by a delegation from the Russian parliament, by the Belgrade government, and by a group of authoritative Canadian jurists led by Michael Mandel—but the chief prosecutor, Carla del Ponte, decided to dismiss them as manifestly unfounded, showing no scruples about placing international justice at the service of those powers on which the Tribunal was both politically and financially dependent. It is no secret that Pentagon sources described as ‘outrageous’ the mere suggestion that the political and military commanders-in-chief of NATO could be subject to criminal investigation.

One particular issue in the denunciations had been the attack carried out by NATO bombers on the Belgrade television station on the night of 23–24 April 1999, in which some twenty journalists and other employees had died, leaving many wounded. Two other serious crimes were denounced: firstly the use of around 1,400 cluster bombs, in violation of the international treaty prohibiting the use of anti-personnel mines, to which all the countries involved in NATO’s military action were parties, with the sole exception of the United States.⁷³ Secondly, NATO was accused of making use of depleted uranium missiles. NATO secretary-general, George Robertson, had to admit that the A10 tank-buster bombers deployed by the United States had dropped more than 30,000 of these missiles on Yugoslav territory, in particular in Kosovo. On striking a solid body, these warheads explode and disperse uranium in the form of a fine radioactive powder. This powder contaminates the soil, water and air and enters the food chain, producing an increase in environmental radioactivity which can be responsible for malignant tumours, leukaemias, foetal malformations and childhood diseases. Yet the Prosecutor’s Office of the Tribunal felt no need to investigate.

The legal motivations adduced by the chief prosecutor to justify the dismissal of these grave accusations refer to NATO’s overall ‘responsible conduct’, which was such that its use of force would never have resulted in ‘civilian victims directly or indirectly’; to the absence of intention to harm; and to the entirely exceptional nature of the occasional technical errors or failures in communication (for example, the bombing ‘by mistake’ of the Chinese embassy in Belgrade).⁷⁴

With respect to this whole sorry business, Antonio Cassese has spoken of the persistence of a ‘Nuremberg syndrome’ by which international criminal jurisdiction perpetuates the model of the ‘justice of the victors’.⁷⁵ And it is surely an alarming paradox⁷⁶ that, while the defeated ex-presidents of the Yugoslav Republic and Iraq have been imprisoned and made to stand trial by special Tribunals backed and financed by the United States and their closest allies, the heads of state and leaders of the Western powers that have waged wars of aggression, and stand guilty both of killing thousands of innocent people—30,000 in the 2003 attack on Iraq alone—and of other crimes recognized in penal codes the world over, and which indeed carry the death penalty in the United States, have not been made to pay the price for their actions.⁷⁷ Indeed, these are precisely the people who are in practice acting as the prosecution.

Conclusion

An analogous instance of the ‘dual-standard system’ of international justice which punishes the crimes of jus in bello—war crimes and crimes against humanity, in addition to genocide—while ignoring the crime of aggressive war concerns of the Statute of the ICC, approved in Rome in July 1998 and in force since March 2003.⁷⁸ This Statute, unlike the statutes of the ad hoc Tribunals, includes the crime of aggression in the list of ‘the most serious crimes of concern to the international community’ over which the Court exercises jurisdiction (Article 5). Yet the second section of the same article provides that the Court

shall exercise jurisdiction over the crime of aggression once a provision is adopted in accordance with articles 121 and 123 defining the crime and setting out the conditions under which the Court shall exercise jurisdiction with respect to this crime.⁷⁹

In practice, the Statute states that the court cannot exercise jurisdiction over the crime of aggression until the assembly of nations which have ratified the Statute has adopted an amendment to the Statute itself defining the crime of aggression; and before this can happen, at least seven years must pass from the date on which the Statute comes into force.⁸⁰ It is clear that this ambiguous formulation was adopted to disguise insuperable differences of opinion concerning the ‘crime of aggression’ during the negotiations on the Statute of Rome.⁸¹ On the one hand, numerous Arab and African countries were in favour of adopting the definition given in the Resolution of the UN General Assembly of 1974, if necessary in a more detailed and comprehensive formulation. On the other hand, there were nations such as the United States that were adamant that the Resolution was not to be taken as a normative basis for defining the crime of aggression—while yet other countries, including Germany, insisted on the need for a formulation that was technically more rigorous, above all in terms of penal guarantees.⁸²

However, the most profound disagreement regarded the relative powers of the court and the UN Security Council. The United States, in opposition to the majority of the nations taking part in the negotiations, was bent on subordinating the activity of the Court with respect to the crime of aggression to the decisions of the Security Council.⁸³ In other words, the Court was not to carry out investigations into the responsibility of individuals for the crime of aggression without the consent of the Security Council, and specifically without a resolution declaring the existence of aggression. In practice, this would subordinate the initiatives of the Court prosecutor to the will of the permanent members of the Security Council and, in particular, to that ‘Washington consensus’ which, according to a tradition that admits of no exceptions, is certain to be applied in any case in relation to citizens of the United States.⁸⁴

As is well known, this position corresponds to the general efforts made by the United States to limit the powers and autonomy of the Court, efforts that have led among other things to the ‘constitutional’ contamination between executive and judicial functions introduced by Article 16 of the Statute. This Article confers upon the Security Council the power to have an initiative of the Court prosecutor suspended for a year (and, since the request can be repeated indefinitely, potentially forever) if a resolution based on the provisions of Chapter VII of the UN Charter deems it to be inopportune. This Chapter enumerates the initiatives that the Security Council can undertake in reacting, either pacifically or with the use of force, to violations of peace and acts of aggression.⁸⁵ Not satisfied with this result, the United States has failed to ratify the Court’s Statute, and has been working for years, with considerable success, to hamper its activity, in particular by exploiting both Article 16 and Article 98 of the Statute.⁸⁶

The final outcome, as Giorgio Gaja has argued, is that the definition of a war of aggression as an international crime, which figures in Article 5 of the Statute of Rome, is destined to remain devoid of any practical significance if the ICC is not endowed with jurisdictional competence on the question. According to a realistic conception of international law, an act for which there is no operative instrument of repression cannot be considered criminal conduct.⁸⁷ In the opinion of Gaja, it is all too likely that, on the topic of wars of aggression, the ICC will go on being denied a jurisdictional power with any autonomy vis-à-vis the resolutions of the UN Security Council.⁸⁸

A sort of magical normative transubstantiation

Finally, there is a third instance of the ‘dual-standard system’ of international criminal justice, concerning the relationship between the crime of aggression and territorial occupation as the outcome of that aggression. According to the prevailing internationalist doctrine, which diligently applies the discipline of ‘military occupation’ introduced by the Fourth Geneva Convention of 1949, the occupation of a territory constitutes a case in international law irrespective of whether the use of force that has led to the occupation is deemed legal or criminal.⁸⁹ This doctrine is derived from the so-called ‘principle of effectiveness’, whereby international law cannot realistically ignore the fact that force—not legality—is the principal source of its legitimation, since there is no ‘supranational’ authority able to exercise coercion to enforce the normative dimension of law.⁹⁰

Thus, in particular when it comes to the law of warfare, the international legal system would be largely restricted to merely registering—and hence legitimizing—the status quo. In a strictly ‘realist’ perspective, international law is seen as a ‘scientific’, ‘non-evaluative’ discipline that takes account of the normative orientations introduced by each new victorious strategy adopted by the major powers. It is they who ‘make’ international law, while the science of international law exists to formalize the successive decisions taken by the major powers as the new ‘rules of the game’. From this ‘realist’ perspective, it is obvious that a power that has invaded a territory using armed force and brought it under control is legitimately exercising the rights that the Fourth Geneva Convention grants to victors vis-à-vis the conquered.

Other authors, among them Benedetto Conforti,⁹¹ have argued, on the basis of the so-called ‘Stimson doctrine’ and a series of pronouncements by the UN General Assembly,⁹² that the principle of effectiveness is correctly invoked only if it is a question of legally recognizing a mere de facto situation such as, for example, the occupation of a territory which does not belong to or is not claimed by anybody, and is thus an international res nullius. In this case, the de facto situation can be recognized without force having to prevail over legality. Conforti maintains, however, that the dictum ex facto oritur jus (‘law originating in fact’) should not be extended uncritically—even though this is the direction of current international practice—to cases in which the occupation of a territory has come about in violation of Article 2 of the UN Charter, which forbids the use of force, or in violation of the principle of the self-determination of peoples.⁹³ This has been the case, for example, in the occupation both of Arab territories by the state of Israel in 1967, and of Namibia, the former German colony assigned to South Africa following the First World War under a mandate from the League of Nations and illegally annexed by the government of Pretoria after the Second World War.

Nowadays, the most common cases of territorial occupation are of the first type, inasmuch as they do not take into account whether the use of force leading to occupation of the territory was legal or illegal: one only has to think of the military occupation endured by countries such as Kosovo, Afghanistan, Iraq and, above all, Palestine. The occupiers are major Western powers; or military alliances, like NATO, that are hegemonized by the Western powers; or regional forces with the backing of these powers, such as Israel. In all these cases, the military occupation has been the consequence of a war of aggression—in Iraq, one of horrendous proportions—and yet this circumstance has had no bearing on the definition of the legal relationship between the occupying authorities and the population of the occupied territories. This normative incongruity derives from a historical conjuncture which has left a mark as indelible as it is legally untenable. When it came to defining the regime in occupied territories, the Fourth Geneva Convention had to perform a difficult balancing act between the expectations of the nations that had been subjected to military occupation in the Second World War, who saw the problem from the point of view of the victims, and the nations that, without ever having endured occupation themselves, were the occupying powers at the moment of the armistice. The latter were determined to defend the interests of the occupiers, at the expense of the populations under occupation.

The Fourth Geneva Convention, which deals in general with the protection of civilians in wartime, contains in its third part a long series of articles—Articles 47 to 78—setting out provisions concerning not only the duties of the occupying power but also, and above all, its rights. Article 64, for example, lays down that the penal laws in force in the occupied territory can be repealed or suspended if the occupying authorities regard them as a threat to their security. Moreover, the occupiers have the right to introduce new laws in order

to maintain the orderly government of the territory, and to ensure the security of the Occupying Power, of the members and property of the occupying forces or administration, and likewise of the establishments and lines of communication used by them.⁹⁴

Other articles specify that the occupiers can set up their own criminal courts to try subjects of the occupied territory, handing down prison sentences and, in the case of crimes such as espionage, sabotage of the occupier’s military installations, and premeditated homicide, also the death sentence, if this is contemplated in local legislation.

Thus we are confronted by a legal process in which, through a sort of magical normative transubstantiation, the fact that the armed aggression was successful, leading to the military occupation of another people’s territory, produces an automatic act of indemnity for the ‘supreme crime’ committed by the aggressors, and makes the effects of their aggression legitimate. This is a case of legal incoherence which no invocation of the ‘principle of effectiveness’ should be able to remedy or attenuate in the least, unless one adopts the dictum, redolent of a radical legal realism, of ex iniuria jus oritur (‘law originating in injury’). This would be tantamount to negating the normative character of the international legal order, and indeed denying its juridical nature altogether. If this dictum is rejected, as it is sure to be by anyone who has been the victim of military occupation, it becomes legitimate to argue that the armed aggression which has produced the occupation is a crime, making the occupation itself illegal. And it then follows that all the conduct and actions of the aggressors during their occupation of others’ territory have to be considered illegal.

At this point, not only must the intentional killing of civilians be considered criminal—so too must the voluntary or involuntary killing of any person, whether in uniform or not, and the destruction of the civil infrastructures and resources of the occupied country. Naturally, all the coercive acts, including internment, prison sentences and the death sentence, applied by the aggressor-occupiers to the occupied, should be considered illegal—all the more so if the population of the occupied territories consider the occupation to be that of an enemy, from which they intend to free themselves. Furthermore, no ‘right to legitimate defence’ should be granted to soldiers of the occupying forces, for the simple reason that an aggressor can lay no claim to legitimate defence: the occupier should simply be obliged to withdraw, restoring the complete liberty of those attacked and recompensing them for the destruction and death caused.⁹⁵ Finally, armed resistance against the occupying forces—once again, the cases of Afghanistan, Iraq and Palestine spring to mind—should be considered legitimate even when carried out by irregular forces.⁹⁶ Our analysis of the dual process of the criminalization of war—with the political and military input of the United Nations on one hand and the judicial contribution of the international criminal courts on the other—has shown how the current international legal order is incapable of making the major world powers respect rules and procedures that could render warfare less destructive and sanguinary. The legal proscription of war has not produced an organic, coherent and comprehensive normative system, able to achieve, even if imperfectly, its declared objective: that pacification of the world which the system of Westphalia was unable to ensure.

The legal discipline of the phenomenon of war that came to prevail in the course of the twentieth century displays normative flaws and deontic incongruities of such gravity as to render it unfit for disciplining and restraining, in any degree, the international use of force. In terms of the prevention and repression of the illegal use of force, current international law is an ‘evanescent’ legal system—to use Hersh Lauterpacht’s expression—which is unable to exercise effective normative and regulative functions. The jus contra bellum has proved to be no more efficacious than the jus belli.

As we have seen, this failure is due in the first place to the hierarchical structure of the UN Security Council. The legal ‘surplus value’ which the powers that emerged victorious from the Second World War have awarded themselves makes them immune from the process of the criminalization of aggressive war. In the second place, the failure must be ascribed to the hostility of the major powers towards any definition of the notions of ‘aggression’ and ‘war of aggression’ that would be likely to limit their sovereignty, including the unconditioned recourse to the use of force. Moreover, in the context of international criminal justice a systematic normative discrimination has been made between the ‘supreme crime’ of a war of aggression and the crimes of jus in bello, prosecuted by ad hoc Tribunals on behalf of the ‘justice of the victors’. On the other hand, the very reluctance of the major powers to settle on a rigorous definition of the notion of a ‘war of aggression’—and their readiness to sidestep any legal restriction on their military sovereignty—is a sign of the fragility of the fundamentally centralist, hierarchical and cosmopolitan institution of the United Nations. The proclamation ‘world peace through world law’,⁹⁷ with its debts to both Kant and Kelsen, implying the possibility of guaranteeing global peace by relying on universalistic legal and institutional instruments made available to the major powers, has revealed the true nature of its idealistic and normative abstraction as well as—and this is the most serious point—its political ambiguity. It is what, following the political realism of Hans Morgenthau, has been called the ‘cosmopolitan model of the Holy Alliance’.⁹⁸

In addition to all this, we can entertain serious doubts as to the efficacy of international criminal justice—whether it is applied to punish the vanquished or, in a purely academic hypothesis, the victors—as an instrument of direct or indirect prevention of war, and hence of global pacification. In reality, there is no guarantee that a judicial activity that metes out even the most severely retributive and exemplary sanctions (the Hague Tribunal actually imposed prison sentences of forty-five and forty-six years, as well as life imprisonment)⁹⁹ has any effect on the macro-structural dimensions of war—i.e. on the profound motives underlying human aggressive-ness, conflict and armed violence. When so much is being made of international criminal justice, one would do well perhaps, with Hedley Bull, to come out strongly in favour of diplomacy, above all when implemented preventively.¹⁰⁰

From the point of view of the major powers, the Security Council, the international criminal jurisdiction and the whole discipline of the law of warfare are of use if they serve to legitimize ex post facto the results of wars which the powers themselves had decided unilaterally to wage. The United Nations, with its plethoric bureaucracy, cohort of academic jurists and ever-increasing number of self-styled ‘non-governmental organizations’, operating in reality at the service of their governments, defers to the victors and their brand of justice. Modern warfare has been transformed into a global ‘humanitarian’ and ‘preventive’ war in which the major Western powers wield ever more sophisticated and uncontrollable instruments of mass destruction, which will shortly also encroach on outer space. And they do so in the name of a ‘just war’ against the new enemies of humanity, or ‘new cannibals’: those organizations of ‘global terrorism’ which counter the nihilism of the West’s abuse of power and military superiority with their own bloody nihilism. Carl Schmitt’s apocalyptic prophecy of the advent of a ‘global civil war’, irrespective of its controversial motivations, seems to be approaching dramatic fulfilment. And there is also confirmation for the bitter adage of Radhabinod Pal, the Indian judge at the Tokyo Tribunal who was frequently at odds with the majority of the court: ‘only a lost war is a crime’.¹⁰¹