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 Article 64, for example, lays down that the penal laws in force in the occupied territory can be repealed or suspended if the occupying authorities regard them as a threat to their security.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