Victors’ Justice. Danilo Zolo

In reality, the government yielded to economic blackmail by the United States and pressure from NATO, and in a surprise action the former president was captured and transferred to the Hague, the seat of the Tribunal. A few years later, in Iraq, victors’ justice was applied to the political and military exponents of the Ba’ath party, principally the president of the Republic, Saddam Hussein, who was also accused of grave violations of human rights. The head of state was captured and imprisoned in a secret location by US troops, and tried in Baghdad by a Special Tribunal, pressed for and set up by the United States while Iraq was under its military occupation. Both Milošević and Hussein were imprisoned and brought to trial at the instigation of the United States and Great Britain following the victorious conclusion of two wars of aggression: one ‘humanitarian’, in the name of the international safeguarding of human rights, launched in 1999 by NATO against the Yugoslav Federal Republic, and one ‘preventive’, against Iraq, begun in 2003 and still tragically in progress. If he had not died unexpectedly in March 2006, Slobodan Milošević would have been sentenced to life imprisonment, since the statute of that Tribunal does not contemplate the death sentence, while the dictator Saddam Hussein was hanged. This was a case of retributive, exemplary, sacrificial justice in the best tradition of the ‘Nuremberg model’.

      On the other hand, nothing has befallen the criminals responsible for the atomic massacres at Hiroshima and Nagasaki in August 1945, or for the saturation bombing which, with the war already won by the Western allies, killed hundreds of thousands of civilians in various German and Japanese cities. Nothing has happened to the political and military leadership of NATO, responsible for the ‘humanitarian’ war of aggression against the Yugoslav Republic, which surely ranks as a ‘supreme’ international crime. The NATO leadership was also guilty of committing grave war crimes during the seventy-eight days of uninterrupted bombing raids on Serbia, Vojvodina and Kosovo in 1999. Complaints against NATO were duly lodged with the Hague Tribunal, but were dismissed by the Chief Prosecutor’s Office, headed by Carla del Ponte. She showed no compunction about placing international justice—and human rights—at the service of the victorious Western powers which supported and financed the Tribunal (and still do).

      In 1991 these same Western powers, with the backing of the Security Council, organized one of the most massive military expeditions in human history against Iraq, which was guilty of the illegal invasion of Kuwait. Over half a million US military personnel were mobilized and joined by troops from numerous other countries. During the forty-two days of bombing raids, the quantity of explosives used was greater than that employed by the Allied Forces during the whole of the Second World War. At least 100,000 Iraqis lost their lives in the fighting, and hundreds of thousands more civilians perished as a result of the harsh economic and territorial sanctions applied subsequently with the approval of the United Nations.

      Nothing like the aforementioned cases of ‘international justice’ were pursued after the aggression against and invasion of Iraq by the United States and Great Britain in 2003. And we can be quite sure that the political and military leadership responsible for the massacres of thousands of troops and innocent civilians, perpetrated first in Afghanistan and then in Iraq by Anglo-American forces, will go unpunished. This includes the slaughter of civilians in the Iraqi city of Fallujah carried out in November 2004, which saw the use of napalm and white phosphorus. And the same goes for the crimes committed by Israeli troops during decades of military occupation of Palestine, and indeed for the ethnocide currently being carried out in Chechnya.

      Thus it seems reasonable to denounce, as I have tried to do in the following chapters, the ‘dual-standard system’ of international justice. There is a justice tailored to the major powers and their political and military authorities, who enjoy total impunity for war crimes—and above all for the wars of aggression undertaken in recent years, disguised as humanitarian wars in defence of human rights or preventive wars against ‘global terrorism’. From 1946 to the present, not a single trial has been held, at either the national or international level, for crimes of aggression. And then there is the victors’ justice applied to vanquished, weak and oppressed peoples, with the collusion of international institutions, the acquiescence of the majority of academic jurists, the complicity of the mass media and the opportunistic support of a growing number of self-proclaimed ‘non-governmental organizations’, which in reality are at the service of their governments’ interests.

      Neither the universalistic institutions created in the first half of the twentieth century at the behest of the victors in the two world wars, nor international criminal jurisdiction, have to date shown themselves worthy of their task. No one expects the United Nations, or the international criminal courts, to ensure a stable and universal world peace, for this is a Kantian utopia devoid of theoretical and political interest. But they have both proved incapable even of restraining the major powers in their determination to dispose of the overwhelming military strength they possess. This is the case, above all, for the United States of America, which now seems set on fulfilling the role of an imperial power legibus solutus (‘beyond the law’), placing itself above international law generally, and the law of war in particular.

1

       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),