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