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