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
