limited, and in some cases nil. To the scourge of war we have to add the ongoing ethnocide of the Palestinian people, the continuous violence being inflicted on the Chechens, Kurds and Tibetans, and lastly the atrocities of international terrorism. The escalation of hate, grief, destruction and death has had its counterpart in the inertia or sheer impotence of the international institutions which are supposed to safeguard peace.
One might say that war has been totally ‘normalized’, both in practice and, all the more, in the way it is being explicitly endorsed by the leading Western powers. The ‘industry of collective death’ has never been so flourishing, in spite of the generous but ineffective campaigning of the pacifist movements. The production and commerce of arms, including nuclear weapons, is no longer under the control of the so-called ‘international community’. Indeed, the use of arms depends on the decision to kill, which the major powers take in the light of their own strategic interests. A collective death sentence is pronounced, with total impunity, against people (in their hundreds, even thousands) who are neither guilty of any crime nor morally reprehensible in any way whatsoever. War has come to be seen as the supreme expression of scientific and technological progress, unstoppable and invincible. It has become an ‘intelligent’, ‘surgical’ activity, technologically sterilized and sublimated, in which death, the mutilation of bodies, the devastation of everyday life, and terror are the familiar ingredients of a ritual spectacle which fails to provoke any emotional reaction. Collective killing, whether in the name of public authority or in the service of private interests, has once again become a prized and noble undertaking, affording financial reward, social standing and public acclaim.
In spite of all this, I do not believe any decisive arguments can be inferred—in the normative and institutional domain—from the simple fact that violent warfare was never stopped during the twentieth century and that, on the contrary, it actually erupted in forms of exceptional virulence in the last years of the century, following the collapse of the Soviet empire and the end of the juxtaposition of the two superpowers. If this were not the case, it would be all too easy to share Schmitt’s pessimism and regard his critique of Anglo-American institutional universalism as an acute and far-sighted diagnosis. But the fact that violence and bloodshed remain at the centre of human history can hardly come as a surprise to any realistic spectator of international relations. And besides, Schmitt’s own criticism of the discriminatory ruthlessness of the United States’ warmongering cannot be ingenuously accepted as deriving from limpid pacifist and anti-imperialist motivations.15
Today ‘pre-emptive’ global war, as theorized and practised by the United States and its closest Western allies, seems to be part and parcel of the development of globalization processes that are increasingly dividing the world between the rich and powerful, on the one hand, and the poor and weak on the other, while so-called ‘global terrorism’ has become the no-less-sanguinary-and-nihilistic counterpart of the neo-colonial conflict which sets the West against the countries that resist its claim to planetary hegemony.16 In these circumstances, it is not easy to imagine a reform of international institutions such that they could condition the hegemonic strategies of the major powers—the United States in particular—by disciplining and limiting the use of international force. The recent failure of the (highly prudent) project of reform of the United Nations proposed by Kofi Annan and his High-Level Panel is just one more confirmation of the stalemate.17 The only function which international institutions seem able to carry out today—and this may be precisely why they are kept in being—is that of adapting to the status quo and legitimizing it. Confronted by a concentration of power which increasingly takes on the form of a neo-imperial world constitution, the international institutions are once again revealing their inability to stand up to the powers that be. As Alessandro Colombo has written, in a historical condition like that of the present, in which the distribution of power and wealth is as unequal as it could possibly be, even the fundamental principles which have regulated international society for centuries—state sovereignty, the legal equality of states, non-interference in internal jurisdiction, the regulation of warfare—tend to become the instruments of the strongest.18
Leaving this turbulent and alarming scenario to one side, and remaining as far as possible in the normative and institutional domain, I intend to explore one key question: whether the definition of a ‘war of aggression’ as an international crime, and the recourse to international criminal jurisdiction in order to repress crimes against peace and other grave international crimes, has given rise to a unitary and coherent legal system. I shall ask whether the criminalization of war has produced a normative system designed to submit the use of force to general rules and established procedures: a system, that is, with the potential not to guarantee a stable and universal peace—a Kantian ideal which really has very little political or theoretical interest—but to limit the most destructive effects of violent warfare on persons, property and the natural environment. In other words, I wish to ascertain whether the universalist institutions created by the powers that emerged victorious from the two world wars have achieved the objectives which, as was generally maintained in the first decades of the twentieth century, had not been secured under the ‘anarchic’ Westphalian system by means of the allegedly sterile formalisms of the jus publicum Europaeum.
War as a state crime
The use of military force by individual states was not ruled out by the Covenant of the League of Nations, as it was to be twenty-five years on by the Charter of the United Nations. In founding the League, the victors of the First World War—Britain, France, Italy, Japan and the United States, the latter energetically represented by President Woodrow Wilson19—were intent on controlling the use of force by subjecting it to precise procedural conditions. Articles 10–17 of the Covenant prescribed a sort of cooling-off phase lasting three months, after which it was legitimate, on certain conditions, for a state to have recourse to arms.20 In this case, its act of war was in practice recognized, if not as actually just, at least as legally justified: one of the conditions for legitimacy was prior reference of the controversy to the League’s Council or the Standing Court of International Justice, or else to a tribunal of arbitration.
Obviously, the resolutions passed by the League’s organs had to be acted on by all the contenders, but there was no provision for direct intervention against any country which, by irregular conduct, precipitated a war of aggression. The Assembly and the Council—the latter with the five founding nations as permanent members21—were empowered to advise member states as to the sanctions to be adopted against the aggressor, and indicate measures to be taken to assist the state which was victim to the aggression. However, neither of the two organs had the power to send in troops or organize a collective military reaction.22 Moreover, as everybody knows, both the Assembly and the Council had to reach unanimous decisions, with the understanding that states directly involved in a particular controversy were obliged to abstain from casting a vote.23 Thus each state possessed the power of veto.
The core of ‘permanent members’, and in particular the powers such as France and Britain which had won the war, exercised a decisive influence on the League’s decisions, and it never managed to operate as a proper collective organ, whether in the Assembly or in the Council. A series of violations of the international order and authentic wars of aggression thus came to be tacitly tolerated: from the Italian occupation of Corfù to the Japanese invasion of Manchuria and China—as well as the continuous violations by Germany of the Treaty of Versailles, culminating in the invasion of Poland in 1939. As for the sanctions agreed against Italy for her invasion of another League member, Ethiopia, they were deliberately left unenforced.24 And finally, the expulsion of the Soviet Union for its attack on Finland had absolutely no consequence. By December 1939, the Second World War was under way and the League of Nations was already practically dead and buried.
The League of Nations was thus a dramatic failure as the first attempt to set up a universal institution under a steering group of the major powers, with the aim of contrasting ‘wars of aggression’ on the basis of what was in any case an extremely prudent restriction of states’ national sovereignty. Just as the Holy Alliance of
