by Kelsen. The punishment of war criminals—not only Nazis—was supposed to be an act of justice and not the continuation of hostilities by means purporting to be judicial, but in fact betraying the desire for revenge. For Kelsen, it was incompatible with the function of justice that only the defeated nations were obliged to submit their citizens to the jurisdiction of a criminal court. The victorious nations should also have accepted that citizens of theirs who had committed war crimes should be brought to trial. And such a trial should take place in front of a proper international court in all senses, meaning an independent, impartial body with wide-ranging jurisdiction, not the tribunal of the military occupiers with its highly selective competence.62 In a famous essay, Kelsen argued forcefully, for these and other reasons, that the Nuremberg trial was not to be taken as a legal precedent, and could not be considered as a model to be imitated.63
It was not only Kelsen who was in no doubt that the Allies had also been guilty of serious violations of international law, and that the principle must be respected by which the same conduct must be judged according to the same legal criteria. But the tu quoque argument, often used by the defence counsel of the accused, was systematically rejected by the court, on the grounds that, according to its Statute, it was competent to judge only German war crimes, and none which might have been committed by the Allies. For this reason, any line of argument or testimony which highlighted crimes committed by the victorious powers was deemed ‘irrelevant’ by the court, and opposed or ruled out of court.64
In spite of this series of criticisms, almost half a century after the experience of the Nuremberg and Tokyo Tribunals, international criminal jurisdiction has been revived in the form of the ad hoc International Criminal Tribunals convened at The Hague for the former Yugoslavia (ICTY, 1993) and at Arusha for Rwanda (ICTR, 1994). The institution of these Tribunals by the UN Security Council was itself controversial.65 But there is one crucial novelty: although the statutes for these tribunals were drawn up taking the principles of Nuremberg as precedent, the competence of the prosecutors and judges is restricted to crimes of jus in bello—i.e. war crimes, crimes against humanity and the crime of genocide. As we have seen, the competence of the Nuremberg Tribunal concerned above all ‘crimes against peace’, with a war of aggression being designated as ‘the supreme international crime’ deserving the death sentence, and yet this case in point does not figure in the statutes of the two ad hoc Tribunals. As we shall see, it is also substantially lacking in the statute of the International Criminal Court (ICC), itself based in The Hague.66
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’
