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 2003 attack on Iraq alone—and of other crimes recognized in penal codes the world over, and which indeed carry the death penalty in the United States, have not been made to pay the price for their actions.77 Indeed, these are precisely the people who are in practice acting as the prosecution.
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
