Victors’ Justice. Danilo Zolo
the towel, and under the so-called Kellogg-Briand Pact signed in Paris they succeeded in obtaining the absolute prohibition of war as a political instrument available to nations. This Pact—essentially the brainchild of the United States—was signed in Paris in August 1928 by the delegates of fifteen nations, including the major powers that had won the Great War. By 1939, over sixty states had ratified the Pact, including Germany, Italy and Japan. It is considered, and not only by Carl Schmitt, the normative marker of an irreversible mutation in international law, and of a new conception of war that had gained international consensus. There can be no doubt, for example, that the experience of international criminal jurisdiction, starting with the Nuremberg trials against the Nazi criminals, took this pact as a decisive normative premise.26 In the preamble and the two articles of the Pact, the signatory nations recognize their ‘solemn duty’ to ‘promote the welfare of mankind’, committing themselves to a ‘frank renunciation of war as an instrument of national policy’, condemning ‘recourse to war for the solution of international controversies’, and hence recognizing that the ‘solution of all disputes or conflicts which may arise among them, shall never be sought except by pacific means’. Naturally, within the space of a few years, the outbreak of the Second World War gave the lie to these high-minded intentions, and the whole gamut of problems posed by peace and war came to a head once again, in more dramatic terms than ever.
In the summer of 1944, as World War II was coming to an end with its cortège of tens of millions of victims—among them millions of Jews and hundreds of thousands of Rom and Sinti exterminated by the Nazis—the representatives of the governments of the United States, Britain, the Soviet Union and China gathered at Dumbarton Oaks, near Washington, DC, to lay the foundations of a new international organization. With few exceptions, the project drawn up at Dumbarton Oaks contained all the essential elements of what was to become the Charter of the United Nations. When, in April 1945, the Conference of the United Nations met in San Francisco to approve the Charter of the new organization, the fifty or so states that had accepted the invitation of the sponsoring governments, in the persons of Roosevelt, Churchill and Stalin, found themselves confronted by a veritable ultimatum: either they accepted the guidelines laid down by the major powers at Dumbarton Oaks, or they would be excluded from the treaty.27 With only a single exception—Article 51 on the right of states to legitimate defence—every attempt to avoid having the workings of the new organization depend on the categorical decisions of the major powers was thwarted. The pursuit of power on the part of the United States, Britain and the Soviet Union predominated over the sovereignty of all the other nations, and any allusion to peoples, nations or ethnic groups with no political representation at the conference was simply ignored.
The Security Council is invested with the full decision-making powers of the United Nations: it is not, like the Council of the League of Nations, a purely deliberative organ. One whole chapter of the Charter, the Seventh, is devoted to the scope for organization and military direction attributed to this organ once it has decided on an international enforcement action.28 The Security Council does not deliberate unanimously, as was the case for the Council of the League of Nations, but decides on the basis of a qualified majority and on condition that no contrary vote is cast by any of the five permanent members recognised in Article 23 of the Charter—namely the victorious powers in the Second World War, France included. Lastly, in spite of being invested with vast discretionary powers for politico-military intervention,29 the members of the Security Council are not obliged to abstain when it comes to consideration of the use of force to solve controversies in which they themselves are involved, as had been the case with the League of Nations.30 It follows that the five permanent members of the Security Council can, both de jure and de facto, take advantage of the powers of this organ, while their power of veto makes them immune to any initiatives that might be directed against them.31
The structure of the United Nations was established according to the idea that a stable and universal peace could be ensured by the overwhelming military force of the major powers, always available for use against any possible ‘aggressor state’. Peace, as Winston Churchill told the House of Commons on 24 May 1944, would be guaranteed by the ‘overwhelming military power’ of the new ‘world organization’.32 Wars of aggression are legally proscribed right from the preamble to the Charter, with war being styled a ‘scourge’ from which the United Nations intends to free humankind for ever. And the use of force by states is explicitly forbidden by the fourth section of Article 2, while Article 39 authorizes the Security Council to take measures, implying the use of force if necessary, against a state which violates or threatens to violate international peace.
In order to realize this aim, the Charter provided for the institution of a permanent army under the authority of the Security Council and a Military Staff Council made up of the chiefs of staff of the permanent members of the Security Council. This was conceived, at least in theory, as an international police force through which the major powers would carry out their role as ‘peace lords’: in fact, their power of military intervention was not subjected to any precise legal limits, and the sovereignty of all the other nations was thereby drastically curtailed. Nor was there any provision for sanctions if the peace should be violated with acts of aggression carried out not by an intermediate or minor power, but by one of the major powers which had won the world war.33 Moreover, in such cases not only was the transgressor able to fall back on the power of veto, but the permanent army at the service of the Security Council (thus in reality an instrument of its permanent members) would have had, as it were, to fight against itself or divide into two opposing factions, one at war with the other. In practice, the power of veto and the absence of the obligation to abstain when involved in a controversy requiring the use of force made it impossible for a conflict among the permanent members to be regulated by means of coercion against their will.
In all likelihood, it was this opacity concerning its basic functioning that gave rise to what most observers denounce as the most serious distortion in the normative framework of the United Nations to have emerged in its first sixty years of existence. This is the non-application of the provisions of Chapter 7 of the Charter—in particular articles 43 and 47, regarding the constitution of a military contingent under the authority of the Security Council. As a result, it has become customary for the Security Council to delegate the use of force to the major powers whenever this is deemed necessary, contracting out the power of making ‘legitimate’ recourse to warfare, even in its most aggressive and devastating forms—precisely that form of warfare which the United Nations claimed to have ‘outlawed’ for ever.
As has been ably demonstrated, over the last few decades the Security Council has limited itself to distributing ‘letters of marque’, giving a free hand to those major powers that were interested in conducting military operations of peace enforcement, or indeed insisted on doing so.34 The patina of international legality conferred each time has, we might say, simply transformed the pirates into privateers. The paradigm for this, as Richard Falk has argued,35 can be found in the Gulf War of 1991, and the same has occurred in Somalia, Rwanda, and Haiti, and in the war of Bosnia-Herzegovina (1991–95) as well as, a posteriori, in the war over Kosovo (1999). In all these cases, as Gaetano Arangio-Ruiz has emphasized, any nation which declared itself ready and willing to do so was authorized to use its military forces, under its own command, while on the part of the Security Council there has been ‘no effective direct exercise of military coercion’.36 In reality, the Security Council has renounced its primary function—the control and limitation of the use of international force—and shown itself ready not only to authorize the use of force beyond the provisions of the Charter, but also to legitimize ex post facto the military conduct of the major powers, including the use of quasi-nuclear weapons of mass destruction such as ‘fuelair explosives’ and the murderous daisy-cutter bombs, quite apart from countenancing the extermination of innocent civilians.
On top of all this, in the UN Charter we find no definition of the notion of a ‘war of aggression’, and this, at least in theoretical terms, makes the Security Council the unchallengeable arbiter in resorting to or renouncing the use of force against aggressor states that violate or threaten to violate world peace. There is no reference to such a definition even in Article 51, which authorizes