Danilo Zolo - Victors Justice: From Nuremberg to Baghdad

From Nuremberg to Baghdad

DANILO ZOLO

TRANSLATED BY M. W. WEIR

This paperback edition published by Verso 2020
English-language edition first published by Verso 2009
First published as La giustizia dei vincitori. Da Norimberga a Baghdad
Edizioni Laterza 2006, 2013
Translation M. W. Weir 2009, 2020
Danilo Zolo 2009, 2020

All rights reserved

The moral rights of the author and translator have been asserted

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ISBN-13: 978-1-78873-663-3

ISBN-13: 978-1-78873-664-0 (UK EBK)

ISBN-13: 978-1-78873-665-7 (US EBK)

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Printed and bound by CPI Group (UK) Ltd, Croydon CR0 4YY

CONTENTS

There have been numerous scholars who, while not necessarily sharing my assessments, have been generous with their criticism and suggestions for improving this book. In particular I wish to thank the friends with whom I have enjoyed an intense exchange of ideas for years: Luca Baccelli, Richard Bellamy, Nicol Bellanca, Franco Cassano, Alessandro Colombo, Pietro Costa, Luigi Ferrajoli, Gustavo Gozzi, Giovanni Mari, Tecla Mazzarese, Pier Paolo Portinaro, Geminello Preterossi, Giuseppe Tosi and Emilio Santoro. Various younger researchers with specific domains of competence have made valuable contributions, and I wish to place on record at least those of Filippo del Lucchese, Giulio Itzcovich, Juan Manuel Otero, Stefano Pietropaoli, Lucia Re and Filippo Ruschi. I also want to thank the members of the editorial board of the online Jura Gentium journal for their generous, day-to-day collaboration, and first and foremost the webmaster, Francesco Vertova.

A particular vote of thanks goes to Antonio Cassese, without whose affectionate theoretical and political diffidence this text of mine would be much more vulnerable. And finally I am grateful to Geminello Preterossi, who once again had no hesitation in recommending one of my productions to my Italian publisher Laterza.

It is with heartfelt regret that I dedicate this book to the memory of Andrea Orsi Battaglini.

Until the end of the Second World War, international law contemplated political, economic or territorial sanctions for countries which violated its norms, but there was no provision for punishing individuals. In fact, important multilateral treaties specifically excluded individuals from being subjects in international law, and thus liable to penal sanctions. However, from the early decades of the twentieth century onwards, the idea began to take hold in the West, under the influence of North American culture, that a war of aggression should be considered an international crime, and that penal justice should be introduced into the international legal system in order to punish those responsible for wars of aggression on a par with any other war crime.

The first sign of this radical change in the legal approach to war was the incrimination, at the end of the First World War, of Kaiser Wilhelm II of Hohenzollern. The victorious nations accused him of committing a supreme offence against international morality and the sanctity of treaties and asked for him to be handed over for trial as a war criminal by a court made up of judges they were to nominate. The trial did not take place, but what had been attempted unsuccessfully with respect to the old German emperor was put into practice some twenty years later by the powers which emerged victorious from the Second World War. At Nuremberg and Tokyo, international criminal tribunals were organized to try the defeated enemy. Twenty-two Nazi leaders and twenty-eight high-ranking members of the Japanese administration and army were arraigned. At the conclusion of the two trials, exemplary punishments were handed down, including seventeen death sentences which were carried out immediately. Altogether, some 500 German citizens were executed at the end of subsequent trials organized by the Americans, the British and the French in Nuremberg and other cities in Germany, while we know very little about the many trials held by the Soviets in their occupied territories.

In the meantime, the victors in the Second World Waressentially the United States, Great Britain and the Soviet Unionmet at Dumbarton Oaks, near Washington, and drew up the Charter of the United Nations. In practice, the Charter was then imposed on the fifty countries that were invited to San Francisco in 1945. Under its terms, aggressive war is considered a crime and the Security Council is charged with using force to prevent or punish it. But, thanks to the power of veto they accorded themselves, the victorious nations are able to make free use of military force: in the post-war years both the United States and the Soviet Union did so systematically without facing any consequences. Each of the superpowers embarked on lengthy wars of aggressionthe United States in Vietnam, the Soviet Union in Afghanistanor in single interventions, the former in Guatemala, Lebanon, Cuba, Santo Domingo, Grenada, Libya and Panama between 1954 and 1986, and the latter in Eastern Europe in 1956 and 1968.

After the long parenthesis of the Cold War, the experience of victors justice has been renewed: in the early 1990s it targeted the political and military leadership of the Yugoslav Federal Republic, and notably its president Slobodan Miloevi. Demonized as being responsible for the wars in the Balkans and as the instigator of grave violations of human rights, including ethnic cleansing in Bosnia-Herzegovina and Kosovo, Miloevi was allegedly handed over by the Yugoslav government to the International Criminal Tribunal for the former Yugoslavia. In reality, the government yielded to economic blackmail by the United States and pressure from NATO, and in a surprise action the former president was captured and transferred to the Hague, the seat of the Tribunal. A few years later, in Iraq, victors justice was applied to the political and military exponents of the Baath party, principally the president of the Republic, Saddam Hussein, who was also accused of grave violations of human rights. The head of state was captured and imprisoned in a secret location by US troops, and tried in Baghdad by a Special Tribunal, pressed for and set up by the United States while Iraq was under its military occupation. Both Miloevi and Hussein were imprisoned and brought to trial at the instigation of the United States and Great Britain following the victorious conclusion of two wars of aggression: one humanitarian, in the name of the international safeguarding of human rights, launched in 1999 by NATO against the Yugoslav Federal Republic, and one preventive, against Iraq, begun in 2003 and still tragically in progress. If he had not died unexpectedly in March 2006, Slobodan Miloevi would have been sentenced to life imprisonment, since the statute of that Tribunal does not contemplate the death sentence, while the dictator Saddam Hussein was hanged. This was a case of retributive, exemplary, sacrificial justice in the best tradition of the Nuremberg model.