2008

The double-track approach to international criminal justice (*)

Danilo Zolo

Aggressive war as "supreme international crime"

As is well known, international criminal justice effectively began with the establishment of the Tribunals of Nuremberg and Tokyo, in 1945 and 1946 respectively. At the theoretical level the establishment of the two criminal courts had been anticipated by Hans Kelsen's Peace through Law, of 1944. Kelsen had devised an institutional strategy for achieving peace, borrowing from Kant's celebrated pages in Zum ewigen Frieden both the ideal of perpetual peace and the federalist model, as well as the idea of making individuals, besides states, subjects of international law (1). He thought that in the situation after World War II his project of a "a permanent league for the maintenance of peace" would be likely to be accepted by major victorious powers. The project grafted an important innovation upon the old model of the League of Nations: namely, the key role of the judiciary with respect to the legislative and the executive. For Kelsen, the main reason for the failure of the League of Nations was its being topped by a Council, i.e. a sort of political world government, rather than a Court of justice. From the standpoint of Kelsen's normativism this had been a serious "building mistake" for the major flaw of the international order was its very lack of a neutral and impartial judicial authority. Peace could only be secured by a Court of justice enabled to settle international disputes by objectively applying international law, regardless of any political pressure (2). Kelsen was concerned with a second point, in line with Kant's conception of international law as "cosmopolitan law" (Weltbürgerrecht): the individual criminal liability of those who might break international law through an act of government or military operation. The Court should have tried individual citizens charged with war crimes and states should have handed them over to the Court (3).

This judicial internationalism, albeit in a very different form from Kelsen's conception, inspired the four victorious powers of World War II - the United States, the Soviet Union, Great Britain and France - in establishing the international military tribunal of Nuremberg. For the first time in the history of mankind aggressive war was not conceived of as a generic breach of international law involving the liability of a state as such but as a real "international crime" which individuals should have been criminally prosecuted for (4). Article 6(a) of the Charter of the Tribunal provided for an explicit definition of "crimes against peace", subjecting them to the jurisdiction of the court together with "war crimes" and "crimes against humanity". They consisted in such acts as

Planning, preparation, initiation, or waging of a war of aggression, or a war in violation of international treaties, agreements, or assurances, or participation in a common plan or conspiracy for the accomplishment of any of the foregoing (5).

Robert Jackson, the United States attorney general at the Nuremberg tribunal, declared in his opening statement (on 21 November 1945) that:

Any resort to war - to any kind of a war - is a resort to means that are inherently criminal. War inevitably is a course of killings, assaults, deprivations of liberty, and destruction of property. An honestly defensive war is, of course, legal and saves those lawfully conducting it from criminality. But inherently criminal acts cannot be defended by showing that those who committed them were engaged in a war, when war itself is illegal. The very minimum legal consequence of the treaties making aggressive wars illegal is to strip those who incite or wage them of every defense the law ever gave, and to leave war-makers subject to judgment by the usually accepted principles of the law of crimes (6).

In one of the best known passages of the trial's final judgement, war of aggression is defined as "essentially an evil thing" for its consequences are not limited to warring states only but extend negatively to the whole world. Therefore

to initiate a war of aggression is not only an international crime; it is the supreme international crime, differing from other war crimes only in that it contains within itself the accumulated evil of the whole (7)

Thus, in the text of the Nuremberg judgement and the intentions of the Tribunal's judges "war of aggression", as the prominent instance of the category of "crimes against peace", seems to be clearly conceptualised, though in very general terms and without specifying the subjective elements of the offending behaviour (8). Not only is war of aggression - a war that is not merely defensive - an international crime but, as we have seen, is "the supreme international crime" for it carries all of war's negative consequences within itself. All those bear personal criminal liability for this "supreme crime" who incite or decide and wage war.

Here therefore we find a notion of war that is toto coelo opposite to that of the European war "moulded" by the jus publicum europaeum: to the idea of war as a state's sovereign right and a conflict relationship between states that is made legal by being limited and regulated by law. Through the General Assembly's resolution of 11 December 1946 that endorsed the principles of the statute and the judgement of the Nuremberg tribunal, nowadays the new notion of war can be said to have been embodied in a customary rule. It is a binding principle for everybody, like any other principle that in 1950 the International Law Commission of the United Nations has drawn from the statute and the judgement of the Tribunal (9). These principles are known to include individual liability for breaking international criminal rules, unexcused by obedience to higher orders, and the concepts of crimes against peace, war crimes and crimes against humanity.

The "dual system" of international criminal justice

The principles of the Nuremberg and Tokyo tribunals have not been applied for decades. The only attempt to take the Nuremberg trial as an international judicial precedent was made in August 1949 by Ethiopia which asked Italy to extradite marshals Pietro Badoglio and Rodolfo Graziani as war criminals. Ethiopia wanted them to be tried by an international Tribunal, mostly composed of non-Ethiopian judges, that would follow the principles and procedures laid down by the Charter of the Nuremberg Tribunal. The demand had not outcome (10).

The two international Tribunals have undergone severe criticism: among the best known critiques there are those of Hannah Arendt, B.V.A. Röling, Hedley Bull e Hans Kelsen (11). The most severe, and by now universally accepted, is Kelsen's. The punishment of war criminals - not only Nazi - should have been an act of justice and not the continuation of hostility in forms that were apparently judicial but were actually inspired by a wish for revenge. For Kelsen it was inconsistent with the judicial function that only vanquished states were forced to have their citizens tried by a criminal court. Victorious states, too, should have accepted that their citizens who were responsible of war crimes were tried by an international court. And the latter should have been a true international court, i.e. and independent impartial body with a broad jurisdiction rather than a military occupation tribunal with a very selective jurisdiction. Kelsen had no doubts that the allied powers had broken international law, too (12). For this reason Kelsen strongly argued in a well known essay that the Nuremberg Tribunal ought not to be taken to be a judicial precedent:

If the principles applied in the Nuremberg trial were to become a precedent, then, after the next war, the governments of the victorious States would try the members of the governments of the vanquished States for having committed crimes determined unilaterally and with retroactive force by the former. Let us hope that there is no such precedent (13).

In spite of these critiques, nearly half a century after the Nuremberg and Tokyo trials international criminal justice has been revamped in the form of ad hoc international criminal courts: the ICTY (1993) and the ICTR (1994). These tribunals were established by the Security Council of the United Nations with a controversial decision (14). But, most importantly, while the statutes of these tribunals are inspired by the Nuremberg precedent and its principles, limit the jurisdiction of attorneys and judges to crimes of jus in bello, i.e. war crimes, crimes against humanity and the crime of genocide. While, as we have seen, the Nuremberg Tribunal had included first of all "crimes against peace" within its jurisdiction and had defined aggressive war as "the supreme international crime", such as to justify death penalty for its perpetrators, this crime is not mentioned in the statutes of the ICTY and the ICTR (15) and, as we shall see, is basically lacking in the statute of the International Criminal Court, too.

Moreover, for war crimes and crimes against humanity the Geneva Conventions of 1949 have set up a particularly ambitious repressive system: every state which is a party to the convention is bound to either search for, seize and try people charged with gross violations of international law, or to hand them over to another state calling for their extradition, according to the aut dedere aut judicare principle. And the Geneva Conventions have introduced a very innovative institution: namely, "universal jurisdiction" that enables every member state to try an individual regardless of the victim's or the offender's nationality, and of the place where the crime has been committed (16). Finally, with the Convention of the UN General Assembly on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity, which entered into force in November 1970, war crimes and crimes against humanity have been declared imprescriptible (17). No such thing has ever been provided for the crime of aggression (18).

Thus, a dual system of international criminal justice has been consolidating in fact, a sort of double standard that places a "tailored justice" for the world's great and middle powers and their victorious leaders (19) side by side with a justice for the vanquished and the oppressed peoples. In particular, international crimes of jus in bello, which are usually less serious than the crime of armed aggression, have happened to be prosecuted and punished with special severity, especially by the ICTY, whereas "the supreme international crime" - war of aggression - mostly committed by the political and military authorities of major powers, is not mentioned in the statutes of international Tribunals. As a consequence, the perpetrators of this crime remain unpunished on the top of the pyramid of international power. In this connection A. Cassese has emphasised 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 few cases the Security Council has determined that such acts were committed by State (20).

The "incompetence" of ad hoc criminal courts

This normative and judicial pathology, which has been mostly downplayed by international legal theory, has some key features. The first is the new ad hoc criminal courts. The behaviour of the Hague Tribunal - in particular its prosecution office - during the Kosovo war, initiated by NATO against the Federal Republic of Yugoslavia in 1999, is an eloquent example.

The NATO attack, initiated without the authorization of the Security Council and disregarding any reference to international law, has been considered by the most authoritative Western international legal scholarship as a serious breach of the United Nations Charter (21). Moreover, the military intervention was condemned by major powers such as the Russian Federation, India and China, that remained sceptical about the attacking states' alleged 'humanitarian' reasons. In my view not only was this aggression a state wrong, for attacking states violated Article 2(4) of the UN Charter, but it was also an international crime of aggression, involving criminal liability of those who planned, directed and performed the illegal armed attack. The Security Council was not willing - nor able, in any event, because of the unavoidable veto by the United States (as well as Great Britain and probably France) - to declare and punish the illegal character of the military attack as a serious breach of international law. On the other hand, the Tribunal for the former Yugoslavia could not punish those that in my view were the aggressors because of its charter limitations. As a consequence they were not punished, while many 'victims' of the aggression (some military and political leaders of Serbia-Montenegro) were.

At least two circumstances should be kept in mind in order to grasp the characters of this behaviour. The first is that the Hague Tribunal has been wanted, equipped, aided and largely subsidized by the United States. The second is that, since the later years of the Bosnia war, a practice of close collaboration had been taking place between the Tribunal's prosecution office and the NATO forces that were in the territory of former Yugoslavia. Troops of the IFOR and SFOR contingents had been searching for and apprehending indicted people on behalf of the Tribunal. After the NATO attack against the Yugoslav Republic in March 1999, not only did the Tribunal's co-operation with NATO (and the United States) continue but the Tribunal's prosecution office suddenly decided to indict President Slobodan Milosevic and other members of the Yugoslav government while NATO bombing were still raging.

But there is more. Not only could the Tribunal's prosecution office, chaired by Carla Del Ponte, ignore by its Charter that NATO supreme political and military authorities could be held liable for the crime of "war of aggression", but also ignored the violations of the international law of war by NATO troops. The Hague Tribunal had full jurisdiction over such violations and had therefore an obligation to prosecute and possibly indict the perpetrators (22).

The ambiguous competence of the International Criminal Court

A similar instance of the 'dual system' of international justice that punishes crimes of jus in bello - war crimes and crimes against humanity, as well as genocide - and ignores the crime of "war of aggression" concerns the Statute of the International Criminal Court that was passed in Rome in July 1998 (23). Unlike the statutes of ad hoc tribunals, art. 5 of this statute includes the crime of aggression in the list of serious offences - "the most serious crimes of concern to the international community" - which the court has jurisdiction over. But the very same article, in section 2, 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 crimes. (24)

Basically the Statute rules out that the Court can exercise jurisdiction over the crime of aggression unless the assembly of the states that ratified the statute passes an amendment to the Statute that defines the crime of aggression. And this cannot happen until seven years after the Statute has entered into force (25). It is clear that this ambiguous formulation is meant to cover the irreducible controversy on the notion of the "crime of aggression" that emerged among states during the negotiations that led to the approval of the Rome Statute (26). On the one hand many Arab and African states were inclined to adopt the definition laid down in the 1974 Resolution of the General Assembly of the United Nations, possibly with qualifications and additions. On the other hand there were countries, such as the United States, that denied that the Resolution could be taken to be a normative basis for defining the criminal offence of aggression. Yet other countries, such as Germany, insisted that there ought to be technically more precise legal definitions, especially concerning criminal due process (27).

But the most serious disagreement was about another point, namely the relationship between the Court's powers and those of the United Nations Security Council. The United States, against most other states taking part in the negotiation, wanted the activity of the Court's prosecution office concerning the crime of aggression to the decisions of the Security Council. In other words, the Court should not investigate about specific individuals' liability for the crime of aggression without the consent of the Security Council, that is, without this body declaring in a resolution the existence of an aggression. This would have subordinated the activity of the Court's prosecution office to the will of the Security Council's permanent members.

Of course, this position matches the general attempt of the United States to curb the Court's powers and autonomy, an attempt which led among other things to the 'constitutional' contamination of executive and judiciary functions introduced by Article 16 of the Statute. This article gives the Security Council the discretionary power to demand the suspension for one year (possibly forever, for the demand may be repeated indefinitely) of an initiative of the Court's prosecution office if this initiative is considered inopportune by a resolution grounded on Chapter VII of the United Nations Charter. Being still unsatisfied with this result, the United States has refused to ratify the Statute of the Court and has been acting for years to hinder its operation quite successfully, in particular by taking advantage of both Article 16 and Article 98 of the Statute (28).

The final outcome, as G. Gaja has argued, is that the definition of aggressive war as an international crime, laid down in Article 5 of the Rome Statute, is likely to have no practical significance until the international criminal Court is endowed with judicial jurisdiction on the subject matter. According to a realist conception of international law, an act for which there is no repressive instrument cannot be considered a criminal one (29). For Gaja, moreover, even in the future the Court is very unlikely to have a jurisdiction about aggressive war which is autonomous from the resolutions of the United Nations Security Council (30).

Military occupation: a normative transubstantiation

Finally, there is a third aspect of the 'dual system' of international criminal justice which concerns tbe relationship between the crime of aggression and the occupation of a territory as a consequence of the aggression. According to most international legal scholars, who apply sine glossa the provisions about "military occupation" laid down by the fourth Geneva convention of 1949, the international legal rules about the occupation of a territory do not depend on whether the occupation results from a lawful or criminal use of force. This theory appeals to the so-called 'principle of effectiveness'. On its ground international law cannot but recognize force - rather than legality - as the main source of legitimacy, for there is no 'supranational' authority that can enforce the normative dimension of law. Thus, the international legal system would be limited, in particular in the field of the law of war, to a function of legal formalisation - hence legitimisation - of the existing state of affairs, i.e. the international arrangements forcefully imposed by the powers that happen to be victorious. Obviously from this point of view a power that has invaded and stabilised its control over a territory can lawfully exercise the rights that the Fourth Geneva Conventions gives the victors over the vanquished.

Others, including B. Conforti (31), argue along the lines of the so-called 'Stimson doctrine' and a number of decisions of the United Nations General Assembly (32) that the principle of effectiveness is correctly invoked only in connection with the legal qualification of a mere state of affairs such as, e.g., the occupation of a territory that belongs to and is claimed by nobody and is therefore an international res nullius. In this case a state of affairs can be recognised without force prevailing over legality. But Conforti argues that, even though current international practice goes in this direction, the maxim ex facto oritur jus should not be uncritically extended to cases in which the occupation of a territory results from a violation of Art. 2(4) of the United Nations Charter, that forbids the use of force, or of the principle of national self-determination (33). Such cases include, for instance, the Israeli occupation of Arab territories in 1967, or the illegal annexation of Namibia by the government of Pretoria after World War II.

The most usual and current cases of territorial occupation fall into the first category: just think of the military occupation that such countries as Afghanistan, Iraq and, chiefly, Palestine underwent or are undergoing. In all such cases military occupation resulted from a war of aggression - Iraq being the most conspicuous instance - but this is of no concern for defining the legal relationship between the occupying authority and the people living in the occupied territories. This normative inconsistency stems from historical circumstances that left a mark which is both deep and legally questionable. The situation of occupied territories is regulated by the Fourth Geneva Convention which was the outcome of an uneasy balance between the expectations of the countries that had been under military occupation during World War II and saw the problem from the standpoint of victims, and the countries that were the occupiers at the end of the war without having ever been occupied. The latter were engaged in defending the interests of the occupiers at the expenses of peoples under occupation.

The third part of the Fourth Geneva Convention, generally devoted to the protection of civilians at wartime, contains a long list of articles - 47 through 78 - that provide not only for the duties of the occupying power but also, and chiefly, for its rights. Art. 64, e.g., provides that existing criminal laws in the occupied territories can be repealed or suspended if the occupying authority believe that they are a danger for their own security (34). Moreover, occupiers are entitled to make new criminal laws in order to secure

the orderly government of the territory, and to ensure the security of the Occupying Power, of the members and property of the occupying forces or administration, and likewise of the establishments and lines of communication used by them. (35)

Other articles lay down that the occupiers can establish their own criminal courts to try the occupied, impose prison penalties and in the case of such crimes as espionage, sabotage of the occupiers' military facilities, murder, can impose death penalty if it was provided for by local law.

In this legal development, through a sort of magical normative transubstantiation, the success of armed aggression resulting in the military occupation of the attacked territory, produces an automatic legalisation of the "supreme crime" committed by the attackers and legitimises its consequences. It is a legal inconsistency that the appeal to the 'principle of effectiveness' should by no means resolve or abate, unless the maxim is accepted, inspired by radical legal realism, that ex iniuria oritur jus. If we reject this maxim, we can legitimately argue that the armed aggression resulting in occupation is a crime that makes occupation itself illegal. Therefore all actions and conducts taken by the attackers while occupying the territory of the attacked should be considered illegal.

Notes

*. Journal of International Criminal Justice, originally published online on June 13, 2007; Journal of International Criminal Justice 2007 5(4), pp. 799-807; doi: 10.1093/jicj/mqm028.

1. Cf. H. Kelsen, Peace through Law, Chapel Hill, The University of North Carolina Press, 1944, pp. 13-5 (second ed. New York: Garland Publishing, Inc., 1973).

2. Kelsen was aware that the most serious difficulty was the requirement for the Court's sentences to be enforced by an international police different from and independent of states' armed forces; see H. Kelsen, Law and Peace in International Relations, Cambridge (Mass): Harvard University Press, 1948, pp. 145-68.

3. Cf. H. Kelsen, Peace through Law, cit., pp. 87-8 and pp. 71 ff.

4. On the distinction between an international "offence" (or "wrongful act") and an international "crime" see the "Draft Articles on Responsibility of States for Internationally Wrongful Acts", passed by the International law commission in its 48th session (May 6 - July 26, 1996). The distinction, however, lacks empirical reference (art. 19).

5. Cf. A. Roberts, R. Guelff (eds), Documents on the Laws of War, Oxford, Oxford University Press, 2000, p. 177.

6. Trial of the Major War Criminals before the International Military Tribunal Nuremberg 14 November 1945-1 October 1946, vol. II, Nuremberg, 1947, pp. 146-7. H. Kelsen, in his paper Will the Judgment in the Nuremberg Trial Constitute a Precedent in International Law?, "The International Law Quarterly", 1 (1947), 2, pp. 153-171, quotes this passage and argues a formalistic critique of it which contradicts his general theory of the primacy of international law over domestic law (pp. 156 ff).

7. Cf. The Avalon Project of the Yale Law School: Judgment of the International Military Tribunal. My emphasis.

8. Giorgio Gaja, in The Long Journey Towards Repressing Aggression, in A. Cassese, P. Gaeta, J.R.W.D. Jones (eds), The Rome Statute of the International Criminal Court: A Commentary, Oxford: Oxford University Press, 2002, p. 435, emphasises that the specification of the subjective elements is lacking even in the Resolution 3314 (XXIX) of the General Assembly of the United Nations, of 1974: "the General Assembly resolution fails to give any indication of essential elements of the crime such as which individuals are criminally liable and what sort of mental element is required for the same purpose"; on the issue of the subjective elements of the crime of aggression and the distinction between "dolo diretto" and "dolo specifico" cf. A. Cassese, Lineamenti di diritto internazionale penale, Bologna: il Mulino, 2005, pp. 154-6.

9. On this see P.C. Jessup, The Crime of Aggression and the Future of International Law, "Political Science Quarterly", 62 (1947), 1. Another pertinent international document, though not legally binding, is the Draft Code of Crimes against Peace and Security of Mankind, passed in 1996 by the International law commission of the United Nations. The definition of "aggression" as an international crime in this document is found to be disappointing by Antonio Cassese, because of its logical circularity (cf. A. Cassese, Lineamenti di diritto internazionale penale, cit., p. 149).

10. Cf. C. Miglioli, La sanzione nel diritto internazionale, Milano: Giuffrè, 1951, p. 69.

11. Cf. H. Arendt, Eichmann in Jerusalem: A Report on the Banality of Evil, London: Penguin, 1976, pp. 254-9. B.V.A. Röling argued that post World War II international trials were used by victors for propaganda and to conceal their own misdeeds; cf. B.V.A. Röling, The Nuremberg and the Tokyo Trials in Retrospect, in C. Bassiouni, U.P. Nanda (eds), A Treatise on International Criminal Law, Springfield: Charles C. Thomas, 1973. For his own part Hedley Bull (The Anarchical Society, London: Macmillan, 1977, p. 89) argued that the symbolic function of the trials was obfuscated by the selective character of their judgements. See also: R. Quadri, Diritto internazionale pubblico, Napoli: Liguori, 1974.

12. Cf. H. Kelsen, Peace through Law, cit., pp. 110-15. Kelsen thought that the Soviet Union, by invading Poland and declaring war to Japan, had committed war crimes that could be punished by an international Tribunal.

13. Cf. H. Kelsen, Will the Judgment in the Nuremberg Trial Constitute a Precedent in International Law?, cit., p. 171. Kelsen dwells again on this in his Principles of International Law, New York: Holt, Rinehart & Winston, pp. 215-20.

14. See my Invoking Humanity. War, Law and Global Order, London-New York: Continuum International, pp. 166-9.

15. The Statute of the international Tribunal for the former Yugoslavia devotes four articles (2-5) to specifying the jurisdiction of the Court. The Statute of the international Tribunal for Rwanda devotes three (2-4). On the Arusha Tribunal, whose activity has turned out to be essentially irrelevant in the transition to civil life, see: D. Shraga, R. Zacklin, The International Criminal Tribunal for Rwanda, 'European Journal for International Law', 7 (1996), 4, pp. 501-18; G. Cataldi, Il Consiglio di Sicurezza delle Nazioni Unite e la questione del Ruanda, in P. Picone (ed.), Interventi delle Nazioni Unite e diritto internazionale, Padova: Cedam, 1995, pp. 445-61; I. Bottigliero, Il rapporto della commissione di esperti sul Ruanda e l'istituzione di un tribunale internazionale penale, 'La comunità internazionale', 4 (1994), 4, pp. 760-8.

16. This institution has had few but significant applications, such as the indictment of the Chilean general Augusto Pinochet by the Spanish magistracy or of the Israeli leader Ariel Sharon by the Belgian magistracy.

17. Cf. the Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity of the General Assembly of the United Nations, that entered into force on November 11, 1970.

18. Giorgio Gaja (op. cit., p. 429) points again to the paradox that "while repression was partially provided for crimes against humanity through the adoption of the 1948 Genocide Convention and for war crimes under the 1949 Geneva Conventions, no parallel initiative was taken with regard to crimes against peace".

19. As well as, in some quite exceptional cases, for the leaders of middle powers, such as Iraq, or small powers, such as Uganda.

20. Cf. A. Cassese, International Criminal Law, Oxford: Oxford University Press, 2003, pp. 112.

21. This includes Michael Glennon, Bruno Simma and Antonio Cassese. See again my Invoking Humanity, cit., pp. 66-76. These authors argued that the NATO attack in Kosovo violated Art.2(4) of the UN Charter, without adding, however, that it was an international aggression.

22. Ibid., pp. 109-14. In connection with this unhappy development A. Cassese spoke of an enduring "Nuremberg syndrome", that is a tendency of international criminal courts to continue the model of the "victors' justice" (A. Cassese, Il processo a Saddam e i nobili fini della giustizia, in "la Repubblica", 19 October 2005, p. 23; "when the issue arose of ascertaining whether NATO troops committed war crimes in Serbia in 1999, the Hague Attorney preferred to avoid starting an investigation").

23. See G. Vassalli, Statuto di Roma. Note sull'istituzione di una Corte Penale Internazionale, "Rivista di studi politici internazionali", 66 (1999), 1, pp. 9-24. For abundant information and documentation see the UN web site.

24. Ibid.

25. This delay is laid down by Art. 121 of the Rome Statute.

26. Cf. G. Gaja, op. cit., pp. 430-2.

27. Cf. A. Cassese, Lineamenti di diritto internazionale penale, cit., p. 150.

28. Art. 98 allows a state not to hand over another state's national (who is in its territory and should be tried by the Court) to the Court itself if there is a treaty between the two states prohibiting extradition.

29. Cf. G. Gaja, op. cit., pp. 431-2.

30. Cf. G. Gaja, op. cit., pp. 440-1.

31. Cf. B. Conforti, Diritto internazionale, Napoli, Editoriale Scientifica, 1997, pp. 199-202. On this see also L. Oppenheim, L. Lauterpacht, International Law, I, London: Longmans, Green & Co, 1948, pp. 142-3.

32. The so-called 'Stimson doctrine', named after H.L. Stimson, the United States Secretary of State that set it out in 1932, proposed to disown the territorial expansion resulting from violence or gross violations of international law. The United Nations General Assembly has repeatedly pronounced on the issue of disowning territorial annexation resulting from the illegal use of force On this see B.B. Ferencz, Defining Aggression: Where it Stands and Where it's Going, "American Journal of International Law", 66 (1972) 3, p. 502.

33. Cf. B. Conforti, Diritto internazionale, Napoli: Editoriale Scientifica, 1997, pp. 200-201.

34. Article 64 provides that "The penal laws of the occupied territory shall remain in force, with the exception that they may be repealed or suspended by the Occupying Power in cases where they constitute a threat to its security or an obstacle to the application of the present Convention. [...] The Occupying Power may subject the population of the occupied territory to provisions which are essential to enable the Occupying Power to fulfil its obligations under the present Convention [...]".

35. Ibid.