Lieblich: Can There Be a Crime of Internal Aggression?

Eliav Lieblich (Tel Aviv Univ. - Law) has posted Can There Be a Crime of Internal Aggression? (in Rethinking the Crime of Aggression: International and Interdisciplinary Perspectives, Eckart Conze & Stefanie Bock eds., forthcoming). Here's the abstract:

Aggression is usually conceived as a phenomenon of inter-state relations. However, this view seems lacking in an era in which most – and certainly the deadliest – wars are conflicts within states. Yet, much in line with the general view in international law that there is no internal jus ad bellum, there is no international norm that criminalizes, in a straightforward manner, the wrongful resort to armed force within states. Crucially, if the normative core of the crime of aggression is to address the unjust killings that it entails – including killings that might be lawful under jus in bello – then the absence of an internal equivalent of aggression reflects an inconsistency. This Chapter, therefore, offers a preliminary discussion of a crime of internal aggression. Building on a previous work, it argues that international human rights law can serve as an internal equivalent of jus ad bellum. It then discusses whether existing international criminal law captures wrongful killings that do not violate international humanitarian law, when these occur in internal conflicts. Arguing that the answer is negative, this Chapter imagines a crime of internal aggression, applicable both to the leaders of states and of armed opposition groups.

Heller: Who Is Afraid of the Crime of Aggression?

Kevin Jon Heller (Univ. of Amsterdam - Law) has posted Who Is Afraid of the Crime of Aggression? Here's the abstract:

Immediately after the historic adoption of the aggression amendments on 14 December 2017, a number of participants in the negotiations expressed their belief that activating the crime of aggression would help deter states from engaging in the illegal use of force. Unfortunately, the version of the crime adopted in New York is but a pale shadow of the kind of criminal prohibition capable of convincing would-be aggressors that they will be held accountable for their acts. Instead, as this article explains, the crime of aggression at the ICC is so jurisdictionally narrow, so substantively limited, and so unlikely to promote domestic prosecutions that its deterrent value is essentially nonexistent.

Weisbord: The Crime of Aggression: The Quest for Justice in an Age of Drones, Cyberattacks, Insurgents, and Autocrats

Noah Weisbord (Queen's Univ., Kingston - Law) has published The Crime of Aggression: The Quest for Justice in an Age of Drones, Cyberattacks, Insurgents, and Autocrats (Princeton Univ. Press 2019). Here's the abstract:

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On July 17, 2018, starting an unjust war became a prosecutable international crime alongside genocide, crimes against humanity, and war crimes. Instead of collective state responsibility, our leaders are now personally subject to indictment for crimes of aggression, from invasions and preemptions to drone strikes and cyberattacks. The Crime of Aggression is Noah Weisbord’s riveting insider’s account of the high-stakes legal fight to enact this historic legislation and hold politicians accountable for the wars they start.

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Weisbord, a key drafter of the law for the International Criminal Court, takes readers behind the scenes of one of the most consequential legal dramas in modern international diplomacy. Drawing on in-depth interviews and his own invaluable insights, he sheds critical light on the motivations of the prosecutors, diplomats, and military strategists who championed the fledgling prohibition on unjust war—and those who tried to sink it. He untangles the complex history behind the measure, tracing how the crime of aggression was born at the Nuremberg trials only to fall dormant during the Cold War, and he draws lessons from such pivotal events as the collapse of the League of Nations, the rise of the United Nations, September 11, and the war on terror.

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The power to try leaders for unjust war holds untold promise for the international order, but also great risk. In this incisive and vitally important book, Weisbord explains how judges in such cases can balance the imperatives of justice and peace, and how the fair prosecution of aggression can humanize modern statecraft.

Sadat: Seeking Accountability for the Unlawful Use of Force

Leila Nadya Sadat (Washington Univ., St Louis - Law) has published Seeking Accountability for the Unlawful Use of Force (Cambridge Univ. Press 2018). Contents include:

• Geoffrey Robertson, Foreword
• Leila Nadya Sadat, Preface
• Donald M. Ferencz, Introduction
• M. Cherif Bassiouni, The status of aggression in international law from Versailles to Kampala – and what the future might hold
• William A. Schabas, Nuremberg and aggressive war
• Robert Cryer, The Tokyo IMT and crimes against peace (aggression) – is there anything to learn?
• Larry May, The just war in ancient legal thought
• Kirsten E. Sellars, Definitions of aggression as harbingers of international change
• David M. Crane, International humanitarian law in an age of extremes: unlawful uses of force by non-state actors
• Larissa van den Herik & Catherine Harwood, Commissions of inquiry and the Jus ad Bellum
• Douglas J. Pivnichny, The international court of justice and the use of force
• Carrie McDougall, The other enemy: transnational terrorists, armed attacks and armed conflict
• Robin Geiß, Towards the substantive convergence of international human rights law and the laws of armed conflict – the case of Hassan v. the United Kingdom
• Sergey Sayapin, International law on the use of force: current challenges
• Yoram Dinstein, The crime of aggression under customary international law
• Jennifer Trahan, The crime of aggression and the international criminal court
• Terje Einarsen, Prosecuting aggression through other universal core crimes at the International Criminal Court
• Manuel J. Ventura, The illegal use of armed force (other inhumane act) as a crime against humanity: an assessment of the case for a new crime at the International Criminal Court
• John Hagan & Anna Hanson, Aggression, atrocities, and accountability: building a case in Iraq
• Federica D'Alessandra & Robert Heinsch, Rethinking the relationship between Jus in Bello and Jus ad Bellum: a dialogue between authors
• David J. Scheffer & Angela Walker, Twenty-first-century paradigms on military force for humane purposes
• Mary Ellen O'Connell, The presumption of peace: illegal war, human rights, and humanitarian law
• Leila Nadya Sadat, The urgent imperative of peace
• Benjamin B. Ferencz, Epilogue

Akande & Tzanakopoulos: Treaty Law and ICC Jurisdiction Over the Crime of Aggression

Dapo Akande (Univ. of Oxford - Law) & Antonios Tzanakopoulos (Univ. of Oxford - Law) have posted Treaty Law and ICC Jurisdiction Over the Crime of Aggression (European Journal of International Law, forthcoming). Here's the abstract:

This article examines the question of who will be subject to ICC jurisdiction with respect to the crime of aggression. One of the most contentious questions in the negotiations regarding the crime of aggression was whether the Court would have jurisdiction over nationals of a state that does not ratify the aggression amendments, but which is alleged to have committed an act of aggression on the territory of a state has accepted the aggression amendments. The question is examined here against the background of the rules in the law of treaties regarding amendments and treaty interpretation. The article considers the legal effect that the resolution of the ICC Assembly of States Parties (ASP), adopted in New York in December 2017 and activating ICC jurisdiction over aggression, will have in determining this jurisdictional question. A resolution of an international conference adopted by consensus can, in principle, be regarded as subsequent practice or a subsequent agreement of the parties to the Rome Statute that establishes the authentic interpretation of the Statute within the meaning of the Vienna Convention on the Law of Treaties. It is argued however that this particular resolution does not, in itself, provide the definitive answer as to the correct interpretation of the Rome Statute. Despite being adopted by consensus, and despite being highly relevant for the interpretation of the Rome Statute and Kampala Amendments, this resolution does not necessarily amount to a subsequent agreement or subsequent practice that the Court is legally bound to follow. Nevertheless, it is further argued that the position adopted in New York with regard to the jurisdiction of the Court over nationals of states parties that do not ratify the aggression amendments is the correct legal position and the one that the Court, including the Office of the Prosecutor, ought to adopt. The answer to the question over whom the Court will have jurisdiction with respect to aggression is to be found in Rome rather than in Kampala. We argue that the key to addressing this issue is to understand how the amendment provisions of the Rome Statute work in conjunction with basic principles of the law of treaties.

Dannenbaum: The Crime of Aggression, Humanity, and the Soldier

Tom Dannenbaum (Tufts Univ. - Fletcher School) has published The Crime of Aggression, Humanity, and the Soldier (Cambridge Univ. Press 2018). Here's the abstract:

The international criminality of waging illegal war, alongside only a few of the gravest human wrongs, is rooted not in its violation of sovereignty, but in the large-scale killing war entails. Yet when soldiers refuse to kill in illegal wars, nothing shields them from criminal sanction for that refusal. This seeming paradox in law demands explanation. Just as soldiers have no right not to kill in criminal wars, the death and suffering inflicted on them when they fight against aggression has been excluded repeatedly from the calculation of post-war reparations, whether monetary or symbolic. This, too, is jarring in an era of international law infused with human rights principles. Tom Dannenbaum explores these ambiguities and paradoxes, and argues for institutional reforms through which the law would better respect the rights and responsibilities of soldiers.

Ruys: Criminalizing Aggression: How the Future of the Law on the Use of Force Rests in the Hands of the ICC

Tom Ruys (Universiteit Gent - Law) has posted Criminalizing Aggression: How the Future of the Law on the Use of Force Rests in the Hands of the ICC (European Journal of International Law, forthcoming). Here's the abstract:

As the activation of Articles 8bis, 15bis and 15ter of the ICC Rome Statute (RS) is drawing ever nearer, the debate over the prosecution of the crime of aggression has taken off again with renewed vigour. While various flaws and imperfections of the Kampala resolution have attracted scholarly attention, the present paper focuses on one particular source for concern, viz. the implications which the activation of the Court’s jurisdiction may have for the legal regime governing the use of force between States. It is assumed at the outset that, even if investigations into alleged crimes of aggression may not occur on a frequent basis, sooner or later the ICC will inevitably be called upon to apply Article 8bis RS. Indeed, even if the majority of situations dealt with by the Court pertain to non-international armed conflicts, there have also been a number of situations involving an international/inter-State element. In essence, each such situation potentially raises jus contra bellum concerns, and may accordingly lead to allegations that the crime of aggression has been committed. Even if the lion’s share of these allegations is unlikely to make it past the preliminary examination or investigation phases, the way in which the ICC Prosecutor and the Pre-Trial Chambers play their role as gatekeepers with regard to the crime of aggression is bound to have strong repercussions for the interpretation and compliance pull of the law on the use of force.

The present paper first addresses the possible impact of the ICC’s jurisdiction over the crime of aggression on the recourse to, and acceptance of, unilateral humanitarian intervention (Section 2), before addressing other ways in which it may influence the international legal framework governing the use of force (Section 3). Section 4 concludes.

Dannenbaum: The Criminalization of Aggression and Soldiers’ Rights

Tom Dannenbaum (Univ. College London - Law) has posted The Criminalization of Aggression and Soldiers’ Rights (European Journal of International Law, forthcoming). Here's the abstract:

This article identifies the core wrong of criminal aggression to be the entailed legally unjustified killing and human violence and not the violation of sovereignty or states’ rights. Its core contribution is to elaborate two implications of that normative account of the crime. First, soldiers have a right to refuse to fight in criminal wars and they must be recognized as refugees when they flee punishment for engaging in such refusal. Second, those killed or harmed by an aggressor force are the core victims of the crime. As such, they, and not the attacked state, have the primary claim to judicial participation as victims at the International Criminal Court and to the reparations that follow. Those who adhere to the orthodox notion of aggression as a crime against states miss both of these implications. Soldiers seeking asylum when they refuse to fight in aggressive wars are denied on the grounds that, if they were to fight, they would be far removed from the macro wrong against a foreign state, and so should have no difficulty “washing their hands of guilt.” This is misguided. Although there are good reasons for the “leadership element” that protects them from criminal liability for aggression, soldiers perpetrate directly the constituent wrongs of the criminal action and the reasons not to punish them for doing so are not reasons to deny them the right to disobey. Similarly, adherents to the traditional account would grant states the right to participate as victims and claim reparations in aggression prosecutions. This, too, is a mistake. The victims of the wrong that renders aggressive war criminally condemnable are soldiers killed or harmed fighting an aggressor force and collaterally killed or harmed civilians. These are the class members eligible for judicial participation and reparations.

Ruys: Justiciability, Complementarity and Immunity: Reflections on the Crime of Aggression

Tom Ruys (Universiteit Gent - Law) has posted Justiciability, Complementarity and Immunity: Reflections on the Crime of Aggression (Utrecht Law Review, Vol. 13, no. 1, pp. 18-33, January 2017). Here's the abstract:

Some 70 years after the first and, so far the only, criminal prosecutions pertaining to the ‘supreme international crime’ took place, the activation of the – long dormant – jurisdiction of the International Criminal Court (ICC) over the crime of aggression appears imminent. At the time of writing, 32 States Parties had ratified the Kampala Amendments on the Crime of Aggression, thus exceeding the 30 ratifications required under Articles 15bis and 15ter of the ICC Rome Statute (RS). The moment of truth will arrive somewhere after 1 January 2017, when the Assembly of States Parties will need to adopt a decision affirming the Court’s jurisdiction. As the activation of Articles 8bis, 15bis and 15ter RS is drawing nearer, the debate over the prosecution of the crime of aggression has again taken off with renewed vigour. Against this background, the present essay revisits the suggestion that the crime of aggression is inherently non-justiciable, on the one hand, as well as the critique that the activation of the ICC’s jurisdiction over the crime of aggression will have a detrimental effect by inspiring (highly politicized) prosecutions of alleged ‘aggressors’ before the national courts of third States, which are moreover incompatible with the par in parem axiom.

Sellars: The Origin of the Idea of 'Aggression' in International Criminal Law

Kirsten Sellars (Chinese Univ. of Hong Kong - Law) has posted The First World War, Wilhelm II, and Article 227: The Origin of the Idea of 'Aggression' in International Criminal Law (in The Crime of Aggression – A Commentary, Claus Kress & Stefan Barriga eds., 2016). Here's the abstract:

It is well known that David Lloyd George declared his intent to try the Kaiser for starting World War I, but it is not known that British lawyers embarked on detailed behind-the-scenes plans for prosecuting him — plans now brought to light in newly uncovered archival documents.

At the end of the First World War, Lloyd George declared: ‘The Kaiser must be prosecuted. The war was a crime.’ This was a radical departure from the traditional approach to war, advancing the then-novel ideas that starting an aggressive war was a crime, and that national leader could be held criminally responsible.

After the signing of the Versailles Treaty in June 1919, the British Attorney General, Sir Gordon Hewart, quietly began laying the groundwork for Wilhelm II’s prosecution, in case the latter fell into entente hands. These plans – unheralded then and overlooked since – were set in motion in August 1919, when Hewart convened a meeting between himself, the Solicitor General, the Procurator General, and two senior barristers, Frederick Pollock and George Branson.

As it turned out, the ex-Kaiser never faced trial. Six days after the Versailles Treaty came into force, the entente powers requested that the Netherlands, where Wilhelm II had sought asylum, deliver him for trial. The Dutch refused, and Hewart pulled the plug on the British prosecution project.

Kreß & Barriga: The Crime of Aggression: A Commentary

Claus Kreß (Universität zu Köln - Law) & Stefan Barriga (Ministry for Foreign Affairs, Principality of Liechtenstein) have published The Crime of Aggression: A Commentary (Cambridge Univ. Press 2016). Here's the abstract:

The 2010 Kampala Amendments to the Rome Statute empowered the International Criminal Court to prosecute the 'supreme crime' under international law: the crime of aggression. This landmark commentary provides the first analysis of the history, theory, legal interpretation and future of the crime of aggression. As well as explaining the positions of the main actors in the negotiations, the authoritative team of leading scholars and practitioners set out exactly how countries have themselves criminalized illegal war-making in domestic law and practice. In light of the anticipated activation of the Court's jurisdiction over this crime in 2017, this work offers, over two volumes, a comprehensive legal analysis of how to understand the material and mental elements of the crime of aggression as defined at Kampala.

Moyn: From Aggression to Atrocity: Rethinking the History of International Criminal Law

Samuel Moyn (Harvard Univ. - Law and History) has posted From Aggression to Atrocity: Rethinking the History of International Criminal Law (in The Oxford Handbook of International Criminal Law, Kevin Jon Heller, Jens David Ohlin, Sarah Nouwen, Frédéric Mégret, & Darryl Robinson eds., forthcoming). Here's the abstract:

Explaining the shift from the priority of the charge of "aggression" in the beginning of the field of international criminal law to its exclusion in the age of the its reinvention around a suite of atrocity charges is the central task for historians in understanding this domain — and it also should matter for observers of the world today. Yet routinely, international criminal law is presented as running through a smooth trajectory, rather than a stark reversal or at least massive shift. For this reason, this essay gathers together elements for a case for the transformation in the first place, and floats some hypotheses about its timing and causes.

Dannenbaum: Why Have We Criminalized Aggressive War?

Tom Dannenbaum (Univ. College London - Law) has posted Why Have We Criminalized Aggressive War? (Yale Law Journal, forthcoming). Here's the abstract:

Uniquely in international criminal law, the criminalization of aggression is rooted in a wrong inflicted by a state on another state, rather than in a wrong (or collection of wrongs) inflicted on individual human beings by other human beings (whether or not the latter are state agents). Other international crimes, like genocide, also involve wrongs against a collective entity. However, the wrong underpinning aggression is special because it occurs exclusively on the macro level. Even the bloodiest aggressive war need not inflict any criminal wrong on individuals. Or so goes the traditional normative account (shared by those who defend the criminalization of aggression and those who object to that criminalization).

I reject that understanding. Not only are individuals wronged gravely in an aggressive war, the wrongfulness of their treatment as individuals is at the very crux of what explains the criminalization of aggression. It is the normative core of the crime.

To be clear, the dominant view is correct that whether a war is criminal is determined on the macro level by whether there is an inter-state breach. But that inter-state breach cannot explain why waging such wars is criminal. The core moral problem with aggressive war is not that it infringes sovereignty, but that it entails killing, maiming, and destroying in a context that does not warrant the infliction of such profound human harms.

There are five reasons that this is the optimal normative account of the crime of aggression. First, the concept of “sovereignty” or “states’ rights” is indeterminate as a normative guide on the issue of aggression. The criminalization of such wars is at least as great a restraint on state sovereignty as it is a protection of it. Second, what distinguishes aggression from any other sovereignty violation is that it involves widespread killing, not that it involves especially egregious violations of territorial integrity or political independence. Other violations that more effectively and dramatically infringe those sovereign rights are not criminalized. Conversely, there is no sovereignty violation that more directly attacks the physical integrity of human beings than does aggressive war. Third, understanding aggression in this way reconciles it to the broader international criminal law project. Fourth, the claimed imperative to incorporate a restrictive jus ad bellum into twentieth century international law was articulated not in terms of sovereignty, but in terms of human suffering. Finally, the jurisprudence and reasoning of the judges and prosecutors at Nuremberg and Tokyo affirmed their understanding that the prohibition of wrongful killing is normatively central to the crime.

The Article concludes by explaining why clarity on this normative substructure is not merely a point of theoretical accuracy, but has significant upshots for the legal framework. First, genuine unilateral humanitarian intervention may be illegal, but it cannot coherently be deemed criminal. Second, so-called “bloodless aggression” is also unlikely to be criminal, unless it involves a massive, immediate, and direct threat to human life. Third, soldiers who participate in criminal wars are not just participants in a mass criminal action. They are also the immediate perpetrators of the constituent wrongs that make sense of the criminality of that action. This has significant implications for their status under international law. Fourth, recognizing that the victims of aggression are individuals (and not just states) sheds light on how we ought to conceive of reparation in this context.

AJIL Unbound Symposium: Koh and Buchwald's The Crime of Aggression: The United States Perspective

AJIL Unbound has posted a symposium on Harold Hongju Koh and Todd F. Buchwald's article The Crime of Aggression: The United States Perspective. The symposium includes an introduction by Dapo Akande and responses by Nicholas Rostow, Tom Dannenbaum, Andreas Zimmermann, and Sarah Williams.

Mégret: What is the Specific Evil of Aggression?

Frédéric Mégret (McGill Univ. - Law) has posted What is the Specific Evil of Aggression? Here's the abstract:

This paper seeks to articulate a moral case for criminalizing aggression. At the intersection of international law and moral theory, it takes the former seriously but considers that defenders of criminalization have failed, perhaps because they have allowed themselves to be sidetracked by definitional issues, to make a robust argument for why we should take aggression as one of the worst international crimes. Although this case might seem obvious to activists, one of the reasons for the historical decline of aggression as an international crime may well be persistent (but rarely fully acknowledged) doubts about the foundations of its condemnation and their possibly incompatible character. The chapter thus seeks to make a stylized case for the importance of aggression as an international crime that rehabilitates its normative status by putting it a much more solid (yet radical) footing than what has been bequeathed to us by Nuremberg.

The paper suggests three ways of conceptualizing aggression that can be teased out of the discourse and examines their merits. It finds that the definition of aggression as first and foremost a crime against certain states' sovereignty, whilst undeniably capturing something, needs to deal with the relative normative decline of sovereignty, and its simultaneous implication in the very definition of what is or is not aggression (in a way that makes it difficult for sovereignty to act simultaneously as a signifier of meaning and gravity). Crimes against humanity and genocide as such have a better claim to our indignation, all other things being equal, because of their oppressive and asymmetrical character against the defenceless. More importantly, the paper considers the hypothesis of "war as duel" (one in which two states agree to fight each other), and concludes that we would consider a war no less grave simply because it proceeded from mutual sovereign assent from the outset. In other words, the condemnation of aggression betrays a concern with public order (war is wrong regardless of agreement by parties to it) and reflects above all our misgivings about war as a particular form of violence. We should not confuse war's most common cause (aggression) with the nature of the problem (violence in international relations).

The paper thus turns to a second possible conceptualization of aggression, namely as a form of crime against peace, as illustrated most notably at Nuremberg. Again, this captures something but the idea of peace as the value that is primarily protected by the prohibition on aggression is vague and problematic. In particular, the idea of aggression as the "mother of all crimes" fails to account for the fact that aggression is not necessarily causal of much of the violence that we find objectionable in war in that (i) we no longer typically think that the gravest atrocity crimes (genocide, crimes against humanity) necessarily or logically follow from aggression, (ii) not even war crimes follow strictly from the fact that there was an aggression, and at least we have no reason to think that the aggressor necessarily commits more such war crimes, and (iii) at any rate if it does commit a range of atrocity crimes, these are already and better prosecuted under their own name rather than as simply consequences flowing from aggression. What is more, the computing of the causal evil of aggression is made complicated by international law's obfuscation of the specific violence of war through two simultaneous moves (i) the humanitarian "laundering" of war, i.e.: the extent to which both the killing of combatants and the collateral killing of civilians (within certain bounds) are considered legal, even though they may well in practice account for the greatest number of casualties by far of any given conflict and our sense of revulsion at war, and (ii) the tendency of international human rights law to have abdicated the moral hight ground vis-à-vis the humanitarian sensitivity to war, under the broad rubric of the laws of war as lex specialis of human rights when it comes to determining who can be killed.

The paper then goes on to articulate a third and quite different conceptualization of the evil of aggression, namely that it is a violation of the rights of all of those affected by it. The suggestion is that a radical cosmopolitan take on human rights would rise up to its pacifist potential, and deny aggressor states the possibility of (entirely) hiding behind international humanitarian law to mask their sins by relying on the international reification of war. The chapter articulates some of the doctrinal moves that need to be made to realize such a change in how we conceptualize war, including expanding the recognition of extra-territorial jurisdiction in case of aggression. It seeks to explore all the implications of seeing aggression as a violation not only of the right to peace of collectives, but also to life and integrity of every individual affected by aggression, including not only civilians of the defending state, but also its combatants. More radically, it suggests that we should also consider as victims of aggression the civilians and combatants of the attacking state itself, that are put in harm's way by its decision to commit aggression, a decision that ex hypothesis cannot be justified either under international law or human rights. It also proposes a theory of how this new found sense of the human rights responsibilities of the aggressor might fit alongside the continued (but critically evaluated) application of the laws of war, seeking nonetheless to highlight a normative horizon in which the anomaly of the laws of war would be eliminated. It concludes with a few thoughts on how deploying human rights discourse against positive international law (including mainstream international human rights law) might be a way of helping the idea of human rights in international society rise up to its true potential.

Grant: Aggression against Ukraine: Territory, Responsibility, and International Law

Thomas D. Grant (Univ. of Cambridge - Law) has published Aggression against Ukraine: Territory, Responsibility, and International Law (Palgrave Macmillan 2015). Here's the abstract:

Aggression against Ukraine marks a stunning shift. Ever since 1945 it had been understood that the borders of States must not be the object of forcible change by other States. However, Russia has now revived long-buried historical claims—and prosecutes them by dint of arms. The annexation of Crimea in March 2014 and the subsequent armed incursions in eastern Ukraine under color of separatist movements in Donetsk and Luhansk challenge not just one State's territorial integrity, but jeopardize the general settlement on which international law for almost three generations has rested. This is the settlement which enabled human rights and modern institutions of international law to flourish. Russia's domestic rejection of human rights and its new geopolitics of territorial seizure in this light should be seen not in isolation but as connected developments—and as a challenge to international law and global public order at large.

Ohlin: The Crime of Bootstrapping

Jens David Ohlin (Cornell Univ. - Law) has posted The Crime of Bootstrapping (in The Crime of Aggression: A Commentary, Claus Kress & Stefan Barriga, forthcoming). Here's the abstract:

The following commentary offers a counter-intuitive explanation of the crime of aggression, its underlying moral rationale and its proper place within the general structure of the laws of war. Specifically, this essay concludes that aggression penalises States that attempt to bootstrap their way into the permissive legal regime of international humanitarian law (‘IHL’) – a legal regime that permits the wholesale killing of enemy combatants. Part B will explain why criminal law has generally penalised defendants who seek to create their own exonerating conditions, by applying a doctrine that criminal lawyers from civil law jurisdictions call actio libera in causa. The same intuitions apply in common law jurisdictions, though often without the same level of systematicity. Part C asks whether the same principle should apply in the laws of war; I answer in the affirmative. Specifically, the crime of aggression is an example of actio libera in causa because it penalises States that attempt to trigger the application of IHL that will legitimise widespread violence. For this reason we should dub aggression the ‘crime of bootstrapping’, a jus ad bellum framework to close what would otherwise constitute a moral paradox.

Part D takes the analysis one step further by emphasising the respective roles to which jus in bello and jus ad bellum are assigned in public international law; recent attempts to make IHL more restrictive are motivated by the relative paucity of jus ad bellum constraints on State behaviour. This situation can only be cured once the crime of aggression becomes fully operational at the International Criminal Court (‘Court’). Part E discusses two operational obstacles to prosecuting aggression before the Court. The first involves uncertainty over how it would apply to democratic regimes where political control over war-making is vested in a corporate body like a parliament. The second involves uncertainty over the required mental state, and whether politicians should be convicted for foreseeing that military action might become an act of aggression.

Akande & Tzanakopoulos: The International Court of Justice and the Concept of Aggression

Dapo Akande (Univ. of Oxford - Law) & Antonios Tzanakopoulos (Univ. of Oxford - Law) have posted The International Court of Justice and the Concept of Aggression (in The Crime of Aggression - A Commentary, Claus Kreß & Stefan Barriga eds., forthcoming). Here's the abstract:

This paper reviews the contribution of the International Court of Justice in defining the concept of aggression against the background of the Kampala Amendments to the 1998 Rome Statute of the International Criminal Court. It argues that the ICJ, while not contributing directly to the elaboration of the concept of aggression, has indeed influenced the internal gradation of the concept of aggression through drawing an implicit parallel with the concept of armed attack. The paper then completes this picture by introducing a three-step parallel gradation of concepts: use of force-armed attack-serious breach of jus cogens and use of force-act of aggression-war and/or crime of aggression; and by discussing their potential relationship and interaction.

2014 Lauterpacht Memorial Lectures

On February 17-19, 2014, Mary Ellen O'Connell (Univ. of Notre Dame - Law) will deliver the 2014 Sir Hersch Lauterpacht Memorial Lectures at the University of Cambridge. The topic of the lectures is "International Law and the Art of Peace."

Stahn: On 'Red Lines' and 'Blurred Lines': Syria and the Semantics of Intervention, Aggression and Punishment

Carsten Stahn (Leiden Univ. - Law) has posted On 'Red Lines' and 'Blurred Lines': Syria and the Semantics of Intervention, Aggression and Punishment. Here's the abstract:

One of the most striking features of discussion concerning the legality of strikes against Syria is the mixture of semantics relating to intervention. Vocabularies relating to the use of force have generally been distinct from the realm of International Humanitarian Law and International Criminal Law. The Syria debate folds criminal justifications into the rhetoric of intervention. Intervention is regarded as a means to achieves rationales and objectives of retribution. This essay examines arguments relating to (i) regime accountability under existing doctrines (R2P, 'humanitarian intervention,' 'protection of civilians,' (ii) the ‘punitive’ and deterrence-based justification of intervention, and (iii) the semantics of 'aggression.' It argues that use of force cannot and should not serve as a short-cut to international justice or as a means of punishment.