Case Explained: Why Have We Criminalized Aggressive War? - Legal Perspective

Case Explained:This article breaks down the legal background, charges, and implications of Case Explained: Why Have We Criminalized Aggressive War? – Legal Perspective

abstract. On the dominant view, accepted by both defenders and critics of the criminalization of aggression, the criminal wrong of aggressive war is inflicted on the attacked state. This view is mistaken. It is true that whether a war is criminally aggressive is determined ordinarily by whether it involves a particular form of interstate wrong. However, that is not why such wars are criminal. Aggressive war is a crime because it entails killing without justification. Five reasons explain why this is so. First, banning aggression restricted states from using force to protect their core sovereign rights, including even their rights of political independence and territorial integrity. Those core states’ rights cannot make sense of the move to ban aggression. Second, what distinguishes aggression from any other sovereignty violation—what makes it criminal, when no other sovereignty violation is—is not that it involves an especially egregious violation of territorial integrity or political independence, but that it involves killing without justification. Third, the unjustified killing account makes sense of aggression’s standing alongside genocide, war crimes, and crimes against humanity. The traditional notion that aggression is a crime against sovereignty instead isolates aggression as the inexplicably odd crime out. Fourth, the public reasons for restricting jus ad bellum rights in the early twentieth century focused not on infringements of states’ rights but on the infliction of death without justification. Finally, the importance of wrongful killing to the criminalization of aggression was apparent at the post-World War II tribunals at Nuremberg and Tokyo. Understanding the crime in this way matters doctrinally. This understanding clarifies the boundaries of the crime, resolving hard cases like unilateral humanitarian intervention and bloodless invasion. It also has implications for the legal rights of soldiers involved on either side of such wars.

author. Lecturer in Human Rights, University
College London. For potent contributions ranging from conceptual discussions
prior to the first draft to granular criticism of the fully drafted text, I am
deeply indebted to Dapo Akande, Gary Bass, Charles Beitz, Kiel Brennan-Marquez,
Amy Chua, David Crane, Oona Hathaway, Paul Kahn, Katerina Linos, Itamar Mann,
Daniel Markovits, Frédéric Mégret, Marko Milanovic, Michael Reisman, Jed
Rubenfeld, Kim Lane Scheppele, Scott Shapiro, John Witt, and participants in the
Oxford Public International Law seminar and the American Society of
International Law New Voices session. I am also very grateful to the Yale
Law Journal editorial team, led by William Stone, for outstanding comments
and suggestions, as well as for their work in shepherding this Article through
to publication. As always, any errors are my sole responsibility.

Introduction

Nearly seventy years have passed since an international
tribunal has convicted a defendant of the crime of aggressive war. Nonetheless,
beginning this year, aggression is likely to join the list of violations over
which theInternational Criminal Court (ICC) has jurisdiction. To understand the implications of
this development, and to grasp the controversies surrounding it, we need to be
clear about what is criminally wrongful about aggressive war. This Article
investigates that question.

Like most elements of international criminal law, aggression
finds its foundation in the statutes and jurisprudence of the post-World War II
tribunals at Nuremberg and Tokyo. However, it is an anomalous crime in
several respects. The statutes of every post-Cold War international and hybrid
criminal tribunal other than the ICC have ignored aggression, even as the
General Assembly has repeatedly endorsed its status as an international crime. This marginalization stands in stark
contrast to the central focus placed on war crimes, crimes against humanity,
and genocide in those tribunals. Even aggression’s initial codification in the
Rome Statute in 1998 was extraordinary. Despite being included as one of the
four categories of crime, aggression was a placeholder bereft of content; the
Statute required a subsequent definitional amendment before it would come into
effect.

The scope of criminal responsibility for aggression is also
unique. At Nuremberg and Tokyo, the tribunals held that soldierly obedience was
no excuse for participation in war crimes and crimes against humanity . In the case of aggression, however,
they restricted criminal liability exclusively to members of the German and
Japanese leadership cabals. The ICC amendment makes this
leadership element explicit and buttresses it with a provision specific to aggression
that narrows significantly the complicity doctrines on which almost every
post-Cold War international conviction has hinged.

Finally, and most significantly, aggression is widely
understood to be rooted in a moral wrong “committed against a state” rather
than in wrongs “against individuals.” In an open letter urging States
Parties not to proceed with the incorporation of aggression, a coalition
of pro-ICC human rights activists stressed precisely this normative contrast
between the state-focused crime of aggression and the human-focused crimes of
genocide, war crimes, and crimes against humanity. The distinction is arguably implicit
in every relevant international criminal law provision, from Nuremberg and
Tokyo to the ICC amendment .

The most influential moral accounts of the crime of
aggression also understand the wrong of aggression in these terms. For Michael
Walzer and others defending its criminal wrongfulness, aggression is
fundamentally a crime against the political collective, rooted in a “domestic
analogy” in which states “possess rights more or less as individuals do.” Critics of the criminalization of
aggression adopt the same understanding of the internal normative posture of
the law, but object to its classification alongside the other international
crimes precisely because it privileges sovereignty over humanity. For them, this feature of
aggression contradicts what they take to be the defining moral thrust of
international criminal law. Walzer and these critics disagree on whether the
sovereignty violation that occurs in an aggressive war is a moral wrong worthy
of criminalization. However, from the internallegal point of view, they
agree that the crime as currently constituted is rooted in that claimed wrong.

Other international crimes, like genocide, also involve
wrongs against a collective entity, but what is special about the putative
wrong underpinning the crime of aggression on both of these competing views is
that it occurs exclusively on the macro level. No one would deny that
the individual men and boys killed at Srebrenica were the victims of genocide,
even though it was also a crime against Bosnian Muslims as a group. In contrast, individual soldiers
killed while fighting their states’ lawful wars against aggression are generally
not thought to be victims of a crime .
Or so the traditional normative account goes.

This Article rejects that understanding. Not only are
individuals, including soldiers, wronged gravely in an aggressive war, the
wrongfulness of their treatment as individuals is the very crux of what
explains the criminalization of aggression. It is the normative core of the
crime.

To be clear, the dominant view, shared by both defenders and
critics of the criminalization of aggression, is correct in one respect: a war
of aggression is an interstate breach and, typically, a violation of
sovereignty. In other words, whethera war is criminal depends in large
part on whether that interstate breach occurred. However, imputing personal
criminal responsibility for an interstate breach is anomalous; that violation
is not why aggressive war is criminal. The core moral problem with
aggressive war is neither that it infringes sovereignty, nor even the extent to
which it infringes sovereignty. Indeed, in at least one circumstance, it need
not infringe sovereignty at all.
Rather, the core moral issue is that aggressive war entails killing and maiming
for reasons that are now considered unacceptable: reasons other than the
protection and security of human life.

This Article establishes and defends this internal normative
account of the crime of aggression. Achieving normative clarity in this respect
is not merely an academic or theoretical exercise. Coherent interpretation of
the law requires understanding its moral underpinnings. Excavating and
clarifying those foundations can have profound doctrinal and structural
effects. Understanding that the criminal wrong of aggressive war is its
unjustified infliction of death and human suffering has three material
consequences.

First, it clarifies how to interpret hard cases. Even if one
accepts the dominant view that humanitarian intervention without Security
Council authorization is illegal, the normative framework offered here weighs
heavily against an interpretation on which such action would be criminal.
By responding defensively to the internationally criminal, massive infliction
of human harm, a genuine humanitarian intervention lacks the core wrong that
makes aggressive war worthy of criminalization. Similarly, “bloodless” military
invasions are best interpreted as noncriminal, despite their extremely
effective and illegal usurpation of territory and political control. To be
clear, this does not mean that such invasions cannot be countered lawfully by
means such as defensive force and sanctions (unilateral or collective). Nor
does it mean that the ensuing occupation is lawful or shielded from other legal
remedies. It only means that such actions are best interpreted as falling below
the demanding threshold of criminality.

Second, normative coherence requires international law to
take seriously the human rights and refugee claims of soldiers who refuse to
fight in aggressive war. Some adherents to the traditional account see soldiers
who fight in criminal wars as contributory cogs, no more intimately involved
than taxpayers in a macro wrong against a foreign state. This is a mistake;
such soldiers perpetrate directly the constituent wrongs of the criminal
action. There are good reasons not to hold them criminally or civilly liable
for their participation. However, these are not reasons to deny them the right
to refuse to fight in such wars. On the contrary, the best interpretation
of refugee and human rights law would affirm such a right.

Third, recognizing that the core victims of the crime of
aggression are individuals, rather than states, sheds light on how we ought to
conceive of victim judicial participation and reparations in ICC aggression
prosecutions. The crime of aggression is the core element of international
criminal law that protects combatants’ and collateral civilians’ right to life.
Unlike recent jus ad bellum reparations regimes, which have excluded
combatant deaths from the wrong warranting remedy, the ICC regime of
reparations for aggression must reflect the normative centrality of precisely
those personal violations.

This Article provides the normative foundation for those
doctrinal and operational implications. Part I explains what it is to offer a
normative account of a law and why it is appropriate here. Part II identifies
the dominant normative account of aggression, as understood by both advocates
and critics of its criminalization. On this view, the core wrong of aggressive
war is a wrong against the victim state and the political collective that it
represents. Part III debunks that account, arguing that five aspects of
aggression and its legal context show that its criminalization is primarily
about wrongful killing: (1) sovereignty is indeterminate as a normative guide
to the jus ad bellum and it cannot explain why aggression is criminal,
but more severe sovereignty violations are not; (2) its infliction of unjustified
human suffering can explain why illegal war is the only criminal
sovereignty violation; (3) understanding aggression in this way reconciles it
to the broader international criminal law project; (4) the claimed motivation
for strengthening the jus ad bellum in the early- to mid-twentieth
century was focused on human suffering, not states’ rights or sovereignty; and
(5) the jurisprudence of Nuremberg and Tokyo affirms the place of unjustified
killing at aggression’s normative core. Part IV addresses potential problems
for this account posed by the legal status of bloodless aggression and
humanitarian intervention. Part V introduces the key legal consequences of
adopting this normative account.

i. the
normative underpinnings of a crime

Stated most abstractly, a “normative account” aims to
elaborate a notion of wrongfulness that would make sense of and underpin the
law’s posture on a given issue. The premise of engaging in work of this kind is
that laws do not merely serve to coordinate or to set incentives; they also
instantiate what the community in question takes to be important values. The
balance between the coordinative and moral expressive functions varies across
domains, but criminal law in particular takes a stand on what is right and
wrong and on who has acted culpably. It does not provide priced permissions; it
prohibits and it condemns.

This is nowhere clearer than in international criminal law.
We cannot make sense of the criminalization of obedient participation in crimes
against humanity or genocide as a way of coordinating behavior.
Confronting individuals with contradictory obligations under domestic and
international law may even muddy coordination and confuse expectations. The
criminalization of such obedient participation is instead a moral expression of
the wrongfulness of such participation and the culpability of those who engage
in it.

The criminalization of aggression, like that of other
behaviors, is an expression of fundamental moral values. At the core of the
contemporary jus ad bellum is the public moral claim that certain kinds
of war are fundamentally wrongful. Signatories to the Kellogg-Briand
Pact of 1928—the first treaty to ban war explicitly—not only
committed to “renounce” the recourse to war, but also to “condemn” it. This followed the unabashedly
moralized framing of the issue by the Pact’s intellectual forefathers and was
accompanied by claims that war had finally been recognized as a global public
wrong, rather than a state of bilateral dispute.

The asserted connection between the criminalization of
aggression and underlying moral values was even more explicit at Nuremberg. In
his opening statement before the International Military Tribunal at Nuremberg
(IMT), chief prosecutor Justice Robert Jackson stressed, “When I say that we do
not ask for convictions unless we prove crime, I do not mean mere technical or
incidental transgression of international conventions. We charge guilt on
planned and intended conduct that involves moral as well as legal wrong.” He labeled the pre-Kellogg-Briand
legal order “contrary to ethical principles” because it denied the maxim “that
there are unjust wars and that unjust wars are illegal.”

The Tribunal itself went to some lengths to establish the
positivist credentials for outlawing aggressive war.
However, it combined these efforts with deeply moralized claims . The IMT held that, even in the absence of an
explicit criminal law prohibition, the leader of an aggressive war “must know
that he is doing wrong” and insisted that “it would be unjust if his wrong were
allowed to go unpunished.” It emphasized in this respect such
wars’ wrongfulness in “the conscience of the world,” terming aggression
“essentially an evil thing” and the “supreme international crime.” The U.S.-administered Nuremberg
Military Tribunals (NMT) took a similar line.

A normative account seeks to make sense of such a legal
posture. What is it that makes aggression a “high crime” rather than a “mere
tort” in international law?
What moral judgment underpins that status? To hold that such questions have
answers is not to hold that any particular individual must accept the moral
posture underpinning the substance of the law in all cases; it is merely to
recognize the law’s internal claim to normativity.

Thus, to give a normative account of a law is to endeavor to
inhabit the internal legal point of view.
This means starting not from first principles, but from an analysis of the
current law. However, it also means seeking to account for that law’s
underlying moral claim, rather than seeking merely to describe or interpret the
rule. The premise of the argument that follows is that a normative account is
superior to its alternatives in achieving that objective to the extent that it
better satisfies three core criteria. First, it must offer an explanation for
what the regime unambiguously permits and prohibits concerning the issue at
hand. Second, it ought to reflect the law’s core purposes, as evinced in the
law’s structure and in the articulations of its framers. Third, it should
cohere with connected or related laws in domains adjacent to that which it
explains. In forthcoming work, I argue that if multiple accounts pass the first
three tests, the superior remaining account is that which is most morally
plausible. However, that more controversial
claim is unnecessary here, because the question that motivates this Article can
be answered comprehensively with reference to the three primary criteria.

The first is a straightforward and inflexible threshold
criterion. The essential feature of any normative account is an explanation of
the morality of a given legal rule. It must explain what the law is, not what
the law should be. The second and third criteria are more flexible. They do
much of the work in distinguishing between better and worse accounts, but they
are not minimum essential criteria. At their core is the basic observation that
the law’s credibility as a normative system depends on the schedule of
imperatives it issues cohering with the public purposes those imperatives serve
in a structure of mutual support, rather than collapsing into discord or
internal contradiction. When the normative messages of
different laws conflict, this undermines both the law’s credibility in
condemning violations and its authority in demanding action. Given the
fragmented nature of international law’s enforcement and the rarity of credible
coercive backing, this internal-coherence imperative is particularly acute at
the global level.

However, although coherence among laws and between legal
rules and their stated objectives is an important trait of a good normative account
of the law, it cannot be an essential criterion. Law is created and revised by
the cumulative efforts of different agents, acting at different times with
different objectives. It is the product of compromise and sometimes of
deliberate efforts by competing lawmakers to create internal contradictions. As
a result, it may be impossible in any given case to provide a normative account
that both explains the moral core of a particular law andfits with the
regime’s purpose or with adjacent rules. In that scenario, the best normative
account of the law in question will be dissonant with the regime as a whole.
When no coherent alternative is viable, work on normative underpinnings can be
valuable in helping to identify such dissonance.

The core claim of this Article, substantiated primarily in
Part III, is that judged against these three criteria, a normative account of
the crime of aggression that locates the wrong in the constituent killings is
superior to the traditionally dominant alternative. To set the stage for that
argument, consider first the nature and the appeal of the latter view.

ii. the
orthodox normative account of the crime of aggression

On the dominant normative account, the crime of aggression is
a macro wrong against a foreign state (sometimes understood to draw its moral
value from the self-determining collective it represents), not a compound of
minor wrongs against a population of individual human persons. This sovereignty-focused understanding of aggression has
long been the view of both critics and defenders of the criminalization of
illegal war.

A. The
Walzerian Account: The State as Victim and Perpetrator in the Law

The legal starting point for the orthodox account is clear.
The judgments of the IMT and the International Military Tribunal for the Far
East (IMFTE) described the crime of aggression as that of waging “aggressive
wars” against other “countries” or “nations.”
In addition, both tribunals arranged their findings regarding aggression into
individual criminal wars, identified and separated by victim state. Similarly, Control Council Law No.
10, which governed the NMT, provided that the crime involved the “initiation of
invasions of other countries,”
and the ICC amendment follows the General Assembly’s 1974 articulation in defining
an aggressive war as one that violates the “sovereignty, territorial integrity
or political independence of another State” or otherwise runs contrary to the U.N.
Charter.

It is against this background that Michael Walzer describes
international law on this issue as rooted morally in a “domestic analogy,” in
which aggression is an infringement upon the attacked state akin to the
infringement of burglary on a human person. Under this “legalist paradigm,”
states “possess rights more or less as individuals do.” After all, he contends, it is“the
state that claims against all other states the twin rights of territorial
integrity and political sovereignty”—the rights that the crime of
aggression seeks to protect. Understood in this way, aggression
is a morally unique international crime. Whereas genocide, war crimes, and
crimes against humanity are all rooted in wrongs against human beings, the
normative heart of aggression is a wrong against states.

Seeking to make moral sense of this idea, Walzer argues that it captures the
genuine wrong an aggressive war inflicts on the attacked political collective—a
collective that is defined imperfectly, but, all things considered, optimally,
by state borders. For him, “[t]he state is constituted by the union of people
and government,” and the jus ad bellum’s relationship to individual human
beings is in its protection of their “communal rights” of self-determination.
“Break into the [state] enclosures,” Walzer explains, “and you destroy the
communities. And that destruction is a loss to the individual members . . . .”
In other words, if individuals are wronged when their state is invaded
illegally, that wrong is suffered only indirectly, through the wrong to the
political collective of which they are part.

Emphasizing the priority status of the collective here,
Walzer insists that the wrong of aggression obtains irrespective of the
responsiveness of the community to its members. It obtains whether or not the
state is democratic or respectful of human rights and the rights of minorities.
Only “when a government turns savagely upon its own people” does Walzer think
the morality of states that underpins the crime loses its force because the
state ceases to be a viable forum for collective self-determination.
Significantly, however, despite arguing that the morality of states’ rights
finds its limit in this extreme context, Walzer is clear that his philosophical
position on this point is a departure from the moral underpinnings of the law.
In other words, for Walzer, the legal crime of aggression is rooted
fundamentally in a moral wrong between states. On extraordinary occasion, that
statist morality may be misguided, but for the most part, Walzer not only
identifies it as the moral posture underpinning international law on
aggression, but also defends it as morally appropriate. For him, the crime of aggression
captures a real wrong—a wrong against the state, the moral value of which
is derived from its function as a site of collective self-determination.

This assessment has been endorsed repeatedly. For example,
Paul Kahn contends that the criminalization of aggression at Nuremberg
represented and initiated a “new legal regime founded on protecting state
sovereignty through the prohibition on the use of force.”Kahn sees this prohibition as an effort to ban and condemn violations of
“positive sovereignty, understood as the self-formation of a people” in a state
whose boundaries allow that people to function as “a single, collective actor.” Similarly, Christopher Kutz argues
that aggression’s wrong is in denying the target state’s people the chance to
make “their politics on their own”—a denial that
Kutz argues wrongs nondemocratic peoples no less than democratic ones. Unlike Walzer and Kahn, Kutz does
not link this moral theory to the law. However, by locating the moral violation
at the heart of aggression in its negation of collective autonomy through its infringement
of states’ rights, he buttresses Walzer’s dominant account of the legal regime.

Each of these theorists identifies the political collective
as the sovereign that is wronged by aggression. The core point for each is that
aggression is a wrong against that collective that cannot itself be “reduced,”
in David Rodin’s words, to an aggregation of harms against individuals.

Larry May arrives at a similar conclusion without relying on
self-determination. He argues that “aggression is morally wrong because it
destabilizes States that generally protect human rights more than they curtail
them.” For May, then, the state’s value
lies in its service to human beings, rather than in its approximation of the
political collective. Nonetheless, on his theory, the wrong of aggression
remains a wrong against the state. This, he argues, has implications not just
for how we understand the victim, but also how we define the perpetrator.
Precisely because the wrong at the core of the crime of aggression occurs on
the macro level, “the acts of individuals that make up war are conceptually and
normatively distinct from the State aggression.”
This, he contends, raises a question about how we can hold even high-ranking
individuals “criminally liable for invading Poland,” since the core interstate
wrong is simply not something that they can commit.

Of course, crimes against humanity and genocide have
collective elements of their own: the former involves a widespread and
systematic attack; the latter, an intent to destroy a group. But what
distinguishes aggression for May is that the micro contributions of the
participants in an aggressive war “are not themselves criminal,”and, indeed, are “not themselves wrong independent of what is going on at
the State level.”
Accordingly, May contends that rooting the wrong of aggression in the component
killings and destruction would provide “no relevant moral distinction between
aggressive wars and defensive wars.”
The result, May explains, is that aggression is not a wrong that individuals
(“even lots of them”) can commit, unless they control the state itself.
High-ranking officials can be morally connected to that interstate wrong only
if they combine the right level of control over the state with the intention to
shape state action.

Just as Walzer’s, Kutz’s, and Kahn’s accounts of the state as
victim of aggression might be thought to explain morally the fact that the
crime of aggression involves an attack on the state, May’s exploration of what
it means to perpetrate the macro wrong of aggression could be argued to
illuminate another important aspect of the legal framework—namely, that
criminal liability turns on acting through the state.
At Nuremberg, that an individual made a substantial contribution to an
aggressive war or organized massive lethal attacks on enemy troops was not
enough to make that individual criminally liable. The same is true for
an individual who had been aware of the criminal nature of the war and who acted under no duress. Thus, even senior members of the
Nazi High Command were acquitted of crimes against peace. Only members of Hitler’s “inner
circle,” who were able to “shape or influence” state policy, were found guilty. Similarly, under the ICC
amendment, criminal liability for aggression is limited to persons with the
capacity to “exercise control over or to direct the political or military
action of a State.”

From this perspective, the macro nature of the crime is
two-dimensional. The moral wrong at the core of aggression is a wrong inflicted
on a victim state (or at least the collective it represents) by individuals
acting through a perpetrator state. Importantly, for Walzer and others
adopting his view, this is not just a moral account of the legal posture on
aggression; it is also a moral defense of that posture. From that
perspective, in an aggressive war, a genuine wrong occurs at the interstate
level and that wrong is worthy of criminal punishment and official
condemnation.

B. Criticizing
the Criminalization of Aggression on Walzerian Terms

Critics of the criminalization of aggression agree with the
Walzerian normative account of the law. They agree, in other words, that the
crime of aggression is rooted in a claimed moral wrong “against a state” as
opposed to “violations against individuals.”
The difference is that, for the critics, this account of the crime spotlights
precisely why it should not be a crime at all.

David Luban, for example, accepts that “the crime of
aggressive war is a crime of state against state.” However, for him, this is where the
Nuremberg endeavor took a wrong normative turn. Luban insists that “the
achievements at which the trial was aiming were compromised, rendered
equivocal, by the trial itself,” with the framers “unwilling to
question . . . the political system of nation-states.” The problem, he argues, was
precisely the Walzerian effort to “confer moral rights” on the state.
By developing a crime that depends on such moral rights, Nuremberg “erected a
wall around state sovereignty.” Whereas crimes against humanity,
together with the removal of official immunity and the imposition of liability
for obeying orders that were legal according to the sovereign state, seemed to
“perforate[] or even destroy[]” the classical doctrine of sovereignty “in the
name of ‘humanity,’” Article 6(a) of the IMT Statute “fortified it by making
aggressive war—a violation of sovereignty—an international crime.” The result, for Luban, is that
Nuremberg’s “central achievement” of recognizing crimes against humanity was
undermined, and that the trials left “a legacy that is at best equivocal and at
worst immoral,” with the criminalization of aggression “a major moral enemy of
the human rights movement.”

Reacting to ICC’s pending amendment, Erin Creegan has put
forth an updated version of this sentiment. She argues, “[A]ggression . . . is
a crime committed by the leadership of one state, directed against the abstract
interests of another state . . . . The harm of aggression
is the insult to a state’s territorial independence and
sovereignty . . . . [P]reventing wartime suffering is not
the direct object of the crime of aggression . . . .”

Like Luban, Creegan finds this to be an unacceptable
normative core. She contends that, “[w]ithout adversely affected human victims,
it is hard to put a crime like aggression in a category similar to war crimes
or crimes against humanity or genocide. And it does not seem to belong next to
them; it almost demeans them.”
She goes on to describe human beings’ rights not to be subject to the wrongs of
genocide, war crimes, and crimes against humanity as often “infinitely more”
powerful than the right of states not to be the victims of aggression.

The dispute between Walzer and his critics on this issue is
complex. From the internal legal point of view, they are in close agreement as
to the basic moral underpinnings of the crime. For both sides, the crime is
premised on the idea that aggression is a wrong against states (or the
political collectives they represent).
Morally, however, they disagree about whether violating a state in that way is
a wrong worthy of criminalization. Their agreement from the internal point of
view is at the heart of their disagreement from the external point of view.

As discussed in Part V, if one accepts the widespread
conception of aggression as an exclusively macro-level wrong, that
understanding must underpin the “object and purpose” of the criminalization of
aggression, with all of the entailed consequences for the proper interpretation
of the crime and of connected rights and duties. Those implications would hold
whether or not one endorses the law as morally well directed.

But the shared premise is mistaken. The next Part reframes
how we ought to understand aggression from the internal legal point of view.
The normative core of the crime of aggression is not a morality of states’ or
political collectives’ rights, but a morality that condemns the unjustified
killing of human persons.

iii. why aggressive war is an international crime

To be clear, the position advanced here is not that
sovereignty is irrelevant to the crime of aggression. Under current
international law, whether a war is criminal is determined in part by
whether it violates the “sovereignty, territorial integrity or political
independence of another State” or is otherwise “inconsistent with the Charter
of the United Nations.”
In other words, which wars are wrongful is a macro-level question that
depends typically, although not exclusively, on which side has violated the
other’s sovereignty.

But that interstate breach is not why waging such wars
is criminal. Waging war in breach of those interstate rules is criminal because
it entails widespread killing and the infliction of human suffering without
justification. Seen in this way, aggression is a modified form of crime against
humanity, perpetrated ordinarily through a violation of sovereignty.

To understand why this must be the case, consider the point
from five perspectives. First, the concept of sovereign rights is indeterminate
as a normative guide on the issue of aggression. The criminalization of such
wars is as great a restraint on state sovereignty as it is a protection of it.
Moreover, interstate violations that more effectively and dramatically infringe
core sovereign rights than does aggressive war are not criminal. Second, what
distinguishes aggression from any other sovereignty violation is that it
involves killing without the justification of responding to human violence or
its immediate threat. Other forms of killing without justification are criminal
in another form. By protecting combatants’ and collateral civilians’ right to
life, the criminalization of aggression fills a crucial gap in that broader
criminal-law approach to unjustified killing. Third, understanding aggression
in this way reconciles its criminalization with the so-called “humanization” of
international law—the rise of the human being as a normative focal point
in legal interpretation and doctrinal development. This phenomenon is manifest
especially clearly in international criminal law. 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, wrongful killing was
normatively central to the reasoning of the judges and prosecutors at Nuremberg
and Tokyo on the crime of aggression. Ultimately, states’ rights are important
in structuring when the use of force is permitted, but aggression is a crime
about the infliction of human death and suffering without justification.

Recognizing the criminal wrong of aggression to be the
infliction of unjustified human violence suggests that legal interpretation and
thinking in this domain might be better illuminated by a more recent,
revisionist tranche of just war theory than has thus far been recognized. A
growing cohort of moral theorists has countered the longstanding Walzerian
orthodoxy that the jus ad bellum can be restricted morally to the
macro-level, with no implications for the rights or wrongs of the constituent
actions.
These revisionist theorists, led by Jeff McMahan, have deliberately avoided
engagement with international law, sometimes criticizing Walzer for what they
consider to be a conflation of the law and the morality of war. One of the upshots of the arguments
in this Part is that these philosophical critics may have more to say about the
internal normativity of the existing legal regime than they or international
lawyers have understood.

A. Sovereignty
Cannot Explain the Jus Ad Bellum or the Criminalization of Aggression

When it comes to war, sovereignty cuts both ways. Although
banning aggressive war has protected certain sovereign rights, it has limited
the sovereign’s capacity to assert and protect many of its other rights.
Indeed, despite his framing of Nuremberg and the U.N. Charter as moves toward
protecting sovereignty,
Kahn recognizes that on a maximal vision of sovereignty in international
affairs, “there is no difference between protection and assertion: To protect
the state is to assert its power to defend its ‘vital interests.’”

Prior to Nuremberg, and certainly prior to Kellogg-Briand,
international law reflected precisely that principle: states had the power and
authority to use violence to punish or seek to end nonviolent infringements of
their legal rights. They could wage war to settle a
dispute, reverse a wrongful seizure, or otherwise retake what was rightfully
theirs. Capturing this core doctrine, Vattel
wrote simply, “Whatever strikes at [a sovereign state’s] rights is an injury,
and a just cause of war.”
The use of force was the key tool of law enforcement and sovereignty vindication
in an international regime focused on interstate relations and state rights. Moreover, in the absence of a system
of global institutions by which the “right” in any dispute could be verified,
states also had the sovereign authority to determine whether such vindication
was called for.

In one sense, this system rendered states vulnerable to armed
attack. But this was not because states’ rights were unimportant. Rather, the
animating premise was that it was inconceivable that the state’s authority to
determine whether force was necessary to protect its legal rights could be
abrogated. The sovereign stood above
international law.
From that position of priority, what was truly defensive of its rights was
necessarily something “that a state had to judge for itself.”
Understood in this way, sovereignty “resists [the] universalization” upon which
any genuinely restrictive jus ad bellum depends.

Recognizing this assertive dimension of sovereignty is
crucial. Precisely because it lacked any meaningful jus ad bellum restraint,
the pre-Nuremberg, pre-Kellogg-Briand era was the high-water mark of
sovereignty in international law. Thus,
rather than asserting that banning war would erect “a wall around sovereignty,” Salmon Levinson—a
vanguard advocate for what ultimately became the Kellogg-Briand Pact—felt
compelled to rebut the allegation that allowing this “check upon [the state’s]
original unlimited power” would unjustifiably “invade” and “impair” core
sovereign rights.
Accepting that adopting the prohibition would limit sovereignty, Levinson
insisted that the retention of the sovereign right to use force at its own
discretion was morally indefensible. Along similar lines, Frank
Kellogg acknowledged in a public address after the signing of the Pact that the
key obstacle facing the drafters had been the longstanding notion that waging
war was simply “a nation’s legal right.”

Of course, although the criminalization of aggression and the
prohibition against the use of force have limited sovereignty in this way, the
new regime has also enhanced states’ legal protection against armed attack.
However, that newly protected dimension is just one elementof
sovereignty. Precisely because of the elevation of that element, all other
aspects of sovereignty lost the unilateral vindication mechanism upon which
they had depended.
The assertion and protection of those other rights have been taken away from
the sovereign and transferred to the global collective.

The obvious defense of the traditional account here would be
to argue that the ban on aggression prohibited and criminalized the most
severe violation of state sovereignty in exchange for eliminating lesser
sovereign rights. Had that been the exchange, a sovereignty-focused account
could explain why aggression, alone among sovereignty violations, is an
international crime and a violation of jus cogens.The explanation would be that aggression has this special
status because it is the interstate violation most profoundly detrimental to
the essential elements of sovereignty.

This, however, is not the case. Put to one side all of the
sovereign rights given up in the ban on the use of force and consider in
isolation the sovereign rights at the crux of today’s jus ad bellum:
political independence and territorial integrity. On these issues alone, aggression is
not uniquely harmful. A criminal use of force can be far more modest in its
diminution, or even intended diminution, of these rights than would be
nonbelligerent, noncriminal infringements of the same rights.

Consider, for example, the nonbelligerent installation of a
puppet regime in a foreign state through the manipulation of its elections. Puppet regimes create principal-agent problems for the
intervening state, and democratic manipulation will not always work flawlessly.
Such illegal actions, however, would infringe on political independence and
self-determination profoundly, and often to a greater extent than is even intended by an illegal military attack. And yet such nonviolent interventions are clearly not
internationally criminal, since they lack “the use of armed force.”

The same
applies to nonviolent violations of territorial integrity. Failing to hand over
territory to a lawfully seceding entity, holding another state’s territory
following a misguided handover from a departing former colonial power, or
illegally manipulating an independence referendum in a way that triggers an
effective secession are all
severe infringements of another state’s territorial integrity. However, without an armed attack, none would be internationally
criminal.

By contrast,
examples of criminal aggression listed in the ICC amendment, such as aerial
bombardment or an attack on a foreign state’s naval fleet, may do very little
to undermine the victim state’s self-determination, territorial integrity, or
political independence.
The same is true of drone strike campaigns against nonstate actors in foreign
territory, which are perfectly compatible with leaving intact the political
independence and territorial integrity of the host state. The point is not just that such
belligerent acts may prove unsuccessful in taking territory or overthrowing the
government. More fundamentally, it is that
criminal aggression need not even pursue the objective of undermining significantly those core elements of
sovereignty.

The fact that
belligerent actions with minimal impact or intended impact on sovereignty are
criminal, while nonviolent infringements of political independence and
territorial integrity are not, cannot be explained with reference to the
degree to which each action violates those core sovereignty rights. If
that were the standard, the outcomes would be reversed. The crime as currently
constituted must be explained by something else.

B. The
Human Core of Aggression

Far more robust as a normative explanation of the crime than
the fact or degree of aggression’s violation of sovereignty or states’ rights
is the form of that violation, the means by which it is
perpetrated. What is unique about illegal war
among violations of states’ rights—what makes it criminal, when no
other sovereignty violation is—is the fact that it entails the slaughter
of human life, the infliction of human suffering, and the erosion
of human security. To qualify as aggression, those harms must occur
ordinarily (although not exclusively) in an unjustified attack in which one
state infringes the core sovereign rights of another. However, it is the
unjustified killing and infliction of human suffering, and not the violation of
sovereignty, that are the wrongs at the heart of aggression. Consider three
ways in which this is so.

First, even within the category of violent interstate
interactions, the reason that a particular aggressive attack is
unjustified is not that it infringes the target state’s territorial integrity
or political independence. Assuming no Security Council authorization, what
determines that one side of an international armed conflict is in violation of
the jus ad bellum is that it does not respond to an armed attack. Therefore, the use of force seeking
to remedy or prevent a severe but nonviolent infringement of political
independence or self-determination, such as the manipulation of its elections
through hacking, would be illegal and could qualify as an act of criminal
aggression. Similarly, according to the Eritrea-Ethiopia Claims Commission, it is a jus ad bellum violation, and thus at
least potentially criminal, for a state to use force to recover its own
territory, if that retaking does not respond to an armed attack. Indeed, even when one state controls another’s territory
following an armed attack by the former, if the latter’s forcible response is
sufficiently delayed, it too would be illegal and potentially criminal.

On the other hand, a defensive use of force that has a
significant and intended impact on the aggressor’s internal structures of
government or its territory would be lawful as long as that force were
necessary and proportionate to stopping the armed attack. The paradigmatically
lawful wars against Germany and Japan in World War II each led to long-term
occupations and regime changes, not to mention Germany’s territorial and
political fragmentation for half a century.

Moreover, using force in response to a foreign armed attack
is lawful, even if that attack does not threaten the victim’s territorial
integrity or political independence. Indeed, according to the
Ethiopia-Eritrea ruling, such defensive uses of force are lawful even if the
objective is merely to defend the attacked state’s personnel while they are
exercising peaceful control over the aggressor’s own sovereign
territory.

What unifies these cases is that a lawful use of force by a
state must respond to an international attack on, or threat to, the lives of
its human subjects; that is what it means for an attack to be armed. Of course, territorial integrity and
political independence are often protected by defensive war and violated by
aggressive war. But the legal realities discussed above indicate the overriding
importance of human life and physical integrity. Severe violations of
territorial integrity or political independence are not internationally
criminal, and do not trigger a right to use remedial force, unless they also
involve a severe threat of violence to human beings. At the same time, uses of
force that do little or nothing to protect core sovereign rights are lawful as
long as they respond to an armed attack. Conversely, it is criminally
aggressive to inflict violence on human beings in a foreign state even if there
is no intention or significant prospect of harm to territorial integrity or
political independence as a result of the attack. Indeed, this holds even if
that infliction of violence aims merely to recover the aggressor’s own
sovereign territory.

There are, of course, marginal jus ad bellum cases in
which human life seems to play a less central role and core sovereignty rights
appear to come to the fore. The most notable such case is that of the so-called
“bloodless invasion.”I
address this case at greater length in Part IV, below. However, by way of brief
preview, whether bloodless invasions are criminal at all is at least debatable.
Moreover, even if they are criminal, the key to understanding their criminality
is not the fact that such invasions infringe sovereignty, but rather that they
do so by imposing the immediate threat of lethal violence against anyone who
might resist.

The second reason in favor of the unjustified killing account
of aggression is that it fits with the broader legal posture on violence to
human beings. Whereas aggression is uniqueamong sovereignty violations
in its criminal status, it is decidedly notunique in that respect among
forms of large-scale killing and human harm that do not respond defensively to
the threat or infliction of such killing and harm. On the contrary, such
nondefensive killing is generally criminal in one form or another.

Perhaps the most important element of sovereignty is the
state’s monopoly on the legitimate use of internal force. However, that
authority is not unlimited. When state agents inflict widespread killing or
human harm internally, without responding to some form of attack or imminent
internal threat, they commit a crime against humanity. State militaries may use force
against insurgents in a noninternational armed conflict, but until such
insurgents have formed (and thus have begun to pose an internal belligerent
threat) the state cannot initiatesuch an attack. To do so would be to
engage in a widespread and systematic attack on a civilian population. If nonstate actors coalesce into a
military response to such an attack by the state, then, from that point on,
such actors would become combatants and state forces may target them without
committing a crime.
But that transformation would not change the criminality of state actors’
initial attack on human life.

On a smaller scale, other forms of killing not justified on
defensive grounds are war crimes.
Classic examples are killing civilians or prisoners of war.
And, outside the context of armed conflict, killings that do not protect
persons or the broader community are criminalized domestically as murder;
international human rights law demands as much.

Thus, whether perpetrated by the state, a nonstate group, or
an individual, killing cannot be used to change even an illegal or unjust
status quo unless it responds to human violence or the threat thereof. Of
course, the point at which such violence or threat of violence becomes criminal
varies depending on the actors and contexts involved. There is a presumption in
favor of the legitimacy of internal uses (and especially threats) of force by
the state and a strong presumption against the use or threat of force by
nonstate actors. Similarly, the context of war changes the flexibility of what
constitutes defensive action and the attribution of responsibility for
unjustified killing.

In that sense, the differentiation across these crimes is
important. Indeed, it helps to make sense of the interstate element of
aggression (which typically involves a sovereignty violation). Rather than
being the core criminal wrong, as the traditional account would have it, that
interstate infringement identifies a particular form of unjustified massive
killing and enables the thresholds of criminality to reflect the presumptions
of legitimacy and contextual considerations appropriate to that form. The state
has a lower presumption of legitimacy using (or threatening) force internationally
than it does domestically, and a higher presumption of legitimacy than do
nonstate actors. But this differentiation among crimes ought not obscure
the common trait that makes them all crimes. The nondefensive use of lethal
force by any actor is generally criminally prohibited, even if its purpose is
to remedy an unjust status quo. Aggression extends that fundamental principle
to the interstate context.

Viewing aggression in this way spotlights why it is its own
crime. The other provisions described above prohibit rebels’ killing of
civilians and combatants; they prohibit a state’s forces from killing civilians
or groups yet to form a lethal rebellious threat; and they prohibit
nondefensive killing outside of armed conflict. What no provision other than
the crime of aggression prohibits is a state’s forces’ unjustified killing of a
foreign states’ combatants and collateral civilians. In the absence of a crime
of aggression, the unjustified infliction of death and suffering in such
interstate contexts would have been the normative anomaly in which such harms
could be inflicted without any prospect of criminal liability. Aggression fills
a crucial gap, providing otherwise missing criminal law protection to the right
to life of combatants and collateral civilians.

The third aspect of the unjustified killing account’s
explanatory superiority is that at least one type of criminally aggressive war
involves the infliction of human violence, but noviolation of sovereign
rights. Article 8 bis includes as a category of criminal war alternative
to uses of armed force “against the sovereignty, territorial integrity or
political independence of another State,” the “use of armed force by a
State . . . in any other manner inconsistent with the
Charter of the United Nations.” As in the U.N. Charter, the more
specific categories serve as points of emphasis. However, for the broader category of
armed force used “in any other manner inconsistent with the Charter” to
make sense, it must include wrongful wars that do not infringe another
state’s “sovereignty, territorial integrity or political independence.”

One obvious example of a use of force fitting that
description would be a war waged by a state in its own territory against a U.N.-authorized
force deployed to prevent the host state from engaging in atrocities. A recent
example was the use of force by Libya in its own territory against the U.N.-authorized
North American Treaty Organization (NATO) coalition in 2011.

In that particular war, NATO engaged only aerially and
suffered little damage and zero casualties, so the Libyan action against NATO
would almost certainly not surpass the character, gravity, and scale threshold
requirements of Article 8 bis (1).
However, for the reasons outlined below, the little force that Libya did muster
was plainly “inconsistent with” the U.N. Charter, as required by 8 bis (2).
Counterfactually, had Libya caused sufficient NATO casualties to exceed the 8 bis
(1) threshold, its action in doing so would have been criminal aggression. Because
the conflict took place exclusively within universally recognized Libyan
territory and the subject of dispute was Libyan domestic policy, this is
explicable only in light of the lack of justification for the violence against
coalition troops, not in light of any infringement of sovereignty.

The inconsistency of such action with the U.N. Charter is
established by three elements. First, the Charter prohibits states from using
force in their “international relations”—including on their own
territory—in any way contrary to the Charter’s “purposes.” Interactions between a host state
like Libya and a U.N.-authorized force clearly fall in the category of
international relations, and the furtherance of the Security Council’s work
under Chapter VII is clearly a U.N. purpose.
Second, the only exception to the Charter’s prohibition on the use of force
(other than acting pursuant to a Security Council authorization) is
self-defense. Under Article 51 of the Charter, however, self-defense applies
only “until the Security Council has taken the measures necessary to maintain
international peace and security” and self-defensive measures “shall not in any
way affect the authority and responsibility of the Security Council” to act under Chapter VII.
Third, the authorization of forces to prevent domestic atrocity is now widely
recognized as part of the Security Council’s authority, and indeed
responsibility, under Chapter VII, as part of its activity in maintaining
international peace and security. As such, it overrides any affected
state’s right of self-defense.

The upshot is clear. When states fight back against U.N.-authorized
forces on their territories, their actions meet the core requirement of Article
8 bis (2). As long as the action is of sufficient character, gravity,
and scale, it is a criminal aggression.

Thus understood, “aggression” is a term of art; its meaning
is defined not by which state struck first, but by which engaged in an illegal
and grave use of force.
As the Institut de Droit International resolved in 1971, “the party opposing
the United Nations Forces has committed aggression,” irrespective of whether it
acted first or crossed a border to do so.

This definition bears on the question at hand. Reference to
core states’ rights cannot explain the criminality of waging war against a U.N.-authorized
humanitarian intervention force operating exclusively in the attacking state’s
own territory. But the criminality of killing U.N.
personnel in order to defend an ongoing atrocity can be explained with
reference to killing and inflicting human suffering without justification.

Of course, humanitarian intervention without Security Council
authorization is generally thought to be illegal. The notion that fighting
against a humanitarian intervention within one’s own borders could itself be
criminal therefore applies most plausibly only when the intervention has
Security Council backing. Nonetheless, even if limited to that
scenario, this argument further supports an account of aggression as a crime
rooted in wrongful killing, not the severe violation of states’ rights. The
special case of unauthorized humanitarian interventions is addressed in Parts
IV and V.

For each of the reasons discussed in this Section, the
nondefensive killing in an illegal war is why waging such a war is criminal.
This explanation best accounts for why the state’s right to protect itself from
armed attack survived Nuremberg and the U.N. Charter, whereas its right to use
force to vindicate eachof its other legal rights was discarded
comprehensively. It is consistent with the criminalization of unjustified
killing more generally. And it is what clarifies why using force against an
invading U.N.-authorized humanitarian intervention would itself involve waging
a criminally aggressive war.

F. The
Wrong of Aggressive War

For the
reasons provided in this Part, an account of aggression that locates its core
wrong in unjustified killing better fulfills the three criteria of a good
normative account of the law than does an approach that focuses instead on the
harm to sovereignty.

First,
identifying the wrong as the unjustified killing in an aggressive war explains
the legal contours of the crime in a way that a focus on sovereignty or even
self-determination cannot. The jus ad
bellum restrains the sovereign capacity to vindicate legal rights using
force as much as it protects the sovereign rights to territorial integrity,
political independence, and self-determination. Moreover, nonbelligerent acts
that more severely infringe territorial integrity, political independence, or
self-determination than does aggressive war are notcriminal. Conversely, other forms of unjustified killing are criminalized
in some other form. And illegal uses of interstate force that involve no
sovereignty violation, or that vindicate territorial integrity or political
independence rights without responding to an armed attack, are criminal
aggressions. In each of these respects, neither sovereignty nor
self-determination can make sense of the jus
ad bellum and its role in international criminal law. In contrast, a focus
on killing and human suffering is illuminating. Were it not criminal,
aggressive war would be the key form in which such harms are inflicted on a
massive scale without either being justified as a necessary and proportionate
response to the threat or infliction of such harms by another, orbeing criminalized in some other way.

Second, the
humanity-based explanation of aggression comports better with the overall
purpose of the law in this domain, aligning both with the motivations for the
initial outlawry of warand with the
overall purposes of international criminal law as a key dimension of the
“humanization” of international law. A connection between the killings in
aggressive war and the wrong of murder ran through the heart of the prosecutions
and convictions at Nuremberg and Tokyo, and has been reiterated in the work of
several legal authorities since.

Third, a
normative account rooted in humanity coheres with adjacent legal rules:
explaining why aggression is the only criminal sovereignty violation and
accounting for aggression’s fit within the broader legal approach to the
unjustified infliction of human suffering. By contrast, as Luban and others
emphasize, a crime that privileges sovereignty over humanity would sit
extremely uneasily—and possibly in conflict—with the general
humanizing posture of international criminal law and the noncriminal status of
all other sovereignty violations.

Aggression
typically involves a sovereignty violation, but it is fundamentally a crime
against human beings. It is a “law that has as its purpose protecting
the fundamental right to life of millions of people.” What makes it special in
international criminal law is not that it protects sovereignty, rather than
humanity, but that it alone protects the right to life of combatants and proportionate
collateral civilians against the wrongful violence of foreign states.

iv. two problem cases: bloodless aggression
and humanitarian intervention

Before
introducing the doctrinal implications of this normative reconceptualization,
two potential problem cases should be addressed: bloodless invasion and
humanitarian intervention. A “bloodless invasion” is an illegal military taking
of territory or usurpation of governmental power without the infliction of
casualties. Such actions are, by definition, unlawful. Although the legal
status of humanitarian interventions lacking Security Council authorization is
contested, the dominant view is that they, too, are unlawful. As illegal uses
of force, a case can be made that both actions are also criminal.

The
putative problem is this. Both actions involve a clear infringement of
sovereignty. But neither appears to fit the unjustified killing paradigm.
Bloodless invasions involve no killing at all, and the killing in a
humanitarian intervention is responsive to the illegal human violence and
killing of an atrocity crime in much the same way as the killing in a defensive
war responds to the unjustified killing of an armed attack. Therefore, if such
actions are criminal, the moral explanation would seem to be rooted not in
human life, but in state sovereignty. Or so the objection would go.

This Part
rebuts that concern. The criminal status of bloodless invasion at Nuremberg was
dubious and marginal, and little has occurred to change this reality since.
Indeed, there is space in Article 8 bis to exclude bloodless invasion from
the crime altogether. This is telling, because if the sovereignty-focused,
traditional account were true, bloodless invasions ought to be the paradigmatic
example of the crime. The fact that they are not militates strongly againstthe
traditional account. Moreover, the reason bloodless invasions are even
potentially criminal under current law is rooted not in their impact on
sovereignty, but in their latent killing. This is what underpinned the limited
criminal status of bloodless invasions at Nuremberg and it is what
distinguishes bloodless invasion from the noncriminal sovereignty violations
discussed in Section III.A. Thus, if bloodless invasions are criminal, the reason
why would only serve to add further support to the unjustified killing account.

The
humanitarian intervention objection is weaker. There is no precedent for the
prosecution of a leader of such an action and the contemporary illegality of
such interventions is most plausibly rooted not in the principle that such wars
infringe sovereignty, but in the worry that legalization would encourage wars
waged on a humanitarian pretext, and thus unjustified killing. Here too there
is both interpretive space and good reason to exclude humanitarian intervention
from the crime. Even if it were to be included, it would be with reference to
encouraging unjustified killing.

A. Bloodless
Invasion

Under the
pending Article 8 bis of the Rome
Statute, a war is criminal when it infringes the “territorial integrity or
political independence” of a state. Rodin argues that “this
condition is both logically and factually independent of the question of
whether the lives of individual citizens within the state are threatened.” Rodin here invokes the specter of
so-called “bloodless,” or at least near-bloodless, aggression.

The
category is far from a null set. Most would recognize Russia’s 2014 invasion
and annexation of Crimea as a prominent recent example. Following the Maidan protests,
the flight and de facto abdication of President Yanukovych, and the
pro-European takeover in Kiev in late February 2014, Russia took decisive
military and paramilitary action in Crimea, purportedly to protect Russian
nationals in the autonomous region. Far exceeding the terms of a 1997
agreement with Ukraine regarding Russian troops’ presence, the deployment
enabled the armed takeover of the regional parliament, public buildings, and
infrastructure.
In a hastily arranged referendum, conducted under the shadow of that dominant
military presence, Crimeans voted to secede from Ukraine and to accede to
Russia, paving the way for further troop deployments and a full annexation.
Moscow now claims Crimea as its own, near-global nonrecognition of the transfer
notwithstanding.
Most important for the discussion here, despite the clear impact of Russian
military action in effecting the annexation, there were no significant
casualties.

Uses of
force such as that in Crimea undermine what Walzer terms the “highest values of
international society”—namely, “the survival and freedom of political
communities”—curtailing
the political independence and self-determination rights that he insists “are
worth dying for,” even when no one actually dies for them. Even if the attacked state’s central politics are left intact and the
population of the annexed region has little objection to their new sovereign,
the territorial taking anyway violates the other core sovereign value protected
by the jus ad bellum: territorial
integrity. In short, such invasions involve severe and
illegal infringements of sovereignty, but no human death or violence. If they
are indeed criminal, this might seem to militate in favor of the traditional
account and against the unjustified killing account of aggression.

In fact,
the reverse is true. The criminal
status of an illegal invasion that takes territory or usurps a foreign state’s
government without spilling a drop of blood is ambiguous and marginal at best—a
point that weighs heavily against the traditional sovereignty-focused account.

Unlike each
of its other invasions, Germany’s relatively bloodless annexations of Austria
and Bohemia and Moravia were excludedfrom
the criminal indictment before the IMT, which then distinguished them explicitly
from wars of aggression in its final judgment. This exclusion is telling.
If the core wrong of aggression were its infringement of sovereignty or
nullification of a people’s self-determination, bloodless aggression would be
the paradigmatic form of the crime. Invasions that lack violent military
confrontation eviscerate the territorial integrity and political independence
of the victim states with far greater efficacy than do ordinary wars of
aggression, many of which are unsuccessful in unseating the target government
or holding territory. The Nazi annexations of Austria and
Bohemia and Moravia exemplify this perfectly, so the point would not have been
lost on those at Nuremberg.

On the
traditional normative account, then, it is difficult to make sense of either
the failure to charge those invasions before the IMT, or of their separate
normative status in the final judgment. On the account presented here, however,
this marginalization makes perfect sense. For, while bloodless invasions are no
less harmful to political independence and territorial integrity, they lack the
same human violence as aggressive wars involving conflict and casualties.

Of course,
although it was the most significant aggression prosecution to date, the IMT’s
was not the only word on this issue. The NMT subsequently adopted a broader
definition of the crime, which included the invasions of Austria and Bohemia
and Moravia. It is in this sense that
the Nuremberg legacy on bloodless invasions is ambiguous.

However,
the reasoning for the NMT’s more expansive approach itself weighs heavily in
favor of the unjustified killing account. In explaining the inclusion of these
invasions as criminal aggressions, the NMT emphasized the fact that they were
achieved against the backdrop of threatened slaughter by an overwhelmingly
militarily superior Nazi force. What made these actions criminal,
the tribunal emphasized in the High
Command Case, was “the exerting of violence” by German forces, even
though that exertion was met with no resistance and thus the latent killing it
entailed was not ultimately consummated.

Moral
theorists critical of the Walzerian approach have started to bring precisely
this notion of latent violence to the fore in related areas of philosophical
discussion. Thus, as Cécile Fabre argues, a key normative link between
bloodless invasions and traditional aggressions is that the former involve at
their core “individuals posing a lethal threat, either ongoing or imminent, to
other individuals.” This is what distinguishes both
kinds of invasion from the kind of nonbelligerent, and noncriminal, sovereignty
infringements discussed above.
Whereas the latter violate political independence and territorial integrity
without exerting violence, the former achieve that end by inflicting latent
lethal harm.

This
distinction is crucial. If bloodless invasions are criminal (as the NMT
suggests they are), the key trait that defines them as such, just as in the
ordinary aggression case, is the means by
which sovereignty is violated, not the fact or degree of the sovereignty
violation. The difference between an aggressive military invasion that achieves
its sovereignty-infringing end bloodlessly and the illegal foreign manipulation
of elections is akin to the interpersonal difference between mugging someone
for her wallet with a lethal weapon and pickpocketing the same wallet from her
without any physical threat.
One inflicts latent violence; the other does not. If aggression is criminal,
its criminality as compared to the mere illegality of otherwise similar
sovereignty violations would parallel armed mugging’s felony status as compared
to the misdemeanor status of nonviolently stealing the same item.

How the ICC
or domestic criminal courts will approach bloodless invasions is unclear. No
legal authority has assessed the criminality of such actions since World War
II. Indeed, the analysis and debate regarding the precise legal status of
Russia’s 2014 annexation of Crimea has not even considered whether it might
have been criminal (presumably due to the lack of any viable means of
prosecution). Nonetheless, it is notable
that in various deliberations on the matter at the Security Council and
elsewhere, the concept of latent Russian violence to human life was raised
frequently. Those condemning the operation as an act of aggression described
Crimean voters as acting under “the barrel of a gun” and “in the shadow of
Russian bayonets.” If the annexation of Crimea was
criminal, this feature of the invasion was surely the crucial one.

Seen in
this light, bloodless aggression does not provide a counterexample to the
humanity-based account of the crime of aggression. On the contrary, in
combination with the arguments in Part III, it fills out a context in which
that is the only viable account of aggression. First, nonviolent but severe
infringements of sovereignty are not criminal. Second, large-scale, lethal uses
of international force not responsive to armed attacks are criminal, even when
they vindicate the core sovereign rights related to territorial integrity,
political independence, or self-determination. Third, bloodless invasions that
threatensignificant human harm are
at the margin of criminality—of mixed status at Nuremberg, and, as
elaborated in Part V, of dubious criminal status under the ICC regime. Fourth,
when including such invasions in the crime, NMT judges emphasized the latent
violence of those actions.

This analysis
deals with the core objection, but before turning to humanitarian interventions,
it is worth addressing a second dimension of the worry about bloodless
invasions—namely, that the lawfulness of wars waged defensively
against such invasions might be thought to contradict the argument in Section
III.B that the jus ad bellum allows for the use of force only in
response to an attack on, or threat to, human life. This challenge differs from that of
the purported criminality of bloodless invasions, because the right to
self-defense is triggered not by subjection to criminal aggression, but by
subjection to an “armed attack”—a distinct and autonomous legal concept.
Nonetheless, the crux of the response is the same.

To warrant defensive force, an invasion must carry the
immediate threat of lethal force; it must be an armed attack.
A bloodless deployment of border officials and national flags to foreign
territory would satisfy this criterion no better than the kind of electoral
manipulation discussed above.
Of course, the arrest or eviction of such an unarmed deployment could trigger
an (illegal) use of armed force on the part of the invading state. Under
existing doctrine, however, the right to self-defense arises only following the
application of such force, or at least its certain imminent application, not
merely because it may loom as the potential mechanism for preserving the
effects of an unarmed intervention.
Moreover, even when the immediate lethal threat to human beings is present, the
use of defensive force is lawful only to the extent it is proportionate to the
wrongful armed threat to which it responds.

Just as it is essential to the potentially criminal status of
a bloodless invasion, this element of latent violence to human persons is also
vital to grounding the right to self-defense. Fabre argues, “The crucial
question [in this context] is not whether sovereignty-rights themselves warrant
defending by force; rather, it is whether [combatants of the attacked state]
are under a duty to surrender those rights as a means to save their life and as
an alternative to killing” combatants of the aggressor state.
She contends that they are under no such duty becausetheir rights to
defensive force are engaged by the “actual threat of future lethal harm.” Again drawing an analogy to violent
mugging, those making this moral argument invoke the parallel disparity between
the quantum of force appropriate in resisting an armed mugger demanding “your
money or your life” and that which would be appropriate to prevent a nonviolent
attempt to steal the same item.

Only if we understand the right to defensive force as a right
that responds to the aggressive infliction of latentviolence can we
explain why bloodless military invasions trigger a legal right to the use of
defensive force, while the nonviolent infringements of territorial integrity
and political independence discussed in Part III do not. Here too the status of bloodless
invasions coheres better with the unjustified killing account than with the
sovereignty-focused, traditional account.

B. Humanitarian
Intervention

The second
apparent problem case is that of humanitarian intervention lacking Security
Council authorization. A small minority of states and other authorities
have argued that such interventions can be lawful. If this is right, humanitarian intervention poses no difficulty
for the account presented here. However, most experts and states reject
that position. If the latter view is correct,
unauthorized humanitarian intervention might be thought to pose a difficulty
for the unjustified killing account. Without taking a view on the legality of
humanitarian intervention, the following discussion assumes such actions to be
illegal for the sake of argument.

The putative difficulty posed by the presumed illegality of
humanitarian intervention is as follows. Article 8 bis criminalizes all
“manifest violation[s]” of the U.N. Charter’s rules on the use of force, as
defined by their “character, gravity and scale.”
Efforts during the amendment process to attach an explicit understanding
excluding humanitarian intervention from the crime failed. As such, the argument goes,
manifestly illegal humanitarian interventions are necessarily criminal. The problem is that genuine and
proportionate humanitarian interventions use lethal violence only to defend
against criminally wrongful killing and violence.
In other words, they lack the wrong of aggression defined above—namely,
the infliction of death and violence that is not justified by its
response to the threat or infliction of the same.

To be clear, humanitarian interventions do involve killing in an illegal action. In
other words, they do involve legally unjustified killing.However, the lack of legal
justification for the killing in such an intervention is derivative of the
illegality of the intervention. And the latter is not itself explicable with
reference to the deeper wrong of killing without the justification of responding
to the threat or infliction of illegal killing or analogous violence.

The problem posed by the purported criminality of
humanitarian intervention, then, is that the lack of legal justification for
killing in a humanitarian intervention might be thought to reflect a
privileging of sovereign rights over the value of human life.
Such interventions do, after
all, tend to have significant impact on the political independence and
territorial integrity of the target state. On that basis, if humanitarian intervention is criminal, this
might seem to militate in favor of the traditional sovereignty-focused account,
and against the unjustified killing account, of aggression.

As with the concern about bloodless invasion, however, the
objection fails. First, it misrepresents the normative status of humanitarian
intervention in the contemporary order. The illegality of such interventions is
not about protecting sovereignty over human life; it is about banning “good”
wars so as not to encourage or facilitate “bad” wars. If genuine humanitarian
interventions are criminal, it is so as to prevent the unjustified killing of
disproportionate or pretextual interventions. Second, as discussed in Part V,
there is ample interpretive space, and good reason, to exclude presumptively
illegal humanitarian intervention from the crime.

In any domain, there is an inevitable gap between even
optimally crafted law and the internal normative foundations of that law. Put another way, there are always
hard cases, where legal status does not reflect moral status, even when judged
against the very moral standards on which the law is premised. This is for the
familiar reason that optimal legal rules, unlike the underlying moral
principles of right and wrong, must take account of moral hazard, the risks of
abuse, the danger of slippery slopes, the collateral impact of rules on broader
normative culture, and the “migration” of regulated behaviors out of the
intended domain.

On a normative account that has gained particular prominence
since NATO’s 1999 intervention in Kosovo, and which offers the most coherent
explanation of contemporary international law in this area, humanitarian
interventions fall precisely into this gap between the law and its own
underlying moral posture. Along these lines, an influential
independent report on the Kosovo intervention declared NATO’s actions to have
been “illegal but legitimate.”
Prominent voices have endorsed this as the appropriate, long-term normative
equilibrium for humanitarian intervention. And several of the states that
participated in the campaign claimed moral justification, while insisting that
the intervention ought not be understood as a legal precedent.

Underpinning this idea is the view that an explicit ex ante
legal permission for even genuinehumanitarian wars would facilitate the
waging of both nonhumanitarian interventions on a humanitarian pretext and
disproportionate interventions that far exceed their humanitarian purpose, and
that these twin dangersoutweigh the benefit of enabling genuine,
proportionate humanitarian interventions. In short, the aggregate risk of
false positives under a permissive regime is thought to outweigh the risk of
false negatives under a restrictive regime.

Pretext is a heightened danger here because the jus ad
bellum is typically evaluated and enforced not by a judicial authority,
capable of engaging in fine-grained, case-by-case analysis, but by states
acting collectively to sanction and ostracize lawbreakers. In that sense the effective
enforcement of the jus ad bellum depends on broad consensus in each
case. Because the precise threshold for humanitarian intervention is less
easily identified than is the armed attack threshold of self-defense, it would
be difficult, were genuine humanitarian intervention lawful, for an
uncoordinated population of states to engage in such collective enforcement against
states that wage illegal war on a humanitarian pretext. Or so the theory goes.

Understanding the illegality of unauthorized humanitarian
intervention in this way makes better sense of the contemporary legal structure
than does the sovereignty-based account. It fits with the notion that the
Security Council is thought to have a responsibility to authorize (and
thus render lawful) precisely the same substantive action.
The procedural requirement of Council authorization imposes a political and
epistemic check that is likely to block the vast majority of pretextual
interventions.
Although some genuine humanitarian interventions will be prohibited, the
presumption is that this is a defensible tradeoff, especially if the genuine
interventions can be excused as legitimate post hoc. This understanding also makes sense
of the debate regarding humanitarian intervention’s illegality. As a hard case
on the law’s own normative terms, it is not surprising that different states
and commentators have come to different legal views as to its permissibility.

Most significantly here, this account of humanitarian
intervention’s illegality is compatible with the normative account of
aggression described above. Humanitarian intervention, on this understanding,
is illegal not because it inflicts the wrong of massive killing without
responding defensively to the threat or infliction of the same, but because
permitting it would encourage wars that do inflict that wrong—that
is, pretextual or disproportionate interventions. If humanitarian interventions
are criminal, therefore, it is with a view to the prevention of unjustified
killing, even though those interventions do not themselves inflict that wrong.

This reconciles the illegality (and possible criminality) of
humanitarian intervention with the unjustified killing account. However, it
also highlights the unusual nature of humanitarian intervention among illegal
uses of force—namely, that it lacks the core criminal wrong of
aggression. As discussed in the next Part, even assuming the illegality of
humanitarian intervention, this militates against its criminality, and there is
ample interpretive space to exclude it from the crime.

v. why it matters that aggression is a crime
of unjustified killing

Getting
the normative underpinnings of the crime of aggression right is not a purely
theoretical exercise. Doing so has practical consequences for the law and its
application. In forthcoming work, I elaborate three such consequences, which
are introduced here.
The first, raised tangentially in Part IV, emphasizes how understanding the
moral meaning of a crime can help to guide interpretation of ambiguous aspects
of that very criminal prohibition. The second and third identify implications
for related rules governing how we treat soldiers on either side of an
aggressive war.

A. The
Utility of Normative Clarity in Resolving Ambiguous Cases

The first internal implication of identifying the wrong of
aggressive war as the infliction of massive killing not in response to the same
is that this clarifies the object and purpose of the crime, and thus sheds
light on how the ICC should interpret ambiguous cases.
As indicated above, both bloodless invasion and humanitarian intervention fall
into this category. The first, although clearly illegal, has a mixed criminal
law legacy; the second is of disputed legality and has not been evaluated in
criminal case law.

The focus here is different from that in Part IV. There, the
task was to explain why the (presumed) illegality of humanitarian intervention
and the dubious (but presumed) criminality of bloodless invasions are compatible
with the unjustified killing account of aggression. This Part turns to the
separate and distinct question of what the unjustified killing account
indicates regarding the optimal legal assessment of either action by the ICC.
In contrast to the traditional account, the unjustified killing account of
aggression weighs against the criminality of either action.

As argued above, if humanitarian intervention is currently
illegal, it is “illegal but legitimate” by the law’s own normative lights. Two
factors explain why this means that the best interpretation of Article 8 bis
would exclude such wars. First, the condemnation and punishment inherent in
criminal conviction heighten the imperative to narrow the gap between laws and
the moral principles that underpin them.
This is particularly so in a domain focused exclusively on “the most serious
crimes.”
The normative authority of international criminal law would suffer if the
leader of a genuine humanitarian intervention were convicted of the “supreme
international crime” of aggression, despite not perpetrating its core
“accumulated evil.”
In other words, the justificatory threshold for a regime under which an action
is “supremely criminal but legitimate” is significantly higher than is that for
a regime under which an action is merely “illegal but legitimate.”

Second, whereas the jus ad bellum is ordinarily enforced
collectively by states, international crimes are enforced by a single judicial
authority capable of reaching nuanced case-by-case judgments with authoritative
effect.
As such, unlike the broader jus ad bellum, international criminal law
operates in an institutional context in which a rule permitting genuine
humanitarian interventions would not thereby encourage large numbers of bad
wars.
In that sense, the key justification for humanitarian intervention’s illegality
is inapplicable in the criminal context.

Consider these points together. The justification for
criminalizing humanitarian intervention despite it lacking the core wrong is
higher than is the threshold for justifying its illegality. And a core aspect
of the justification for its illegality is anyway absent. Combining this with
the observation above that humanitarian intervention lacks the core criminal
wrong, there is good internal reason to exclude humanitarian intervention from
the crime.

This frames how the ICC ought to interpret aggression. Article
8 bis (1) provides that only those illegal uses of force with the
“character” and “gravity” to constitute a “manifest” violation of the Charter
are criminal.
As the attached understandings emphasize, “aggression is the most serious and
dangerous form of the illegal use of force; . . . a
determination whether an act of aggression has been committed requires
consideration of all the circumstances of each particular case, including the
gravity of the acts concerned and their consequences.”

The normative account put forward in this Article demands
measuring the “seriousness,” “gravity,” “character,” and “danger” of an illegal
use of force by its unjustified infliction of human death and suffering.
Pursuant to that reading, genuine humanitarian interventions would fall short
of the criminal threshold. In that sense, Harold Koh and Todd Buchwald are
right to insist that, “[w]hatever one’s legal views on whether humanitarian
intervention is a permissible basis under international law for resorting to
force, a true humanitarian intervention . . . should not
entail the risk of international criminal prosecution.”

This
position may seem to be out of sync with the widespread condemnation of
Russia’s annexation of Crimea, which a number of states labeled “aggression.” Indeed, there was good reason to
use the term. As Tancredi observes, the Russian intervention exemplified
several of the acts of aggression listed in Article 3 of the General Assembly’s
definition. Those same acts are included in
the identical list in Article 8 bis (2)
of the Rome Statute amendment.

However,
there is a crucial distinction. Public condemnations of Russia’s actions have
not claimed criminality, and criminal punishment of the Russian orchestrators
has never been on the table. This is important, because one can hold that the
Crimean intervention was an act of aggression without endorsing the notion that
it exemplified a criminal use of force. The “character” and “gravity”
thresholds internal to Article 8 bis
qualify “acts of aggression,” including precisely those listed in 8 bis (2). In other words, by the very structure of the provision, not all
instances of the listed acts of aggression are criminal, only those of the
requisite character and gravity.

Measured with reference to unjustified human harm, the latent
violence that could underpin the criminality of bloodless invasions is plainly
of lesser “seriousness,”
“danger,” and “gravity” and of a different “character” than consummated
violence.
As such, bloodless invasions fall somewhere between clearly noncriminal
acts—like illegally, but nonviolently, manipulating foreign
elections—and clearly criminal, high-casualty invasions. This raises the real possibility that
even highly effective bloodless invasions are not criminal under Article 8 bis.

There is an obviously troubling aspect to letting the leaders
of a bloodless invasion off the criminal hook. Had their presence been resisted by Ukraine, Russian
troops stationed in Crimea would almost certainly have responded with lethal
force. That was surely why they were stationed throughout the territory, and it
is how Russian forces reacted to resistance in Donbass subsequently.
In that sense, the bloodlessness of Crimea was due not to restraint in Moscow,
but to supererogatory restraint in Kiev.
To condemn and punish leaders for one of these invasion types and not the other
might appear morally arbitrary.

However, such divergent treatment is commonly accepted in
morality and law. Persons are judged morally not on what they would have done
had circumstances outside of their control been different, but on what they
actually did.
Similarly, criminal law gives the perpetrator the strong benefit of the doubt,
recognizing, however unlikely it may be, that a threat may never have been
consummated, and that those who make a threat, even if it succeeds, should not
be treated equivalently to those who make and consummate that threat. Notably,
most other international crimes require more than latent unjustified violence:
they require its direct infliction. There are rare exceptions, such as the war
crime of “declaring that no quarter will be given” or the crime of inviting
unjustified killing through shielding one’s own troops with civilians.
But those crimes are anomalous and aggression is the “supreme” crime, defined
by an internal gravity threshold.
There is good reason to hold that bloodless invasion falls short of that
threshold.

To be clear, the noncriminality of such actions is compatible
both with the dominant view that Russia engaged in a serious violation of
public international law, and with the collective and severe sanctions imposed
on Russia in response, including nonrecognition of the annexation. Bloodless invasions are serious
violations of international law that warrant significant consequences. The
argument above goes only to the question of whether the leaders of states that
engage in such actions should be prosecuted as the world’s supreme criminals,
alongside perpetrators of genocide, crimes against humanity, and war crimes.

This is not to say that the normative account presented here
disposes unequivocally with the question of bloodless invasion’s criminality.
As explained in Part IV, the unjustified killing account is compatible with a
lower threshold that would include bloodless aggressions as criminal.
However, in recognizing that such invasions are less grave on the core measure
of the crime’s wrongfulness, and in stark contrast to the dominant account, the
argument weighs against including such invasions among the “most serious and
dangerous” forms of illegal force that count as instances of the “supreme
crime.” The best interpretation of Article 8 bis is that bloodless
invasions are not criminal.

Even if it were thought appropriate, after reflection and
debate, to adopt a lower threshold and count some bloodless invasions as
criminal aggressions, the account presented here would identify a criminality
threshold within the category of bloodless invasions. Specifically, criminality
would turn on the scope of the action’s latent human violence.

B. The
Right To Disobey

The second practical implication of the normative account
presented here goes to the legal rights of soldiers ordered to fight in
criminal wars. Viewed on the traditional account as remote, and thus morally
detached, from the macro wrong against the victim state, such soldiers have
been denied an internationally protected right to refuse to participate. On the
account presented here, that is a mistake. Although typically nonculpable, soldiers are involved intimately
in the unjustified killing and violence that are the core criminal wrongs of
aggressive war. A better interpretation of existing law would recognize their
right to refuse to perform those wrongs.

It is legally clear that only those who control, or at least
influence, the policy to wage illegal war can be criminally liable for
aggression. On the Walzerian normative account,
this reflects the deeper moral truth that soldiers are responsible only for
what falls within “their own sphere of activity.” They are detached morally from any
macro interstate wrong, because they lack influence at that level.
This idea of a tightly defined sphere of soldierly activity and responsibility
underpins the so-called “moral equality” of combatants—the
idea that soldiers waging an aggressive war are no less licensed morally to
kill combatants (and proportionate collateral civilians) than are their
opponents.

The idea that trivial or remote contributions to a macro
wrong can be subject so easily to moral detachment ought to be controversial
from the legal point of view, particularly in light of international criminal
law’s broad and oft-used doctrines of shared responsibility. But even accepting that premise, on
the unjustified killing account, soldiers are notremote from the wrong
of aggression. Quite the opposite: the interstate violation is criminal because
the killings of the soldiers on the aggressor side, unlike those of their
enemies, cannot be justified. The moral foundations of that legal posture are
best explained by Walzer’s revisionist critics, who have insisted that it is
untenable to hold that soldiers participating in an aggressive war have a moral
license to “kill people who have done nothing other than to defend themselves
and other morally innocent people from an unjust attack.”

To identify the legal relevance of this insight is notto
hold that soldiers should be criminally liable for participating in aggressive
wars.
On the contrary, there are two cumulative reasons to grant soldiers blanket jus
ad bellum immunity. First, their typical uncertainty about the war’s
legality, their associative sympathies, and the heightened culpability
threshold for international criminal liability mean that very few soldiers are
sufficiently culpable for their wrongful killings to warrant
prosecution. Moreover, it is institutionally
infeasible to identify the few that surpass that threshold.
Second, guaranteeing soldiers jus ad bellum immunity arguably helps to
frame a set of incentives maximally conducive to jus in bello compliance
and thus mitigates the horrors of war, once underway. Given soldiers’ typical
nonculpability, sharpening the impact of the in bello regime in this way
sets the best incentives for good conduct.

However, these good reasons not to punish soldiers for
aggression cannot reverse the wrongfulness of their jus-in-bello-compliant
killing in a criminal war .This
is not merely a point about philosophical accuracy. It goes to the proper
interpretation of soldiers’ rights.

Soldiers have a clear right to disobey orders that violate jus
in bello. Those punished for such refusal are
eligible for refugee status .
Neither the core right, nor the refugee claim, requires that the soldier would
have been personally criminally liable had he obeyed the illegal orders; it is
enough that, if obedient, he would have been sufficiently intimately associated
with the wrong to be unable to “wash his hands of guilt.”

If the
normative core of aggression were a macro interstate wrong, treating jus ad bellum resisters in this way
might be normatively comprehensible given how far removed they are from that
macro violation. However, if soldiers’ contributions to an aggressive war are
the wrongs that make the war worthy of criminalization, soldiers that refuse to
fight on those grounds sound their claims in the law’s own normative register.
They cannot be told coherently that they ought to be able to wash their hands
of guilt.

As I
explore in forthcoming work, perhaps the most plausible alternative explanation
for the denial of soldiers’ rights to disobey rests on the damage that
recognizing such rights would do to the functioning of military institutions in
lawful wars, and thus to global security. This justification,
however, is contingent on both the nature of war and the nature of military
institutions. That contingency underpins an imperative internal to
international law’s own normative posture to carve out disobedience rights for
soldiers refusing to fight in criminal wars whenever doing so would be
compatible with preserving military functionality in lawful wars.

The results
of two isolated cases offer hope for a more coherent jurisprudence in this
respect. Mohammed Al-Maisri, a Yemeni deserter from the Iraqi invasion of
Kuwait in 1990, was granted asylum in Canada in 1995 on the grounds that “the
invasion and occupation of Kuwait was condemned by the United Nations.” And Florian Pfaff, a
German Federal Army Major who refused to provide support to the U.S.-led
invasion of Iraq in 2003, had his right to disobey upheld domestically by the German
Federal Administrative Court
on the grounds that he identified “objectively serious legal reservations” to the war. In neither case did the
court explore the nature of the soldier’s relationship to the wrong in
question. However, the holdings protected the right of those individuals not to
violate the rights of others.

C. Reparations
and Participation at the ICC

The third and final implication of the normative account
offered here goes to the rights of soldiers fighting against aggression. Two of
the ICC’s landmark innovations in international criminal law are that it
provides crime victims the opportunity to participate (with legal
representation) in various ways in the criminal proceedings and that it renders
such victims eligible to receive reparations following a conviction.
The upshot of the account articulated in Part III is that, in an aggression
prosecution, those participatory and reparative rights and privileges must
attach primarily to combatants killed or injured fighting an aggressor force
and to civilians harmed in proportionate collateral
damage. These are the constituencies whose rights the criminalization of aggression
protects.

Certain aspects of the ICC’s developing approach to defining
the scope of victims in nonaggression prosecutions are worthy of note here. In
the first decision on reparations in 2012 (following Thomas Lubanga’s
conviction for child conscription), the Trial Chamber articulated a potentially
broad standard, holding that the Court could issue reparations to all whose
harms were proximately caused by an international crime, including both direct
and indirect victims. Although affirming these points in the abstract, the Appeals Chamber
interpreted the terms narrowly.
Declining to include the full spectrum of persons harmed as a foreseeable
consequence of the crime, it identified “direct victims” with reference to the
rationale for the criminal prohibition—namely the protection of children
from the fear and violence of combat and from the trauma of separation from
family and school.
On this reading, the direct victims of Lubanga’s crime were the conscripted
children, and the harms relevant to the reparations proceedings were the
physical injury, psychological trauma, and loss of schooling associated with
that criminal wrong.
In other words, the direct victims were those the criminal prohibition was
“clearly framed to protect”—terminology used by the Trial Chamber in an
earlier effort to follow Appeals Chamber guidance on the victims eligible to
participate in the criminal proceedings. The Appeals
Chamber limited “indirect victims” for the purposes of both participation and
reparations to those who suffered due to a “close personal relationship[]” to
direct victims or who were harmed in the course of protecting direct victims.

The focus on core victims of the crime, rather than all
persons foreseeably harmed by the crime, is probably inevitable given the wide
scope of international crimes and the limited capacity of the Court. It is also arguably more in line
with the context of a criminal prosecution, which might be thought to require a
focus on repairing the criminal wrong, rather than providing comprehensive
civil compensation.

If this approach to defining victims holds in the context of
aggression prosecutions, the implications of the traditional normative account
are clear. For those who subscribe to that view, “the typical victim [of the
crime of aggression] is a ‘state,’” and the natural implication is to accord victims’
rights and privileges to state representatives, with the ICC channeling reparations to the attacked state following a
conviction.

On the unjustified killing account, this would be a mistake.
The state is not the person (and its sovereignty is not the value) that the
criminalization of aggression was “clearly framed to protect.” The
criminalization of aggression protects combatants’ and collateral civilians’
right to life.
The harm by virtue of which aggression is criminally wrongful is that inflicted
through unjustified violence against human beings.

Seen in that light, those granted participatory rights and
privileges in aggression prosecutions must be combatants who fought against
aggression and civilians harmed as collateral damage, probably as two or more
broad classes with collective representation.
Reparations should focus on the same groups, funding veterans’ care or
reintegration programs, assisting the families of dead soldiers and
collaterally harmed civilians, and otherwise acknowledging the true wrong at
the heart of the crime.

In addition to diverging radically from a state-focused
participation and reparations regime at the ICC, this upshot also stands in
stark contrast to recent jus ad bellum reparations regimes in the
compensation commission context. Consider here the U.N. Compensation Commission
(UNCC), set up after Iraq’s 1990 invasion of Kuwait, and the Ethiopia-Eritrea
Claims Commission (EECC), set up following Eritrea’s armed attack on Ethiopia
at the turn of the millennium. Both commissionsissued a wide array of
awards relating to the losses suffered by Kuwaiti and Ethiopian businesses and
civilians as a result of the respective wars. Among the many claims deemed
eligible by the more expansive UNCC were traffic accidents that occurred due to
the general breakdown of civil order in Kuwait, individual and corporate
property losses caused by that breakdown, and losses caused when the
continuation of contracts became impossible for one or more of the parties due
to the conflict.However, despite their generally broad approaches to defining eligible
victims, both commissions excluded almost all harms suffered by
combatants fighting against the aggressor force, other than those caused by jus
in bello violations.

As indicated above, that a compensation commission would take
a broader reparative approach than a criminal court is quite appropriate.
However, in light of what is most fundamentally wrong with aggressive war from
the internal point of view, the marginalization of soldiers’ deaths and
suffering was a grave mistake that the International Criminal Court must not
replicate. Together with collaterally harmed civilians, those combatants should
in fact be at the very heart of participatory and reparative rights at the ICC.

These three implications—clarifying the marginal status
of humanitarian intervention and bloodless aggression, the soldier’s right not
to fight in an illegal war, and the centrality of combatant death and suffering
to victim status and reparations at the ICC—are only sketched in
introductory form here. Plainly, each demands more detailed elaboration and
consideration. However, this sketch illustrates why defining the normative core
of aggression matters doctrinally. With
the Court poised to take jurisdiction over the crime, clarity on these issues
is a matter of urgency.

Conclusion

This
Article has debunked a common misconception—that aggression is a
normative anomaly in international criminal law, uniquely rooted in a wrong
inflicted on the attacked state, rather than in an accumulation of wrongs
inflicted on individual human beings. 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 such wars. For five
reasons, wrongful killing—and not aggression’s typical infringement of
sovereignty—is the normative core of the crime.

First,
sovereignty 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. Moreover, other sovereignty violations
that more effectively and dramatically infringe the core sovereign rights of
territorial integrity or political independence, or the collective right of
self-determination, are not criminalized. Second, what distinguishes aggression
from other sovereignty violations is that it involves unjustified, direct
attacks on the lives and physical integrity of human beings. Indeed, some
criminal wars involve the infliction of unjustified death and human suffering
without infringing sovereign rights at all. And, crucially, if aggression were
not a crime, it would be the anomalous context in which unjustified killings
were noncriminal. Third, understanding aggression in this way reconciles it to
the broader moral project of international criminal law—namely, the protection of
individuals and groups from the most egregious violations of their rights and
dignity. 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
humanity. Finally, the reasoning of the judges and prosecutors at Nuremberg and
Tokyo reveals a shared understanding that the prohibition of wrongful killing
is the normative core of the crime.

For all of
these reasons, the account of aggression advanced here better explains the
contours of the crime, comports more closely with the purposes of international
criminal law, and better aligns with adjacent areas of international law.
Recognizing this ought to inform how we interpret the criminal law
status of bloodless invasions and humanitarian intervention, how we understand
the claims of soldiers who refuse to fight in criminal wars, and how we define
the expressive focus of victim participation and reparations in ICC aggression
prosecutions.

Case Explained: Why Have We Criminalized Aggressive War? – Legal Perspective

ByBuzz Reporter

Introduction

i. the
normative underpinnings of a crime

ii. the
orthodox normative account of the crime of aggression

A. The
Walzerian Account: The State as Victim and Perpetrator in the Law

B. Criticizing
the Criminalization of Aggression on Walzerian Terms

iii. why aggressive war is an international crime

A. Sovereignty
Cannot Explain the Jus Ad Bellum or the Criminalization of Aggression

B. The
Human Core of Aggression

C. The
Humanization of International Law

D. Revisiting
the History of the Move to a Restrictive

E. Aggression
and the Human Dimension in the Courtroom

F. The
Wrong of Aggressive War

iv. two problem cases: bloodless aggression
and humanitarian intervention

A. Bloodless
Invasion

B. Humanitarian
Intervention

v. why it matters that aggression is a crime
of unjustified killing

A. The
Utility of Normative Clarity in Resolving Ambiguous Cases

B. The
Right To Disobey

C. Reparations
and Participation at the ICC

Conclusion

By Buzz Reporter

Related Post

Case Explained: Major Anti-Crime Action: Tether Freezes $4.2 Billion Worth of Stablecoins Linked to Suspicious Activity – Legal Perspective

Case Explained: Punishment without crime: bypassing the law to criminalise dissent – Legal Perspective

Case Explained: The future of law enforcement rests in its technology investment – Legal Perspective

You missed

Trending Now: You Me & Tuscany Celebrity News and Gossip | Entertainment, Photos and Videos – Fans React

Health Update: The public health crisis for older Americans? Loneliness. – What Experts Say

Science Insight: Protests Erupt Over Dumping Ground in Meerpur Hindu Village – Explained

Case Explained: Major Anti-Crime Action: Tether Freezes $4.2 Billion Worth of Stablecoins Linked to Suspicious Activity – Legal Perspective

ByBuzz Reporter

Introduction

i. the normative underpinnings of a crime

ii. the orthodox normative account of the crime of aggression

A. The Walzerian Account: The State as Victim and Perpetrator in the Law

B. Criticizing the Criminalization of Aggression on Walzerian Terms

iii. why aggressive war is an international crime

A. Sovereignty Cannot Explain the Jus Ad Bellum or the Criminalization of Aggression

B. The Human Core of Aggression

C. The Humanization of International Law

D. Revisiting the History of the Move to a Restrictive

E. Aggression and the Human Dimension in the Courtroom

F. The Wrong of Aggressive War

iv. two problem cases: bloodless aggression and humanitarian intervention

A. Bloodless Invasion

B. Humanitarian Intervention

v. why it matters that aggression is a crime of unjustified killing

A. The Utility of Normative Clarity in Resolving Ambiguous Cases

B. The Right To Disobey

C. Reparations and Participation at the ICC

By Buzz Reporter

Related Post

You missed

i. the
normative underpinnings of a crime

ii. the
orthodox normative account of the crime of aggression

A. The
Walzerian Account: The State as Victim and Perpetrator in the Law

B. Criticizing
the Criminalization of Aggression on Walzerian Terms

A. Sovereignty
Cannot Explain the Jus Ad Bellum or the Criminalization of Aggression

B. The
Human Core of Aggression

C. The
Humanization of International Law

D. Revisiting
the History of the Move to a Restrictive

E. Aggression
and the Human Dimension in the Courtroom

F. The
Wrong of Aggressive War

iv. two problem cases: bloodless aggression
and humanitarian intervention

A. Bloodless
Invasion

B. Humanitarian
Intervention

v. why it matters that aggression is a crime
of unjustified killing

A. The
Utility of Normative Clarity in Resolving Ambiguous Cases

B. The
Right To Disobey

C. Reparations
and Participation at the ICC