Rethinking the Crime of Aggression: International and Interdisciplinary Perspectives 9462654662, 9789462654662

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Rethinking the Crime of Aggression International and Interdisciplinary Perspectives

Stefanie Bock Eckart Conze Editors

Rethinking the Crime of Aggression

Stefanie Bock · Eckart Conze Editors

Rethinking the Crime of Aggression International and Interdisciplinary Perspectives

Editors Stefanie Bock Department of Law Philipps University of Marburg Marburg, Germany

Eckart Conze Department of History Philipps University of Marburg Marburg, Germany

ISBN 978-94-6265-466-2 ISBN 978-94-6265-467-9 (eBook) https://doi.org/10.1007/978-94-6265-467-9 Published by t.m.c. asser press, The Hague, The Netherlands www.asserpress.nl Produced and distributed for t.m.c. asser press by Springer-Verlag Berlin Heidelberg © t.m.c. asser press and the authors 2022 No part of this work may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, microfilming, recording or otherwise, without written permission from the Publisher, with the exception of any material supplied specifically for the purpose of being entered and executed on a computer system, for exclusive use by the purchaser of the work. The use of general descriptive names, registered names, trademarks, service marks, etc. in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. This t.m.c. asser press imprint is published by the registered company Springer-Verlag GmbH, DE part of Springer Nature. The registered company address is: Heidelberger Platz 3, 14197 Berlin, Germany

Preface

We as editors are honoured to present in this volume a selection of contributions that originated as papers presented in September 2018 at the International Conference Rethinking the Crime of Aggression: International and Interdisciplinary Perspectives in Marburg, Germany and which we have subsequently revised and updated. The opening of the conference took place in Marburg University’s Great Hall (Aula der Alten Universität), which was inaugurated in 1903, when Marburg had become one of the leading universities of Prussia and Germany. The Great Hall’s wall paintings by Peter Janssen (1844–1908) show scenes related to the history of Marburg and its university (which was founded in 1527 as a Protestant university by Philipp the Magnanimous—Philipp der Großmütige –, Landgrave of Hesse), among them a battle scene—the battle of Laufen in 1534—between Protestant troops under the command of Landgrave Philipp and Catholic Austrian troops. This painting in a way epitomises the topic of our conference and of this volume: war and aggression, in this case war and mass violence induced by religious tensions. Naturally, we need not to go back to the 16th century to find other examples of inter-state wars or inter-state conflicts related to religion, as well as examples of the politicisation of religion and of religious dimensions or legitimations of war or aggression. Aggression, of course, is not only a historical issue. On the contrary, its current significance is beyond any doubt. A few days before the conference’s opening in September 2018, the perspective of an imminent attack of Syrian troops on the region of Idlib, including the possible use of chemical weapons, triggered a controversial debate in Germany about the participation of German troops in Allied military measures against the Assad regime. Against this background, the German Federal Parliament’s Research Service (Wissenschaftlicher Dienst des Deutschen Bundestages) provided a report including an assessment of relevant questions of international criminal law and the potential criminal nature of such measures and of German participation under the German International Criminal Code (Völkerstrafgesetzbuch). The report concluded that a parliamentary decision on a German military mandate would have to consider the implications of international criminal law and the criminal liability for acts of aggression. But even without these—at the time of the conference—recent developments, the topicality of the question of aggression in international politics and especially in v

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international criminal law can hardly be ignored. In December 2017, the Assembly of State Parties of the International Criminal Court (ICC) decided to activate the Court’s jurisdiction over the crime of aggression and give effect to the Statute’s aggression provisions, which were agreed on the first ICC review conference in 2010 in Kampala. Since 17 July 2018, the ICC has the right to prosecute ‘the planning, preparation, initiation or execution, by a person in a position effectively to exercise control over or to direct the political or military action of a State, of an act of aggression which, by its character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations’. A highly controversial debate about the ICC’s competence has, thus, found at least temporary end. This reinforcement that the crime of aggression is—like genocide, crimes against humanity and war crimes—a core crime under international law and that the use of force by States is subject to international regulation constituted a starting point of our conference. However, discussions about the crime of aggression are not limited to the present or to the very recent past. Instead, they are part and the continuation of complex historical and political dynamics going back at least to the beginning of the 20th century and, in particular, the years of the First World War. And yet, today these dynamics of more than one hundred years ago are not only of historical importance and interest, they are not a faraway past, these dynamics continue to cast their shadow on more recent and even current developments and debates. Against this background, it was the aim of the conference to bring together international experts from various disciplines and to start a dialogue regarding aggressive war and the crime of aggression: a dialogue not only addressing the historical genesis of the current situation, the content of the new aggression provisions, their implementation in practice and their possible regulatory effects, but also instigating perspectives for future developments and problems. Aggressive war is a crime against world peace, the core element of the international community. At the same time, it certainly is the root of multiple violations of individual rights under conditions of armed conflicts. The Nuremberg International Military Tribunal (IMT) in 1945 regarded aggression as the gravest international crime, the ‘crime of crimes’, as Chief Prosecutor Robert H. Jackson once called it, integrating and accumulating the horrors of all other international crimes. In this perspective, it seemed consistent to prosecute the violation of the prohibition of force under international law as an international crime. Still, compared to other international crimes (war crimes and crimes against humanity above all), the crime of aggression has a special character making its legal definition and application extremely complicated. More than other international crimes, aggression has a highly political nature. Today, it seems to be widely accepted that a right of sovereign states to wage war (ius ad bellum) does not exist—or does not exist any longer—and that the use of armed force is not a legitimate means to solve international disputes. The exact limits of the prohibition of force are, however, disputed. Self-defence is part of the UN Charter, but what about ‘preventive self-defence’? Human rights discourse further complicates the question: Can humanitarian objectives or considerations legitimise military interventions (by, for example, applying the concept of

Preface

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R2P—‘Responsibility to Protect’)? There is obviously a large grey zone which needs discussion—politically, legally and academically. Questions of individual responsibility and individual guilt add another dimension to the debate. How can one relate the principle of individual guilt to state crimes and collective decision-making structures? How can one identify individual responsibilities and contributions in state action contexts? And is—in the case of aggression—criminal responsibility limited to the top political or military leaders? These burning questions go back to the very beginnings of international criminal law and to the revolution it meant for both international and penal law. They indicate the complexity of the matter, historically and politically, and underline the need for a thorough academic—disciplinary and interdisciplinary—discourse. The programme of the conference was—and this volume is—shaped by its interdisciplinary approach. After an overview on the emergence of the ICC’s aggression provisions, it starts with the general and basic question what aggression means in various social circumstances and how our understanding of social aggression or aggressiveness is influencing the perception of aggression in an international context. Part II directs the attention to States as aggressors and to the relation between the use of force and the emergence and development of the modern state or of modern statehood. Part III is dedicated to attempts—historically and politically—to regulate aggression and to the rise of the idea to prosecute individuals for aggressive state behaviour and to develop corresponding legal norms. It also treats the problem of civil war, of state-internal war, and whether aggression in this context can be regarded as an international crime. The next part (IV) addresses strategies or attempts to legitimise military interventions and the use of force, from the idea of ‘humanitarian intervention’ to the concept of R2P. The last two parts (V and VI) have their focus, first, on the criminal prosecution of aggression, the problem of individualising responsibility and guilt, the role of the Security Council in aggression trials, and the risks and difficulties of prosecuting individuals for state conduct. The conference’s programme was broad and demanding. We are grateful that so many colleagues accepted our invitation and contributed to our understanding of this complex and challenging matter—challenging politically and academically. Moreover, we warmly thank the Team of the International Research and Documentation Centre for War Crimes Trials (Marburg), in particular Alexander Benz, for their constant and dedicated support in organising the conference and during the whole editing process. We hope that this volume with its interdisciplinary approach can contribute to the discussion on the crime of aggression and to the understanding of the roots, dynamics and regulation of aggressive wars. Marburg, Germany March 2021

Stefanie Bock Eckart Conze

Contents

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Negotiating Aggression: From Rome over Kampala to New York . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Christoph Henrichs

Part I

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What is Aggression?

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Aggression: A Sociological Perspective . . . . . . . . . . . . . . . . . . . . . . . . . . Wolfgang Knöbl

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Dimensions of Aggression in Social Psychology . . . . . . . . . . . . . . . . . . . Ulrich Wagner

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Part II 4

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States as Aggressors

How Far Is It from Münster and Osnabrück to Kampala? State Aggression, the Use of Force, and Statehood from a World Society Perspective . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mathias Albert States as Aggressors: Some Economic Perspectives . . . . . . . . . . . . . . . Fanny Coulomb

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Part III Regulating Aggression 6

Can There Be a Crime of Internal Aggression? . . . . . . . . . . . . . . . . . . . Eliav Lieblich

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The Versailles Treaty and the Idea of Prosecuting Wars of Aggression . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 121 Gerd Hankel

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Institutional Attitudes Towards Acts of Aggression . . . . . . . . . . . . . . . 139 Sergey Sayapin

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Contents

Part IV Legitimizing Aggression 9

State Sovereignty and the Legitimacy of Aggression . . . . . . . . . . . . . . 155 Wilfried von Bredow

10 The Crime of Aggression and the Prohibition of the Use of Force—Reflections on the Relationship between the Rome Statute and General Public International Law . . . . . . . . . . . . . . . . . . . 171 Michael Lysander Fremuth Part V

Individualizing Guilt

11 Individualizing Guilt at Nuremberg . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 209 Annette Weinke 12 Aggression and Atrocity—The Interstate Element, Politics, and Individual Responsibility . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 225 Tom Dannenbaum Part VI

Prosecuting Aggression

13 Prosecuting the Crime of Aggression: The Role of the UN Security Council . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 255 Niels Blokker 14 Key Risks and Difficulties of Aggression Trials . . . . . . . . . . . . . . . . . . . 269 Patrycja Grzebyk Appendix A: United Nations General Assembly Resolution 3314 (XXIX) of 14 December 1974 . . . . . . . . . . . . . . . . . . . . . . . . . . . 291 Appendix B: ICC Resolution RC/Res.6 of 1 June 2010—Crime of Aggression . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 297 Appendix C: ICC Resolution ICC-ASP/16/Res.5 of 14 December 2017: Activation of the Jurisdiction of the Court over the Crime of Aggression . . . . . . . . . . . . . . . . . . . . . . . . . . . 303

Editors and Contributors

About the Editors Prof. Dr. Stefanie Bock is Professor of Criminal Law, Criminal Procedure, International Criminal Law and Comparative Law at the Philipps-University Marburg and Co-Director of the International Research and Documentation Centre for War Crimes Trials (Marburg, Germany). e-mail: [email protected] Prof. Dr. Eckart Conze is Professor of Modern and Contemporary History at the Philipps-University Marburg and Co-Director of the International Research and Documentation Centre for War Crimes Trials (Marburg, Germany). e-mail: [email protected]

Contributors Mathias Albert Department of Sociology, University of Bielefeld, Bielefeld, Germany Niels Blokker Leiden Law School, University of Leiden, Leiden, The Netherlands Fanny Coulomb Sciences Po Grenoble, Institute for Political Studies of Grenoble, Saint-Martin-d’Hères, France Tom Dannenbaum The Fletcher School, Tufts University, Medford, MA, USA Michael Lysander Fremuth Department of Law, Universität Wien, Vienna, Austria; Ludwig Boltzmann Institute of Fundamental and Human Rights, Vienna, Austria Patrycja Grzebyk Faculty of Political Science and International Studies, University of Warsaw, Warsaw, Poland xi

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Editors and Contributors

Gerd Hankel Hamburger Institut für Sozialforschung, Hamburg, Germany Christoph Henrichs German Federal Ministry of Justice and Consumer Protection, Berlin, Germany Wolfgang Knöbl Hamburg Institute for Social Research, Hamburg, Germany Eliav Lieblich Faculty of Law, Tel Aviv University, Tel Aviv, Israel Sergey Sayapin KIMEP University School of Law, Almaty, Kazakhstan Wilfried von Bredow Department for Social Science, Philipps-Universität Marburg, Marburg, Germany Ulrich Wagner Department of Psychology and Center for Conflict Studies, Philipps-University Marburg, Marburg, Germany Annette Weinke Friedrich Schiller University, Institute for History, Jena, Germany

Chapter 1

Negotiating Aggression: From Rome over Kampala to New York Christoph Henrichs

Contents 1.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 1.2 Rome . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 1.3 Kampala . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 1.4 New York . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Abstract This chapter gives an overview over the process how the International Criminal Court gained jurisdiction over the crime of aggression and puts it into a wider perspective. It highlights the milestones in that development, from the Diplomatic Conference in 1998 adopting the Rome Statute over the Kampala Review Conference in 2010 introducing the provision on the crime of aggression to the Assembly of States Parties in New York in December 2017 which after a nail-biting poker gamble eventually took the decision to activate the Court’s jurisdiction over the crime of aggression. The chapter particularly focuses on the conflict about the conditions for the exercise of the jurisdiction which nearly caused the activation to fail. It analyses the underlying legal provisions, the different positions deducted from them and the process that was set up to find a compromise solution. Particular attention is paid to the mechanisms behind the scene of the official negotiations also pointing at the role the individual human actors have as representatives of States Parties in international decision-making processes. Keywords International Criminal Court · Jurisdiction · Crime of Aggression · Assembly of States Parties · Activation Decision

The views expressed in this chapter are entirely personal and do not necessarily reflect the position of the Federal Republic of Germany. C. Henrichs (B) German Federal Ministry of Justice and Consumer Protection, Mohrenstrasse 37, 10117 Berlin, Germany © t.m.c. asser press and the authors 2022 S. Bock and E. Conze (eds.), Rethinking the Crime of Aggression, https://doi.org/10.1007/978-94-6265-467-9_1

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1.1 Introduction This chapter aims to document the long-standing—and at times frustrating—attempts of the international community to establish international criminal jurisdiction for the crime of aggression. It describes a journey from Rome via Kampala, the capital of Uganda, to New York, each stop on the way marking an essential milestone for the International Criminal Court.

1.2 Rome It is important to realize that this journey is about the development of criminal justice. Criminal justice entails prosecuting an individual person for his personal behaviour, putting him before a court for a crime he is accused to have committed, deciding on his liability for punishment and possibly sentencing him to prison. Criminal justice takes the step from state conduct to individual responsibility for a personal wrongdoing, in this case the step from an ‘act of aggression’ to a ‘crime of aggression’. The ‘crime of aggression’ is to be considered in the context of war crimes. In fact, it constitutes the ultimate war crime because a war of aggression violates the very core of international co-existence of States: peace. The flyer of the Marburg conference quotes a key statement from the judgment of the International Military Tribunal in Nuremberg in 1946 which impressively illustrates the magnitude: ‘To initiate a war of aggression […] is not only an international crime; it is the supreme international crime, differing only from other war crimes in that it contains within itself the accumulated evil of the whole.’1 This quote also spans the timeline that has been covered in discussing criminal jurisdiction for the crime of aggression. The idea to establish an international tribunal to bring to court political leaders accused of international crimes goes back to the end of World War I but never materialized at the time. Following World War II, the allied powers established two ad hoc tribunals to prosecute leaders accused of war crimes: the International Military Tribunal in Nuremberg and the International Military Tribunal for the Far East in Tokyo. The charges before those Military Tribunals were centred around ‘crimes against peace’ which were—among others—defined as ‘planning, preparation, initiation or waging of a war of aggression’. Soon after these tribunals, in 1950 the International Law Commission of the United Nations drafted the ‘Nuremberg Principles’,2 which were a set of guidelines for determining what constitutes a war crime, taken from the statute of the Nuremberg tribunal. Included in the Nuremberg principles again was the term ‘war of aggression’. 1

IMT Nuremberg, Judgement of 1 October 1946 (Prosecutor v. Goering et al.), in: Trial of the Major War Criminals before the International Military Tribunal, Volume I, Nürnberg; Editors 1971, p. 186. 2 http://legal.un.org/ilc/texts/instruments/english/draft_articles/7_1_1950.pdf (accessed 1 March 2021).

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However, attempts to establish a permanent structure of an international criminal court system for war crimes froze for many decades after Nuremberg as during the Cold War they lacked any political perspective to be realized. Only in the 1990s did the idea gain momentum again. The United Nations Security Council established two ad hoc tribunals responding to regional instances of severe war crimes and genocides, the International Criminal Tribunal for the former Yugoslavia established in 1993 and the International Criminal Tribunal for Rwanda established in 1994. The creation of these tribunals highlighted the need for a permanent international criminal court and put the issue back on the international agenda. Based on drafting work by the International Law Commission, efforts were intensified, first in an ad hoc Committee on the Establishment of an International Criminal Court, then in a Preparatory Committee which worked on a draft text of a statute. In June 1998 the General Assembly convened a Diplomatic Conference in Rome which on 17 July 1998 successfully adopted the ‘Rome Statute’, the founding treaty of the International Criminal Court (ICC). Following 60 ratifications, the Rome Statute entered into force on 1 July 2002. The International Criminal Court was established. Currently, the Rome Statute has 123 States Parties. Member States include France and the United Kingdom as the only two of the permanent members of the United Nations Security Council; the other three—USA, Russia and China—have not ratified the Rome Statute. The ICC is seated in The Hague in the Netherlands and has the jurisdiction to prosecute individuals for the ‘most serious crimes of concern to the international community as a whole’.3 These crimes are contained in an exhaustive list in Article 5 Rome Statute. They are: the crime of genocide, crimes against humanity, war crimes—and: the crime of aggression. In the following Articles of the Rome Statute, the first three of these crimes are legally defined.4 Originally, the Rome Statute, however, did not include a definition on the crime of aggression. Instead, Article 5 (2) Rome Statute (former version) read: The Court shall exercise jurisdiction over the crime of aggression once a provision is adopted […] defining the crime and setting out the conditions under which the Court shall exercise jurisdiction with respect to this crime.

The Diplomatic Conference in Rome had not been able to reach consensus on this point. In order to save the conference from failing, it was decided to postpone the definition of the crime of aggression—and thus to postpone the jurisdiction of the Court to judge on crimes of aggression. Some States opposed including the crime of aggression into the jurisdiction of the Court altogether, among whom in particular France and the UK. There was also a considerable debate about the scope the definition of the crime of aggression should take. Furthermore, the conference was divided on the question if and how the Security Council of the United Nations should be involved. The permanent members demanded a key role of the Security 3

Article 5 (1) Rome Statute. Similar Article 1: ‘jurisdiction over persons for the most serious crimes of international concern’. 4 Articles 6–8 Rome Statute, containing long exhaustive lists of individual acts that constitute international crimes.

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Council in establishing that an act of aggression has taken place. This view faced strong opposition from developing countries and countries from the Arab world who emphasized the independence of the Court. In view of this line of conflict many delegations spoke in favour of postponing the whole issue of aggression from the conference, always in fear that the negotiations for the Statute could fail entirely.5 Various options were circulated how this postponement should be handled. The solution was the compromise that found its way into Article 5 (2) Rome Statute, often described as ‘half in, half out-solution’: The crime of aggression was included, but the definition should be determined later. Only then the Court would gain jurisdiction over the crime of aggression. Seen from the perspective of proponents of international criminal justice, there was some merit in this compromise: At least the question whether the crime of aggression should fall under the jurisdiction of the Court had been decided in the affirmative and was no longer an issue of debate. At the same time Article 123 was introduced into the Rome Statute providing that a Review Conference be convened seven years after the entry into force of the Rome Statute to consider any amendments to the Statute, a mechanism to ensure that the issue of the jurisdiction for the crime of aggression remained on the agenda.

1.3 Kampala In the years following the Rome Diplomatic Conference work was initiated to solve the open question of the crime of aggression. Negotiations were being held in different formats and gradually the proposals on the table began to take shape and structure. The Diplomatic Conference in Rome established a Preparatory Commission and entrusted it with the necessary preparatory work for the coming into operation of the Court.6 Part of the mandate of this Commission was to prepare proposals for a provision on aggression to be adopted at the Review Conference mentioned above.7 However, faced with many other pressing tasks to prepare the necessary framework to make the Court operational, the discussion about the crime of aggression was only one topic among many others and not of highest priority of this Commission. As a result, little progress was made during this time.8 5

In detail on the Rome negotiations, see Kreß and Barriga 2017, pp. 201 et seq. Final Act of the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Annex I F, https://asp.icc-cpi.int/iccdocs/asp_docs/Publications/ Compendium/Compendium.3rd.27.ENG.pdf (accessed 1 March 2021). 7 Final Act, Annex I F, para 7: ‘The Commission shall prepare proposals for a provision on aggression, including the definition and Elements of Crimes of aggression and the conditions under which the International Criminal Court shall exercise its jurisdiction with regard to this crime. The Commission shall submit such proposals to the Assembly of States Parties at a Review Conference, with a view to arriving at an acceptable provision on the crime of aggression for inclusion in this Statute. The provisions relating to the crime of aggression shall enter into force for the States Parties in accordance with the relevant provisions of this Statute.’ 8 Kreß and von Holtzendorff 2010, p. 1183. 6

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More significant progress was made when a Special Working Group specifically on the crime of aggression was established in 2003 under the chairmanship of Ambassador Wenaweser to the United Nations from Liechtenstein. Ambassador Wenaweser is a leading figure in the Assembly of States Parties to the present day. His prominent role illustrates that individual qualities like personal leadership abilities and charisma can be of much higher importance for influence in international negotiations than the size of a country a person is representing. It does not necessarily have to be the big States that lead; in fact, coming from a small country may actually prove as an advantage for conducting negotiations. The atmosphere of the discussions in the Special Working Group was informal and fruitful, more academic than political,9 and substantial progress was made. By the time the Review Conference as foreseen in Article 123 Rome Statute was approaching, the group had agreed on concrete proposals for a definition of the crime of aggression. The Review Conference took place in Kampala, Uganda, from 31 May to 11 June 2010 and was chaired, once again, by Ambassador Wenaweser. It ended with a lastminute breakthrough success. The conference adopted a resolution which contained a definition of the crime of aggression and rules on the conditions how this jurisdiction should be exercised.10 There were several aspects under discussion in Kampala: First, there was the substantial definition of the crime of aggression. This is the area where most progress had been made during the years of negotiations since the Rome Diplomatic Conference. The Special Working Group had agreed on a consensus package and nobody felt particularly inclined to open up that discussion again in Kampala. The Kampala Resolution introduces a new Article 8bis into the Rome Statute which contains a definition of the crime of aggression, similar in structure to the Articles before which contain definitions of the other crimes that the Court has jurisdiction over. Paragraph 1 reads: For the purpose of this Statute, ‘crime of aggression’ means the planning, preparation, initiation or execution, by a person in a position effectively to exercise control over or to direct the political or military action of a State, of an act of aggression which, by its character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations.

Several elements are noteworthy here: The paragraph contains two elements, the first one is the individual behaviour by a person of ‘planning, preparing, initiating or executing’ the act, which sets off the personal criminal prosecution. Secondly, what needs to be committed in one of these ways is an ‘act of aggression’. If there was no act of aggression by a State, nobody can be held responsible before the Court for a crime of aggression.11 9

Substantial parts of the Working Group were held in Princeton University which inspired the character of the negotiations, therefore often referred to as the ‘Princeton Process’. See in great detail: Kreß and Barriga 2017; Kreß and von Holtzendorff 2010, pp. 1183 et seq. with further references. 10 ICC Resolution RC/Res. 6 of 11 June 2010, Annex I. 11 Quintana 2018, p. 245.

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What constitutes an ‘act of aggression’, is then defined in para 2: For the purpose of paragraph 1, ‘act of aggression’ means the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations.

Following in letters (a) to (g) is a list of actions that constitute acts of aggression, such as invasion or attack by the armed forces of a State of the territory of another State, bombardment, military occupation etc. This definition is not new. As can be seen by the reference in the provision, it was taken from a resolution which was adopted by the UN General Assembly in 197412 as a recommendation to the Security Council on the definition it should use for the purpose of establishing whether an act of aggression has occurred. Under Article 39 UN Charter, ‘the Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression’ and shall ‘decide what measures shall be taken to maintain or restore international peace and security.’ The Security Council has, however, due to the veto powers of its five permanent members, been very reluctant in affirming acts of aggression. The result was a legal vacuum which was filled by the resolution of the General Assembly of 1974, now reutilized in Kampala. According to the definition in Article 8bis Rome Statute, the ‘act of aggression’ then needs to meet a further qualification: Paragraph 1 requires that it ‘by its character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations.’ This is setting an additional threshold of relevance to make sure that not any bagatelle act of aggression automatically constitutes a crime of aggression which then results in personal prosecution. Another restriction has been made in view of the personal applicability of the jurisdiction for the crime of aggression. It can only be committed ‘by a person in a position effectively to exercise control over or to direct the political or military action of a State’. The crime of aggression is designed as a pure leadership crime. Following the example of the Nuremberg War Crime Tribunal, those that give the commands and are responsible for the military acts of aggression are those that should be put before the Court. The character of the crime of aggression as a leadership crime was taken very serious in Kampala and carried through in full consequence. It is also reflected by an addition that the Kampala Conference made to Article 25 Rome Statute. Paragraph 3 provides that a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court not only if he commits that crime but also if he aids or assists in committing it. The Kampala Resolution inserted a new para 3bis stating that in respect of the crime of aggression, the provisions of this Article shall apply only to persons in a position effectively to exercise control over or to direct the political or military action of a State.13 In other words, even for assistance to a crime of aggression only persons in a leadership position can be criminally responsible; subordinate staff cannot be brought before the court for a crime of aggression, neither for committing it nor for assisting it. 12 13

UNGA Resolution 3314 (XXIX) of 14 December 1974. ICC Resolution RC/Res. 6 of 11 June 2010, Annex I, para 5.

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However, as indicated above, the definition of the crime of aggression was not the main issue at the Kampala conference. A different question dominated the discussion. This was the question how the UN Security Council should be involved—which had already been one of the most controversial issues at the Rome Diplomatic Conference in 1998. The ways how the ICC can exercise its jurisdiction under the general rules of the Rome Statute are laid out in Article 13. There are three possible ways to initiate proceedings: • A State Party refers a situation to the prosecutor. • The Security Council refers a situation to the prosecutor. • The prosecutor initiates an investigation by its own initiative (so called proprio motu powers). There was no doubt that the middle option, i.e. the referral from the Security Council, would also apply in the case of the crime of aggression. This option was being dealt with in a separate provision in the Kampala Resolution, the new Article 15ter Rome Statute.14 But what about the other two alternatives of Article 13? Should it be possible to initiate proceedings if the Security Council did not make a referral and remained silent? This was the core issue of the negotiations in Kampala. It was delicate because the political authority of the Security Council was at stake. Its key role could easily be undermined if the Court had the power to confirm the existence of a crime of aggression independent from the Security Council. There were numerous suggestions to solve this question on the way to Kampala. Obviously those countries that hold permanent seats in the Security Council had a vital interest to keep their monopoly. This could be ensured by several options: • The Security Council alone would be entitled to initiative proceedings in front of the ICC, • or at least would have to make a determination under Article 39 UN Charter first that an act of aggression had occurred, • or at least would have to authorize proceedings before the ICC to commence, • or at least would have the authority to veto and prohibit them. Beside these options, other alternative proposals were tabled according to which the UN General Assembly or the International Court of Justice would have to determine that an act of aggression had taken place or at least would have to give their approval to commence proceedings before the Court. In all these variations, there was a common denominator: Some external filter outside the ICC Court system would have to be passed through to activate the jurisdiction of the Court. In the end none of these elements survived the Kampala negotiations. They were faced with a strong counter-movement of States stressing the independence of the Court according to which the Court should have the authority to rule on the existence of a crime of aggression from its mere own competence. At the end of the day that view prevailed, and the general rules of how the Court’s 14

ICC Resolution RC/Res. 6 of 11 June 2010, Annex I, para 4.

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jurisdiction can be initiated for the other crimes listed in the Rome Statute were basically mirrored for the crime of aggression without any extra conditions. As a result, under the new Article 15bis Rome Statute15 State Parties or the Prosecutor can initiate proceedings for the crime of aggression without any prior requirement of an act by any other institution, just like with any other crime before the ICC.16 Looking back on how the different positions strongly opposed each other, it can seem quite surprising that a consensus was found in Kampala.17 A lot of it was due to the negotiating skills of the President of the Conference, Ambassador Wenaweser. Success was hanging in the balance for a long time, literally until the very last minute, deep into the night of the last day of the conference. In the end no State wanted to take the blame for breaking the consensus, and the Kampala Resolution was adopted.

1.4 New York However, one element remained unsolved in Kampala. That was the question who should fall under the new jurisdiction for the crime of aggression. Again, this question was postponed in order to save the compromise. This postponement was achieved by introducing a sophisticated two-step mechanism for the entry into force: First, a threshold of thirty ratifications in Article 15bis (2) has to be met: ‘The Court may exercise jurisdiction only with respect to crimes of aggression committed one year after the ratification or acceptance of the amendments by thirty States Parties.’ As a second step, an additional activation mechanism was put into operation, set out in Article 15bis (3): ‘The Court shall exercise jurisdiction over the crime of aggression in accordance with this Article, subject to a decision to be taken after 1 January 2017 by the same majority of States Parties as is required for the adoption of an amendment to the Statute.’ Once again, time was gained to further negotiate an element on which no consensus could be reached at the conference. Over the years following the Kampala conference, ratifications of the Kampala amendments were coming in solidly as planned. The threshold of thirty ratifications was reached on 26 June 2016;18 the first condition was fulfilled. Everything now 15

ICC Resolution RC/Res. 6 of 11 June 2010, Annex I, para 3. However, the specific significance of the Security Council is nevertheless recognized in Article 15bis (6)–(8) Rome Statute. These provisions assign to the Security Council a key role in the further course of investigation proceedings. According to this rather complicated procedure, the Prosecutor will have to ascertain whether the Security Council has made a determination that the State concerned has committed an act of aggression. If so, the Prosecutor may proceed with his investigation. If not, the Prosecutor has to wait for six months whether the Security Council will still make such a determination. If not, the Prosecutor has to ask authorisation from the Pre-Trial Division of the Court to commence investigation while the Security Council under Article 15bis (8) in conjunction with Article 16 Rome Statute can still defer further investigation. 17 For details on the road to the Kampala breakthrough, see in great detail Kreß and von Holtzendorff 2010, pp. 1202 et seq. 18 Quintana 2018, p. 245. By the time the Assembly of States Parties gathered in December 2017, 35 ratifications had been deposited. 16

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depended on the question whether the activation decision required in Article 15bis (3) would be taken by the States Parties. The States that are party to the Rome Statute gather once a year as the Assembly of States Parties (ASP), the governance body of the ICC as established in Article 112 Rome Statute. The Assembly scheduled in December 2017 in New York was the first opportunity to adopt the activation decision. The topic was put on the agenda of the ASP and became the dominating question of that Assembly. The central issue was: In what constellation of ratifying/non-ratifying States should the Court have jurisdiction over the crime of aggression? It is important to note that the discussion that follows only concerns state referrals or proprio moto investigations under Article 15bis. It would not affect referrals by the Security Council under Article 15ter. Given its authority as the leading organ under the UN Charter to maintain peace and security in the world, its referral to initiate proceedings would be binding and would not be subject to any further restricting conditions or any requirement of state acceptance.19 As far as the jurisdiction under Article 15bis is concerned, different constellations have to be distinguished. To start with the easy cases: The Court would definitely have jurisdiction for an alleged crime of aggression over a national of a State that has ratified the Kampala amendments.20 By ratifying the amendments the State has accepted the Court’s jurisdiction over a crime of aggression committed by its nationals. Inversely, the Court would not have jurisdiction for the crime of aggression over a national of a State that is not a party to the Rome Statute at all. This is set out clearly in Article 15bis para 5: ‘In respect of a State that is not a party to this Statute, the Court shall not exercise its jurisdiction over the crime of aggression when committed by that State’s nationals or on its territory.’ While this rule seems to be stating the obvious, it is actually the exception to the general rule in the Rome Statute which codifies the exact opposite. Under Article 12 (2) Rome Statute ‘[t]he Court may exercise its jurisdiction if EITHER the State on the territory of which the conduct in question occurred OR the State of which the person accused of the crime is a national is a Party to the Statute.’ This rule lays down the ‘principle of either territoriality or nationality’. If only ONE of these two conditions is fulfilled, the Court has jurisdiction—possibly even over a national of a State that is not a party to the Rome Statute. Article 15bis (5), however, deviates from that rule for the crime of aggression and shields nationals of a State that is not a party to the Rome Statute. Those nationals cannot be put before the Court for the crime of aggression. But what is the situation if the act of aggression is committed by a national of a State that is a party to the Rome Statute as such but has not ratified the Kampala amendments? Should the Court have jurisdiction over that national? This is not a purely academic question as it may seem at first glance. Far from it, it bears significant relevance and can have severe implications in practice. It should be recalled that the crime of aggression is designed as a leadership crime which can only be committed 19

Quintana 2018, p. 248. Provided the State has not made an opt-out declaration under Article 15bis (4) Rome Statute, see below.

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by political or military leaders. Hence, prosecution for the crime of aggression is quickly leaning towards Heads of State or Government making the issue particularly relevant for States that have a high military exposure in the world. For that reason, it does not come as a surprise that in particular France and the UK, the only two permanent members of the UN Security Council that are parties to the Rome Statute and who originally opposed the inclusion of the crime of aggression into the Rome Statute in the first place, were conducting the negotiations in New York with the firm intent to prevent that result. Their view was that the Court could not have jurisdiction over their nationals for the crime of aggression as long as they have not ratified or accepted the Kampala amendments. In their view, this position was a natural consequence of the Law of Treaties and the principle of State consent21 under which no State could be bound by an obligation it has not agreed to. Further confirmation to support their case was taken from the Kampala Resolution itself which says that the amendments ‘shall enter into force in accordance with Article 121 para 5’.22 Sentence 1 of Article 121 (5) provides that amendments ‘shall enter into force for those States Parties which have accepted the amendment one year after the deposit of their instruments of ratification or acceptance.’ According to sentence 2 ‘[i]n respect of a State Party which has not accepted the amendment, the Court shall not exercise its jurisdiction regarding a crime covered by the amendment when committed by that State Party’s nationals or on its territory.’ This is exactly what the position of France and the UK was, enshrined in the Rome Statute itself. As negotiations took off, camps were beginning to form. France and the UK gathered a group of 12 to 15 States around them who shared their view and formed what was then be called the ‘restrictive position’,23 ‘narrow approach’24 or ‘Camp Consent’—because the jurisdiction over the crime of aggression would, according to them, only apply to a State that has consented to this jurisdiction by ratifying the Kampala amendments. This group demanded to see this position explicitly spelled out and confirmed by the States Parties in the text of the activation decision. In their view, the Assembly of States Parties would have the competence and even the obligation to express itself clearly on this issue. They would not support an activation decision without the clarity that non-ratifying States Parties were not forced into the jurisdiction of the Court for the crime of aggression. There was a strong opposing group which consisted of about 30–40 States, the main opinion leaders of which were Switzerland and Liechtenstein. In their view the Court may exercise jurisdiction over a crime of aggression, even one committed by a national of a State Party that has not ratified the amendments, just in line with the general principle of territoriality as set out in Article 12 Rome Statute and consented by all States Parties. They argued that only jurisdiction over nationals of all States would achieve universal jurisdiction of the ICC and would ensure maximum protection for victim States from the crime of aggression, hence the name of this 21

Quintana 2018, p. 240. ICC Resolution RC/Res. 6 of 11 June 2010, para 1. 23 Kreß 2018, p. 8. 24 Quintana 2018, p. 240. 22

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group: ‘Camp Protection’. In operational terms, their position was widely expressed by the demand that the decision to be taken by the ASP should simply activate the Court’s jurisdiction without saying anything further about the modalities. In their view, the package was sealed and done in Kampala and the ASP now seven years later would not have the competence to set up further restrictions on the exercise of the jurisdiction while adopting the activation decision. According to this view, it was rather up to the Court itself to decide on its jurisdiction for the crime of aggression (assuming that the Court would have jurisdiction erga omnes, even over nationals of a State that has not ratified the Kampala amendments, and assuming the Court would affirm this on a given opportunity). This position also became known as the ‘simple activation’ approach.25 This position, however, needed to provide a solution for States that wanted to be shielded against this jurisdiction. Camp Protection had a perfectly logic answer to this: Article 15bis (4) Rome Statute as adopted in Kampala contains a possibility for States Parties to declare that they will not accept the jurisdiction of the Court over the crime of aggression. This opt-out clause reads: The Court may, in accordance with article 12, exercise jurisdiction over a crime of aggression, arising from an act of aggression committed by a State Party, unless that State Party has previously declared that it does not accept such jurisdiction by lodging a declaration with the Registrar.

This clause is a clear deviation from Article 121 (5) sentence 2 according to which, as seen above, nationals of States Parties that do not ratify the Kampala amendments per se do not fall under the Court’s jurisdiction for those amendments without the need to make any opt-out declaration. Article 15bis (4) can be construed as a permissible lex specialis to this general rule,26 brought in at the Kampala Review Conference for the specific case of the Kampala amendments. Camp Protection took the existence of Article 15bis (4) as a strong confirmation of their position: An opt-out clause only makes sense if otherwise the State were bound to the jurisdiction of the court. It would not be necessary if a State could protect its nationals from the Court’s aggressionrelated jurisdiction by simply not ratifying the Kampala amendments. In other words: The Kampala agreement was based on Camp Protection’s understanding. Camp Consent with its opposing view was seen as undermining the Kampala consensus, contradicting it27 and reversing it back to the general rule of Article 121 (5).28 However, this brought up the next question: How could Camp Protection explain that, as seen above, the Kampala Resolution explicitly states that the amendments ‘shall enter into force in accordance with Article 121 para 5’? Does that not refer back to the rule of Article 121 (5) (2) that Camp Protection disagreed with? The answer of Camp Protection to this objection was that the Kampala Resolution mentions Article 25

Cf. Quintana 2018, p. 240; Kreß 2018, p. 9; Stürchler 2018, printout p. 1. Kreß 2018, p. 8. 27 Stürchler 2018, printout p. 4. 28 Zimmermann 2018, p. 23: ‘Article 15bis (4) Rome Statute has become completely redundant and superfluous’; p. 27: ‘de facto amendment of the Kampala amendment (including the de facto abolition of Article 15bis (4)’. 26

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121 (5) only in the context of ‘entering into force’. And entering into force, it was argued, is only covered by sentence 1 of Article 121 (5), while sentence 2 deals with a different issue, the jurisdiction of the Court. As a result, Camp Protection concluded that the Kampala Resolution does not incorporate sentence 2 of Article 121 (5). One may find this a rather sophisticated distinction which seems less than evident.29 But as Camp Protection had to find an answer to the challenge how their position was compatible with the reference to Article 121 (5) in the Kampala Resolution, this was their line of reasoning. It is obvious from this short overview that there was a lot of ambiguity in the rules adopted at Kampala. There were elements and parts of provisions that could be quoted in favour of either side, and there was no clear right or wrong position. While in Kampala leaving this question open was a mechanism to accommodate all sides and to secure the compromise, the situation was different now with the unsolved question falling on the States’ feet. The Assembly in New York was faced with the task to adopt the activation decision; a solution to the dispute had to be found. In order to prepare the activation decision in the best possible way, the ASP one year earlier in 2016 decided to set up a facilitation process in New York.30 A facilitation process is a way to allow space for preparing decisions, exchanging different positions and exploring the ground for compromise in disputed matters. The chairmanship of this facilitation was put in the hands of the Austrian Ambassador to the United Nations Nadja Kalb. There were a number of meetings held under the facilitation process, during which the different groups of States confirmed their opposing views and tried to support them with respective position papers.31 While some attempts were made to bridge the gap, including input from academic scholars, mostly the well-known positions were re-iterated and not much progress and certainly no breakthrough was achieved. The process was documented in a Facilitation Report dated 27 November 201732 which lays out in great detail the different positions including the names of the States taking them. During the Assembly of States Parties in December 2017 in New York efforts continued and were intensified. In daytime, the routine business of the Assembly was conducted, and after the official negotiations were finished for the day, facilitation meetings took over in the evenings. During the first week, however, not much progress was made. On the contrary, it felt that the two camps rather solidified instead of moving towards each other. As the days of the Assembly went by and the end was coming in sight, there was a widespread sentiment that there was a possibility that the Assembly would fail to find agreement on the activation decision everybody was waiting for. Another scenario considered possible was a controversial vote on this issue. 29

Strongly opposing: Quintana 2018, p. 244 arguing that the two sentences of Article 121 (5) cannot be separated and that the reference to Article 121 (5) in the Kampala Resolution naturally covers both sentences. 30 ICC Resolution ICC-ASP/15/Res. 5 of 6 December 2019, Annex I, para 18(b). 31 Cf. Kreß 2018, p. 9; Quintana 2018, p. 241, footnote 10. 32 ICC Report ICC-ASP/16/24 of 27 November 2017.

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There was general agreement that both of these scenarios should be avoided at all costs. Failing to activate the Court’s jurisdiction over the crime of aggression would send a disastrous signal to the world of international justice, especially in a context where the Court was under general political pressure anyway and the overall world order seemed to be sliding into fragile times. Also, there was no obvious merit in trying to postpone the activation decision until next year’s Assembly. Rather on the contrary, without any substantial progress being made, it was highly likely that the ASP would be faced with the same positions and the same discussion next year. Postponing it would not mean solving the conflict but rather losing the momentum and increasing the danger of burying the activation decision for good.33 Similarly, nobody was inclined to run into the risk of having a vote on this matter the outcome of which seemed unpredictable. According to the rules in the Kampala Resolution, the activation decision would require a two-thirds majority of State Parties,34 amounting to no less than 82 positive votes necessary.35 While the two camps and their main protagonists were clearly visible, there was a big majority of silent States which were very hard to predict what side they would take when it came to voting. The outcome was entirely open. And there was also another aspect: So far in the history of the Assembly of States Parties, all relevant decisions had been taken by consensus. This has always been considered to be an important signal of unanimity among States Parties. Putting such a crucial question to a vote could open Pandora’s Box for future decision-taking. In the second week of the Assembly, the political directors from the ministries of many key delegations arrived, including Germany, France and the UK, giving the Assembly a higher-ranking representation than usual. It was a clear signal that States were aware that the discussions were at a crucial stage and States were taking all possible political efforts to solve the situation. As the bilateral meetings and talks behind the scenes in the corridors intensified even more, one idea was emerging that looked as if it could serve as the basis for a compromise breakthrough: facilitating the use of the opt-out clause in Article 15bis (4).36 The idea was that every State that so wished—either on adoption of the activation decision or at any later stage—could add its name to a list as sharing the view that nationals of a State that has not ratified the Kampala amendments do not fall under the Court’s jurisdiction for the crime of aggression. In doing so, the States on that list would be assured exemption. There was some charm about this idea: It would not explicitly be called an ‘opt-out’ and hence no State would be forced to take a firm position on the legal question whether an opt-out was necessary to preclude the Court from exercising aggression-related jurisdiction over its nationals. It would be a pure 33

Stürchler 2018, printout p. 3. According to Articles 15bis (3) and 15ter (3) Rome Statute ‘[t]he Court shall exercise jurisdiction over the crime of aggression in accordance with this article, subject to a decision to be taken after 1 January 2017 by the same majority of States Parties as is required for the adoption of an amendment to the Statute.’ which refers to Article 121 (3) Rome Statute requiring a two-thirds majority of States Parties. 35 Stürchler 2018, printout p. 3; Quintana 2018, p. 246. 36 Zimmermann 2018, p. 24: ‘opting-out light approach’. 34

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list with names of States sharing the restrictive view which would be communicated to the Registrar. While the exact legal meaning would remain uncertain, in practice that list would be treated as a collection of opt-out declarations under Article 15bis (4). A typical diplomatic compromise: leaving the legal question open, allowing both sides to maintain their respective legal positions and focusing on a pragmatic result that would provide a solution for legal certainty for the States.37 As the days of the Assembly progressed, this idea became more and more the corner stone around which a possible compromise could be built. Texts on how such a wording could look like were drafted and discussed in the facilitation meetings. Further modifications were brought into play in order to simplify the listing mechanism even further, hoping this would made this model even easier to digest for the members of Camp Consent: One idea was to attach an annex to the activation decision putting on record States that follow the restrictive approach. Or—even easier—the position of those States that had expressed their restrictive position during the facilitation process and appear documented as taking that position in the written facilitation report would be automatically recognized. This would avoid the need for a new explicit individual act of declaration or joining a list, and States would not have to step out of the shadow now. On the second last day of the Assembly, it seemed that more and more States that had originally supported France and the UK had reached the point where they were willing to accept the opt-out listing model in one variation or the other. For them, the perspective to gain consensus on the activation decision was the bigger merit. The impression was growing that France and the UK were increasingly isolated in their firm demand to have explicit clarification in the activation decision that a national of a State that has not ratified the Kampala amendment cannot be brought before the Court for the crime of aggression. Nevertheless, they continued to dismiss all attempts to find a compromise solution around an opt-out listing model. If such a proposal was to be put on the table, they would demand a voting on it. And as mentioned before, the result of that would have been entirely uncertain. As the Assembly was on its last day, final efforts were made by the Austrian Facilitator. The Assembly was suspended a number of times for behind the scene consultations which, however, did not bring about any breakthrough. When the Assembly was resumed, she declared that in spite of her best possible efforts she had been unable to reach a compromise solution and declared the facilitation process as failed. In consequence she handed the issue back to the President of the Assembly38 who was now charged with the difficult task of saving the activation decision from failing. By that time, it was the evening of the last negotiation day. There was a lot of idle time to be spent; delegations were sitting around in the corridors of the basement of the UN building throughout long interruptions while further bilateral negotiations were taking place behind the scenes. Those delegates who had already attended the Kampala Review Conference in 2010 had a déjà-vu as the Kampala compromise 37

Kreß 2018, p. 10. At this point and for the remainder of the Assembly Vice-President Ambassador Sergio Ugalde from Costa Rica as acting President.

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was also reached in the late hours of the last day of the Assembly. As time turned midnight, technically the final day of the Assembly was over and the diplomatic clocks were ‘stopped’. This is an instrument to virtually freeze the time to allow any decisions that may still be taken to be dated on the last day of the conference and thus within the mandate of the Assembly. Both in Rome and in Kampala the clocks had been stopped on the last day of the conferences, and now the same was happening in New York—a clear indicator that this decision was in one line with the previous historic milestones in the development of the International Criminal Court. Naturally, while there was nothing to do, the rumour mill was churning, and the news that were coming through were not encouraging. France and the UK were still firmly insisting on their position and not willing to consider any other approach as a basis for compromise. It became evident that no consensus could be reached on any opt-out listing model. As a result, the strategy was changed, almost out of despair: If the minority were not willing to follow the vast majority, the view of the minority was put before the majority to see what would happen. A new draft text of the activation decision was presented to the delegations including explicit wording stating that the Assembly ‘confirms that […] the Court shall not exercise its jurisdiction regarding a crime of aggression when committed by a national or on the territory of a State Party that has not ratified or accepted these amendments’—precisely the position of France and the UK. The two camps met in separate rooms, faced with a ‘take it or leave it’ decision. It is probably fair to say that there was great dissatisfaction and frustration among Camp Protection about how persistently the other side were insisting on their position, without any visible readiness to move towards a compromise. It would have been an obvious reflex at this point to say ‘If they don’t move at all, we’re not giving in either’ possibly resulting in the activation to fail. But it speaks for the rationality of the protagonists of Camp Protection that they did not let their anger take over their decision-making. The choice was clear: Consensus could only be reached on the basis of this text or no consensus would be reached at all. And a failure of this Assembly to reach an activation decision would cause enormous damage, possibly beyond repair, to the system of international criminal justice. This is why, among all their frustration, the prevailing view was: We are having a unique window of opportunity here tonight to reach consensus on the activation and the chance is too historic to let go, even if it was under conditions this camp did not agree to. More and more delegations that took the floor in this internal meeting shared this view. In the end, Camp Protection took the painful choice to report back to the Assembly that they were—reluctantly—willing to accept this wording in view of the historic significance of the activation. This was, however, still not the breakthrough. The draft text which the President had put as the final compromise attempt before the delegations not only included the explicit wording that France and the UK had demanded so firmly. It also included one further paragraph reading: ‘The Assembly of States Parties […] Reaffirms paragraph 1 of article 40 and paragraph 1 of article 119 of the Rome Statute in relation to the judicial independence of the judges of the Court’.

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This provision is quoting two existing Articles of the Rome Statute that highlight the independence of the judges.39 This was, of course, not adding anything new in substance. These Articles were in force anyway, and referring to them was nothing more than stating the obvious, in fact a fundamental principle of the Court. The inclusion of this paragraph was meant as an attempt to provide at least some soothing language40 for the large number of States in Camp Protection whose view was not reflected in the draft text at all, who had advocated a simple activation decision and were concerned that any further modalities to the activation decision would interfere with the independence of the Court. It might be difficult to see that a pure quotation of an Article of the Rome Statute which states an obvious fact, namely the independence of the judges of the Court, could produce any further complications. But France and the UK argued this additional paragraph was watering down the effect of the declaration in their favour in the paragraph before and obscuring again the certainty they were seeking. As a result, they demanded this paragraph be deleted or at the very least shifted to a preambular paragraph of the activation decision. However, what would this have changed? A hundred percent certainty about exemption from the Court’s jurisdiction was not to be gained anyway, with or without any reference to the independence of the Court. At the end of the day, it was up to the Court to decide whether it has jurisdiction over the person before it, regardless of what the Assembly said. Having said this, it was highly unlikely that the Court would disregard the intention explicitly expressed by the States Parties in the activation decision as their own interpretation of the rules they made themselves in Kampala.41 France and the UK were about to get the best result in their favour they could possibly get, and the reference in the additional paragraph of the activation decision to the rules about the independence of the Court really did not make any substantial difference at all. Tension at the ASP was reaching its peak. A number of delegations, including some that had remained silent so far, expressed in impressive personal interventions their lack of understanding for the latest twists. They clearly indicated that their willingness to contribute to a compromise solution was reaching a limit after what the vast majority of States Parties were willing to concede in order to accommodate the concerns of two delegations. Demanding deletion of what was in their view a harmless reference to the independence of the Court at this stage, was pushing it too far for many delegations. One last time the Assembly was suspended. The President of the Assembly announced this was his very last attempt to reach consensus; after this break he would not admit any more interventions or negotiations but just induce a decision on the text. This final interruption took place in an atmosphere of utmost pressure and 39

Article 40 (1) Rome Statute: ‘The judges shall be independent in the performance of their function.’ Article 119 (1) Rome Statute: ‘Any dispute concerning the judicial functions of the Court shall be settled by the decision of the Court.’ 40 Quintana 2018, p. 248; Kreß 2018, p. 12: ‘a symbolic concession’, ‘softening the unconditional surrender’. 41 Quintana 2018, p. 249.

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hectic talks. After years of long tiring negotiations, would the historic decision to activate the Court’s jurisdiction over the crime of aggression seriously fail over the bagatelle whether a self-evident reference to the independence of the judges would be quoted in an operative or a preambular paragraph? The situation was on a knife’s edge, and for many in the room it was hard to comprehend the relevance of this discussion in relation to the historic dimension of the decision at stake. After a few minutes, the President of the Assembly resumed the meeting and, as announced, only put forward one question: ‘Can I take it that the proposal on the table meets with the consensus in the room?’ Nobody asked for the floor, not France, not the UK, the silence was not broken.42 The President’s hammer fell and the decision to activate the international Criminal Court’s jurisdiction over the crime of aggression had been adopted, well after midnight, in consensus. The tension dissolved into a huge applause of relief on this historic achievement. In the resolution, as it was adopted,43 the Assembly is ‘recalling’—nothing more than that—in the preamble the two provisions that were at the core of the debate: the opt-out clause of Article 15bis (4) and Article 121 (5). Operative paragraph 1 contains the actual activation decision required under Article 15bis (3) and Article 15ter (3).44 The activation date was set for 17 July 2018 which marked the 20th anniversary of the adoption of the Rome Statute—a suitable symbolic date to expand the Court’s jurisdiction and to demonstrate that after 20 years the Court is alive and vital. Reading on, paragraphs 2 and 3 contain the provisions that had almost brought the whole activation process to a failure in the very last minute: the wording France and the UK had insisted on so firmly and the reference to the rules of the Rome Statute highlighting the independence of the Court. The resolution ends on paragraph 4 with the usual call upon all States Parties which have not yet done so to ratify or accept the amendments to the Rome Statute on the crime of aggression. Meanwhile, in the Assembly the initial relief about the last-minute consensus was turning into a different tone. The adoption of the activation decision was followed by a long list of States that took the floor to give an ‘explanation of vote’ which would be taken to the minutes of the Assembly. In these statements many delegations of Camp Protection explicitly maintained their legal view—in spite of the contradicting wording of the activation decision. While there was a clear sentiment of satisfaction that this historic chance eventually had not been missed, there was also a frequent expression of irritation and disappointment about the outcome of the negotiations. In the view of many delegations, two States had forced their position onto the vast majority of States Parties.45

42

Kreß and von Holtzendorff 2010, p. 1180 describe the crucial moment of the Kampala Review Conference in a remarkably similar way. 43 ICC Resolution ICC-ASP/16/Res. 5 of 14 December 2017. 44 ‘The Assembly of States Parties […] 1. Decides to activate the Court’s jurisdiction over the crime of aggression as of 17 July 2018’. 45 Cf. the citations in Kreß 2018, footnotes pp. 13 et seq.

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Stepping back from the emotions of that final night in New York, it is probably realistic to conclude that the way the negotiations went is reflecting the changing times we live in. The Rome Statute was concluded in the 1990s in a unique window of opportunity after the decline of the Eastern Bloc. The global optimistic spirit of those times that allowed the adoption of the Rome Statute has been swept away by the realities of new global crises, the fight against international terrorism and new regional conflicts. Military tension has risen considerably again around the world, with new complex types of conflict arising in which multiple actors are involved and the boundaries between international and non-international conflicts are increasingly blurred. All these aspects make international military engagements less clear-cut and predictable, not only in reality but also in legal terms under international law. This results in uncertainties for States about the consequences before the International Criminal Court and their wish to protect themselves against undesired jurisdiction for their military engagement in the world. Putting the decision of that New York night into this overall perspective, one should appreciate what has been achieved:46 In spite of all its deficiencies, we can still applaud the existence of the International Criminal Court which now also holds jurisdiction over the crime of aggression—a milestone in the development of International Criminal Law. More than 70 years after the judgment of the Nuremberg Military Tribunal, the individual personal liability for the crime of aggression has finally been established, completing the Rome Statute as originally drafted and contributing to the fight against the ‘most serious crimes of concern to the international community as a whole’.

References Editors (1971) Trial of the Major War Criminals before the International Military Tribunal, Volume I, Nuremberg, 14 November 1945–1 October 1946 (The Blue Series). For more information, see https://www.loc.gov/rr/frd/Military_Law/NT_major-war-criminals.html Kreß C (2018) On the Activation of ICC Jurisdiction over the Crime of Aggression. Journal of International Criminal Justice 16:1–17 Kreß C, Barriga S (eds) (2017) The Crime of Aggression: A Commentary. Cambridge University Press Kreß C, von Holtzendorff L (2010) The Kampala Compromise on the Crime of Aggression. Journal of International Criminal Justice 8:1179–1217 Quintana J (2018) A Note on the Activation of the ICC’s Jurisdiction over the Crime of Aggression. The Law and Practice of International Courts and Tribunals 17:236–250 Stürchler N (2018) The Activation of the Crime of Aggression in Perspective. Blog of the European Journal of International Law, https://www.ejiltalk.org/the-activation-of-the-crime-of-aggressionin-perspective/ (accessed 1 March 2021) Zimmermann A (2018) A Victory for International Rule of Law? Or: All’s Well that Ends Well? The 2017 ASP Decision to Amend the Kampala Amendment on the Crime of Aggression. Journal of International Criminal Justice 16:19–29

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In the same spirit Stürchler 2018, printout p. 5.

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Dr. Christoph Henrichs, LL.M. is Head of Division ‘International Law; Law of International Organisations; International Jurisdiction’ in the German Federal Ministry of Justice and Consumer Protection. In this capacity, he was a member of the German delegation in the 16th Assembly of States Parties to the Rome Statute of the International Criminal Court which took place in New York from 4-17 December 2017 and which took the decision to activate the ICC’s jurisdiction on the crime of aggression.

Part I

What is Aggression?

Chapter 2

Aggression: A Sociological Perspective Wolfgang Knöbl

Contents 2.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.2 The Kampala Amendments—Sociological (and Other) Queries . . . . . . . . . . . . . . . . . . . . 2.2.1 Focus on Collective Entities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.2.2 Threshold Clause . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.2.3 Focus on the State and its Organizations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.2.4 Contextualizing Legal Discourse? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.3 Aggression and Psychology—A Close but Uneasy Relationship . . . . . . . . . . . . . . . . . . . 2.4 Sociology and the Escape from ‘Aggression’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.5 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

23 25 26 29 30 30 33 36 39 39

Abstract This chapter draws on the Kampala Amendments in order to examine some critical questions from a sociological perspective with respect to how ‘acts’ and ‘crimes of aggression’ can best be defined. At the center of the analysis lies the concept of aggression. This concept has a long history in everyday language, but it is less firmly and very differently established in academic disciplines such as psychology. Clearly, the term is difficult to deploy. Even in disciplines such as social psychology, where the term is often used, there are some obvious issues. It will be argued here that the concept of aggression is not particularly helpful for explaining individual and/or collective violence. Indeed, this is precisely why sociologists usually refrain from using it. Keywords Crime of Aggression · Intention · International Law · Kampala Amendments · Motive · Violence

2.1 Introduction It is probably not an exaggeration to claim that the contribution of sociological research and theory to the development of International Law has been rather limited. W. Knöbl (B) Hamburg Institute for Social Research, Mittelweg 36, 20148 Hamburg, Germany e-mail: [email protected] © t.m.c. asser press and the authors 2022 S. Bock and E. Conze (eds.), Rethinking the Crime of Aggression, https://doi.org/10.1007/978-94-6265-467-9_2

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This is partly due to the fact that jurisprudence, as a normative theory, has historically encountered considerable difficulty in connecting to an empirical discipline such as sociology and vice versa. Much more important, however, is the fact that, in the history of sociology, topics such as war and peace have hardly ever been addressed. Sociologists have had little to say about the historical period during which the development of International Law was most rapid and dynamic, i.e. between the end of the First World War and the breakdown of the Soviet Empire in the late 1980s. It is certainly true that, in Germany, the so-called founding fathers of the social sciences such as Max Weber or Werner Sombart were intensively concerned with violent international conflicts. However, these issues generated less and less interest in sociological debates after 1918. This was the case not only in Germany, but also in States such as Great Britain, France, Italy, and the US—that is, in countries where sociology began to flourish and the first chairs of sociology and sociological research institutions began to be established. In these countries, social scientists increasingly concentrated almost exclusively on the internal structures of societies. This meant, however, that the problem of interstate conflicts was invariably outsourced either to the discipline of political science (and here above all to its sub-disciplines International Relations and Conflict and Peace Research) or to International Law. Consequently, sociology has had little to contribute analytically to the murderous conflicts of the mid-twentieth century (above all the Second World War, the Korean War and the anti-colonial wars after 1945, such as those in Algeria and Vietnam). It has contributed equally little to the various attempts at conflict resolution and containment that frequently accompanied or resulted from these wars (from the establishment of the League of Nations and the Kellogg-Briand Pact to the founding of the United Nations and the Helsinki Accords). Indeed, the main thesis of this essay is that sociology has hardly ever defined or theorized the phenomenon of interstate aggression. However, this void or gap owes not only to the curious sociological neglect of war just described.1 In fact, this neglect was largely resolved in the late 1980s due to certain scholarly developments in Great Britain and the U.S. At this time, some historical sociologists energetically began to take wars seriously as central factors of social change. My argument here is that sociology’s aloofness from a concept such as aggression had, and still has, something to do with the basic conceptual framework of the discipline. In other words: it is no accident that ‘aggression’ has historically proven an ungainly subject for sociological research and theorizing. To be sure, contemporary sociology deals with phenomena such as wars in an often quite sophisticated way. However, there is obviously no need to use the concept of ‘aggression’ in order to do so. On the contrary, it sometimes seems as if sociologists quite deliberately try to avoid using the concept of aggression because they consider its theoretical origins to be somehow problematic or at least diffuse. Thus, within sociology, the fruitfulness of the concept of aggression is placed in question from the beginning. Moreover, as I claim here, there might be at least some justification for such doubts. This is 1

Joas and Knöbl 2012.

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apparent from the fact that even legal scholars feel compelled to refer to the crime of aggression as an ‘enigmatic crime that does not fit easily within the scheme of the International Criminal Court’.2 These observations will structure the argument of what follows in this chapter. In a first step, I focus on the so-called Kampala Amendments. These amendments refer to Resolution RC/Res.6 adopted at the 13th plenary meeting on 11 June 2010 on the crime of aggression. I ask specific sociological, but also more general questions with respect to the text and the definitions used in these amendments (Sect. 2.2). I then pay a short visit to the discipline of social psychology, where the concept of aggression is still vibrant and influential—in stark contrast to sociology’s barely perceptible interest in the term (Sect. 2.3). In an ensuing step, I focus on the peculiar difficulties which sociologists encounter when confronted with the term ‘aggression’. As I argue here, these difficulties also lurk behind any discussion of ‘acts’ or ‘crimes of aggression’ within the discipline of International Law (Sect. 2.4). A short conclusion (Sect. 2.5) will make the point that, without a historical and interdisciplinary contextualization of a term such as ‘aggression’, legal scholars are in danger of missing some central (critical or constructive) arguments that have already been advanced in different disciplines in the past. Scholars could have used these arguments, and in order to render their normative reasoning more convincing, they still could.

2.2 The Kampala Amendments—Sociological (and Other) Queries In June 2010, the Review Conference of the Rome Statute of the International Criminal Court was held in Kampala, Uganda. The participants at this conference agreed on the following Article: Article 8 bis Crime of aggression 1. For the purpose of this Statute, ‘crime of aggression’ means the planning, preparation, initiation or execution, by a person in a position effectively to exercise control over or to direct the political or military action of a State, of an act of aggression which, by its character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations. 2. For the purpose of paragraph 1, ‘act of aggression’ means the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations. Any of the following acts, regardless of a declaration of war, shall, in accordance with United Nations General Assembly resolution 3314 (XXIX) of 14 December 1974, qualify as an act of aggression: (a) The invasion or attack by the armed forces of a State of the territory of another State […]; (b) Bombardment by the armed forces of a State against the territory of another State (…); 2

Schabas 2004, p. 18.

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W. Knöbl (c) The blockade of the ports or coasts of a State by the armed forces of another State […].

As can be seen from this abridged version of the text, the amendment distinguishes between ‘crimes of aggression’ on the one hand and ‘acts of aggression’ on the other. With respect to these two terms, at least four sociological and/or general questions come to mind. Some of these questions have already been discussed, at least partially, by legal scholars dealing with ‘aggression’. Others might be rather novel.

2.2.1 Focus on Collective Entities An ‘act of aggression’ automatically refers to collective entities. It can thus be situated at the macro-level of political analysis!3 The events being described relate to the modern State and its military organizations because the relevant acts of aggression can only be carried out by State institutions. It is not possible to invade a country without an organized army, to bomb a State without an air force, or to blockade ports without a navy. Particular acts of State are thus being defined as ‘aggressive’ here. However, as Peter Dreist has pointed out, a state act of aggression does not automatically give rise to individual criminal responsibility: Das Vorliegen einer gegen das Völkerrecht verstoßenden staatlichen Aggressionshandlung hat demnach nicht automatisch die individuelle strafrechtliche Verantwortlichkeit der an einer solchen Handlung beteiligten Personen zur Folge; diese ist vielmehr gesondert festzustellen, was man bei dem Verfahren vor dem IMG in Nürnberg noch nicht erkannt hatte.4

From a sociological point of view, the use of such a term in the Kampala Amendments does not seem very problematic or even particularly significant. Legal scholars, in a particular period and historical context, define an act of a State as illegal because it violates widely shared international norms and standards. And they call this illegal act ‘aggressive’. Of course, it might be interesting to know precisely when such declarations of illegality began to develop, which actors and driving forces within International Law made this development possible, and why only some state actions have been called illegal and not others. These are certainly interesting questions for legal scholars, for historians, and even for historical sociologists, but they do not concern us here.5 More interesting from a sociological point of view is the question of why legal scholars speak of aggression or aggressive and not just of—for example—evil or vicious acts. Instead, the specific term ‘aggression’ is used in order to describe 3

Ambos 2010, p. 654. Dreist 2014, p. 10 (‘The existence of a state act of aggression that violates international law therefore does not automatically result in the individual criminal liability of the persons involved in such an act; on the contrary, this liability must be determined separately, which had not yet been recognized in the proceedings before the IMT in Nuremberg.’—translation by WK). 5 See for a short history of the UN’s futile attempts to define ‘aggression’: Leanza 2004. 4

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processes at the macro-level of social analysis. This might seem rather striking if one believes—as social scientists tend to– that the term ‘aggression’ emerged from a biological and/or psychological discourse. It also seems striking if one takes into consideration the fact that the term ‘aggression’ entered the discourse of International Law rather late6 —basically at the same time that psychologists began to talk about aggression, i.e. in the 20th century. And yet it is certainly not true that the meaning of the legal term ‘aggression’ was influenced by debates within psychology and/or the social sciences. This last observation is central to my overall argument. In fact, the term aggression is rather old. It has long been an everyday concept with an (at least apparently) rather trivial meaning. Only in the 20th century was this term adopted (and transformed) by the discipline of psychology. In the French language, the verb ‘agresser’ was already in use in the 14th century; it referred to a sudden and unprovoked attack (‘Attaquer qqn, s’en prendre á qqn de façon violente et sans avoir été provoqué’).7 This verb, with its Latin roots (ággredi = to approach someone or something, to attack somebody8 ), also migrated into other European languages such as English or German without changing its original meaning. That said, the noun derived from the verb (‘aggression’) often did not appear before the 19th century. As the Oxford English Dictionary points out, it seems that the English noun ‘aggression’ appeared in the first decade of the 17th century, whereas in France, the same term came to the fore not before the 1760s.9 In the German context, Jacob and Wilhelm Grimm’s famous German Dictionary (‘Deutsches Wörterbuch’) from 1854 did not mention the noun ‘Aggression’.10 Thus it is certainly true that the noun (in contrast to the verb) was created and used at a rather late period of modern European history. The overall point here, however, is that this term was and remained a lay concept for some time, though a concept whose meaning could only be grasped by contrasting it with other concepts. In French, for example, the original meaning of the verb ‘agresser’ and the noun ‘aggression’ set these words apart from words such as ‘attaque’ or ‘attaquer’. Certainly, these terms were frequently used interchangeably. But as the Dictionnaire de la Langue Francaise explains, there remained a fine, but important difference: On a dit que l’agression est une attaque inattendue, sans raison, sans provocation; tandis que l’attaque ne surprend pas; elle vient d’un ennemi connu dont on se défie. Ce n’est pas là la vraie différence. Attaque porte simplement l’idée sur un combat, une lutte qui commence d’un côté; mais l’agression porte l’idée sur l’acte premier qui est la cause du conflit. Il est possible que celui qui attaque ne soit pas l’agresseur, l’agression pouvant consister en toute autre chose qu’une attaque. Attaque est l’acte, le fait; agression est l’acte, le fait considéré moralement et pour savoir à qui est le premier tort.11 6

Neither in the Treaty of Versailles nor in the UN-Charter of 1945 was the term aggression mentioned, cf. Ganser 2016, pp. 38 et seq. 7 Dictionnaire du Moyen Français (1330–1500), http://www.atilf.fr/dmf/ (accessed 1 March 2021). 8 https://en.oxforddictionaries.com/definition/aggression (accessed 1 March 2021). 9 Ibid. 10 Gekle 1988, p. 394. 11 Dictionnaire de français ‘Littré’, http://littre.reverso.net/dictionnaire-francais/definition/agr ession (accessed 1 March 2021).

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To state all of this more simply and in English: an attack is an act which can be defined objectively and without referring to the motives and intentions of the attacker. An aggression, in contrast, has at least some moral implications insofar as it refers to the first move, to the fact that there was no prior provocation, and that this very first strike somehow comprised the baleful origin of a subsequent conflict. Moreover, as the quote above also seems to imply, an attack might occur without any aggressive (moral) intent, which at the same time means that aggression might happen without an attack. The upshot of all this is that the term aggression as a concept of International Law was based on the original meaning of the word in everyday language. On first view, it would appear that this concept had nothing to do with those concepts that emerged at the beginning of the 20th century. At this time, psychologists and psychoanalysts (above all) began to differentiate between aggression as an activity, aggression as a kind of injury or damage, and aggression as auto-aggression.12 And yet, as the above quotation indicates, any debate over the term ‘aggression’ (whether between experts or lay-persons) can hardly avoid being drawn into the quagmire of an analysis of motives, intentions etc. A neglect of these dimensions threatens to blur the distinction between an attack on the one hand and an aggression on the other. Even before Kampala, this was acknowledged by at least some legal scholars. For example, Martin Hummrich has attempted to define criteria which might help to identify an act of aggression: Strukturmerkmal der Aggressionsdefinition ist der mit dem staatlichen Verhalten verfolgte Zweck. Hierbei geht es um die Erforschung des der Aggressionshandlung zugrundeliegenden Handlungsmotivs, dessen Feststellung und Bewertung erst die endgültige Verhängung des Unwerturteils ermöglicht.13

It is thus certainly true that the use of the term ‘aggression’ in International Law was initially based on a seemingly unproblematic understanding of everyday life. However, there was obviously no way to avoid an increasing psychologization of this term—i.e. to delve into motives and intentions—although States signing the Kampala Amendments deliberately tried to prevent a kind of psychologization of the crime of aggression by refraining from using the language of motives in the documents.14

12

Gekle 1988, p. 395. Hummrich 2001, p. 172 (emphasis by WK. ‘The main structural feature of the definition of aggression is the purpose pursued by the state. It is necessary to determine the motive behind the aggressive act, which is the basis and main justification for the imposition of a criminal conviction and the ethical condemnation expressed therewith’—translation by WK). 14 I owe this insight to Stefanie Bock. 13

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2.2.2 Threshold Clause Legal scholars have, of course, extensively discussed the attempt in Kampala to specify an ‘act of aggression’ with the addendum: ‘which, by its character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations’. There is no doubt that talk about ‘gravity’, ‘scale’ and ‘manifest violations’ leaves considerable room for interpretation.15 And yet, it is possible to speak about ‘gravity’, ‘scale’ and ‘manifest violations’ without immediately referring to the subjective side of the event in question. The hope of coming to a somewhat impartial judgment with respect to the terms used can be preserved. This is less obviously the case with the term ‘character’, however. The crucial point with respect to ‘character’ is not that this term also opens a wide range of possibilities for very different interpretations. It is far from trivial to observe that talk of ‘character’ necessarily relates to psychological ‘facts’. This almost automatically points to motives or intentions, insofar as it is assumed that there is a somewhat internal quality to the act which contradicts and violates the ‘spirit’ of the UNCharter. In this way, the debate leads once more into the quagmire of reasoning about the motives and intentions of those responsible for aggressive acts, but also of those who framed and formulated the UN-Charter. One could argue that the reference to ‘character’ is unusual and even unnecessary. But maybe such a simple argument is unsatisfying. After all, as we have already seen, there have always been good reasons to differentiate between mere ‘attacks’ on the one hand and ‘acts of aggression’ on the other, because the latter—being unprovoked—necessarily encompass (im)moral qualities. If this is indeed the case—that is, if there are enormous difficulties in eliminating all references to motives and intentions while discussing acts of aggression—then a basic consensus seems to be threatened once more. After all, it should not be forgotten that, in the 1950s and 1960s, it was not clear whether or not the term aggression should be used narrowly in order to focus exclusively on ‘the use of armed force’. States such as the USSR and certain Latin American countries had, for very different reasons, suggested a much broader meaning of aggressive acts. According to these parties, this definition should also include aggressive ideological and economic behavior.16 These attempts failed because there seemed no possibility of building a consensus around this position. Thus, ‘armed force’ was and remained a kind of minimal consensus, so that the United Nations General Assembly Resolution 3314 of 12 December 1974 with its exclusive focus on the ‘use of armed force’ became an essential element of International Law.17 The key argument here, however, is as follows. Let us assume that motives and intentions are indeed important or even necessary in order to qualify aggressions and to distinguish them from attacks. Let us further assume that a neglect of the subjective side of the act is not feasible. Given these presuppositions, then the following question 15

Dreist 2014, p. 12. Chaumont and Fischer 1956, p. 523. 17 Cf. Bruha 1980. 16

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necessarily arises once more: what is the rationale behind limiting aggression only to the use of armed force, and not extending it to the improper use of economic and ideological power? If one seriously believes that observers can familiarize themselves with motives and intentions, then why not sanction all improper state behavior?! Of course, there are always good reasons both for scholars of International Law and for diplomats to use rather narrowly defined concepts in order to maintain the level of activity of the relevant institutions at a rather low level. Only the most conspicuous acts (in our case: armed behavior) should be the concern of the international community, and not phenomena which are virtually omnipresent. But this point is an argument of efficiency and capability, not something to be defended by the use of clear-cut principles.

2.2.3 Focus on the State and its Organizations Another point raised by legal scholars is the fact that an ‘act of aggression’ has traditionally been defined as a macro-concept, one inevitably linked to the State and its organizations. If this is so, then the concept is tailor-made for historical periods and regions dominated by consolidated States. One might argue, therefore, that the concept is somewhat outdated. After all, in this time of so-called ‘New Wars’,18 it is arguably no longer States which comprise the deadliest threat to world peace, but rather organizations which are only loosely linked to States.19 These trans- or subnational units are not controlled by any single State. Indeed, they may be difficult to describe with the traditional concepts of the sociology of organizations. If this is so, then certain cases which most observers would undoubtedly classify as ‘acts of aggression’, and thus punishable as ‘crime of aggression’, would be beyond serious discussion. Indeed, this was pointed out even before the Kampala Amendments had been concluded: Under the draft definition, a case of criminal aggression could not be initiated against Osama Bin Laden at the ICC – assuming all other jurisdictional requirements were met under the Rome Statute – because he is not a political or military leader of a state. Rather he is the leader of a non-state armed group. Furthermore, the Taliban almost certainly would not be held accountable since the current draft definition of aggression does not consider outside state support within the purview of the Court.20

2.2.4 Contextualizing Legal Discourse? With respect to the term ‘crime of aggression’, sociologists may be more instructive and helpful when it comes to problematizing and contextualizing legal discourse. 18

Cf. Kaldor 1999. Dinstein 2015. 20 Petty 2008, p. 548. 19

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As many scholarly treatises on the Kampala Amendments have already pointed out, it seems clear that the term ‘crime of aggression’ is situated at the micro-level.21 This is because the macro-event (the act of aggression by the State and its organizations) is planned, prepared, initiated and executed by a particular person/by particular persons in control of the State. The assumption of clear-cut responsibilities is in the background here. After all, the possibility of identifying those actors responsible for planning and committing a crime, actors who are using the state apparatus in a rational and purposeful way in order to perpetrate acts of aggression, is taken for granted. As mentioned, numerous scholarly treatises have already dealt with those arguments which came to the fore at the Kampala Conference. Such contributions have frequently pointed out that every crime has ‘two primary elements, the actus reus (…), and the mens rea (…).’22 This latter element—i.e. the requisite motivational or intentional background of the crime of aggression—has been the source of some lamentation from legal scholars. They have bemoaned the fact that this whole debate suffers from a theoretical neglect of the mens rea, because intentions are only dealt with insofar as they are ‘inferred’ from the use of force directed against the territorial integrity or political independence of a State. Critics of this approach argue that, from the point of view of criminal aggression, intent is too important to leave to an inference, and that it should be expressly provided for in the definition.23 Sociologically, this constellation and critique are interesting, for several reasons. Firstly, as has already been implied here, the definition of the ‘crime of aggression’ is based on the assumption that the State is a hierarchical organization in which particular persons can be identified who—from a specific rung on the ladder—are responsible for criminal decisions. The necessary theoretical background to this is a kind of Weberian model of modern bureaucracies.24 This model seems to correspond rather neatly with the needs of judges and legal scholar to find and identify clear-cut motives and responsibilities of individual persons in specific organizational positions—irrespective, perhaps, of how complex the reality of a specific situation actually is. However, it has been apparent to sociologists for several decades that organizations and bureaucracies are much too complex25 to be grasped by the model Max Weber offered. Indeed, when he talked about ‘bureaucracies’, Weber always had a kind of Prussian administrative unit in mind. Moreover, the authors of the Kampala Amendments based their text on an emphatic understanding of motivation and intentionality (‘Absicht’ in German). However, it is not entirely clear that references to intentionality help much in shedding light on human deeds and actions. It was long ago pointed out by some currents within sociology (and even more strictly and systematically within the Wittgensteinian tradition of the philosophy of language) that intentions and motives rarely 21

Dreist 2014, p. 10. Petty 2008, p. 550. 23 Ibid., p. 551 (emphasis by WK). 24 Weber 1985, pp. 825 et seq. 25 See, for example, Luhmann 1964; Perrow 1979; Beetham 1987. 22

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cause or automatically trigger actions, but that they—at best—constitute post-hoc’interpretations’ of actions.26 This was precisely the line of argument developed by Elizabeth Anscombe in the 1950s.27 Thus, the talk of motives and intentions as used in the Kampala Amendments cannot be considered unproblematic and uncontested.28 Thirdly, another issue exists with the Kampala Amendments’ reference to ‘motives’ and ‘intentionality’. In short, the authors of the Kampala amendments do have rather rational actors in mind; it seems that they are not—probably for very good reasons—talking about hidden motives, unconscious motives etc. On the contrary, as can be seen in the text, they are talking about plans, the preparation of plans etc. This assumes high levels of rationality. If this is so, then it is not surprising that some readers are irritated by the fact that—at the same time—the term aggression is used in order to describe the deeds of these rational actors. But this possible irritation only arises because these readers falsely assume that aggression as used in this legal context has a kind of psychological meaning (as noted above). As I have already argued here, the term ‘aggression’ was not initially invested with this kind of psychological content. And yet, even the original meaning of the word in everyday language implies a kind of normative context around the concept of ‘aggression’. No doubt this context will always haunt legal discourses and will somehow force legal scholars to at least rethink their background assumptions concerning rationality and purposefulness. Fourthly, it is rather remarkable—particularly for sociologists—that the authors of the Kampala Amendments assume the existence of isolated criminal actors. Acting— that is, planning a crime—is obviously perpetrated in isolation from others. Neither the potential victims, nor the potential bystanders, nor any other societal group is relevant here. One might then wonder whether the term aggression fosters a perspective on crimes that complements rather neatly the tendency of judges and legal scholars to look for individual guilt and responsibility. In the eyes of sociologists, however, such a move is in danger of becoming somewhat reductionist. After all, action in general and aggressive criminal acts in particular are usually misrepresented when they are interpreted as isolated occurrences, enacted by equally isolated actors. If my arguments, illustrations and comments in this section have at least some plausibility, then some remarks on the peculiarities of the psychological meaning of the term aggression seem to be appropriate. This is because, as I have already claimed, International Law obviously tries to evade any reasoning about motives in the context of ‘acts’ and ‘crimes of aggression’. And yet, it is also constantly compelled to confront the fact that the question of motives and intentions repeatedly reemerges, that it was obviously not possible to theorize the crime of aggression without taking into consideration the subjective side of the deed. This is the point where psychology as a discipline might step in and where—one might assume—the interests of psychologists and sociologists would align.

26

Mills 1940. Anscombe 2000, pp. 19 et seq. 28 Ruse 2018. 27

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2.3 Aggression and Psychology—A Close but Uneasy Relationship As has already been pointed out, scholars of International Law have not been decisively influenced by psychological theories in their use of the term ‘aggression’. This term was already existent in everyday language when it entered legal discourse. The latter development occurred at more or less the same time when the term also began its rise within psychology—which might be considered unfortunate. Why, then, should we bother with these two very different contexts in which the word being used—aggression!—almost naturally took on very different meanings? The reason is simply that—as was also explained above—most of the legal attempts to define ‘aggression’ have at some point had to refer—explicitly or implicitly—to motives and intentions which opened the door for psychological reasoning. As has been argued by Oscar Solera, a concise definition of an act of aggression without recourse to the concept of ‘intention’ does not really work: (…) a legal approach to defining the crime of aggression should concentrate on dissecting the notion of aggression into its constitutive elements and should then try to understand, if possible, whether there is a way to articulate and delimit these elements so that a definition covers all those acts that states consider ‘aggressive’. Such elements that need to be considered when defining the crime of aggression are the object of aggression, the objective conduct, and the subjective mindset.29

This is the very reason why it might be interesting to ask what psychologists do when they talk about aggression. Might this provide some guidance in order to illuminate the ‘subjective mindset’ which evidently causes legal scholars so many difficulties? Aggression as a term used in the context of the humanities and the sciences did not enter academic discourse before the beginning of the 20th century.30 It was obviously due to the influence of Friedrich Nietzsche and his somewhat obscure (and highly contested) concept of a ‘will to power’ that philosophy (and other philosophicallyinfluenced disciplines) began to think about terms which might help to operationalize Nietzsche’s ideas. No wonder, then, that it was in a cultural context very much shaped by Nietzsche that such a path was taken. The leading role here was arguably played by psychoanalysis. It was the Austrian psychotherapist Alfred Adler who in 1908 first talked about a distinctive ‘aggression drive’, before Sigmund Freud adapted and altered the idea in developing his concept of a ‘death drive’.31 It was only later, and in a theoretically and geographically completely different context, that the term aggression was adopted by more positivist psychologists and social scientists. These scholars included, from the 1930s onwards, the US-American psychologist John Dollard. Their aim was to unearth the causes of

29

Solera 2010, p. 812 (emphasis by WK). Schönpflug 1968, p. 104. 31 See Laplanche and Pontalis 1972, p. 104. 30

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aggressive behavior; their contributions included the famous frustration-aggressionhypothesis.32 Of course, within the discipline of psychology, the debate on aggression is anything but settled. However, I am a sociologist and my knowledge of psychology is very limited. I therefore do not dare to offer an overview of the more recent empirical and theoretical developments within the discipline(s) of psychology and psychoanalysis. What I will do instead is highlight at least some of the trends to be observed in the field of social psychology, where I have at least some competence. The aim of this section is not to provide an exhaustive overview of disciplinary trends, but to highlight central problems and pitfalls in the use of the term aggression within social psychology. I will limit my remarks in exemplary form to German authors who base their arguments on this concept and who, as I claim here, are manifestly engaged in a futile struggle to overcome the problems inherent to the term. This is particularly evident when they try to link aggression on the one hand with violence on the other. In other words: if our aim is to explain violent behavior, either the behavior of ordinary people or the behavior of actors in a state hierarchy, then an examination of the contributions of social psychology seems ostensibly promising. Unfortunately, it will turn out to be rather disappointing! In a 2009 book entitled ‘Aggression und Gewalt’, the German social psychologist and expert on violence Klaus Wahl argued that aggression is an evolutionary disposition. Aggression, he contends, is comprised of an ensemble of mechanisms that emerged in order to allow human beings to achieve their aims against the will of other human beings by harming them. For Wahl, ‘aggression’ is a potential or capability which is shaped—that is, fostered or inhibited—by genes, by processes of socialization, and by societal circumstances. Wahl explicitly observes that the individual potential for aggressive behavior is referred to as ‘aggressiveness’.33 Violence, Wahl continues to argue, is a subset of aggressive behavior and is constructed by societal, governmental, and other norms.34 As Wahl is forced to acknowledge, however, it is obviously difficult to define aggression, and it is even more difficult to talk about violence, although the meaning of the latter term is narrower than that of the former. It is therefore no coincidence that, in Wahl’s reasoning, the link between aggression on the one hand and violence and violent acts on the other remains rather vague. This vagueness follows from Wahl’s own definitions. At what point, and why, does the potential for aggressiveness lead to real violence? This question seems difficult for Wahl to answer. Similar arguments (and problems) can be found in Barbara Krahé’s analyses. Krahé, one of the most prominent German psychologists, also argues that aggression has biological, genetic, and psychological roots. The task of psychology, she maintains, is to find out how a stimulus which leads to aggression can, in the end, lead to an aggressive reaction.35 She thus sees much more clearly than Wahl the 32

Schönpflug 1968, p. 106. Wahl 2009, p. 2. 34 Ibid., pp. 2, 10. 35 Krahé 2015. 33

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need to closely link the concepts of aggression on the one hand and violence on the other. As she claims, research in this area focuses largely on dispositional differences in the inclination to aggression, and on the circumstances of the situation and the social environment which increase the probability of aggressive behavior. Krahé’s model is close to Wahl’s in the sense that aggression seems to provide an etiological background condition for other factors which can trigger aggressive acts in general and violent deeds in particular. Wahl and—in a more sophisticated manner—Krahé thus argue that aggression is a kind of etiological disposition that somehow causes violence. But the question of how convincing such a causal claim really is remains unanswered. There are probably numerous factors and variables which might inhibit (or foster) violent acts and which have nothing to do with aggression. One might ask how helpful it is to bring ‘aggression’ into the scheme in order to explain violence. Or to put it differently: readers of Wahl’s and Krahé’s texts might ask themselves how important the psychological disposition toward aggression really is when, at the same time, social and environmental factors appear increasingly important the closer one gets to the violent event.36 If we transfer this argument to the legal discourse on ‘crimes of aggression’, it seems reasonable to claim that such a social-psychological approach does not provide much help in familiarizing us with the ‘real’ motives and intentions as somehow outlined in the definition of the Kampala Amendments. If ‘aggression’ is both a genetic and internal disposition, and at the same time a force that is profoundly influenced by environmental and other factors, then the status of the concept of aggression seems rather unclear! It is surely possible to circumvent this problem. Indeed, some researchers from fields neighboring social psychology have attempted precisely this. For scholars such as the neuro-biologist Joachim Bauer, aggression is not a disposition, but rather an action. Thus, Bauer draws no distinction between aggression as a disposition and aggression as an action. He delineates as ‘aggression’ every physical or verbal action which intends to harm, hurt, or kill another person. He adds that, though aggressive acts are often accompanied by emotions such as anger or hate, it is not necessary that they are, because some aggressive acts are performed in a calm and rational mood.37 Clearly, Bauer wants to avoid the kind of troubling questions about the specific relationship between aggression and (violent) action which haunt Klaus Wahl and Barbara Krahé. In this respect, he is rather successful. At the same time, however, he provokes another question, which could be framed as follows: why do we need the term ‘aggression’ at all? Granted, it may serve as a kind of convenient—though not the only—means to describe the differences and the commonalities between very different deeds. It could help to distinguish between, for example, abusive language and physical violence on the one hand and ‘normal’ language and non-violent actions on the other. But if convenience is the only reason, then the question remains of why we should use terms such as aggressiveness or aggression at all. 36 37

See my comments on Krahé’s essay: Knöbl 2015. Bauer 2011, p. 46.

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Are we not led ineluctably to the conclusion that these terms cannot claim any explanatory power? That they are, in fact, poorly defined concepts? That they are merely generic terms for many different forms of action which, although having something in common, might be explained by very different means? Let us return to our question of ‘acts’ and ‘crimes of aggression’ as described within International Law. We might ask again whether the use of the term ‘aggression’ really justifies the distinction being made almost all the time between aggression as ‘the use of armed force’ (which under certain circumstance can be punished under the label ‘crime of aggression’) and aggressive threats, aggressive economic measures, aggressive ideological moves etc. And yet, the latter certainly do not qualify as crimes according to the Kampala Amendments (see Sect. 2.2 [and Sect. 2.2.2] above). Thus, a perusal of some of the approaches within social psychology and neurobiology in which the term ‘aggression’ is still used might lead us to the conclusion that there are some good arguments why one could or even should reject the concept entirely. Such a rejection certainly seems justified if we are trying to explain violent actions or to locate those motives which somehow ‘underpin’ them. This conclusion was already hinted at in the introduction to this chapter. It is the same conclusion arrived at by a majority of sociologists, who have never made much use of the term. By emphasizing sociology’s skeptical attitude towards ‘aggression’, I am not suggesting that sociology should be seen as a model for all social scientific confrontations with crimes and criminal behavior, whether they focus on lay people or state actors. What I would like to do, however, is to present some of the reasons why sociology has never been able to buy into the necessity of using the term ‘aggression’. I would further like to trace the peculiar path that has been taken in the last two or three decades in order to foster research on violence. This leads us back to the previous discussion of the Kampala Amendments, and to the (far from self-evident) definition of crimes of aggression that these amendments incorporate.

2.4 Sociology and the Escape from ‘Aggression’ Based on my reading of the literature, there is considerable difficulty in locating any kind of lengthy or systematic debate around the topic of ‘aggression’ within current sociological research on violence, or even within more general contributions to sociological theory. Insofar as the term plays any role within the discipline, it is a minor one. It thus comes as no surprise that the lemma ‘aggression’ can be found in some handbooks and encyclopedias of sociology, but certainly not in all of them. If it is present, then most authors of sociological articles on ‘aggression’ write very short pieces and refer to arguments made in psychology and social psychology. They cite authors such as Sigmund Freud, Konrad Lorenz, John Dollard, Leonard Berkowitz and others. There is only one encyclopedia, the famous multi-volume International Encyclopedia of the Social Sciences (published in 1968), which contains a very long entry on aggression. Characteristically, however, the article is divided between separate sections on psychological and international aspects of aggression (that is,

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those that refer to the use of the term within International Law). Sociological aspects are seemingly not worthy of much mention.38 As already indicated, sociologists have generally paid much more attention to the concept of violence than to the concept of aggression. And indeed, one of the main reasons for sociology’s skepticism toward the term aggression derives from the predominantly rationalistic construction of typologies of social action. Those who, like Max Weber, differentiate between purposive-rational, value-rational, traditional and affective action39 focus primarily on clearly defined and possibly causally understandable motivations for human practices. At the heart of the development of psychological concepts of aggressiveness lies a rather vague reference to ‘disposition’. But this was somewhat foreign to the thinking of early sociologists, who endeavored to establish a close link between motives on the one hand and action on the other. Violence was indeed a topic for some of sociology’s founding fathers, such as Weber and Werner Sombart. These scholars were well aware that rulers used violence in a rational way in order to build societal structures and institutions, and that the European state system and many of Europe’s key institutions can be considered unintentional byproducts of macro-violence. But in order to foster these kinds of arguments, these sociologists did not need the concept of aggression, especially not at a time when the waging of war was widely interpreted without reference to questions of morality. Instead, the language of motives seemed to be sufficient in order to explain the outcomes of action and thus of social reality. That said, and as we have already seen, this language of motives remained somewhat problematic, given the inherent difficulty or even impossibility in getting to know the ‘true’ motives of actors. After the period of Max Weber and the founding fathers of sociology, in the decades between the 1920s and 1960s, sub-disciplines such as criminal sociology or the sociology of deviant behavior developed rapidly. Research in these fields was directed primarily towards individual action. Again, a comprehensive conceptual understanding of ‘aggression’ did not play a crucial role here. Sociologists working in these research areas often used mass data which were comparatively easy to access and which were willingly provided by the police and forensic institutions. Such data usually detailed violent acts that had already been performed. Countless research projects aimed to correlate these violent deeds with other data—such as povertyrates or economic and racial inequalities—in order to get closer to the potential causes or triggers of violent acts. There is no doubt that this research tradition brought to the fore numerous insights. And yet, the more sophisticated this statistical research turned out to be, the more critical questions it gave rise to. Since the 1990s, one question in particular began to haunt sociologists doing research on violence: does the focus on correlations between, for example, poverty-rates or social and racial inequalities on the one hand, and violence on the other, almost inevitably lead to a greater willingness to examine the 38 39

Berkowitz 1968; Schuman 1968. Weber 1985, pp. 12 et seq.

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complexity of the independent variables rather than the complexity of the dependent variable—that is, of violence? Critics argued that, in such statistical approaches, violence almost necessarily becomes a sort of a black box. Its putative causes, such as poverty and inequality, are extensively theorized. But violence itself, its manifestation, its concrete course, and its situational dynamics—comparatively little is said about these factors. The fundamental problem of this etiological research tradition can be formulated as follows: poverty (or social and racial inequality, etc.) was too far removed from the actual violent act to provide a viable basis for drawing insights into the processes and dynamics of violent acts. It is thus not possible to infer (always a problematic move!) motives and intentions from the occurrence of violence. In response to this problem, the so-called ‘phenomenologically oriented’ or ‘situationist’ approach to the study of violence emerged.40 This approach was given these labels because researchers within this paradigm attempted—arguably for the first time—to foster exact descriptions of violent acts, to come close to the ‘things themselves’. This implied that the actual location of the violent act became much more important than the rather vague motivational causes and background conditions at hand long before the violence action occurred, but which had nonetheless previously been the focus of research. This new approach was fostered by scholars such as Randall Collins and Jack Katz in the US, Birgitta Nedelmann, Wolfgang Sofsky, Trutz von Trotha, Heinrich Popitz, or Jan Philipp Reemtsma in Germany etc.41 It explicitly focused on the situational dynamics and concrete forms of violence, assuming that such a perspective is much more illuminating for analyzing violent phenomena than a perspective that looks for abstract motives and unspecified causes. It was even asked whether violence itself could be its own motive, its own goal. After all, under certain circumstances, the use of violence might be attractive to the perpetrator(s). It was predominantly in the 1990s when this new research tradition began to blossom. Conversely, attempts to construct teleological models of action were heavily criticized. Such models were charged with (a) linking motives with actions and violent outcomes too closely, and (b) ignoring the importance of situational factors immediately preceding the violent encounter and thus misunderstanding their inherent, mostly non-linear dynamics. Let us now bring sociology’s recent theoretical constellation back into the field of International Law, and especially to the debate on ‘acts of aggression’ or ‘crimes of aggression’. We are inevitably brought to the conclusion that legal scholars must exercise considerable caution when writing about motives—that is, when trying to define the crime of aggression by focusing too much on the mens rea. Admittedly, it is difficult to abide by this principle. As argued above, the very concept of aggression (even the one used in everyday language in previous centuries) automatically and necessarily raises moral questions related to possible (evil) motives and intentions. 40

Cf. Knöbl 2017. Collins 2008; Katz 1991; Nedelmann 1997; Popitz 1992; Sofsky 1996; von Trotha 1986; Reemtsma 2008.

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2.5 Conclusion As should have become clear from my arguments in this chapter, sociology is probably not of much help in guiding legal scholars in their discourse on crimes and acts of aggression. Yet, as I would claim as a somewhat proud and, at the same time, self-critical sociologist, legal scholars and historians working on aggression should be aware of the fact that the discourse on aggression is not without major theoretical problems. It is almost necessarily based on particular, but far from self-evident, assumptions. If this is so, these scholars should at least take into consideration that interactionist and situationist sociological perspectives might be helpful in shedding at least some light on the rather obscure meaning and phenomenon of aggression, and on the discourse in which this awkward term is embedded in International Law. Acknowledgments For helpful comments and support I would like to thank the editors of this volume, particularly Stefanie Bock, and Christoph Fuchs at the library of the Hamburg Institute for Social Research.

References Ambos K (2010) Das Verbrechen der Aggression nach Kampala. Zeitschrift für internationale Strafrechtsdogmatik 11:649–668 Anscombe G E M (2000) Intention, 2nd edn. Harvard University Press, Cambridge, Massachusetts/London Bauer J (2011) Schmerzgrenze. Vom Ursprung alltäglicher und globaler Gewalt. Heyne Verlag, Munich Beetham D (1987) Bureaucracy. University of Minnesota Press, Minneapolis Berkowitz L (1968) Aggression: Psychological Aspects. In: Sills D L (ed) International Encyclopedia of the Social Sciences, Vol. 1. Macmillan, New York, pp 168–174 Bruha T (1980) Die Definition der Aggression. Faktizität und Normativität des UNKonsensbildungsprozesses der Jahre 1968 bis 1974 zugleich ein Beitrag zur Strukturanalyse des Völkerrechts. Duncker & Humblot, Berlin Chaumont Ch, Fischer G (1956) Explication juridique d’une definition de l’agression. Annuaire français de droit international 2:521–529 Collins R (2008) Violence. A Micro-sociological Theory. Princeton University Press, Princeton/Oxford Dinstein Y (2015) Aggression. In: Oxford Public International Law. http://opil.ouplaw.com/abs tract/10.1093/law:epil/9780199231690/law-9780199231690-e236?rskey=pcMH62&result=4& prd=OPIL (accessed 1 March 2021) Dreist P (2014) Aggression (Straftatbestand). In: Schöbener B (ed) Völkerrecht. Lexikon zentraler Begriffe und Themen. C.F. Müller, Heidelberg, pp 7–17 Ganser D (2016) Illegale Kriege. Wie die NATO-Länder die UNO sabotieren. Eine Chronik von Kuba bis Syrien. Orell Füssli Verlag, Zurich Gekle H (1988) Aggression. In: Canzik H (ed) Handbuch religionswissenschaftlicher Grundbegriffe. Band 1; Systematischer Teil – Alphabetischer Teil: Aberglaube – Antisemitismus. Kohlhammer, Stuttgart, pp 394–406

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Hummrich M (2001) Der völkerrechtliche Straftatbestand der Aggression. Historische Entwicklung, Geltung und Definition im Hinblick auf das Statut des Internationalen Strafgerichtshofes. Nomos, Baden-Baden Joas H, Knöbl W (2012) War in Social Thought. Hobbes to the Present. Princeton University Press, Princeton Kaldor M (1999) New and Old Wars. Organized Violence in a Global Era. Stanford University Press, Stanford Katz J (1991) Criminal’s Passions and the Progressive’s Dilemma. In: Wolfe A (ed) America at Century’s End. University of California Press, Berkeley, Los Angeles, pp 396–417 Knöbl W (2015) Motive aggressiver Handlungen versus situiertes Gewalthandeln. ‘Gewalt’ und die Problematik interdisziplinären Dialogs. In: Hartung G, Herrgen M (eds) Interdisziplinäre Anthropologie. Jahrbuch 2/2014: Gewalt und Aggression. Springer, Wiesbaden, pp 71–77 Knöbl W (2017) Perspektiven der Gewaltforschung. Mittelweg 36:4–27 Krahé B (2015) Aggression: Eine sozialpsychologische Skizze. In: Hartung G, Herrgen M (eds) Interdisziplinäre Anthropologie. Jahrbuch 2/2014: Gewalt und Aggression. Springer, Wiesbaden, pp 13–48 Laplanche J, Pontalis, J-B (1972) Das Vokabular der Psychoanalyse. Suhrkamp, Frankfurt am Main Leanza U (2004) The Historical Background. In: Politi M, Nesi G (eds) The International Criminal Court and the Crime of Aggression. Ashgate, Aldershot, pp 3–15 Luhmann N (1964) Funktionen und Folgen formaler Organisation. Duncker & Humblot, Berlin Mills CW (1940) Situated Actions and Vocabularies of Motive. American Sociological Review 5:904–913 Nedelmann B (1997) Gewaltsoziologie am Scheideweg. Die Auseinandersetzungen in der gegenwärtigen und Wege der künftigen Gewaltforschung. In: von Trotha T (ed) Soziologie der Gewalt. Westdeutscher Verlag, Opladen, Wiesbaden, pp 59–85 Perrow C (1979) Complex Organizations. A Critical Essay, 2nd edn. Random House, New York Petty K A (2008) Sixty Years In The Making: The Definition of Aggression for the International Criminal Court. Hastings International and Comparative Law Review 31:531–554 Popitz H (1992) Phänomene der Macht. Mohr, Tübingen Reemtsma J P (2008) Vertrauen und Gewalt. Versuch über eine besondere Konstellation der Moderne. Hamburger Edition, Hamburg (engl.: [2012] Trust and Violence. An Essay on a Modern Relationship. Princeton University Press, Princeton/Oxford) Ruse M (2018) On Purpose. Princeton University Press, Princeton/Oxford Schabas W A (2004) Origins of the Criminalization of Aggression: How Crimes Against Peace Became the ‘Supreme International Crime’. In: Politi M, Nesi G (eds) The International Criminal Court and the Crime of Aggression. Ashgate, Aldershot, pp 17–32 Schönpflug U (1968) Aggression. In: Ritter J (ed), Historisches Wörterbuch der Philosophie Vol. 1. Schwabe & Co, Basel/Stuttgart, pp 104–110 Schuman F L (1968) Aggression: International Aspects. In: Sills D L (ed) International Encyclopedia of the Social Sciences, Vol 1. Macmillan, New York, pp 174–176 Sofsky W (1996) Traktat über die Gewalt. Fischer, Frankfurt am Main Solera O (2010) The Definition of the Crime of Aggression: Lessons not Learned. Case Western Reserve Journal of International Law 42:801–823 Von Trotha T (1986) Distanz und Nähe. Über Politik, Recht und Gesellschaft zwischen Selbsthilfe und Gewaltmonopol. Mohr, Tübingen Wahl K (2009) Aggression und Gewalt. Ein biologischer, psychologischer und sozialwissenschaftlicher Überblick. Spektrum Akademischer Verlag, Heidelberg Weber M (1985) Wirtschaft und Gesellschaft. Grundriss der verstehenden Soziologie, 5th edn. Mohr, Tübingen

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Wolfgang Knöbl is Director of the Hamburg Institute for Social Research (Hamburg, Germany) and Professor for Political Sociology and Sociological Research on Violence at the Leuphana University Lüneburg (Lüneburg, Germany).

Chapter 3

Dimensions of Aggression in Social Psychology Ulrich Wagner

Contents 3.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.2 Frustration-Aggression . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.3 Learning . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.4 Labelling and the Perpetuation of Aggressive Behaviour . . . . . . . . . . . . . . . . . . . . . . . . . . 3.5 What Doesn’t Work: Catharsis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.6 Intergroup Aggression . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.7 Extremist Violence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.8 What Can Be Done? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Abstract This chapter describes the psychological processes relevant to an understanding of human aggression, as well as opportunities for the reduction and prevention of violence. Aggression and violence are consequences of frustration, learning processes and labelling. Intergroup violence is also driven by self-categorization and the resulting outgroup devaluation. Keywords Aggression · Violence · Intergroup Aggression · Learning · Labelling · Prevention

3.1 Introduction Aggression and violence can be defined as ‘the threat or the practice of an injury to physical integrity or of the systematic exclusion from social participation against the will of the targeted person’.1 Scholars have distinguished different forms of aggression.2 Hostile aggression aims at violating the target; the goal here consists in the 1

Wagner and Maaser 2014; see also Zillmann 1979; social psychologists often use the terms aggression and violence interchangeably. 2 Cf. Berkowitz 1993. U. Wagner (B) Department of Psychology and Center for Conflict Studies, Philipps-University Marburg, Gutenbergstraße 18, 35032 Marburg, Germany e-mail: [email protected] © t.m.c. asser press and the authors 2022 S. Bock and E. Conze (eds.), Rethinking the Crime of Aggression, https://doi.org/10.1007/978-94-6265-467-9_3

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perpetration of aggressive behaviour in order to do damage. By contrast, instrumental aggression means to realize another goal besides the perpetration of aggression. An example would be a robber who is interested in his or her loot and uses aggression as a means to acquire it. Hostile aggression is usually driven by emotions, especially anger and hate, whereas instrumental aggression is often rationally calculated and cool, with strong emotions remaining absent. Analyses of incident rates (based on, for example, police statistics) show that physical violence is a phenomenon which occurs primarily among men, especially those between the ages of 16 and 26. Based on these data, it might be tempting to assume that engaging in violence is strongly affected by biological processes prevalent among men who belong to specific age groups. However, studies analysing the influence of biological processes and their indicators (such as testosterone levels) suggest a considerable variance in co-variation of testosterone-levels and aggression. These studies show that the effect of testosterone on aggression is moderated by a number of further influences, such as age and even time of day.3 Ultimately, it seems that biology does influence aggressive behaviour, but that this influence is moderated by psychological processes. What follows is a delineation and discussion of the most prominent of these processes: frustration, learning and social stigmatization.

3.2 Frustration-Aggression The frustration-aggression hypothesis was first advanced in 1939 by a group of prominent American psychologists.4 It had a relatively short lifespan. The authors initially proclaimed that frustration always leads to aggression and that aggression is always a consequence of frustration. However, a 1941 conference organized to discuss the frustration-aggression hypothesis induced something of a climb down from its proponents.5 At this conference, a number of studies were presented which showed that frustration can have consequences other than aggression, such as the development of gastric ulcer. It was further shown that aggression can have causes other than frustration (see the discussion of instrumental aggression above). Of course, this is not to deny that frustration plays a key role in causing aggressive behaviour. One influential theory which more closely specifies the frustration-aggression relation was developed by Leonard Berkowitz. In a famous experiment, Berkowitz and LePage showed that frustration leads to aggression primarily if individuals have learned that aggression might be an appropriate response to frustration. Their experiments exposed participants (mainly American students) to frustration. The participants were then given the opportunity to respond with aggression under different conditions: some simply had the opportunity to show aggressive behaviour, whereas others were exposed to a gun in the experimental room while having the opportunity to behave aggressively. This 3

Book et al. 2001. Dollard et al. 1939. 5 Miller 1941. 4

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experiment effectively showed that the combination of frustration with the aggressive cue of a weapon delivered the strongest aggressive response.6 The experiment has been cross-validated with aggressive cues other than weapons (e.g. using pictures of aggression) and subjects other than American college students.7 Berkowitz and Le Page’s original experiments, as well as those inspired by them, lead to a clear conclusion. Aggressive behaviour is evoked by a combination of biological processes (arousal as a consequence of frustration)8 and cues that indicate the appropriateness of aggression. The meaning of a cue is determined by learning processes (see Sect. 3.3). Berkowitz9 used the results of his and other experiments as an argument against the free access to weapons in the United States: not only do weapons kill, their presence also increases the general level of aggression in a given society.

3.3 Learning Two learning processes are of specific relevance for understanding aggression. Reinforcement learning (also called instrumental conditioning) goes back to B.F. Skinner and his animal experiments.10 One of the fundamental principles of reinforcement learning is that a behaviour that results in positive consequences for the actor will be reinforced and therefore repeated. In relation to aggression, this principle of reinforcement learning implies that, if aggressive behaviour is successful in realizing a specific goal, then it will inevitably be reinforced, and thus repeated. In other words, if we want to avoid or reduce aggression, then positive consequences for aggressive behaviour should be minimized, and negative consequences should be maximized. The implications for education, pedagogic interventions, police work and the legal system seem self-evident. Reinforcement learning is a very basic learning process. It can be observed among humans, but also among relatively unsophisticated animals. To be sure, it plays a significant role in understanding and preventing aggression. A more specifically human kind of learning, however, is observational learning. Albert Bandura was the first to research this kind learning in relation to aggression.11 In a famous study,12 he and others exposed kindergarten children to an adult model that behaved aggressively toward a doll. After having observed this model, some (though not all) of the children spontaneously showed the same kind of behaviour—they maltreated the

6

Berkowitz and LePage 1967. See for example Konopka et al. 2017. 8 See for example Green 1990. 9 Berkowitz 1994. 10 See for example Skinner 1953. 11 Bandura 1983. 12 Bandura et al. 1961. 7

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doll. This demonstrates that simply observing a specific kind of behaviour can lead to learning—in this case, of aggressive behaviour. In a second part of their study, the experimenters offered the participating children a reinforcement—some sweets—for imitating a given behaviour. This reinforcement increased the aggressive behaviour (see reinforcement learning above), even among those children who had not previously shown a spontaneous tendency to imitation. The study of Bandura et al. shows that observational learning contributes to the acquisition of behavioural competencies, but that these competencies do not have to be executed immediately. The delivery of learned competences depends on situational expectations of reinforcement. Observational learning is of great significance for understanding an increase in the level of human aggression. It not only influences the frequency of aggression, but also the learning of behavioural scripts. These comprise the specific, complicated aggressive behaviour sequences that are relevant to individual cases of aggression— such as torturing a victim, or killing it. The significance of observational learning points to the dangerous power of violent media in terms of generating aggressive behaviour. Empirical studies have strikingly demonstrated that the observation of aggressive videos,13 computer games14 and music15 substantially increase the likelihood that aggressive behaviour will ensue.

3.4 Labelling and the Perpetuation of Aggressive Behaviour Labelling theory is a sociological approach explaining the perpetuation of aggressive behaviour.16 According to this theory, if an individual engaging in a behaviour that could be considered aggressive is stigmatized as an aggressive person and treated accordingly, then this labelling draws the individual into a deviant career.17 In a longitudinal study, Issmer and Wagner drew on labelling theory to examine the behaviour of youths over the course of a year. Their study showed that, when these young people perceived themselves to be part of a socially stigmatised deviant minority, they were much more likely to engage in aggressive behaviour.18 At first glance, labelling theory and leaning theories seem to offer contrasting recommendations for the prevention of aggression. Reinforcement theory demands that undesirable aggressive behaviour should be followed by negative consequences, perhaps even by punishment. In contrast, proponents of labelling theory recommend that individual aggressive acts be ignored in order to avoid labelling the perpetrator as an aggressive individual. These different perspectives can lead to conflict when 13

Bushman and Anderson 2001. Anderson et al. 2010. 15 Anderson et al. 2003. 16 Becker 1963. 17 See for example Stephan and Stephan 1985, pp. 203 et seq. 18 Issmer and Wagner 2015. 14

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it comes to designing prevention of violence and reduction programs, especially for children. A compromise could be to avoid labelling perpetrators for a single aggressive act, but to intervene if they show the kind of repeated and intensified violent behaviour that might lead to an aggressive ‘career’.

3.5 What Doesn’t Work: Catharsis The catharsis hypothesis assumes that engaging in aggressive behaviour diminishes aggressive pressure and related emotions and that this will reduce later aggressive behaviour.19 The hypothesis is the basis of intervention programs which invite participants to behave aggressively as a way to reduce their aggression. The catharsis hypothesis is a widely shared, but ultimately rather naïve and, in fact, erroneous assumption. Bred Bushman20 conducted an experiment in which all participants were frustrated by another person. Some of the participants then had the opportunity to behave aggressively and thereby think about the frustrating agent, i.e. they had the opportunity to show cathartic aggressive behaviour. These participants turned out to be more aggressive when compared to participants who did not have a similar ‘cathartic’ opportunity. Bushman’s results contradict catharsis hypothesis, but they support learning theory: the conduct of aggression actually results in a reinforcement of aggression, and an ensuing increase in aggression.

3.6 Intergroup Aggression The focus so far has been on interindividual aggression. By contrast, intergroup aggression is relatively underresearched in social psychology. Some data suggest that intergroup aggression is more intense than interpersonal aggression. Meier and Hinsz21 conducted an experimental study which examined American undergraduates. They found that, compared to individuals, groups as perpetrators behaved more aggressively. They also found that groups as victims are treated with higher levels of aggression than individuals. The question of whether this individual-group difference is a universal or a culturally specific phenomenon must remain open due to a lack of comparative empirical research. There is good reason to assume that intergroup violence is driven not only by the processes of interpersonal violence described above, but also by further influences that are specific to intergroup violence. One influential mechanism consists in group identification and the role of group membership for individual members’ identities.

19

Dollard et al. 1939. Bushman 2002. 21 Meier and Hinsz 2004. 20

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Of considerable relevance here are a series of empirical studies known as minimalgroup experiments.22 The authors of these studies have shown that, if individuals are randomly assigned to artificial groups (the ‘green group’ or the ‘red group’), then they tend to prefer members of their own group and to discriminate against outgroup members. This remains the case even if they are aware of the chance nature of their membership in a given group.23 Henri Tajfel24 explained the results of these experiments as a consequence of individual identification with groups: group memberships define members’ identities (e.g. according to gender group membership, nationality, professional group membership, etc.). In the attempt to reach a positive identity, ingroup members differentiate their ingroup from relevant outgroups and devalue them. This often results in prejudice, discrimination and violence. Tajfel25 never contended that the psychological processes described in social identity theory would explain every aspect of intergroup discrimination and intergroup violence. But he did argue that the phenomena observed in the minimal-group experiments, as well as the explanation offered by social identity theory, demonstrate a basic psychological process. This process partly explains why human beings so readily leap on artificial categorizations and offers of group membership. Tajfel contributes to a psychological understanding of the persuasive power of political propaganda, which delivers artificial categorizations and negative outgroup stereotypes. Building on Tajfel’s insights, John Turner and co-authors26 offered a more detailed account of the process of ingroup identification and its consequences. According to Turner et al.,27 group identification leads to a process of depersonalization—that is, the individual identity is replaced by the social identity connected to the ingroup. This implies, inter alia, that ingroup norms become guides for group members’ standards of thinking, feeling and behaving. In other words—and contrary to some naïve or even social scientific accounts—intergroup behaviour is not less rational than interpersonal behaviour.28 In fact, intergroup behaviour operates according to an alternative rationality which is organized around specific ingroup standards. If ingroup standards incorporate the devaluation, mistreatment and even dehumanization of outgroups, then it follows that intergroup aggression will assume a more intensely violent form than interpersonal violence.

22

See for example Tajfel et al. 1971. Billig and Tajfel 1973. 24 Tajfel 1978. 25 Ibid. 26 Turner et al. 1987. 27 Ibid. 28 Le Bon 1895; Zimbardo 1970. 23

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3.7 Extremist Violence Terroristic violence is one of the most dramatic and high-profile forms of aggression. Such violence is obviously closely linked to particular political and other macro-level influences. Nonetheless, in order to explain extremist violence, one also needs to understand the psychological processes behind it. According to various exploratory analyses,29 the relevant influencing mechanisms include feelings of individual crisis and frustration, combined with (self-)categorization as a member of a specific group that is (perceived as being) discriminated against. Important, too, is access to an ideology which accuses the outgroup for the discrimination, and offers concrete suggestions on how to confront it.

3.8 What Can Be Done? Aggression is often the result of unsolved conflicts. These conflicts might lead to frustration, and they may be connected to learned aggressive responses for solving them. Accordingly, addressing the components of the conflict and delivering nonviolent resolutions are appropriate means for reducing interpersonal aggression.30 Therefore, most forms of anti-aggression training involve some attempt to improve participants’ capacity for non-violent conflict handling, often combined with learning to handle negative emotions. A number of such anti-aggression training programs exist, and many have proven their effectiveness in empirical evaluations.31 Intergroup aggression is often connected to group identification, outgroup devaluation and subsequent aggression against the outgroup.32 It thus seems logical that intergroup violence will be reduced if group members reduce their prejudice and negative stereotypes against the outgroup. One means to do this is by getting into contact with the outgroup.33 Intergroup contact is especially helpful if the group members involved have an equal status, at least in the contact situation, and if they pursue common goals against the background of recognizing their common humanity.34 Meta-analyses show that intergroup contact intervention programs do indeed help to reduce prejudice,35 even in regions of intense intergroup violence, such as post-war and civil war regions.36 29

For an overview, see Wagner and Lemmer 2019. See also Wagner and Gutenbrunner forthcoming. 31 See Grüne Liste Prävention—CTC—Datenbank empfohlener Präventionsprogramme, https:// www.gruene-liste-praevention.de/nano.cms/datenbank/information (accessed 1 March 2021). 32 Wagner and Christ 2007. 33 See Pettigrew and Tropp 2011. 34 Allport 1954. 35 Lemmer and Wagner 2015. 36 See also Wagner and Hewstone 2012. 30

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Evaluation studies show that interventions based on psychological knowledge about the emergence of violence help to effectively reduce violence. However, these psychological interventions take place in—and are strongly affected by—specific societal and political contexts. Ultimately, then, a crucial—and perhaps even essential—precondition for the effectiveness of psychological interventions is that reduction of aggression and violence be elevated as a societally shared goal.37 Otherwise, psychological interventions run the risk of producing only short time effects that are in the end overruled by broader societal and political processes.

References Allport G W (1954) The nature of prejudice. Addison-Wesley, Cambridge, MA Anderson C A, Carnagey N L, Eubanks J (2003) Exposure to violent media: The effects of songs with violent lyrics on aggressive thoughts and feelings. Journal of Personality and Social Psychology 84:960–971 Anderson C A et al. (2010) Violent video game effects on aggression, empathy, and prosocial behavior in Eastern and Western countries: A meta-analytic review. Psychological Bulletin 136:151–173 Bandura A (1983) Psychological mechanisms of aggression. In: Geen R G, Donnerstein E I (eds) Aggression. Theoretical and empirical reviews Vol. 1. Academic Press, New York, pp 1–40 Bandura A, Ross D, Ross R A (1961) Transmission of aggression through imitation of aggressive models. Journal of Abnormal and Social Psychology 63:575–582 Becker H (1963) Outsiders. Free Press, New York Berkowitz L (1993) Aggression. Its causes, consequences, and control. McGraw-Hill, New York Berkowitz L (1994) Guns and youth. In: Eron L D, Gentry J H, Schlegel P (eds) Reasons to hope. American Psychological Association, Washington, pp 251–279 Berkowitz L, LePage A (1967) Weapons as aggression-eliciting stimuli. Journal of Personality and Social Psychology 7:202–207 Billig M, Tajfel H (1973) Social categorization and similarity in intergroup behaviour. European Journal of Social Psychology, 3:27–52 Book A S, Starzyk K B, Quinsey V L (2001) The relationship between testosterone and aggression: a meta-analysis. Aggression and Violent Behavior 6:579–599 Bushman B J (2002) Does venting anger feed or extinguish the flame? Catharsis, rumination, distraction, anger, and aggressive responding. Personality and Social Psychology Bulletin 28:724– 731 Bushman B J, Anderson C A (2001) Media violence and the American Public. American Psychologist 56:477–489 Dollard J et al. (1939) Frustration and aggression. Yale University Press, New Haven Green R G (1990) Human aggression. Open University Press, Milton Keynes Issmer C, Wagner U (2015) Perceived marginalization and aggression: A longitudinal study with low-educated adolescents. British Journal of Social Psychology 541:1–18 Konopka K, Rajchert J, Dominiak-Kochanek M (2017) The influence of aggression evoking cues on aggressive cognitions in males and females: Different procedures-similar effects. Current Psychology 1–14 Le Bon G (1895) Psychologie des foules. Les Presses universitaires de France, Paris Lemmer G, Wagner U (2015) Can we reduce prejudice outside the lab? A meta-analysis of direct and indirect contact interventions. European Journal of Social Psychology 45:152–168 37

Allport 1954.

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Meier B P, Hinsz V B (2004) A comparison of human aggression committed by groups and individuals: An interindividual-intergroup discontinuity. Journal of Experimental Social Psychology 40:551–559 Miller N E (1941) The frustration-aggression hypothesis. Psychological Review 48:337–342 Pettigrew T F, Tropp L R (2011) When groups meet: The dynamics of intergroup contact. Routledge, Psychology Press, London Skinner BF (1953) Science and human behavior. Macmillan, New York Stephan C W, Stephan W G (1985) Two social psychologies: An integrative approach. Dorsey, Homewood Tajfel H (1978) Differentiation between social groups. Academic Press, London Tajfel H et al. (1971) Social categorization and intergroup behaviour. European Journal of Social Psychology 1:149–178 Turner J C et al. (1987) Rediscovering the social group. Blackwell, Oxford Wagner U, Christ O (2007) Intergroup aggression and emotions: A framework and first data. In: Gollwitzer M, Steffgen G (eds) Emotions and aggressive behaviour. Hogrefe and Huber, Göttingen, pp 133–148 Wagner U, Gutenbrunner L (forthcoming) Conflict and harmful behaviour – A heuristic guidance for research and intervention in interpersonal and intergroup conflicts Wagner U, Hewstone M (2012) Intergroup contact. In: Tropp L R (ed) The Oxford handbook of intergroup conflict. Oxford University Press, Oxford, pp 193–228 Wagner U, Lemmer G (2019) Extremistische Gewalt – ein Sozio-Psycho Modell zur Erklärung, Intervention und Prävention [Extremist violence – a socio-psycho model for explanation, intervention and prevention]. Praxis der Rechtspsychologie 29: 5–22 Wagner U, Maaser J (2014) Einsicht. http://einsicht-marburg.de/wir-stellen-uns-vor/ (accessed 1 March 2021) Zillmann D (1979) Hostility and aggression. Erlbaum, Hillsdale Zimbardo P G (1970) The human choice: Individuation, reason, and order versus deindividuation, impulse, and chaos. In: Arnold W J, Levine D (eds) Nebraska Symposium on Motivation. University of Nebraska Press, Lincoln, pp 237–307

Prof. Dr. Ulrich Wagner was professor for social psychology in Marburg since 1993, now, after his retirement, he is in the position of a Guest Professor at the Department of Psychology and Center for Conflict Studies, Philipps-University Marburg (Marburg, Germany).

Part II

States as Aggressors

Chapter 4

How Far Is It from Münster and Osnabrück to Kampala? State Aggression, the Use of Force, and Statehood from a World Society Perspective Mathias Albert

Contents 4.1 4.2 4.3 4.4

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . The Crime of State Aggression: The Replay of an Old Motive . . . . . . . . . . . . . . . . . . . . . A Functional Assessment of Politics and Law in World Society . . . . . . . . . . . . . . . . . . . . Evolution, Constitution, and the ‘Old Horse’ of Global Statehood . . . . . . . . . . . . . . . . . . 4.4.1 Westphalia (Münster and Osnabrück) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.4.2 A ‘Cosmopolitan’ Dimension of Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.5 The Crime of State Aggression and the Challenge of ‘Praxis’ . . . . . . . . . . . . . . . . . . . . . . 4.6 The Potentials, Promises, and Pitfalls of ‘Constitutiveness’ . . . . . . . . . . . . . . . . . . . . . . . 4.7 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Abstract This chapter first reconstructs ongoing debates about the crime of state aggression as expressions of a seemingly never-ending exchange between the ideal types of power and law in international politics. Section 4.2 places these ideal types into the context of a historical-sociological perspective on systems of politics and law in world society. The aim is to provide a reading in terms of function and social evolution rather than in terms of normative argument. Thirdly, and against the background of this reading, a cautiously optimistic assessment of the developments around the crime of state aggression is advanced. Such an assessment is only possible, however, if world politics is viewed through a specific frame; as a realm characterized by the simultaneous presence of different forms of organizing political authority beyond the territorial State. M. Albert (B) Department of Sociology, University of Bielefeld, Universitätsst. 25, 33615 Bielefeld, Germany e-mail: [email protected] © t.m.c. asser press and the authors 2022 S. Bock and E. Conze (eds.), Rethinking the Crime of Aggression, https://doi.org/10.1007/978-94-6265-467-9_4

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Keywords State Aggression · World Political System · Functional Differentiation · Social Evolution · Cosmopolitanism

4.1 Introduction When it comes to discussions about the crime of state aggression, most arguments are variations on a particularly prominent subject in both International Relations and International Law. This subject comprises the relation between power and law, and how this relation functions and transforms over time in the context of the broader relationship between (mostly) States. Most contributions in this area tend to position power and law somehow in opposition to each other, with the latter sometimes restraining the former, and the former often disregarding the latter. However, some more philosophically inclined analyses point out that what both power and law share—on a ‘meta-’level, so to speak—is that both are ultimately grounded in the possibility of the use of force. This use of force cannot be legitimized outside of this very use.1 A major aspect of the ‘civilizing’ achievements of modern statehood thus consists in tying together the functionally differentiated realms of law and politics in what could be considered a mutual restriction of the use of force. This principle is constitutive of modern statehood; it is enshrined in modern constitutions; and it has at least partially spilled over into the relations between the system of world politics and the global legal system in one or more global constitutionalist moments. Against this background, developments around the codification of the crime of state aggression, and the difficulties of establishing it as a legal norm binding States, are usually interpreted in two broad directions. On the one hand are those who argue that state aggression is a prime example of the fact that, when push comes to shove, power still trumps the law. On the other hand, some scholars argue that attempts to make state aggression a crime punishable before the ICC, however discordant and imperfectly implemented, constitute important, if small, steps in the gradual process of law ‘taming’ politics on a global scale. Behind these two lines of interpretation lie more than mere differences of opinion in the assessment of a single legal norm. In fact, they betray profoundly divergent worldviews. The present contribution starts from the observation that neither of these worldviews can be considered ‘right’ or ‘wrong’. However, both need to be contextualized in a historical-sociological perspective that assesses the relation between politics and law under the condition of functional differentiation as a major characteristic of modern global society.

1

In terms of the philosophy of law, this remark draws on the insights of both Benjamin 2015 and Derrida 1990 as well as on the figure of sovereignty as ultimately a form of the dissolution of the paradoxicality that at some point there is no ‘ground’ below the ‘ground’, so to speak (see also Luhmann 1997).

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Taking such a perspective implies placing the system of States in a broader perspective and treating it as an important, yet by no means the only, form of organizing political authority in the system of world politics. This implies a conceptualization of world political and legal systems as globalized systems for which national political and legal systems, as well as the systems of world politics and international law, are not constitutive building blocks, but merely expressions of their internal differentiation. Such an approach leads to an interpretation of the relation between law and politics and their expression in modern statehood that does not see their relation as one of contention, but of permanent mutual perturbation and an increase in structural complexity. It is in the context of this conceptual exercise that the (even partial) establishment of the crime of state aggression is interpreted not in a normative, but in a functional sense. This now becomes a process of the social evolution of a semantics about the boundaries of the legitimacy of state action tied to the evolution of the understanding of statehood and other forms of organizing political authority. From this perspective, the de-legitimization and the criminalization of state aggression can be seen as an ongoing flow of variations regarding the relation between (the social system of) politics and power on the one hand, and (the social system of) law and legality on the other hand. Over time, some of these variations are selected and lead to specific, semantically entrenched re-stabilizations of the relation between politics and law. It is in such an evolutionary, historical-functional perspective that the Kampala compromise and the entering into force of its provisions in 2018 comprise important instances of systemic selection. Certainly, such selections and the ensuing systemic re-stabilizations do not automatically translate into a specific degree of normative validity. Nonetheless, they establish strong anchors for validity claims in political and legal semantics. To put it more abstractly, in terms of the effort required, there is a big difference between not selecting a variation (that is, most notably, not agreeing on anything in Kampala and not signing up to or ratifying an agreement) on the one hand, and actively deselecting an agreement on the other hand. Notably, the latter is possible, and it happens from time to time. Nonetheless, there is still quite a difference between some parties opting out, as opposed to deleting the semantically entrenched validity claims. For the most part, such an evolutionary process is normatively an uphill struggle. This is epitomized by the semantic figures of Westphalia (Münster and Osnabrück) and Kampala. The first of these stands for, and is accepted as a shorthand for, a system of exclusive state sovereignty that in the end knows no intrusion into the prerogatives of power. Conversely, the latter stands for the legitimacy of exactly such an intrusion in the case of aggression (though it is far from universally accepted).2 The present contribution will, firstly, briefly reconstruct the debates about the crime of state aggression as expressions of the seemingly never-ending exchange between the ideal types of power and law in international politics. Secondly, the aim 2

Needless to say, the reference here is to the well-established caricature view in which ‘Westphalia’ simply stands as shorthand for a system of territorial states characterized by exclusive sovereignty, rather than to the historical Peace of Westphalia that primarily was about the order of the Empire.

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is to place these ideal types into the context of a historical-sociological perspective on the systems of politics and law in world society, providing a reading in terms of function and social evolution rather than in terms of a normative argument. It is against the background of that reading that, thirdly, a cautiously optimistic assessment of the developments around the crime of state aggression is advanced. However, such an assessment is only possible if world politics is viewed as being characterized by a simultaneous presence of different forms of organizing political authority in addition to the territorial State.

4.2 The Crime of State Aggression: The Replay of an Old Motive The important point of reference for many discussions regarding the crime of state aggression is the Review Conference of the Rome Statute that took place in Kampala in 2010. In fact, this conference did produce a common understanding and definition of the crime. However, it did so in a way that left many with the feeling that, in the end, little or nothing had been achieved. The definition agreed on at the conference states that a Crime of aggression means the planning, perpetration, initiation or execution, by a person in a position effectively to exercise control over or to direct the political or military action of a State, of an act of aggression which, by its character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations.3

Let us leave aside the many debates on the exact wording of that definition for the time being. First, it must be noted that one of the main criticisms levelled against Kampala pertained to a specific opt out clause. This clause allows States to opt out of referrals of a possible crime of state aggression, except if the referral comes directly from the UN Security Council. This means, of course, that the Security Council is the only institution that a State cannot avoid through an opt out. This gives the Security Council, and particularly its permanent members, an elevated role. Put in blunt terms: there can be no referral of any possible crime of state aggression to the ICC if the alleged perpetrator’s State has opted out and has at least one of the UN Security Council’s veto powers on its side. In an article published in 2013 in the Journal for Conflict & Security Law, Troy Lavers advanced a range of arguments that neatly articulate precisely what is really at stake with the crime of state aggression. In essence, this is nothing more and nothing less than the old question of whether power trumps legality in international politics. In a review of the 2010 Kampala process, Lavers observed that [T]he bottom line is that the crime of aggression is the very symbol of state power and as such, any limitations or practical prosecutions are an attack on that power. This is the fear of the structuralisation of international law.4 3 4

Article 8bis (1) Rome Statute. Lavers 2013, p. 504.

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Of fundamental importance here is the fact that the discussions about the crime of state aggression do not merely relate to one of many international legal norms. After all, international law always somehow addresses the relation between the political and legal systems. In fact, the crime of state aggression relates to one of the most ‘extreme’ norms conceivable when it comes to conceptualizing the relation between international law and politics, between right and might, in a pure form. Of course, there have been, and continue to be, many aspects in the discussions about the crime of state aggression that are, or at least might appear to be, of a ‘purely’ legal character. One case in point comprises discussions about the definition of an ‘act of aggression’ and issues pertaining to the scale of the offenses committed. Would a single border skirmish constitute an act of aggression, or would something more ‘substantial’ be required in this context? If so, then what exactly would be required? Even highly nuanced contributions in this area are quick to arrive at the conclusion that, when it comes to the operative definition of an act of aggression, ‘someone must make these political judgments’.5 Ultimately, it sometimes seems that there is nothing new about this debate over the crime of state aggression. In a sense, it is a kind of secondary or follow-up debate to another dispute. This older dispute focuses on the occasion of the institutionalization of an individualized international criminal law. It is here that yet another topic of discussion, and another contested norm, come into play; the question of the applicability and ‘health’ of Article 2 (4) UN Charter. As early as 1970, a much-cited article by Thomas M. Franck posed the following question: ‘Who killed Article 2 (4)’?6 Of course, the major issue in this context was the question of ‘who attacked first?’—which was rendered difficult, if not impossible, to answer by the structural tension between Articles 2 (4) and 51 of the UN Charter. In addition to that, however, Franck identified the important issue of a scale of aggression and warfare in general which could be seen as an infringement of Article 2 (4). This question is perfectly reproduced in the debate on the crime of state aggression (and it probably becomes almost impossible to answer in times of cyber warfare). The interesting point in this respect is that, while in 1970 Franck could ask ‘Who killed Article 2 (4)?’, thirty-three years later he was able to ask: ‘Who killed Article 2 (4) again’?7 We might conclude from this that norms governing state aggression are not, in fact, ‘dead’ or ‘alive’. Rather, they seem to either have many lives, or to hover between life and death. It is exactly this uncertain status that expresses what, earlier in this chapter, was termed the ‘structuralisation of international law’. These debates about the crime of state aggression thus continuously repeat the overall theme of the relation between power and law. But different aspects of and contributions to this debate also emphasize specific aspects of that relation. Most notable in this context are questions of attribution and of proportionality. The question

5

Koh 2015, p. 266 (second emphasis added). Franck 1970. 7 Franck 2003, p. 607. 6

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of attribution ultimately refers to the issue of who can and should be held responsible for a crime—that is, States vs. individuals. However, the question of proportionality in relation to state aggression in itself exhibits two dimensions: on the one hand, there is the question of the kind and intensity of an aggressive act required to qualify it as state aggression.8 The Kampala definition does not set a clear boundary. In fact, it could most usefully be seen as marking the lack of a boundary, and of constituting a grey zone in which contrasts become more clear at the edges. To put this more bluntly: the exchange of a small number of gunshots across an international border would quite obviously not count as punishable state aggression, whereas a few brigades or divisions crossing that border in an invasion clearly would. On the other hand, the general question of the relation between law and politics is mirrored in discussions about the proportionality of legalizing and criminalizing acts of state aggression themselves in relation to the moral value of such acts. This latter question primarily refers to those debates which raged after the First World War over the adequacy of addressing the atrocities brought about by the aggressive initiation of that war. These issues intensified in discussions around the Nuremberg trials, and especially over the question of whether or not it is even possible to frame the horrors of the Shoah in legal language: ‘This question goes to the heart of a genuine concern about the incongruity of legal language and unimaginable evil.’9 This concern still abounds in discussions about whether the use of formal legal language in relation to genocide and mass atrocities actually relativizes the latter because of the seeming ‘normality’ of the former: ‘A number of international legal theorists have hinted at a gap between the words used by lawyers and the experiences of victims of mass atrocity (…) These experiences are in some way diminished when articulated in jurisprudential language’.10 From a historical-functional perspective, it seems reasonable to conclude that the codification of the crime of state aggression as well as the (post-)Kampala process provide a rather strong indicator that the jury is no longer out on this specific aspect of proportionality. To be sure, debates about whether specific acts should be addressed in legal language are ongoing. And yet, historically, genocide, mass atrocities, and state aggression have increasingly been addressed in precisely this language. Such language cannot easily be ‘un-learned’. This leads us to the following, perhaps rather abstract, point; there is no real question of whether or not these deeds should be addressed in legal language, or whether or not they might simply be better ‘moved’ to a different field of inquiry, ‘for example politics, history, or conscience’.11 They can be, and also are, addressed in political (or, for that matter, economic, religious, etc.) language. But it is not

8

See further below, for the definition of aggression, the Kampala amendment refers to the definition laid down in the UN GA Resolution 3314 (XXIX) of 14 December 1974. 9 Simpson 2007, p. 83. 10 Ibid., p. 84. 11 Ibid., p. 151.

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possible to simply remove them from a legal system that has developed a history and routine of addressing them. Thus the question of whether or not acts of state aggression should be addressed in legal language is not one that somehow takes place completely ‘beyond’ the legal system. Indeed, this question is also addressed from within the legal system, and necessarily so as part of meta-legal normative reflexivity built into law. It is in that sense that the criminalization of state aggression should not primarily be seen as a ‘conversion of political acts into criminal categories’.12 Instead, it should be viewed as the development of one form of coupling between the political and legal systems, in which specific acts that are addressed in the political system increasingly are also addressed in the legal system—just as they also continue to be addressed within the political system. Perhaps the proper metaphor here is a ‘conversion’, not in the form of a currency exchange, but rather in terms of the depiction of the value of a specific good in terms of different currencies with exchange rates varying over time. Against the background of these abstract observations, it is of course noteworthy that the crime of state aggression has followed a rather specific trajectory in terms of the language it is addressed in. This becomes visible particularly if we compare it to discussions around crimes against humanity. Indeed, with respect to the crime of state aggression, the Kampala compromise betrays the continued legacy of the post-World War II ‘realist’ consensus. According to this consensus, the authority for dealing with issues of war and peace, including illegal aggression, should be vested solely in the Security Council. This is an entity that, while also a legal body, is not a judicial body. Moreover, through the P-5, it is a body that more often than not operates in power political terms, and where ‘sovereign equality is an abstraction rather than an empirical reality’.13 The specifics of the dual politico-legal process invested in the Kampala amendments invites obvious criticism from two sides. First, from a legal perspective, it is possible to criticize the probable ineffectiveness of any prosecution, or at least an inherent bias against certain States. This might lead to a situation in which ‘existing problems of legitimacy will be actively worsened by the ICC’s acquisition of jurisdiction over the crime of aggression’.14 Second, from a political perspective, it can be criticized for possibly erecting an obstacle against, say, so-called ‘humanitarian’ interventions that might be deemed morally or politically justified, but that remain somehow in the shadow of the law.15 This is not the place to comment on the many intricate legal issues that accompany the codification of the crime of state aggression in general and the Kampala amendments in particular.16 In addition to the thorny legal issues regarding the legitimacy and binding force of some aspects of the Kampala amendments (and, in extenso, the ICC), as well as the specific role of the Security Council and the P-5 in this context, 12

Ibid., p. 124. Van Schaack 2011, p. 600. 14 Cowell and Magini 2017, p. 519. 15 See Brown 2014. 16 For a comprehensive commentary, see Kreß and Barriga 2017. 13

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there remain two further, rather awkward points to consider. These points can be (and are) much debated, but they can only be resolved in the case of a crime of state aggression being tried in court. The first of these points pertains to the definition of what constitutes an act of aggression; the second pertains to the addressees of the norm. As already implied here, the Kampala amendment gives a definite, yet not necessarily unambiguous definition of what constitutes a crime of state aggression. The two principle ambiguities arise from, firstly, the requirement that an act of state aggression be of a ‘character, gravity and scale’ that ‘constitutes a manifest violation of the Charter of the United Nations’. No further criteria are listed that would somehow aid in narrowing down the vast interpretive space around what qualifies as a violation of a manifest kind. Secondly, the definition of aggression itself in the Kampala amendment refers to the General Assembly’s 1974 definition. From the very beginning, this definition is rather clear. As stated in Article 1: ‘Aggression is the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other matter inconsistent with the Charter of the United Nations’. While Article 3 enumerates a range of specific acts that would count as aggression, Article 4 contains an open future clause that clarifies that this enumeration is not exhaustive. The 1974 definition of aggression is thus principled, enumerative, and yet open. Nonetheless, since its inception, its contents have (unsurprisingly) given rise to considerable rancour. Both the 1974 definition of aggression, as well as the 2010 definition of the crime of state aggression, point to several grey areas. In many respects—some of them not foreseen in the 1970s—no clear-cut criteria have been provided, and perhaps cannot be provided, for clarifying these grey areas. Many questions have been discussed in this respect. One such question pertains to the qualification of the term ‘manifest’ as an expression of the character, gravity and scale of an aggression (notably, is it character, gravity and scale, or character, gravity or scale?) Things are further complicated by technological developments (for example in relation to cyber warfare) and the question of how to deal with the ‘hard’ cases of ‘humanitarian intervention’ or terrorist aggression.17 What seems beyond doubt is that while all these questions comprise quite thorny legal issues in and of themselves, they are not, nor can they be, considered as purely legal issues. Equally, however, framing them as mere expressions of a seemingly endless struggle between right and might also misses the point. Such a depiction relies on a stylized image of international law and politics, yet it neglects the inherently evolutionary character of both.18

17

For an extensive discussion, see May 2008, pp. 273–318. The ‘motive’ at play here is to see politics and law as strict opposites, as described by Shklar 1986.

18

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4.3 A Functional Assessment of Politics and Law in World Society In this context, there is only one worldview that seems to offer relative clarity: realism. The realist worldview is broadly characterized by its conception of international relations as a realm inhabited by sovereign States only.19 To be sure, the classical view of international law does not necessarily share the assessment of political realism that power invariably trumps law. Nonetheless, there are clear crossovers, particularly in the common focus on States as the sole subjects of international law. This is the arena in which the ongoing struggle and debate over the relation between power and law in international relations plays out. It is also the arena in which diagnoses about a ‘legalization’ of international politics, as well as the ‘structuralization’ of international law, actually refer to the increasing restraint of state power through legal norms. Several books could be filled merely with summaries of these issues. Nonetheless, and painting the picture in very broad strokes, it seems possible to somewhat boldly diagnose an asymmetry in the relevant discourses. On the one hand there is, firstly, a broad agreement about the trajectory taken by international law. This was initially a set of legal principles that only took sovereign States as its proper subjects (assuming, of course, that this idealized form ever actually existed). However, it has evolved into legal principles in which legal subjectivity has become more differentiated, the substantial areas of legal regulation have become more dispersed, and the limits for (or intrusions into) state sovereignty set by law have become more numerous. Secondly, there seems to be more or less broad agreement that international politics has become increasingly bound by international law. To be sure, very different views persist regarding the quality and durability of this process. Such views can be variously classified as the structuralization of international law, or international legalization. On the other hand, these developments have been accompanied by less pronounced evolutionary changes in the character of statehood. A significant diffusion and differentiation of actors in addition to and ‘above’ the State (NGOs, companies, international organizations etc.), as well as ‘defunct’ deviations from the norm of ‘normal’ sovereign statehood (most notably ‘failed States’) have been noted. Nonetheless, the sovereign territorial State still seems to stand by and large as the unquestioned form of organizing political authority in the system of world politics. Let us directly translate these observations to the question at hand—that is, to the crime of state aggression. One could very well argue that much of the discourse about the state of international politics vis-à-vis international law is based on a particular assumption, a particular metaphor. In short, international law has indeed passed through a number of stages, symbolized by locations such as San Francisco, 19

This is the ‘caricature’ view of political realism that arguably has become rather ‘real’ through being the standard used in textbooks. The main works of political realism tend to be rather nuanced in their treatment of the role of international law (being written, as most notably the case with Hans Morgenthau, by lawyers themselves; see Morgenthau and Thompson 1985).

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Nuremberg and Kampala. International politics, however, still lingers somewhere around Osnabrück and Münster. In this sense, the following argument is open to a double reading. It could be taken as an elaboration on the co-evolution of law and statehood in the context of the evolution of the modern system of world politics, with the ultimate aim being to provide an assessment of the importance of the crime of state aggression. Alternatively, it could be seen as an elaboration on the crime of state aggression as some kind of reflexive device on the co-evolution of law and statehood in the context of the evolution of the modern system of world politics. The underlying, and very trivial, assumption here is that things have not simply stood still since 1648. Some kind of evolution has in fact occurred. This assumption is logically implied in the ‘from-to’ figure of speech.20 And yet, there is no implication that processes of social evolution necessarily involve progress toward something ‘better’. Furthermore, no argument is being made about static forms of order, which is seemingly implied by the shorthand forms of ‘Westphalia’ and ‘Kampala’. At stake are different, overlapping and competing ordering principles. The question is thus never one of whether the current system of world politics is a Westphalian or a Kampalian system, but rather to what degree is it Westphalian or Kampalian, how the two principles relate to each other, and how this relation has evolved over time. There is a second, underlying, and possibly not so trivial assumption at play here. Perhaps, in the end, the issue at stake is not merely one of the constitution, and possible ‘transgression’ of an exclusive state sovereignty related to a specific territory as the imagined ‘constitutive’ unit of a system. Instead, perhaps it is the case that this system, as well as the narratives and practices of state sovereignty within it, emerged in an always-evolving social context (that is, the ‘international society’ in the sense of the so-called ‘English School’ of International Relations21 ). We are dealing here with very basic imaginaries of important aspects of world society. Much of the power vs. law figure of speech is predicated—deliberately or not—on the figure of a historically idealized, Hobbesian state of affairs in which sovereign States interact freely, unrestricted by legal-normative constraints. Only later, as some versions would have it, does international law enter the picture, taming the violent sovereign exertion of power. Against this stands the historically far more plausible view that the international system of States never was a realm of pure politics, but that it was always also co-constituted by and through particular legal provisions. The ‘co-constitution’ is important here: there never existed an idealized historical development from ‘system’ to ‘society’. What occurred was a gradual process in which elements of the normative-legal constitution of an international society of States were gradually complemented by elements of the legal restrictions put on the behavior of the State in that society. In other words: politics and law were always bound together, but the quality of the relation has changed over time.

20

The ‘from-to’ figure of speech is actually used quite often in the specific literature on the crime of state aggression, see, for example, Trahan 2018. 21 Cf. Albert and Müller 2016.

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This comes as little surprise if we reflect on the fact that both politics and law operate under the condition of functional differentiation. They are strongly linked, yet operatively autonomous systems of society. In this context, ‘operative’ autonomy does not mean structural autonomy or independence. In fact, it is only on the basis of functional differentiation and the operative autonomy of functionally differentiated spheres in modern society that law and politics can be observed as separate realms. It is here that mutual influence, connections, and ‘structural coupling’ between the two spheres can be observed. Let us directly translate this once again into international politics and law. We are dealing here with two competing models. The first comprises a figure in which a pure sphere of international politics, governed by power, is juxtaposed to the sphere of international law. The second comprises a figure of an international society in which politics and law are inextricably and constitutively intertwined. It is entirely possible to interpret this distinction as one between operative autonomy and structural coupling—as well as the ensuing conflation of the two models.22 ‘Operative’ autonomy simply means that a social system produces meaning on the basis of its own codes and symbolically generalized media of communication. A structural autonomy—which is but a hypothetical, not an empirical possibility—would mean that political communication never refers to anything else but the political system, or that legal communication never refers to anything else but the legal system. The important point to be made in this context is that the link, the structural coupling, and the ways in which politics and law (including the subsets of international politics and law) observe, disturb, and bind each other, is neither negligible or non-existent (as some sceptics and political realists would have it). Nor is it static. It is simply subject to social evolution. As such, there is no inherent teleology, no ‘progress’, no necessary move towards something ‘better’ according to specific normative standards. There is, however, the possibility to assess the quality of this evolution. In this rather general yet direct sense, it is possible to read the emergence and institutionalization of the crime of state aggression as an evolutionary process. Perhaps one of the best examples is the voluminous commentary edited by Kreß and Barriga.23 This text reads not so much as an exegesis in legal dogmatics, but rather as a documentation of an evolutionary process. It takes in both the history of that process as well as its current dynamics, with a documentation in terms of present variations—that is, in terms of different interpretations by different actors. Interestingly, this observation is underpinned by the fact that a vast range of analyses of, or commentaries on, the crime of state aggression depict it in precisely these historical and evolutionary terms (assuming, of course, that such accounts are not limited to specific legal technicalities or focused on specific negotiation 22

It should be noted that this structural coupling refers to the dynamics of the mutual observation, perturbation, and linking between communicatively constituted social systems. These reflect ‘historical political struggles’, rather than constituting a sphere somehow ‘beyond’ social systems, cf. Kratochwil 2014, p. 22. 23 Kreß and Barriga 2017.

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processes).24 The temporal ‘from-to’ figure that also features in the title of the present contribution further underscores this point. However, this evolutionary process is neither linear, nor is it often very specific. Moreover, it does not transpire in some kind of ‘evolutionary bubble’. In fact, it is strongly linked to evolutionary histories of statehood, territoriality, and sovereignty more generally.

4.4 Evolution, Constitution, and the ‘Old Horse’ of Global Statehood The stark contrast between law and politics makes sense—and yet it doesn’t make sense. It makes sense according to a realist worldview that has never taken account of any historical reality, anywhere, at any time. Even in those periods which bear the closest approximation to the realist worldview– that is, in times when crimes against humanity and crimes of state aggression proliferated—the law usually managed to somehow catch up with politics. It seems possible to describe developments regarding the crime of state aggression exactly as an expression of such a process of ‘catching up’. The norm, however imperfect, and however little applied in jurisdictional practice, is in the world. One could expect that, in a broad sense, and even when it comes to non-state actors, ‘there are reasonable grounds to hope or to expect that international public opinion, including the media, will use the standards of the Rome Statue on aggression to evaluate the use of military force which has taken place’.25 The ‘broad sense’ alluded to here is important. If anything, the crime of state aggression and the interpretations reached in Kampala still mark a nebulous zone of legal norms, rather than an area of detailed regulation. This is, arguably, mainly due to the remaining ambivalences regarding the definition of aggression. The only thing that seems to have been established as a certainty in the international community is that ‘aggression is the ultimate negative value’.26 In the eye of the beholder, there might be legitimate defence, legitimate preventive or pre-emptive attacks, or legitimate interventions. But there is no legitimate aggression. It is in this very broad sense that the crime of state aggression stands for a rather tricky relationship between (international) politics and law. Both are aspects of functionally highly specific, yet strongly inter-related realms. In this context, we might even pose the following question; is it even possible to arrive at something like a conclusive answer to the question of whether politicization (of the law) currently carries more weight than the legalization (of politics)? What seems safe to say is that, given the complexity of the social systems involved, evolutionary dynamics in one aspect of a system must not necessarily be synchronized with those in another. Therefore, it might well be possible to observe a push-back against the rule of law 24

See, as but two examples, again Kreß and Barriga 2017; Sayapin 2004. Kaul 2011, p. 12. 26 Wilson 2009, p. 3. 25

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in different countries, as well as several instances of a worrying disregard for some aspects of international law. And yet, it is equally the case that large-scale litigation is now taking place in some parts of the globe where the legal regulation of affairs has, historically, been only a relatively marginal practice.27 The complexity of these evolutionary processes at the intersection of politics and law immediately demonstrates that, at least from a short- and mid-term perspective, it seems unwarranted to make the claim for a rough linearity, let alone for a ‘civilizing’ process.28 Nonetheless, it could be argued that, in the context of these broad, uneven, and non-synchronized evolutionary processes, a particular role is played by the codification of the crime of state aggression. In a seemingly paradoxical way, it is through the specific form of what could be called a ‘weak constitutionalization from above’ that a form of global statehood is promoted. This has always played an important role in the combined logics of state formation and legal evolution. In order to develop this argument, it is necessary to combine two key dimensions. First, a historical-sociological perspective on the variety of forms of organizing political authority in the system of world politics with (Sect. 4.4.1); second, an evolutionary account of what could be called the ‘cosmopolitan’ dimension of law (Sect. 4.4.2).

4.4.1 Westphalia (Münster and Osnabrück) ‘Westphalia’ (that is, ‘Münster and Osnabrück’) stands as shorthand for the idea that the sovereign territorial State constitutes the ‘normal’ case of how the system of world politics is constituted. This idea is only true if seen from the normative vantage point of modern international law, combined with the strong ‘normalizing’ effects that result from the marriage of territoriality with the semantics of nation-statehood (‘methodological nationalism’). From a strictly historical-sociological perspective, the modern world system was always characterized, and continues to be characterized, by a large variety of competing and mutually reinforcing forms of organizing political authority. This is not to dispute the prominence of Westphalia, but only to state that Westphalia never existed in a pure form, never dominated globally, and never was the only ordering logic in the system of world politics. This is most plainly visible in the extreme variety of forms of organizing political authority between individual sovereign States. It is also apparent in the muchdebated, and difficult, relation between the nation-state and empire as forms of organizing political authority. The Democratic Republic of the Congo, The Democratic People’s Republic of North Korea, and the Kingdom of Norway arguably have little in common in terms of the organization of political authority save their recognized external sovereignty and the isomorphism of formal organizations (ministries, state

27

See Thornhill and Smirnova 2018. Although in a long-term perspective such arguments could be made without implying a teleological account however, cf. Brunkhorst 2014; Elias 1997.

28

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bureaucracy, armed forces etc.29 ). Likewise, despite the demise of formal empires, there can be little doubt that imperial forms of organizing political authority survive in many parts of the world. These forms coexist with, and sometimes mutually reinforce, the nation State. The basic, if rather trivial, empirical observation here is that, historically, there never was one single form of organizing political authority which displaced all others at any one time. In much the same way, there never was one single, utterly predominant form of law. There was always a varying, if linked, diversity of models and their respective organizing logics, even if one or more forms always were more prominent than others. It is in this sense that there always was, and remains, a type of cosmopolitan statehood that co-evolved with other forms of statehood. Ideally, and as first institutionalized (albeit imperfectly) with the UN Charter, this form of cosmopolitan statehood is implied in global-universalist conceptions of law: ‘the idea of a world republic is necessary for any appropriate construction of a universal state of law’.30

4.4.2 A ‘Cosmopolitan’ Dimension of Law The following section argues that the codification of the crime of state aggression can, and indeed must, be seen in the context of the logics of a law underlying a form of cosmopolitan statehood—with the latter not replacing other forms of organizing political authority, such as the nation-state, but existing next to them (and with an uncertain future regarding its relative importance). Such an argument places the norm which opposes state aggression in the distinction between constitutive and regulative norms. In fact, the force—as well as the difficulty—of dealing with this particular norm is that it resembles something like a ‘weak’ constitutive rule. But it is a constitutive rule nonetheless. To reiterate: the idea of ‘global statehood’ does not necessarily imply that the idea of a ‘world state’ should displace all other forms of statehood. It simply and plainly refers to the fact that cosmopolitan ideas of order have long been present, and that they have exerted their influence on the evolution of political and legal orders and norms. At their core, the UN Charter and the UN system are expressions of precisely this cosmopolitan logic. The very partial realization of that logic owes to the fact that other logics of order have claimed the upper hand, within the overall context of the segmentation of the political system. However, claiming the upper hand and being more important does not necessarily mean that all other logics of order have been completely displaced! It would be perfectly possible to end the argument here and leave it at that. The basis for resting the case would take the form of an empirical argument about the shape of the contemporary system of world politics. Even if this system does incorporate 29 30

See Meyer et al. 1997. Brunkhorst 2014, p. 282.

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elements and logics of cosmopolitanism and global statehood that sometimes can influence the behavior of various actors, then it is still primarily constituted by the (alleged) fundamental Westphalian norm: exclusive territorial sovereignty. This norm is the constitutive rule of the system of world politics. It is also the constitutive rule of the system of global law (alongside the norm of sovereign equality). Cosmopolitan logics and nascent global state institutions could provide regulative rules in this context, but they cannot fundamentally alter or affect the constitutive rules. The remainder of this contribution will seek to unlock the transformative potential of the codification of the crime of state aggression in the context of cosmopolitan statehood as a co-present logic of order. It aims to do so in two steps. Firstly, it will deal with a criticism of the universalist hopes, and their potentially counterproductive consequences, invested in the codification of the crime of state aggression. This forceful criticism in terms of legal practice has recently been developed by Friedrich Kratochwil.31 The argument advanced in this chapter concurs with much of Kratochwil’s critique. Nonetheless, I depart from his position in emphasizing the potentials inherent in the simultaneity of various kinds of order formation. Secondly, in what follows, I argue that this potential is, first of all, just that: a potential. It can unlock itself only in the context of norm evolution. This evolution would involve a gradual transition from a regulative to a constitutive rule. There is clear evidence for the possibility of such a gradual transition between two forms often seen as categorically distinct. This evidence comprises the reluctance of many States to enter into legal agreements—even of the non-binding variety.

4.5 The Crime of State Aggression and the Challenge of ‘Praxis’ In his contribution, Friedrich Kratochwil reiterates a range of the criticisms of the Kampala agreement referred to above, including the critique of its definitional vagueness. He locates the crime of state aggression in the particular context of the general problems associated with the historical evolution of international criminal law since Nuremberg and Tokyo. He further points out that the criminalization of individuals for acts of state aggression might paradoxically have the exact opposite effect of what was intended. In much of the literature, the difficult legal status of the ‘responsibility to protect’ interventions in relation to the crime of state aggression has been highlighted. However, Kratochwil points out that this very attribution of individual responsibility could be what leads to an outsourcing of political responsibilities (to act, provide peacekeeping forces, etc.) to an imagined effective judiciary. Moreover, the presumed effectiveness of this judiciary is linked to the fact that no one from the P-5 will ever be prosecuted. What’s more, those who are prosecuted will always be able to avoid the implementation of a verdict while they are still in power. 31

Kratochwil 2018.

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Kratochwil identifies the general problem as follows; in practice, the idea of international criminal justice is underpinned by a universalized Western idea of the ‘rule of law’. However, such an ambition is misguided in terms of ‘praxis’. It makes sense as an objective only if it takes a Kantian ‘Perpetual Peace’ as its imagined destination. However: ‘we also realize that moves in the name of clarity and harmony are silencing moves that go against everything we know about the practical world: that disagreements are rampant and that in order to live with them in a way that does not prevent social reproduction, we need laws, not the silence of a “Perpetual Peace”’.32 In other words, the solution to practical problems in the global realm does not require norms that are inspired by lofty notions of global justice. In fact, it can only be a temporal solution. Making laws is a practical undertaking, and as such, it remains a ‘Sisyphean challenge’.33 Kratochwil’s criticism has much to commend it. Certainly, the practical limits and pitfalls of the Kampalian codification of the crime of state aggression have been emphasized time and again. Let us assume that these practical limits and pitfalls need to be seen in a light that puts this codification into the context of a kind of metanorm of an alleged universal rule of law that is crushed between its particularity as a Western idea of normative order, on the one hand, and the de facto exemption of powerful perpetrators from prosecution, on the other hand. If we assume this, then one might not only see the codification of the crime of state aggression in its present form as premature,34 but also as impossible. But to paraphrase Kratochwil; if the undertaking constitutes a ‘Sisyphean challenge’, then to refuse to start on it would be to miss the point entirely because, in the light of its impossibility, it is seen to be premature.

4.6 The Potentials, Promises, and Pitfalls of ‘Constitutiveness’ There is a clear lesson to be learned from the seemingly fundamental criticism just alluded to. It would be inappropriate to see the potentials of the codification of the crime of state aggression in terms of the realization of some kind of universalist telos. This would resemble an account of clear progress. Such a narrative might be beset with shortcomings and limitations, but it would ultimately be part of the fulfilment of some kind of universal order, at the end of which would logically stand the Kantian world republic with the rule of law, or even a ‘world state’. According to such logic, the minimal if problem-ridden progress with the codification of the crime of state aggression and the entry into force of the Kampala agreements would need to be judged as something good. It would be judged as such according to the motto that it is better to have something than to have nothing. 32

Ibid., p. 309. Ibid., p. 310. 34 Cf. Paulus 2010. 33

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However, it is not necessary to rely on such a deeply normative judgment of the codification of the crime of state aggression in order to analyse its transformative potential: there is no possibility to judge whether Kampala and the coming into force of its provisions will make the world a better place. Indeed, it is entirely possible that this will not be the case, and that, quite to the contrary, it might even undermine the legitimacy of other arrangements and aspects of international criminal law.35 Perhaps, then, we can only assess the ‘success’ of this undertaking through an instance of political or moral practical reasoning, rather than according to a fixed measure of ‘progress’. Rather than passing judgment on the codification of the crime of state aggression against a standard of presumed ‘progress’, however, it is instead important to outline its evolutionary potential. Required for such an understanding is a functional understanding of constitutionalization. This is a process long in the making. No rule exists—either within the State or in the global realm—that a constitution cannot come before the State. And there are good reasons to believe that constitutionalization is in fact an open process that means nothing more—and nothing less—than an ongoing attempt to provide a solution to the self-referentiality of social systems, in this case politics and the law: ‘The constitution acquires […] political solutions of the problem of self-reference of the law, and legal solutions for the problem of the self-reference of politics’.36 Constitutionalization, then, can be seen as the process of inventing, trying, establishing, or discarding such solutions. It is exactly in this light that the codification of state aggression attains its true potential. The core criticism of the norm of state aggression is that, though this norm has been codified and though its provisions are now in force, it is not ‘valid’ in a specific sense, but only in a very limited one. After all, the probability of it ever being ‘applied’ is small (and even then biased). Nonetheless, we might read some kind of ‘constitutionalizing’ move in all of this through a particularly elegant theoretical approach; by drawing on some aspects of discourse ethics in order to separate ‘discourses of validity’ from ‘discourses of application’.37 However, it might be more promising to argue from the perspective of constitutionalism analysis that the value of norms lies precisely in their contestation. In this sense, the validity of norms is not only ‘tested’ in, but constituted through practice.38 This might initially seem like an overly scholarly argument. However, it is closely tied to the distinction between the legal and the political system, as well as to the role that constitutive and regulative rules play in this respect. The character of rules as constitutive or regulative is never absolute; it is relative to the specific state of a social system. Across and between systems, there is the potential for mutually nudging the characteristics of these norms. Arguably, the crime of state aggression already sits on the boundary line in this respect. After all, one of the constitutive rules of the system of world politics is the sovereign equality of States. Banning war as a legitimate 35

See the discussion in Brown 2014 and Cowell and Magini 2017. Luhmann 1997, p. 478 (translation by MA). 37 Cf. Günther 1988. 38 See Wiener 2018. 36

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means of conducting politics in the UN Charter could be seen as the introduction of a new constitutive rule to the game—though this is a rule that, much like the rule on sovereign equality, is constantly being challenged. State aggression is already censured through a constitutive rule of the system of world politics. Thus, making state aggression punishable as an individual crime comprises a bolstering of the constitutive rule. This bolstering occurs through the introduction of what, at first sight, is little more than ‘merely’ a regulative rule anchored in the legal system: ‘the crime of aggression has the potential to cause discomfort for any State’.39 The core mechanism here does not lie in some miraculous rule-building within the legal system, however. A constitutive rule does not become ‘more constitutive’ because of legal argument and interpretation alone. The important point is that the political system observes the rule in such a way that this could be the case! This mechanism is somewhat similar to the debates on the global pact of migration that surfaced in many countries shortly before it was signed in late 2018. Some countries did not sign up to this pact, even though it contained an explicit provision that it was not legally binding. Seen in abstract terms, not signing made sense from the logic of the political system. This system knows that, ultimately, there is no such thing as an agreement that totally lacks any kind of legally binding power. The legal system can always, somewhere and somehow, refer to the agreement. A legal norm may be weak and little observed, but once the genie is out of the bottle, it is very difficult to put it back in! It is in this sense that the codification of the crime of state aggression is an important building bloc in some form of global constitutionalization. This observation is not to imply any normative judgment. But Kampala is a distinct corrective to the view that ‘the structural coupling between the political system and the legal system through constitutions has no equivalent on the level of world society’.40

4.7 Conclusion Kampala and beyond is a move forward in terms of system transformation. Whether this is a positive or even ‘civilizing’ move is an entirely different matter; there are ample commentaries that would see this as a case of normative regression. And yet Kampala happened. Its provisions entered into force. This changes something in the relation between the political and the legal systems of world society, however seemingly marginal. Abstractly speaking, any new norm permits the evolution of new references to it and thus increases the potential for future operations of social systems different to those that were possible before. In the ever-present variety of different logics of ordering, the codification of the crime of state aggression provides a block on the road of a long evolutionary tradition of the logic of 39 40

Simpson 2007, p. 148. Luhmann 1997, p. 582.

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cosmopolitan statehood. However, the jury will remain out for a long time to assess what this means in terms of actual system transformation. Different logics of ordering do not relate to each other in terms of a zero-sum game. They can be simultaneously maximized. Sovereignty can be both asserted and challenged. The (r)evolution of 1945 and the UN Charter set limits on what can evolve and what cannot. Nobody would argue nowadays that war should be legitimate. As we well know, however, there is significant space for variation beyond that. However, it is in precisely this space of variation that the crime of state aggression became law. In some cases, this was possible without the consent of, and even in the face of resistance from, powerful States.

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Paulus A (2010) Second Thoughts on the Crime of Aggression. European Journal of International Law 20:1117–1128 Sayapin S (2004) The Crime of Aggression in International Criminal Law. Historical Development, Comparative Analysis and Present State. T.M.C. Asser Press, The Hague Shklar J (1986) Legalism: Law, Morals, and Political Trials. Harvard University Press, Cambridge Simpson G (2007) Law, War and Crime. War Crimes Trials and the Reinvention of International Law. Polity Press, Cambridge Thornhill C, Smirnova M (2018) Litigation and Political Transformation: The Case of Russia. Theory and Society 47:559–593 Trahan J (2018) From Kampala to New York – the Final Negotiations to Activate the Jurisdiction of the International Criminal Court over the Crime of Aggression. International Criminal Law Review 18:197–243 Van Schaack B (2011) Negotiating at the Interface of Power and Law: The Crime of Aggression. Columbia Journal of Transnational Law 49:505–601 Wiener A (2018) Contestation and the Constitution of Norms in Global International Relations. University Press, Cambridge Wilson P (2009) Aggression, Crime and International Security. Moral, Political and Legal Dimensions of International Relations. Routledge, Milton Park

Prof. Dr. Mathias Albert is Professor in Political Science at the University of Bielefeld (Bielefeld, Germany).

Chapter 5

States as Aggressors: Some Economic Perspectives Fanny Coulomb

Contents 5.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.2 The Economic Irrationality of Aggressive State Policies in Globalization . . . . . . . . . . . . 5.2.1 The Liberal Current and the End of Wars Thanks to Economic and Financial Globalization . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.2.2 Post-Cold War Analyses of the Conditions of a Comprehensive Peace . . . . . . . . 5.2.3 The American ‘Global War on Terror’: An Illustration of Liberal Theory? . . . . . 5.2.4 The Study of Conflicts Beyond the Field of Economics . . . . . . . . . . . . . . . . . . . . 5.3 On the Issue of Aggressive State Policies Motivated by Economic Factors . . . . . . . . . . . 5.3.1 Systemic Analyses of Predation Policies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.3.2 Aggressive State Policies Explained by the Characteristics of Economic Systems . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.4 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Abstract From the very inception of Economics as a discipline, economic research on policies of aggression has remained relatively limited. This is a strange oversight, given that economic issues have often been a key aspect of international conflicts. Indeed, in recent years, natural resource issues have returned to the forefront of international security concerns. Similarly, the growing privatization of security directly integrates the economic dimension into national defense policies. It is argued here that liberal economic models are better suited to denouncing the costs of non-cooperative international strategies than to explaining the economic determinants of aggressive national policies. Conversely, heterodox economic theories have more frequently aimed to explain interstate conflicts. Marxism, economic nationalism, and institutionalism shed some light on this question. International political economy also aims to analyze international relations through the neorealist prism of power strategies, both political and economic. However, empirical economic studies on the causes of post-Cold War military operations have remained rare. Tools from economic theory are nonetheless indispensable to modelling the strategic behaviors of interacting States on the international stage. F. Coulomb (B) Sciences Po Grenoble, Institute for Political Studies of Grenoble, 1030 Avenue Centrale, 38400 Saint-Martin-d’Hères, France e-mail: [email protected] © t.m.c. asser press and the authors 2022 S. Bock and E. Conze (eds.), Rethinking the Crime of Aggression, https://doi.org/10.1007/978-94-6265-467-9_5

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Keywords Military Operations · Liberal Peace · Heterodox Theories · Defense Economics · Resource-Based Conflicts · History of Economic Thought

5.1 Introduction The economic analysis of military aggression, and more particularly of States as aggressors, can be advanced from both a theoretical and an empirical perspective. Since the end of the Cold War, however, economic literature has made little mention of this issue. The most obvious explanation for this oversight is the absence of major interstate conflicts since 1991, even though the 1990s witnessed an increase in foreign military operations and civil wars, sometimes encouraged by foreign powers. Though a lasting international disarmament seemed inevitable in the immediate aftermath of the Cold War, military budgets some three decades later remain high. Global military spending increased again in 1999, and in 2017 it reached its highest level since 1991, according to SIPRI (Stockholm International Peace Research Institute). Notably, the traditionally cyclical nature of the US defense budget continues to obtain. It has done so in contravention of most forecasts made in the early 1990s, when the ‘end of history’ thesis prevailed and the triumph of economic and financial globalization seemed to have consigned strategic and military concerns to the past. Today, the United States alone accounts for more than one-third of total world military spending (35%), far ahead of China (13%) and Russia (4%). The concept of an arms race has reappeared, especially to describe the global increase in military naval production. Until recently, Europe was considered an exception to this global trend, owing to the stagnation of its military spending in the aftermath of the Cold War. And yet, today, European defense budgets are once again on the rise. The permanence and even the retrenchment of militarism in the context of globalization contradicts all the expectations of liberal economists as to the disappearance of militarism through the development of international commercial and financial interdependencies. This theme is not new: the belief in constant human progress, that industrialization and world trade would signal an end to wars of predation, has emerged from several intellectual traditions, from classical liberalism to utopian socialism. And yet few economic studies have validated this perspective. To be sure, economic techniques, and above all statistics, are essential for the analysis of defense policies. On the other hand, however, economic theory seldom addresses the question of the determinants of these policies. This is a paradox, the explanation of which may lie in the history of economic thought. Economic studies of interstate power relations in globalization have been limited by the domination of classical and neoclassical theory, with formalized models that study strategic rather than economic aspects. Liberal economists, on the other hand, have largely contributed to the development of analyses advocating disarmament and conflict resolution through international organizations. Historically, non-mainstream economic approaches have contributed more than neoclassical economics to the analysis of States’ power strategies. This is particularly

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the case for Marxist and institutionalist currents. However, the border with political science and the field of ‘international relations’ remains tenuous. Since the late 1970s, international political economy has aimed to link between disciplines and to propose an alternative approach to conflicts by analyzing their economic determinants or characteristics. This approach seems even more necessary today, where aggressive state policies on the international scene go beyond the military field to encompass, for example, commercial/monetary wars and cyberattacks. And yet economic studies devoted to the question of interstate conflict remain rare. Our study aims to present some characteristics of past and present economic research on the topic of militarism and inter-state conflict. The aim is to show the evolution of economic thinking on these issues in the context of economic and financial globalization, and the relevance of an economic reading of contemporary conflicts. In Sect. 5.2, we will discuss the liberal perspective on the question of the ‘economic irrationality’ of aggressive state policies in the context of globalization. Section 5.3 examines more heterodox economic approaches to the issue of aggressive state policies motivated by economic determinants.

5.2 The Economic Irrationality of Aggressive State Policies in Globalization Since the origins of political economy as a field of inquiry, liberalism has been the mainstream approach. First classical, then neoclassical theories have elaborated on the economic mechanisms in a market economy where the role of the State is minimal. The free market makes it possible to reach the economic optimum. Obstacles to laissez-faire can only operate contrary to the general interest and must disappear. It follows that this orthodox analysis of conflicts mainly aims to denounce their negative effects on the economy. However, the growing importance of modeling in the field of economics has led to the creation of theoretical tools with which to represent the behavior of actors in strategic interaction. These tools permit a modelling of certain types of conflicts, such as arms races.

5.2.1 The Liberal Current and the End of Wars Thanks to Economic and Financial Globalization The British classical school emerged in the late eighteenth century in opposition to prevailing mercantilist conceptions, which presented the economy as being in the service of power. Through their denunciation of economic war and military conflicts, figures from the classical school anchored liberal theory in an enduring pacifist tradition.

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Peace as an Economic Necessity

The classical school born in Great Britain in the late eighteenth century revolutionized thinking on how the economy and power interact. The historical context for the development of this approach was provided by seemingly constant wars between European countries and their colonies. In The Wealth of Nations, first published in 1776,1 the British economist Adam Smith advocated a free trade policy and the abandonment of the colonial empire. He thus indirectly condemned militarism as wasteful and as resulting from a diversion of the state apparatus in favor of the interest of certain merchants. Economic and military conflict was thus positioned as fundamentally opposed to common economic interests. A few years after the publication of Smith’s book, the economist David Ricardo2 reinforced the theory of free trade by demonstrating the economic gains induced by the specialization of countries according to their comparative advantage. He also denounced the cost of wars and suggested that their funding be generated through taxes rather than loans, in order to raise awareness among the population of the burden they represented.3 In France during the same period, Jean-Baptiste Say4 developed a theory in favor of economic liberalism and expressed his confidence in the advent of a lasting international peace. This only awaited a realization among governments of the superiority of a free-trade system. However, it would be wrong to suggest that a belief in the disappearance of aggressive state policies has been unanimously shared among classical liberals. David Ricardo, as well as Thomas Robert Malthus, were both rather pessimistic about the evolution of capitalism. Ricardo envisioned a stationary state in the long term, whereas Malthus’ anticipation of a food shortage due to diminishing agricultural returns suggests that he did not believe in a future of peace.5

5.2.1.2

Liberalism and Pacifism

In the 19th century, these liberal tendencies moved towards an optimistic view of the final disappearance of wars of predation and the pacification of international economic relations through free trade. Liberal economic thought profoundly permeated the pacifist movements which developed in Europe before the First World War, a period marked by many international congresses for peace. These initiatives lead, among other things, to the creation of the League of Nations in 1919 and of the Permanent Court of International Justice in 1922. In France, Frédéric Passy (Peace Nobel Prize in 1901 with Henry Dunant) created an ‘International and Permanent League for Peace’ in 1867 (it is known today as the French Society for Arbitration 1

Smith 1776, Book IV, Chap. 2. Ricardo 1817. 3 Ricardo 1846. 4 Say 1972. 5 See Coulomb 2004. 2

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between Nations). Passy aimed to raise public awareness of peace through education.6 For the French liberal economist Frédéric Bastiat, France was required to be the forerunner in a process of disarmament which other countries would surely imitate.7 These thinkers consistently argued that the maintenance of high military expenditure and of wars is contrary to the general interest and that it owed chiefly to the influence of monopolies seeking to protect their foreign interests.8 After the Second World War, several economists focused on providing an analysis of the economic consequences of disarmament. Large international macroeconomic models were created, such as the Leontief and Duchin’s World Model. This approach analyzed the impact of disarmament on industrialized countries, and proposed transfers of the amounts saved to developing countries. Other economists looked to build models designed to highlight the negative economic effects of military spending. Leading liberal economists such as K Arrow, JK Galbraith, J Tobin and A Sen participated in the movement against the arms race within the ECAAR association (Economists Against Arms Race). These studies gave birth to the subfield of ‘defense economics’, which was particularly developed in the United States.

5.2.2 Post-Cold War Analyses of the Conditions of a Comprehensive Peace The end of the Cold War generated considerable optimism about the disappearance of militarism. This owed in no small part to the global spread of the model of democracies with market economies. However, the ‘peace dividend’ (UNIDIR concept) of the global disarmament process proved to be less appreciable than expected. This did not prevent the emergence of new research perspectives on the link between peace, globalization and democracy, or on the concept of global public goods applied to world peace.

5.2.2.1

The Spread of Liberalism and Democracy as Factors of Global Peace

In recent times, Francis Fukuyama’s ‘end of history’9 contributed to a renewal of the Kantian vision of a pacification of international relations. By implicitly linking the diffusion of liberalism with the achievement of global peace, this theory constitutes a defense of the liberal economic model.

6

Alcouffe and Coulomb 2014. Bastiat 1863, p. 454. 8 Bastiat 1864, p. 204. 9 Fukuyama 1992. 7

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A key idea here is the ‘democratic peace’,10 which has been elaborated especially by Bruce Russett.11 According to the democratic peace theory, democracies of equal strength are intrinsically peaceful and do not make war against each other. This is principally due to the mutual trust which apparently arises from institutional similarities and serves to counteract the ‘security dilemma’. That said, war with undemocratic regimes may still occur because of the need to protect the values of democracy, private property and human rights. In 1997, Russett published an article with Oneal12 which purported to prove the link between ‘democracy, interdependence and conflict’ by drawing on databases covering the period 1950–1985. In general, the use of international databases on conflicts and economic interdependencies has made it possible to provide new perspectives on the question of the pacification of international relations. The probability of the occurrence of civil wars has also been studied through the prism of a decrease in the risks of conflict through nations’ integration into globalization.13 The concept of ‘democratic peace’ is related to the promotion of the ‘spread of democracy’ advocated by the Clinton administration, and it served as one of the justifications for the Bush administration’s invasion of Iraq in 2003. Economics has contributed little to this line of thinking, which has remained almost exclusively within the field of ‘international relations’. Thus Kenneth Waltz, founder of neorealism, refuted the theory of ‘democratic peace’ in 2000.14 He acknowledged that the Cold War had created links of strategic interdependence between Western democracies, and that these links have practically eliminated any possibility of conflict between them. He also recognized that many international organizations have been set up to limit international tensions related to economic problems: GATT/WTO, IMF, regional agreements. But Waltz also asked what might happen if international organizations are weakened. He further anticipated that the disintegration of NATO would generate intra-European conflicts.

5.2.2.2

Peace as a Global Public Good

International peace can be conceptualized as a global public good, an idea widely used in public economics. This theme was the subject of a UNDP book in 1999 entitled ‘Global public goods. International cooperation in the 21st century’,15 in line with the UN’s Millennium Development Goals. The definition of a public good fulfills the dual condition of non-rivalry (or even positive externalities for other groups resulting from a state of peace within a group) and non-exclusion (no one can be excluded from the enjoyment of international peace). Promoting the concept of a 10

Doyle 1983. Russett 1993. 12 Oneal and Russett 1997. 13 Barbieri and Reuveny 2005. 14 Waltz 2000. 15 Kaul et al. 1999. 11

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‘global public good’ was intended to encourage international cooperation on global issues and to promote a new approach to development assistance that could serve the whole of humanity when it affects goods. The international public goods examples selected by the World Bank in its 2001 book were: environment, health, knowledge, governance and security.16 In the terminology of the World Bank, the public good ‘security’, in its international component, is associated with a ‘core activity’, namely ‘conflict prevention’, and a ‘complementary activity’, namely ‘institutions for conflict management’.17 However, the definition of IPGs remains relatively vague.18 Since the 2000s, few economic studies have been devoted to studying Global Peace as an IPG, with the exception of a 2014 article by McGuire et al.19 This contribution presented a new model of international strategic alliance aimed at improving the model developed by Olson and Zeckhauser in 1966.20 The new model questioned ‘OZ’s predictions for defense as a homogeneous pure public good voluntarily provided’. The OZ model hypothesized a phenomenon of ‘exploitation of the great by the small’.21 The theory of alliances is a subfield of defense economics. Since its founding, this discipline has generated many model-based studies aimed at explaining the levels of military expenditure of the member countries of an alliance.

5.2.3 The American ‘Global War on Terror’: An Illustration of Liberal Theory? The attacks of 11 September 2001 marked a major break in international relations and put military issues back at the forefront of international policy, especially in countries participating in foreign operations. The Global War on Terror led by the Bush Jr. administration encompasses the wars in Afghanistan (since 2001), Iraq (2003–2011) and related operations, such as the reinforcement of US military bases abroad. These military operations have opened up new fields of research, particularly with respect to the estimation of their costs and on the privatization of security. This latter factor has taken the form of an increasing use of private contractors alongside national armies.

16

Ferroni and Mody 2002. Ibid., p. 40. 18 On this point, see Long and Woolley 2009. 19 Ihori et al. 2014. 20 Olson and Zeckhauser 1966. 21 ‘This model indicates that in an alliance or other international organization composed of nations acting in their national interests, there will be a general tendency for the larger nations to bear disproportionately large shares of the costs, and for the smaller nations to make little or no contribution to the common cause.’, Olson and Zeckhauser 1966, p. v. 17

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Highlighting the Costs of External Operations

There have been many studies of the benefits of disarmament during the Cold War. However, studies of the costs of external military operations have been much rarer, despite the fact that such operations have proliferated since the 1990s. That said, a considerable impact was made by a 2008 book authored by Joseph Stiglitz and Linda Bilmes entitled ‘The three trillion dollars war’.22 This book focused on the war in Iraq and presented detailed calculations as to its true cost which, the authors argued, was much higher than indicated by official figures. The estimated expenditures increased with the inclusion of pensions for veterans, recruitment costs, or the consequences of rising oil prices. A Neta Crawford study23 published in 2018 pegged US budgetary costs for the post-9/11 wars through FY2019 at 5.9 trillion. This estimate included the cost of Homeland Security Spending for Prevention and Response to Terrorism, and the Estimated Interest on Borrowing for OCO (Emergency) Spending. Post-Keynesian economists have suggested that military spending can exercise a significant influence on economic recovery (especially in the United States where the defense industry has considerable economic weight). Given this, a liberal analysis can only criticize the induced increase in public spending. The Global War on Terror was the first war in the history of the United States to be entirely financed by debt, contrary to the recommendations of illustrious liberal economists such as Ricardo or Pareto. In 2009, a study by Davis et al.24 argued that the economic analysis of the cost of the Iraq war should take into account the costs that would have been induced by a policy of ‘containment’ of the country in the absence of military operation. Nevertheless, these calculations are based on forecasts of political and military strategies that remain wholly hypothetical.

5.2.3.2

The Privatization of War: A Result of the Pressure of the Military-Industrial Complex?

We have already examined Adam Smith’s theory (1776), according to which aggressive policies are favored by mercantilist pressure to the detriment of the general interest. Economists did not view the Iraq war through this prism, and many questions about its underlying motives remain. However, a new debate connected to this war was sparked by the awarding of a series of contracts to Private Military and Security Companies (PMSCs). This ‘privatization of security’, nominally imposed to reduce costs during the 1990s, is today an essential aspect of international security. The United Nations has denounced the increasing use of mercenaries by national armies. It has done so partly on the grounds that private contractors’ purely pecuniary motivations imply that they have no interest in actually bringing the conflict to an 22

Stiglitz and Bilmes 2008. Crawford 2018. 24 Davis et al. 2009. 23

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end. The involvement of PMSCs may therefore have a bearing on the severity of armed conflict in weak States.25 One of the most prominent (and notorious) PMSCs was the Blackwater Society, which disappeared following a scandal in Iraq in 2007 and is today called Academi. In 2018, its founder Erik Prince proposed a total replacement of American military personnel with private contractors.26 The concept of the ‘military-industrial complex’, first used by US President Eisenhower in a famous speech in 1961, seems more relevant than ever to describe the influence of private interests on American defense policy.

5.2.4 The Study of Conflicts Beyond the Field of Economics At the end of the 19th century, the desire to build a ‘pure’ economic science led to the incursion of model-based studies into the discipline. This left little room for policy analysis.27 And indeed, defense and security analyses remain scarce in scientific economic journals, with the exception of ‘Defense and Peace Economics’. A review of the articles published in this journal on the period 1998/2018 shows the predominance of analyses that are more strategic than economic and more theoretical than empirical. Thus, no article deals with the economic aspects of the Bush administration’s ‘Global War on Terror’, nor of any other external operations (such as Operation Harmattan, carried out in Libya in 2011). This is paradoxical, because other, apparently less significant topics have been the subject of numerous articles, such as the arms race between Greece and Turkey.28 This may be explained by the politically sensitive nature of external operations and by the absence of real strategic interactions between the countries concerned.

5.2.4.1

Arms Race Models: More Strategic than Economic?

The fact that defense economics analysis may appear to be more strategic than economic stems from one of the founding models of this sub-discipline: the arms race model of Lewis F. Richardson (1960).29 This model integrates the political factor, the strategic factor and the economic factor in order to describe the armaments increases of rival countries as action-reaction processes. In these processes, economic variables play a stabilizing role. Several improvements have subsequently been proposed to this reference model, notably an enhanced consideration of internal determinants and

25

Petersohn 2017. Prince 2017. 27 Coulomb 2011. 28 See notably Brauer 2002. 29 Richardson 1960. 26

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cost constraints.30 However, the general trend has been towards an increased use of arms race models for strategic simulations, particularly in the case of the US-Soviet nuclear arms race. Brito and Intriligator,31 for example, have made pioneering contributions in this area. They integrate the mathematical tools of constrained optimization, duopoly theory and game theory (according to the work of T. Schelling in particular). Game theory seems particularly suited to an analysis of international strategies, with the application of the prisoner’s dilemma or notions of learning and reputation. More recently, asymmetric information and non-linear dynamics have also been integrated in some arms race models in order to better describe the instability of the post-coldwar world. But though these models were created by economists, they have tended to depart from economic in favor of strategic concerns. Only a small number of models have focused on the structural characteristics of the economies engaged in an arms race. These models do not account for the internal dynamics that motivate rises in military spending—that is, the endogenous nature of militarism. Nor do they consider other external factors, such as changes in the global economy. To be sure, Anthony Lyons suggested a new modeling of the arms race, integrating endogenous economic and political factors, in 2001.32 Overall, however, these limitations of arms race studies probably explain why none of these ‘strategic’ models was able to predict the collapse of the Soviet Union and the end of the cold war.

5.2.4.2

The Economics of Terrorism: A New Field of Conceptualized Studies

From the end of the Cold War, two new themes emerged in the field of ‘defense economics’: the economics of terrorism and the economics of civil wars. The economic analysis of civil wars will be considered in the second part of this text. Economic analyses of terrorism, meanwhile, have often remained rather theoretical. From a factual point of view, the risks of terrorism are aggravated by the increased vulnerability of globalized communications, transport and the concentration of population and resources in urban areas. The existence of areas hostile to the Western mode of development leads to a persistence of international instability. The advantage of terrorist methods is that they are not forced to rely on the involvement and support of broad sections of the civilian population, which was the problem that traditionally faced guerrillas. Since the end of the Cold War, many economists have focused on unconventional conflicts, such as guerrilla warfare, insurgency and terrorist acts. T. Sandler and K. Hartley presented these analyses as early as 1995 in their work on defense economics. For his data, Sandler drew on a series on terrorism provided by the United States 30

Coulomb 1999. Brito and Intriligator 1995. 32 Lyons 2001. 31

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Department of State (Patterns of Global Terrorism). In an article coauthored with W. Enders, Sandler used econometric instruments to highlight cycles of transnational terrorism (periods of low activity alternating with periods of high activity). From this analysis, the authors made recommendations of vigilance for political authorities at certain periods of the cycle. Admittedly, such conclusions may seem trivial, especially given the sophistication of the statistical methods used. Other analyses of terrorism are based on mathematical models which postulate the rationality of the actors. Such approaches are in line with the ultra-liberal school of Gary Becker, who explains all human activities, including criminality, through the prism of economic arbitration. The value of these cost-benefit analyses is open to question, however, particularly with respect to the economic rationality of suicide bombers. This points to the fact that the question of rationality is fundamental to an analysis of terrorist conflicts. Indeed, it perhaps reveals the limits of using methods exclusively borrowed from neoclassical economics in order to analyze terrorism.

5.3 On the Issue of Aggressive State Policies Motivated by Economic Factors The economic causes of international conflicts have been little studied by economists, probably because this question may appear controversial and closer to the field of political science. However, some non-mainstream schools of economics provide an original perspective on aggressive state policies. Marxism may resonate with the current issue of predatory strategies on mining resources. Evolutionary analysis is one of the theoretical bases of the recent field of international political economy, which aims to overcome the dichotomy between strategic and economic analyses and rethink international relations in the light of power and economic rivalries.

5.3.1 Systemic Analyses of Predation Policies The use of mathematical models directly derived from neoclassical theory dominates the economic literature. This concern for conceptualization and scientific quality has limited the importance of alternative, non-mainstream approaches which, despite their heterodoxy, have had a considerable influence in the history of economic thought. Marxism is of course one such approach. This theory has extended beyond the work of Marx (and Engels), especially to explain the internal economic determinants of conflicts between capitalist countries, as well as the maintenance of militarism. More indirectly, the apparent renewal of ‘wars of predation’ around natural resources points to a materialist analysis of international relations.

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5.3.1.1

Marxist Theory

Marxist theory has long been the only credible alternative to the liberal theory of international relations. As Marx placed economic determinants at the root of the explanation of all social and political phenomena, his theory is particularly suited to an economic analysis of power relations on the international stage. Marx considered free traders as the official representatives of modern English society, the representatives of that England which rules the market of the world. […] This party is led on by the most active and most energetic portion of the English bourgeoisie – the manufacturers. […] By free trade they mean the unfettered movement of capital; freed from all political, national, and religious shackles. The soil is to be a marketable commodity, and the exploitation of the soil is to be carried on according to common commercial laws […] National wars? Faux frais of production. England can exploit foreign nations more cheaply while at peace with them.33

Theorists of imperialism later extended Marxist thought to international issues. They argued that capitalist countries had reached a specific stage of development that compelled them to conquer external (and especially colonial) outlets in order to counter the law of the falling rate of profit on domestic markets. Writing in 1917, Lenin argued that the First World War was inevitable given the rivalry between Germany and Great Britain and the need for advanced capitalist countries to control foreign territories in order to export financial capital to increase profits: The question is: what means other than war could there be under capitalism to overcome the disparity between the development of productive forces and the accumulation of capital on the one side, and the division of colonies and spheres of influence for finance capital on the other?34

The theorists of imperialism of this period predicted the impending end of capitalism. An exception was Kautsky, who envisioned an agreement between the most powerful capitalist interests that would extend beyond national boundaries. The outbreak of the First World War in 1914, at a time when global economic and financial interdependencies were at their most advanced (historians speak of a first globalization), seemed to lend credence to Lenin’s perspective. During the Cold War, post-Marxist analyses of international relations made up a broad field of economic literature. This approach has usually considered militarism as inherent to capitalism, since it facilitates the exploitation of the South by the North. International trade and foreign direct investments by multinational companies organizes the extraction of the surplus value from periphery countries, while profits are repatriated to center countries. The foreign policies of industrialized countries are presented as serving capitalist interests. The wars waged by the United States in some southern countries are a logical consequence of the evolution of advanced capitalist systems.

33 34

Marx 1848. Lenin 1917.

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The disappearance of the USSR and the global spread of the liberal economic model have considerably diminished the influence of Marxist approaches to international relations. But such approaches have not disappeared entirely. In 1992, Andre Gunder Frank, one of the most famous representatives of the post-Marxist current of the 1960s/80s (theory of dependency and world systems), published an article on the political economy of the Gulf War.35 He presented this as the beginning of ‘a Third World War by the North against the South’, partly explained by economic determinants: The most obvious economic reason for the war has been oil (…) Another immediate economic reason for going to war was to counter domestic recession, or at least its political consequences at home […].36

Another example of contemporary Marxist analysis is that of Remy Herrera, who places great emphasis on militarism in his analysis of the crisis in the American economy. US military supremacy, reinforced by rising military budgets, is an essential factor in ensuring the perpetuation of the American capitalist system, thanks to transfers from the South towards the United States, and in particular ‘the repatriation of profits from foreign direct investments or from portfolio investments […]’.37

5.3.1.2

The Predation of Natural Resources: A Contemporary and Controversial Issue

The theme of the economic causes of war remains controversial among economists. Marxist approaches are particularly suited to developing an explanation of conflicts through economic determinism, but such approaches have been challenged by other theoretical perspectives. In a book on the causes of war (1940), the liberal economist Lionel Robbins38 refuted Marxist-Leninist theory on this point, and emphasized instead the essentially political determinants of past wars. It is in the field of political science that articles on these issues are currently proliferating. These include the contributions of Michael Klare, who in 200739 proclaimed the resurgence of the geopolitics of oil and gas in international relations and a concomitant rise in conflict. The causes include an increase in global demand, fear of shortages, a growing dependence on raw materials from ‘chronically unstable areas of the developing world’, and ‘an increasing tendency to view resource scarcities and disputes through the lens of military policy and to act accordingly’. Indeed, the rare earth crisis of 2011 has revealed the dependence of Western hightech industry on chemical elements produced in a quasi-monopoly by China. The leading economic powers are now building up strategic reserves. The pressure of the 35

Frank 1992. Ibid., p. 268. 37 Herrera 2013. 38 Robbins 1940. 39 Klare 2007. 36

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World Trade Organization helped to settle the rare earth battle but, according to some forecasts, China could become a net importer of rare earths by 2025. The threat of a scarcity of rare earths in the next decade therefore constitutes a global risk. The economic determinants of conflict were the subject of unexpected interest at the beginning of the century, thanks to the development of economic studies on civil wars. The Collier-Hoeffler model of civil wars40 (World Bank) has become famous, although many controversies have attached themselves to the validity of its econometric tests. The ‘greed and grievance’ theory is today widely known and used to explain the occurrence but especially the durability of civil wars. It aims to show that their outbreak stems from various institutional and sociological factors (grievance). The financing of rebellions through the illicit trafficking of raw materials leads to the establishment of a war economy that enriches the rebels and limits their willingness to put an end to the conflict (greed). Collier uses the concept of a ‘conflict trap’ to describe the predicament of some developing but natural resourcerich countries. This theory is less radical than the neoclassical models of Jack Hirschleifer on ‘rent-seeking conflicts’, advanced in the early 1990s.41 Hirschleifer’s model presented rebellions as profit-generating industries which aimed at plundering national resources. The problem of civil wars lies beyond the scope of our article, which focuses on the issue of aggressive state policies on the international stage. However, many civil wars involve foreign countries, sometimes in the form of providing support to rebel groups against the government (Sierra Leone, Yemen). One important feature of contemporary international relations comprises illegal trade in natural resources to finance rebellions (blood diamonds, for example). This sometimes prompts importing countries to tighten their legislation in order to ensure an ‘ethical’ supply of natural resources.

5.3.2 Aggressive State Policies Explained by the Characteristics of Economic Systems Presenting a challenge to liberalism as the dominant ideology is not the only prerogative of Marxism. List and Veblen, two non-mainstream economists, have argued that the source of conflicts between capitalist States lies in the intrinsic characteristics of these societies, which owe to their specific historical evolutions. These authors have paved the way for a ‘non-exclusively economic’ ‘analysis of international policies’. This aims to combine the contributions of other social sciences, such as contemporary studies in international political economy.

40 41

Collier and Hoeffler 2002. Hirshleifer 1989.

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The Power Politics of Economic Development: The Listian Theory

Marxist theory advances explanations for the aggressive policies of States on the international stage by means of a conception of the State as an institution at the service of the bourgeoisie. But another nineteenth century German economist, Friedrich List, offered a very different perspective on this question of the State. In ‘The national system of political economy’ (1909/1840),42 List advocated a proactive state policy in favor of industrialization, but also of German national assertion against the other industrial powers. Through its conception of a State working for prosperity but also power, one and the other being inseparable, the Listian theory is ‘neo-realistic’. Militarism is productive and wars of territorial conquest are conceivable. Liberalism appears here as a mere propaganda theory serving the interests of the dominant industrial nations wishing to expand their markets by imposing a free trade system unfavorable to the domestic industries of less industrialized countries, such as Germany. List’s advocation of the protection of ‘infant industries’ has inspired many developmental models in the post-independence countries of the Third World, with mixed success. But despite this record, List’s theory has had a lasting influence on the economic analysis of international relations. It offers a credible alternative economic explanation of international politics. An aggressive state policy vis-à-vis foreign countries may be justified by the national interest: colonial expeditions and economic war are therefore not necessarily to be rejected. At the same time, the State must pursue policies aimed at developing the national welfare and level of education. This theory aims to rehabilitate certain mercantilist precepts criticized by Adam Smith as stemming from a misunderstanding of the general interest of all nations. Smith argued that individual nations cannot sustainably enrich themselves by impoverishing their neighbors. For classical liberals, the division of labor between nations can lower the costs of production, provided that tariffs or wars do not disrupt the free play of markets and world trade. Conversely, List presents a global vision of national security, mixing trade, industry and monetary stakes, with strategic and military concerns. He defended the idea of a democratic system and of public investment in human capital, but he also argued that a genuine free trade system can only be global in the long term, when all nations have made their industrial take-off.

5.3.2.2

The Institutionalist Theory and the Resurgence of Militarism in Capitalist Societies

At the beginning of the 20th century, the conflicts related to the extension or maintenance of European colonial empires were denounced by the British economist John Atkinson Hobson,43 who popularized the concept of imperialism and influenced 42 43

List 1909/1840. Hobson 1902.

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Lenin’s thought. Hobson presented an original analysis of British imperialism. He argued that imperialism serves to divert popular attention from internal economic problems, to distract from the repetitive tasks imposed by industrialization, as well as to provide prestige for a patriotic middle class. The national prestige induced by the extension of the colonial empire thus served to stabilize the capitalist system. It should be noted that the theme of prestige research as a determinant of certain international conflicts is still studied today, but it departs from the field of economic studies.44 Hobson’s theory of imperialism is close to that of Thornstein Veblen,45 founder of the institutionalist current. But Veblen’s analysis of this subject is part of a broad body of work aimed at criticizing capitalism through the historical and sociological study of its institutions. These have been characterized by the dominance of ‘absentee owners’ who voluntarily limit the level of production to avoid the decline of their profits. Institutions are presented as ‘habits of thought’. It is therefore necessary to study human behavior in a more realistic way than neoclassical economists, whose theories Veblen completely rejects. According to Veblen, warlike instincts remain inherent to industrialized societies. Countries in which military culture remains strong are more likely to pursue aggressive international policies, despite the fact that industrial development should lead to a pacification of international relations through the diffusion of ‘modern’ capitalism. But resurgences of the military spirit can occur in all countries, encouraged by the ‘vested interests’. The First World War appears as a striking example: The people of the civilised nations believe themselves to have also a material interest of some sort in enlarging the national dominions and in extending the foreign trade of their business men and safeguarding the foreign claims of their vested interests. (…) It is a survival out of the barbarian past, out of the time when the dynastic politicians were occupied with isolating the nation and making it self-sufficient, as an engine of warlike enterprise for the pursuit of dynastic ambitions and the greater discomfort of their neighbors.46

The institutionalist current is now assimilated to the field of evolutionary economics, in that it seeks to explain the historical evolution of capitalist economies. It is based on a pragmatic and contingent analysis of economic systems. In this sense, it may seem well suited for studying the aggressive policies of States, today as yesterday. These studies, however, remain rare. One prominent example is Seymour Melman’s analysis of militarism in the United States; the ‘permanent war economy’.47 In his article of 1997, Melman uses Veblen’s concept of ‘parasitic industries’ to describe arms production. According to Melman, the American economy has been deeply transformed by the growing importance of the militaryindustrial complex. Indirectly, this analysis explains US military operations by the influence of the military sector on society. 44

See for example Dafoe et al. 2014. Edgell and Townshend 1992, pp. 401–420. 46 Veblen 2005. 47 Melman 1997. 45

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International Political Economy: A Field of Study for Aggressive State Policies

The theories of Veblen and List can be related to the field of international political economy (IPE), which was born in the 1970s. Robert Gilpin, one of its representatives, identifies economic nationalism (founded by Alexander Hamilton in the United States) as one of the three ideologies of political economy, alongside Marxism and economic liberalism: My interpretation of international political economy assumes that the interests and policies of states are determined by the governing political elite, the pressures of powerful groups within a national society, and the nature of the ‘national system of political economy.’ […] As conceptualists correctly argue, there is a subjective element in an elite’s definition of the national interest. However, objective factors such as the geographic location of a society and the physical requirements of the economy are of great importance in determining the national interest. […] Concern with security means that power — military, economic, and/or psychological — will be vitally important in international affairs; states must be continually attentive to changes in power relations and the consequences for their own national interests of shifts in the international balance of power.48

IPE goes beyond the field of economics and draws on contributions from other social sciences, such as history, sociology and politics. It thus makes the link between the field of international relations and that of economics, as explained by Palan and Petersen in 2015: A key argument of the relatively young discipline of IPE has always been that a successful international economy cannot function without a stable political and legal international regime, and vice versa, that stable security regimes are unlikely to survive for any length of time in volatile economic conditions.49

In his paper ‘The political economy of warfare’, Edward L. Glaeser presents a mathematical model of warfare, in which leaders benefit from conflict even though the population as a whole loses. Warfare creates domestic politic advantages, both for insecure incumbents like Napoleon III and for longshot challengers, like Islamic extremists in the Middle East, even though it is costly to the nation as a whole. Self-destructive wars can be seen as an agency problem where politicians hurt their nations but increase their probability of political success. This problem becomes more severe if the population can be falsely persuaded that another country is a threat.50

This model uses economic methods to model actors’ strategies. That said, it is not suited to a study of the economic causes of war. This specific topic remains relatively under-researched, even in the field of IPE.

48

Gilpin 2001. Palan and Petersen 2015. 50 Glaeser 2009. 49

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5.4 Conclusion The separation of the disciplines of politics and economics has led to the amputation of power issues from the field of economics. Indeed, the latter has developed toward ever greater formalization. Although theoretical models have not contributed much to an understanding of the economic causes and consequences of aggressive foreign policies, many modeling techniques have been borrowed from economists in order to conduct strategic analyses. However, when it comes to empirical economic studies, it is surprising to note the small number of contributions on issues such as the cost (or even a cost-benefit analysis) of military operations, or on the economic determinants of offensive foreign policies. Indeed, this last point still remains very controversial and seems to readily raise the hostility of liberal economists, perhaps because it undermines their interpretation of international relations, in which the economy is an unambiguous factor for peace. Finally, remember that defense policies are not the only factors which contribute to the aggressiveness of the State. Commercial, monetary and cybernetic warfare are other aspects of international relations, again little studied in the field of economics. With all of that said, several non-mainstream economists have developed approaches which aim to integrate an analysis of international power relations. Marxism, the Listian theory or the institutionalism of Veblen are all currents that offer original explanations for the offensive policies and the militarism of certain capitalist countries. Such approaches mix elements from disciplines other than economics, such as history or sociology. These heterodox analyses are better suited than neoclassical theory to deal with some contemporary geo-economic concerns, such as the place of natural resources in conflicts or the role of the military-industrial complex. They provide the basis for the ongoing rise of a new field of economic analysis; international political economy.

References Alcouffe A, Coulomb F (2014) Pacifism of the French liberals: Frederic Passy and Léon Walras, candidacies for the Nobel Prize. Unpublished paper presented at the 18th ESHET Conference, Lausanne Barbieri K, Reuveny R (2005) Economic globalization and civil war. Journal of Politics 67:1228– 1247 Bastiat F (1863) Paix et liberté ou le budget républicain. Institut Coppet, Marcq-en-Baroeul Bastiat F (1864) Œuvres complètes de Frédéric Bastiat: mises en ordre. Guillaumin, Paris Brauer J (2002) Survey and Review of the Defense Economics Literature on Greece and Turkey: What Have We Learned? Defence and Peace Economics 13:85–107 Brito D, Intriligator M (1995) Arms races and proliferation. In: Hartley K, Sandler T (eds) Handbook of defense economics. Elsevier, Amsterdam Collier P, Hoeffler A (2002) Greed and grievance in civil war. World Bank Working Papers, Washington DC Coulomb F (1999) Les relations internationales au cœur du débat entre science économique et économie politique. Annuaire Français de Relations Internationales 1:123–139

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Coulomb F (2004) Economic theories of peace and war. Routledge, London/New York Coulomb F (2011) The History of Economic Thought on Conflict. In: Braddon D R, Hartley K (eds) Handbook on the Economics of Conflict. Edward Elgar Publishing, Cheltenham, pp 8–27 Crawford N (2018) United States Budgetary Costs of the Post-9/11 Wars Through FY2019: $5.9 Trillion Spent and Obligated. Available at https://www.watson.brown.edu/costsofwar/files/cow/ imce/papers/2018/Crawford_Costs%20of%20War%20Estimates%20Through%20FY2019% 20.pdf (accessed 1 March 2021) Dafoe A, Renshon J, Huth P (2014) Reputation and Status as Motives for War. Annual Review of Political Science 17:371–393 Davis S J, Murphy K M, Topel R H (2009) War in Iraq versus containment. In: Hess G D (ed) Guns and Butter, The Economic Causes and Consequences of Conflict. MIT Press, Cambridge/London, pp 203–270 Doyle M (1983) Kant, Liberal Legacies and Foreign Policy (Parts I and II). Philosophy and Public Affairs 12:205–235 and 12:323–353 Edgell S, Townshend J (1992) John Hobson, Thorstein Veblen and the Phenomenon of Imperialism: Finance Capital, Patriotism and War. American Journal of Economics and Sociology 51:401–420 Enders W, Sandler T (2002) Patterns of transnational terrorism, 1970–1999: alternative time-series estimates. International Studies Quarterly 46:145–165 Ferroni M, Mody A (eds) (2002) International Public Goods. Incentives, Measurement, and Financing. World Bank, Washington Frank A G (1992) Third World War: A political economy of the Gulf War and the new world order. Third World Quarterly 13:267–282 Fukuyama F (1992) The End of History and the Last Man. The Free Press, New York Gilpin R (2001) Global Political Economy Princeton University Press, Princeton Glaeser E L (2009) The political economy of warfare. In: Hess G D (ed) Guns and Butter, The Economic Causes and Consequences of Conflict. MIT Press, Cambridge/London, pp 33–74 Herrera R (2013) The U.S. economy today: between systemic crisis and permanent war. Documents de travail du Centre d’Economie de la Sorbonne, Paris Hirshleifer J (1989) Conflict and Rent-Seeking Success Functions: Ratio vs. Difference Models of Relative Success. Public Choice 63:101–112 Hobson J A (1902) Imperialism – A study. J Pott & Company, New York Ihori T, McGuire M, Shintaro N (2014) International Security, Multiple Public Good Provisions, and The Exploitation Hypothesis. Defence and Peace Economics 25:213–229 Kaul I, Grunberg I, Stern M (eds) (1999) Global public goods: international cooperation in the 21st century. Oxford University Press, Oxford Klare M T (2007) Oil. Geopolitics Reborn: Oil, Natural Gas, and Other Vital Resources. New England Journal of Public Policy 21:202–214 Lenin V I (1963/1917) Imperialism, the Highest Stage of Capitalism. In: Lenin’s Selected Works, Vol. 1. Progress Publishers, Moscow, pp 667–766 List F (1909/1840) The National System of Political Economy. Longman, Green & Co., New York Long D, Woolley F (2009) Global Public Goods: Critique of a UN Discourse. Global Governance 15:107–122 Lyons A (2001) Modelling international conflict under conditions of state level economic and political uncertainty. Defence and Peace Economics 12:497–535 Marx K (1848) British political parties. In: Selected writings. Oxford University Press, Oxford, pp 360–361 Melman S (1997) From Private to State Capitalism: How the Permanent War Economy Transformed the Institutions of American Capitalism. Journal of Economic Issues 31:311–330 Olson M, Zeckhauser R (1966) An economic theory of alliances. The Rand Corporation, Santa Monica Oneal J R, Russett B M (1997) The Classical liberals were right: democracy, interdependence and conflict, 1950–1985. International Studies Quarterly 41:267–294

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Palan R, Petersen H (2015) International political economy: Conceptual affinities and substantive differences with security studies. In: Bourbeau P (ed) Security Dialogue Across Disciplines. Cambridge University Press, Cambridge, pp 156–176 Petersohn U (2017) Private Military and Security Companies (PMSCs), Military Effectiveness, and Conflict Severity in Weak States, 1990–2007. Journal of Conflict Resolution 61:1046–1072 Prince E (2017) Contractors, not troops, will save Afghanistan, 30 August, New York Times, www.nytimes.com/2017/08/30/opinion/erik-prince-contractors-afghanistan.html? ref=opinion (accessed 1 March 2021) Ricardo D (1817) On the principles of political economy and taxation. Batoche Books, Kitchener Ricardo D (1846) Essay on the funding system I. In: McCulloch J R (ed) The Works of David Ricardo. John Murray, London, pp 514–548 Richardson L F (1960) Arms and insecurity – A mathematical study of the causes and origins of war. The Boxwood Press, Pittsburgh Robbins L (1940) The economic causes of war. Macmillan, New York Russett B (1993) Grasping the Democratic Peace: Principles for a Post-Cold War World. Princeton University Press, Princeton Sandler T, Hartley K (1995) The economics of defense. Cambridge University Press, Cambridge Say JB (1972/1803) Traité d’économie politique. Calmann-Lévy, Paris Smith A (1776) An inquiry into the nature and causes of the wealth of nations, Book IV. W. Strahan and T. Cadel, London Stiglitz J E, Bilmes L J (2008) Three trillion dollar war: the true cost of the Iraq conflict. Norton & Company, New York Veblen T (2005/1919) The Vested Interests and the Common Man. Cosimo Classics, New York Waltz K (2000) Structural Realism After the Cold War. International Security 25:5–41

Fanny Coulomb is Assistant Professor in Economics at Sciences Po Grenoble (Institute for Political Studies of Grenoble) & CESICE (Center of studies on international security and European cooperation) (Grenoble, France).

Part III

Regulating Aggression

Chapter 6

Can There Be a Crime of Internal Aggression? Eliav Lieblich

Contents 6.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.2 The Contingency and Inconsistency of the External-Internal Distinction on the Resort to Force . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.3 Is There an Essential Difference Between External and Internal Resorts to Force? . . . . . 6.3.1 Presumption of Freedom Versus Presumption of Coercion . . . . . . . . . . . . . . . . . . 6.3.2 The Special Nature of Aggression . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.4 The Substance of Internal Aggression . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.5 Locating the General Prohibition on Internal Aggression . . . . . . . . . . . . . . . . . . . . . . . . . 6.6 Internal Resort to Force and Existing International Criminal Law . . . . . . . . . . . . . . . . . . 6.7 Imagining the Act and Crime of Internal Aggression . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.8 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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

E. Lieblich (B) Faculty of Law, Tel Aviv University, Tel Aviv, Israel e-mail: [email protected] © t.m.c. asser press and the authors 2022 S. Bock and E. Conze (eds.), Rethinking the Crime of Aggression, https://doi.org/10.1007/978-94-6265-467-9_6

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Keywords International Law · Use of Force · International Criminal Law · International Humanitarian Law · International Human Rights Law · Aggression · Non-International Armed Conflict

6.1 Introduction The prohibition on the use of force is commonly referred to as a cornerstone of the contemporary international order. Enshrined in Article 2 (4) UN Charter, it prohibits the use of force in the ‘international relations’ between States.1 While much controversy exists concerning almost every element of Article 2 (4) and its exceptions,2 there is virtually no contestation of the inter-state nature of the use of force as a constitutive element of the prohibition.3 The modern international crime of aggression mirrors this assumption. In the Nuremberg judgment, it was taken for granted that ‘wars of aggression’ are those taken against ‘other States’.4 Likewise, an ‘act of aggression’ as defined in the Rome Statute, refers to uses of force by a State ‘against the sovereignty, territorial integrity or political independence of another State.’ This formulation, in turn, is repeated in the definition of specific acts that qualify as acts of aggression.5 The emphasis on the inter-state nature of aggression clearly excludes from the definition internal resorts to force—meaning, for our purposes, any resort to armed force, whether by governments or opposition groups, that does not cross state borders. This is hardly surprising. Broadly speaking, international crimes usually correlate with primary norms which establish state responsibility, and complement them with individual criminal liability. Since, on the orthodox view, the prohibition on the use of force does not apply to force within States, the exclusion of such acts from the ambit of aggression is unsurprising. Yet, although the codification of the crime of aggression under the Rome Statue is (rightly) heralded as a historical achievement, it is also true that inter-state resorts to force are neither the most common, the deadliest, or the most intractable conflicts in the current international system. Rather, internal conflicts—or civil wars—are more numerous and difficult than international conflicts in all three of these variables.6 Therefore, to the extent that neither the crime of aggression nor comparable crimes 1

Article 2 (4) UN Charter: All members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the purposes of the United Nations. 2 See Kammerhofer 2016, p. 13; Hakimi and Katz Cogan 2016, p. 257; Banks and Criddle 2016, p. 67; Paddeu 2020. 3 Dinstein 2014, p. 5. 4 IMT Nuremberg, Judgment of 1 October 1946 (Prosecutor v. Goering et al.), in: Trial of the Major War Criminals before the International Military Tribunal, Volume I, Nürnberg, p. 186. 5 Rome Statute Article 8bis (2); the acts enumerated as acts of aggression follow UNGA Resolution 3314 (XXIX) of 14 December 1974, Definition of Aggression. 6 See Uppsala Conflict Data Program, https://ucdp.uu.se/ (accessed 1 March 2021).

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address the decision to resort to the notion of internal force, there seems to be a gap in international criminal responsibility.7 In this chapter, I explore, in a preliminary fashion, an argument for assigning criminal responsibility for internal resorts to force, or, in short, for internal aggression. To be clear, my argument is not that the crime of aggression as-is should be interpreted to apply within States. This is too far removed from the text. Rather, I urge to think about new horizons of international responsibility, in which a crime similar to aggression may apply to internal resorts to force. Admittedly, the concept of internal aggression is hard to grasp. This is for at least two reasons. First, and as I detail later on, coercion within States is part and parcel of the concept of sovereignty, and on the other hand, the right of the body politic to determine its own government—even if by revolution—is widely recognized in political theory. This makes it both theoretically and practically difficult to establish the point in which resort to internal force from either side should be unlawful, much more criminal. This chapter suggests to approach this challenge by insisting on a categorical distinction between ends and means. While the ends of preserving sovereignty or determining the form of government may be generally legitimate, it does not follow that the type of killing that characterizes the resort to force is always a permissible means to achieve them. Second, on its face, it might be difficult to delineate exactly what the concept of internal aggression adds to existing law, over and above existing standards of crimes against humanity and war crimes. To understand the potentially salient contribution of internal aggression, it is helpful to return to the wrongs addressed by the crime of international aggression. As classically stated in Nuremberg, the crime of aggression is understood to encompass ‘the accumulated evil’ of the unlawful war as a whole.8 As such, the evil addressed by the crime of aggression does not encapsulate only violations of the jus in bello (war crimes), but also evils that would otherwise be lawful under international humanitarian law (IHL)—namely, the intentional killing of combatants and the (proportional) incidental killing of civilians. Thus, theoretically, when the gravity of an act of aggression is assessed, when sentencing is considered, and when victims of the crime are identified, there is no a priori barrier to take into consideration jus in bello harms that would be otherwise lawful.9 Conversely, when internal armed conflicts erupt, we have no way to articulate through law—neither in expressive nor in practical terms—this accumulated evil. In the absence of an internal crime of aggression, criminal responsibility attaches only to war crimes, and—as detailed later on—crimes against humanity do not provide a satisfactory framework to address other killings, that are not war crimes under IHL. Furthermore—and significantly—while existing law can serve to criminalize unjustified governmental 7

For a comparable observation concerning the use of transnational force by non-state actors, and a suggestion for an amendment of the Rome Statute, see Scheffer 2016, pp. 1482–1483. For reasons of brevity I will not address this issue in this chapter. 8 IMT Nuremberg, Judgment of 1 October 1946 (Prosecutor v. Goering et al.), in: Trial of the Major War Criminals before the International Military Tribunal, Volume I, Nürnberg, p. 186. 9 See e.g. Eritrea-Ethiopia Claims Commission 2006, p. 430, para 12; see also Pobje 2016, p. 851.

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violence before an armed conflict erupts, no coherent and universally applicable international standard exists concerning resort to armed force by opposition groups against the State’s soldiers. A further preliminary point is in order. It cannot be denied that many have criticized the international crime of aggression as too indeterminate to be practical.10 If these critiques are correct, they would certainly apply, at least with the same force, to the question of internal aggression. For the purpose of this chapter, however, I assume that the problems of international aggression are ultimately surmountable, and if this is so, similar problems concerning internal aggression can also be overcome. The argument proceeds as following, Sect. 6.2 draws from an earlier, more extensive study,11 to argue that international law can and should regulate internal resort to force. Accordingly, in this section I argue that the distinction between external and internal resorts to force, which characterizes the predominant understanding of contemporary international law, is contingent and unconvincing. It is not an essential or fundamental characteristic of international law, and results in an inconsistency that challenges the legitimacy of the current legal regime. In Sect. 6.3, I move to discuss whether there still might be essential differences between external and internal resorts to force, that merit different treatment by international law, and, accordingly, by international criminal law. In this section I address the problem of the internal presumption of coercion, as well as the alleged special nature of aggression as a crime against sovereignty, and argue that these challenges do not amount to a convincing objection to the notion of internal aggression. Section 6.4 argues for a reading of international human rights law—and specifically the right to life—as establishing a primary prohibition on internal resort to force. To the extent that it does, the right to life can be viewed as establishing an interest—or a reason—against internal resort to force in positive international law. Section 6.6 considers whether a prohibition on internal aggression can be read into existing international criminal law, and whether current law can capture the salient evils of internal aggression. Answering in the negative, Sect. 6.7 imagines how a crime of internal aggression can be structured.

6.2 The Contingency and Inconsistency of the External-Internal Distinction on the Resort to Force The perception that jus ad bellum is an inter-state phenomenon is so common that it barely needs repeating.12 Much like the public-private divide in liberal thought, the divergence between external and internal resorts to force is viewed as a fundamental characteristic of international law. Yet, deeper inquiry reveals that this distinction is heavily contingent. Indeed, the current moment in international law, where external 10

Cf. Koskenniemi 2016. Lieblich 2016, p. 687. 12 See e.g. Ruys 2020, p. 1. 11

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resorts to force are prohibited while internal resorts are widely deemed beyond international regulation is—at least according to the predominant account—an exceptional situation in the long history of international law.13 In the era when international law derived its validity and content from natural law, it was clear that internal resorts to force could not be a priori excluded from regulation. Because natural law governed all human action, it followed that some form of law must apply to all resorts to force, whether external and internal, whether by rulers or subjects.14 To be sure, it was certainly not the case that law treated equally external and internal uses of force. External resorts to force were subject to constraints derived from the just war tradition.15 Internal force, conversely, was ‘governed’ by an extremely permissive norm, according to which rulers—as ‘God’s ministers’—could almost always resort to force within their kingdoms.16 Subjects, conversely, did not possess the ‘right authority’ to do so: indeed, since the ruler represented God, any resort to force against him would be unjust.17 This absolute approach was gradually modified with the advent of the Reformation in the 16th century, as the emerging idea of the social contract resulted in the limitation of the sovereign’s power to resort to internal force, mirrored by a limited right of internal forcible resistance.18 Social contractarianism was manifested later on in the writings of the post-Westphalian pioneers of international law, and served to an extent, as a form of internal jus ad bellum.19 It should be stressed: at no point did natural law doctrine equate between external and internal uses of force. Yet, the importance, for our purposes, is that both realms were perceived as potentially subject to legal constraints. In this sense, early international law was coherent in its approach that no resort to force was beyond the reach of law. Traditional, positivist international law was also coherent about resort to force, albeit in the opposite manner. At least according to the dominant account, international law of the positivist era viewed the resort to inter-state force as beyond substantive regulation—whether because war was viewed as a persisting condition of human nature—or because States simply did not consent to do so.20 This lack 13

This follows the argument in Lieblich 2016, pp. 696–704. Neff 2014, p. 163. 15 See Frowe 2018, p. 41. See also Lesaffer 2018, pp. 777–783. 16 Aquinas 1947 (arguing that ‘[I]t is not the business of a private individual to declare war,’ and conversely, it is the business of ‘those in authority […] to have recourse to the sword […] against internal disturbances.’). 17 de Vitoria 1991, pp. 3, 18–19. 18 Witte 2007, Chapter 3. 19 For an overview, see Lieblich 2016, pp. 698–700. 20 See Woolsey 1866, § 110. Oppenheim 1912, § 53. Granted, some recent literature casts doubt on the non-regulation of resort to force in the era of positive law, and argue that this view of the 19th century is based on the retroactive importance attributed to some prominent writers after World War I. Lesaffer, for instance, argues that notions of just war—albeit modified—survived the positivist era, both in literature and in practice. Lesaffer 2018, pp. 789–797; for a forceful exposition of this approach (which could be termed ‘revisionist’) see Verdebout 2014. Yet, it is possible to argue that the extent of the right to resort to force in this era was so wide, and justified so subjectively, so as to 14

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of regulation was mirrored in the internal sphere: in light of the prevailing understanding of sovereignty, international law was not competent to apply within States at all. This was the product of two mutually reinforcing ideas: that the principle of non-intervention excluded international law from any attempt to regulate the internal governance of States;21 and that for better or for worse, owing to the supremacy of state sovereignty, individuals could not be subjects of international law.22 The corollary of both presumptions was that international law, on the predominant reading, was largely silent towards both resorts to force by sovereigns, and of individuals organized as opposition groups. It is in this sense that Woolsey argued that in relation to civil wars, ‘international jus has nothing to do.’23 In practice, this indifference resulted in a de facto freedom to use internal force. Hall summarized this point bluntly by saying that ‘in strictness, tyranny and resistance ought, degree for degree, to be precisely equivalent in the eyes of the law.’24 The result was a normative system which, for all practical purposes, refrained from a robust regulation of resorts to force, on both the international and internal levels. It is only with the advent of the prohibition on the use of force that a peculiar divergence emerged: while the inter-state resort to force was for the first time subjected to a robust prohibition, recognizing only narrow exceptions, the complete freedom to resort to internal force—both for governments and opposition groups—was carried on from the previous legal order.25 This divergence is both contingent and peculiar: it is neither a fundamental characteristic of international law nor easy to defend in normative terms.26 Indeed, the most plausible explanation for the divergence between the regulation of external and internal resorts to force, in the current legal regime, relates

give rise to doubts whether law at all regulated the international resort to force, see von Bernstorff 2018, p. 244. 21 See Bernard 1860. 22 Oppenheim 1912, § 13 (‘Subjects of the rights and duties arising from the Law of Nations are States solely and exclusively.’) and § 57 (international law ‘is not competent to forbid private individuals to take up arms’). 23 Woolsey 1866, § 136. 24 Hall 1884, pp. 264–265. 25 Article 15 Covenant of the League of Nations excluded from its purview matters ‘solely within the domestic jurisdiction of states’, such as civil wars. The 1928 Kellogg-Briand Pact renounced war only in inter-state relations; and the UN Charter is understood to have followed suit. Note, however, that Tom Ruys interestingly points out that the increasingly dense web of international and regional counter-terrorism laws serves as a significant legal hurdle for rebellion, even if not violating jus in bello, see Ruys 2020, pp. 16–17. 26 Admittedly, if the ‘revisionist’ approach to 19th century jus ad bellum is accepted (as espoused by Lesaffer and Verdebout)—and resolving this issue is beyond this chapter—then it could be said that the current divergence is not a product of the mid-20th century, but of earlier times. Yet, even on this view, there would still be peculiarities in the current divergence, which make it more extreme: mainly, and undoubtedly, modern jus ad bellum is much more prohibitive than the putative 19th century jus ad bellum, even as it is presented by the revisionists. This makes the gap between the external and internal spheres much wider than before.

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to the mutually reinforcing principles of sovereignty, non-intervention and selfdetermination. While inter-state force necessarily infringes—at least to some degree—the sovereignty of another State,27 the same cannot be said concerning internal resorts to force. On the contrary, they can be viewed as quintessential expressions of the body politics’ quest for self-determination, and a legitimate mean to establish and reassert sovereignty.28 However, in an era where civil wars are so numerous and destructive, it becomes difficult to explain such a divergence. Simply put, the same justifications that underlie the prohibition on external resorts to force, would call for a parallel internal prohibition. First, the primary objective of the UN Charter—indeed, the first end mentioned in its preamble—is ‘to save succeeding generations from the scourge of war’.29 Since the scourge of civil war is no less evil than that of international war, it seems peculiar to altogether exclude the former from international regulation. The de facto freedom to use internal force creates a gross incoherence in the legal regime, which in turn undermines its legitimacy.30 Second, the absolute distinction between the external and internal realms stems from an understanding of state sovereignty as an impenetrable shield from external regulation. Yet, modern international law already reaches deep into issues long consider at the core of state sovereignty, such as human rights and trade policy. Sovereignty is understood nowadays to imply responsibility, rather than absolute power,31 and leading commentators have pushed for the formulation of modern sovereignty as some form of trusteeship.32 Indeed, it seems curious that international law would pierce the veil of sovereignty in so many contexts, yet refrain to do so when the potential harm is perhaps the greatest. It seems, therefore, that if there is a justification to exclude internal force from international regulation, it cannot be based on the protection of sovereignty alone. Third, and relatedly, one would be hard-pressed to defend the non-regulation of internal resort to force by appealing to the right to self-determination of peoples. This is because, essentially, doing so necessarily adopts a position that self-determination implies the ability to successfully exercise effective violence. This renders selfdetermination synonymous with power, collapses it into the idea that effective control alone implies governmental legitimacy, and thus robs it of any substantive normative power. Self-determination, to possess normative authority, must reflect values beyond the ability to subdue internal opponents by arms.33 27

See ICJ, Judgement of 27 June 1986 (Nicaragua v. United States of America, Military and Paramilitary Activities in and Against Nicaragua), para 205, ICJ Reports (1984) holding that when force is used, a violation of the norm of non-intervention is ‘particularly obvious’. 28 Schachter 1984, p. 1641 arguing that resort to internal force is part of peoples’ freedom to ‘decide for themselves what kind of government they want, and that this includes the right (…) to carry on armed conflict between competing groups.’ 29 Preamble of the UN Charter. 30 See generally Franck 1990. 31 GA Resolution 60/1 of 16 September 2005, paras 138–139. 32 Benvenisti 2013, p. 295; Criddle and Fox-Decent 2016. 33 Lieblich 2013, p. 139.

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Fourth, the traditional positivist claim that international law is not competent to regulate internal force—and specifically, rebellion—because it cannot apply to individuals, is clearly anachronistic.34 International law nowadays imposes obligations on individuals through international criminal law, and during armed conflict, IHL applies both to States and to armed groups engaged in the hostilities.35 Moreover, in recent years, calls have been made to extend the application of international human rights law, in some cases, to non-state actors.36 It seems, thus, that the fact that internal conflicts involve non-state actors cannot on its own pose a jurisprudential barrier for the regulation of internal resorts to force. Fifth, even if we assume that the primary objective of the Charter regime is to prevent international wars, and that owing to state sovereignty, this objective does not extend to the internal sphere, there would still be strong policy reasons that push for the legal regulation of internal resorts to force. This is because of the tendency of civil wars to internationalize, whether through external intervention or contagion.37 In sum, there is nothing in modern international law that would a priori exclude internal resorts to force from international legal regulation. Yet, some may object that even if this is true, there is still something essentially different between international aggression and internal resorts to force. In the following section, I discuss the two main intuitions that make the concept of internal aggression difficult to conceive. The first concerns the presumption that because intra-state relations are a priori coercive, internal resorts to force cannot be identified as salient, isolatable events within such relations. The second concerns the perception of the special nature of the crime of aggression as involving an outrage against state sovereignty—an element which is absent from internal resorts to force. Ultimately, I argue that while these challenges are not insignificant, both are not convincing as absolute barriers against the regulation of intra-state resort to force.

6.3 Is There an Essential Difference Between External and Internal Resorts to Force? 6.3.1 Presumption of Freedom Versus Presumption of Coercion Conceiving the idea of internal resort to force, in a manner that would mirror external resort to force, is admittedly difficult. The first challenge stems from our different assumptions concerning inter and intra-state power relations. On the international 34

And has already been challenged in the early 20th century, chiefly by Hersch Lauterpacht. See Lauterpacht 1950, Chapter 2. 35 Common Article 3 of the Geneva Conventions. 36 UN Doc A/HRC/38/44 of 5 June 2018 (The Protection of the Right to Life); Murray 2016. 37 See, e.g., Kathman 2010, pp. 989–1012; Maˇ cák 2018, Chapter 2.

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level, the normal condition between States (ideally speaking) is one of sovereign equality.38 At its most immediate, this means that baseline of inter-state relations is freedom, rather than coercion. Any inter-state coercion by force is presumed to be an exceptional, clearly identifiable deviation from the norm.39 In contrast, within States, some level of coercion is part and parcel of the system: all States possess some coercive power, whether latent or active, in relation to individuals under their jurisdiction; States only differ from one another in the level of coercion they employ in a given context or in a given time. The understanding that sovereignty implies coercive power relations is common to most, if not all, modern definitions of the term.40 At times, this coercion can be legitimately violent—or even lethal. The most obvious case is when force is lawfully used in law enforcement.41 Counterintuitively, intra-state relations also assume some coercive power in the hands of the body politic. For instance, it is presumed that within States, it is generally legitimate for opposition groups to challenge the local government, and even to apply severe pressure to compel it to change its policies.42 Because of this baseline of active or latent coercion, the moment when state coercion, or, conversely, opposition pressure can be said to be illegitimate—according to any standard—is hard to pinpoint. Therefore, in contrast to the prohibition on inter-state force, which is supposedly binary, the legitimacy of internal coercion is more of a sliding scale. As Tom Ruys rightly points out, this presumption of intra-state coercion makes both the formulation of a prohibition on internal resort to force (and, consequently, any possible adaptation to the criminal sphere), quite difficult. 43 Yet, closer analysis reveals that what seems to be an insurmountable practical and theoretical difficulty really stems from a conflation between ends and means. As detailed in the next section, even if the intra-state sphere presupposes legitimate coercion, this does not mean that intentional killing is always part and parcel of this coercion. Furthermore, in practical terms—and as detailed below—it is possible to situate the point in which coercion becomes an ‘internal resort to force’, as the moment in which a party resorts to armed hostilities. Otherwise, a prohibition on internal force would collapse into a general prohibition on intra-state coercion, which would be both impractical and unjustified. Admittedly, the standard of ‘armed hostilities’ needs to be refined. Chiefly, this notion has to be distinguished from the intentional killing of civilians, whether during civil unrest or in other circumstances. This is because there is no need for an additional 38

See Article 2 (1) UN Charter. See Ruys 2020, p. 10. 40 Weber viewed sovereignty (or statehood) as a ‘monopoly of the legitimate use of physical force’; Weber 1946. Schmitt viewed sovereignty as the power to suspend the legal system and to rule by decree. See Schmitt 2005, pp. 5–15. To Hans Kelsen, the very essence of a legal norm—and to him, sovereignty is merely an aggregation of legal norms—is that it is followed by sanction. Kelsen 1967, p. 25. 41 See UN Doc A/CONF.144/28/Rev.I of 7 September 1990 (Basic Principles on the Use of Force and Firearms by Law Enforcement Officials). 42 See Havercroft 2021. 43 Ruys 2020, p. 11. 39

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norm on internal resort to force in order to prohibit such intentional killings. Before an armed conflict erupts, international human rights law, and the corresponding international crime of crimes against humanity, already capture this behavior; and during armed conflict, such killings are prohibited by IHL and also constitute war crimes. As detailed later on, the saliency of a norm concerning internal resorts to force is that it would capture conducts that would not otherwise constitute violations of jus in bello, such as the intentional targeting of combatants, of civilians who have lost their protection under IHL, and of members of organized armed groups; and also the incidental harming of civilians, even if that harm would be considered proportionate under IHL. Hostilities, as opposed to other forms of violence or coercion, exhibit the following characteristics: (a) lethal force is undertaken as a first resort (meaning without a use of force continuum); (b) lethal force is preventative, meaning it is undertaken against individuals even where an imminent threat is absent; (c) lethal force is undertaken against a class of individuals perceived as possessing no protection under the laws of war; (d) violence is highly coordinated; and (e) (proportionate) collateral damage is tolerated even if anticipated ex ante. In legal terms, hostilities are characterized by the fact that once they exist, IHL kicks in. A prohibition on internal resort to force would be salient precisely because it would apply to such actions, even if these would not be prohibited under IHL. On the contrary—it would apply to such actions precisely because they are subject to IHL, and would otherwise be generally perceived as legitimate.44 While it is not easy to pinpoint the moment where unrest becomes ‘hostilities’, it is not impossible to do so. From the point of view of governments, we can look, as supporting evidence, for the moment in which military forces are first deployed internally; or, significantly, for the point where military rules of engagement shift from a law enforcement (arrest and trial) to a hostilities paradigm (lethal force).45 From the perspective of opposition groups, a possible option is to follow the definition of non-international armed conflict under IHL. The moment in which it can be said that we have crossed the threshold for ‘protracted armed violence between governmental authorities and organized armed groups’,46 is the point in which it could be said that the opposition group has decided to resort to internal armed force.47 In sum, while intra-state relations are defined by a level of coercion, it is possible to carve out the resort to armed hostilities as a salient, identifiable moment.

44

See Ohlin 2016. See generally ICRC 2013. 46 ICTY, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction of 2 October 1995, IT-94-1-I (Prosecutor v. Tadic), para 70. 47 Note, that until now, I have not yet discussed when such force can be legitimate; rather, this section only delineates the acts that would constitute internal resorts to force. 45

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6.3.2 The Special Nature of Aggression Another possible distinction between aggression and internal resorts to force concerns the special nature of aggression as an inter-state crime. If what makes aggression an especially wrongful act—indeed, ‘the supreme international crime’48 —is the violation of sovereignty that it necessarily entails, then it might be correct that a comparable norm of internal aggression would be conceptually unsound. Indeed, on the orthodox view, the fundamental salience of aggression is that it involves an attack against the ‘common life’ of peoples, manifested in state sovereignty and independence.49 Thus, according to Walzer’s ‘domestic analogy’, the State, on the international level, can be roughly equated to an individual on the domestic level: aggression, by encroaching upon state sovereignty, is viewed as the international equivalent of murder.50 Arguably, this makes most cases of internal resort to force fundamentally different from inter-state aggression. Off the bat, it seems that even if we accept this understanding of aggression, this would still not rule out an internal equivalent. Provided that we adopt a definition of self-determination that goes beyond power, it could be said that a government that uses force to suppress the self-determination of its minorities, or otherwise, opposition that uses force to undermine a democratically elected government, attack the ‘common life’ just as much as an external aggressor.51 If this is true, this account of aggression does not exclude the concept of internal aggression; on the contrary, it might support it. Be that as it may, recent accounts cast doubt on the collective notion of sovereignty—or the ‘common life’ of the political community—as the key protected interest that undergirds the criminalization of aggression. In a recent work, Tom Dannenbaum convincingly demonstrates that the core wrong addressed by the crime of aggression cannot be the violation of sovereignty. This is mostly because nonforcible violations of sovereignty—even of the most egregious forms—are not internationally criminalized; and conversely, some acts of aggression do not violate sovereignty in a substantial manner, yet are still considered criminal. Rather, as Dannenbaum shows, aggression is a crime mainly because of the infliction of wrongful deaths that it entails, even if these killings do not violate jus in bello.52

48

IMT Nuremberg, Judgment of 1 October 1946 (Prosecutor v. Goering et al.), in: Trial of the Major War Criminals before the International Military Tribunal, Volume I, Nürnberg, p. 186. 49 Walzer 2006, pp. 51–55. 50 Ibid., p. 61. 51 Admittedly, this is not what Walzer has in mind when he refers to self-determination. To him, selfdetermination implies absence of external coercion rather than internal normative legitimacy. Ibid., pp. 87–88. See also Luban 2004, pp. 215–216 (arguing that if this is our view of self-determination, ‘the question arises why anyone should regard self-determination as an important value.’). 52 Dannenbaum 2018, Chapter 3; for another in-depth work that urges viewing aggression as primarily a crime against human rights, see Mégret 2016, pp. 1428–1444.

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Dannenbaum’s account draws significantly from revisionist just war theory—a strand of thought in the philosophy of war that argues that morality in war cannot differ from everyday morality; and therefore, killing soldiers in an aggressive war is a grave moral wrong.53 In other words, the fact that war is a collective action, controlled by the State, does not allow anyone ‘to wash their hands of guilt’, even if the war is conducted in a perfectly lawful manner under jus in bello.54 The defender’s soldiers remain innocent people, as they have not made themselves liable to killing; and incidentally harmed civilians have not been killed incidentally in pursuit of a greater good, but rather in a pursuit of evil. Importantly, this view has recently received a significant boost by the recent Human Rights Committee General Comment on the Right to Life. General Comment holds that ‘States parties engaged in acts of aggression as defined in international law, resulting in deprivation of life, violate ipso facto Article 6 [enshrining the right to life]’.55 It thus adopts the view that all deaths caused by an act of aggression—even if lawful under jus in bello—might constitute a violation of the right to life. The upshot for our purposes is clear. If aggression is criminalized for its unjust killings, there are no a priori grounds to distinguish between external and internal killings. Also, it becomes difficult to draw a normative distinction between unjust resorts to force by governments and opposition groups. Both, in their essence, are about killing and maiming people who are not liable to such harm.

6.4 The Substance of Internal Aggression In the previous section, I argued that in order to distinguish internal aggression from other forms of intra-state coercion, it should refer to acts that amount to armed hostilities. I furthermore argued that the normative core of a possible crime of internal aggression, much like that of external aggression, should be the unjust killings that are entailed by unlawful resort to hostilities, regardless of their possible legality under jus in bello. The key question, of course, concerns the circumstances in which resort to hostilities, within States, would be unjust and therefore potentially constitute internal aggression. Now, on the external level, an act of aggression refers to a use of force which constitutes a ‘manifest violation of the Charter of the United Nations’.56 It is generally accepted that violations of the UN Charter, in this context, are forcible actions that cannot be justified either as acts of self-defense against an armed attack, or on the basis of an authorization by the UN Security Council.57 What should be the circumstances in which internal resorts would be prohibited? And what would be the exceptions to this possible prohibition? I have presented a detailed argument 53

For the definitive work of this school, see McMahan 2009. See Dannenbaum 2018, p. 140. 55 UN Doc CCPR/C/GC/36 of 30 October 2018 (General Comment on the Right to Life), para 70. 56 Article 8bis (1) Rome Statute. 57 Articles 51, 42 UN Charter; for an elaboration, see generally Kreß 2016. 54

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on this question elsewhere.58 For the purposes of this chapter, it suffices to provide a general account of these questions. My reasoning below proceeds from the point of departure, mentioned earlier on, that morality in resort to war does not deviate, in its core, from the morality of resort to violence in everyday life. First, and as a preliminary point, if it is true that the core wrong of aggression, as a form of resort to hostilities, is in its unjust killings, then there is no a priori reason to apply a different standard—in terms of the facts that justify killings— to governments and opposition groups. This realization—which admittedly seems radical at first—correlates with the revisionist just war argument according to which States, as collective entities, cannot possess greater moral permissions to kill than the individuals comprising them.59 In other words, while it might be true that individuals can empower governments to carry out protective functions, they cannot endow them with rights to kill that the individuals do not possess themselves. Now, while it is possible to think—in terms of legal policy—of reasons that would push for some factual presumptions in favor governments, these would only affect questions of burden of proof when analyzing specific instances of resorts to force, but would not change the core limits of such permission. In sum, as a point of departure, the circumstances in which internal resort to hostilities would constitute internal aggression should be similar for governments and opposition groups; this is because at its core, a wrongful killing retains its wrongfulness regardless of the formal status of the perpetrator. What, then, would be the circumstances when internal force could constitute internal aggression? Assuming that we accept the view that in ordinary morality, killing can only be justified in defense of self or others from grave harm, and that this fundamental moral premise remains unchanged in decisions to resort to hostilities, then the most plausible justificatory circumstance for internal resort to force is self or other defense. Additionally, when the resort is in the form of hostilities, then considerations of necessity and proportionality require that it would be only undertaken when the previous force amounts also, in its scale and effects, to hostilities. Simply put, both governments and opposition groups would be permitted to resort to hostilities only in defense of self or others against a previous, unjustified, resort to hostilities. The previous suggestion might seem baffling. After all, few would doubt that a State is entitled, in principle and in positive law, to assert its sovereignty over its territory, even by employing coercion; and it is generally well accepted that international law does not prohibit opposition groups from toppling oppressive governments. That may very well be true, but it is a conflation of ends and means to assume that invoking these rights per se justifies killing to achieve them.60 Rather, using force to achieve these ends might be justified when the other side forcibly denies them. Thus, when we argue that States can assert their sovereignty by force, we really mean that States 58

Lieblich 2016, pp. 707–712. McMahan 2009, p. 82. 60 Cf. Lauterpacht 1947, p. 93 (arguing that ‘as long as international law does not prohibit revolutions ‘it cannot condemn the means, necessarily violent, by which they are achieved.’). 59

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can do so when their sovereignty is challenged by force. Likewise, when we say that people can resort to force in order to topple an oppressive regime, we actually say that people can do so when that oppressive regime resorts to force to protect itself. In other words, it is the conditional threat of force leveled at the party seeking to vindicate its rights that might generate a permission to resort to force, not only the violated right itself.61 Some might argue that morality might permit resort to force in circumstances wider than defense of life.62 Even if this (controversial) position is adopted, it seems that a legal rule on the internal resort to force should be more restrictive. This is generally due to considerations of legal policy such as the need for clarity, the possibility of mistake and abuse, and the problem of slippery slope. In other words, if the rule would be too vague and permissive, the exception would overshadow the norm. Last, a clear distinction must be made between the mere existence of an armed conflict—or the application of IHL—and the legality of internal resort to force itself. First, IHL applies in any armed conflict, regardless of whether the resort to force that triggered the armed conflict was justified.63 IHL, therefore, is not a source of authority to use force; it is merely a set of norms that apply when force is a given.64 One cannot simply sidestep the question of whether the resort to force itself is justified, merely because an armed conflict exists: this is a conflation between is and ought, fact and norm. This is obviously true in the context of inter-state resorts to force: it is clear that the fact that the law of international armed conflict applies between State has no bearing over the ad bellum lawfulness of the resort to force between them.65 There seems to be no reason that the same would not apply internally: the mere application of IHL within States cannot generate a justification for the hostilities, by either party. Of course, a possible objection is that as opposed to the inter-state level, within States, the mere existence of an armed conflict—meaning the existence of organized armed groups that conduct hostilities, or at least have the potential to do so—justifies an armed repression by the government, as part of its sovereign prerogative. But this claim begs the question, because it assumes that it was the organized armed groups that initiated the armed hostilities. Quite often, such groups organize as a response to governmental armed repression against civilians. 61

For a critical view on the permissibility of self-defense against conditional threats, see Rodin 2014, pp. 79–88. 62 Granted, some argue that there are moral justifications to use force even when there is no threat to life or limb, when the conduct causes lesser harms to a great multitude of people (the aggregation of harm theory). See Frowe 2014, pp. 124–147. 63 Preamble of Protocol I Additional to the Geneva Conventions (‘[…] the provisions of the Geneva Conventions of 12 August 1949 and of this Protocol must be fully applied in all circumstances to all persons who are protected by those instruments, without any adverse distinction based on the nature or origin of the armed conflict or on the causes espoused by or attributed to the Parties to the conflict.’). 64 Haque 2017, pp. 23–35. 65 Preamble of Protocol I Additional to the Geneva Conventions (‘… nothing in this Protocol or in the Geneva Conventions of 12 August 1949 can be construed as legitimizing or authorizing any act of aggression or any other use of force inconsistent with the Charter of the United Nations’).

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When this is the case, it cannot be argued that the continued existence of the armed groups would itself justify continued hostilities against them. This is because in such situations, the State’s resort to hostilities is a situation of wrongful ‘self-defense against self-defense’.66

6.5 Locating the General Prohibition on Internal Aggression As argued above, the salient feature of a prohibition on internal resort to force is that it would capture not only violations of jus in bello, but also the unjustified killings that might be lawful under the latter. Just as the external prohibition on aggression captures these distinct wrongs, the internal norm would capture them on the intra-state level. Contrary, perhaps, to common intuitions, international law already includes a positive rule that can, upon reasonable interpretation, be construed to prohibit internal resorts to hostilities absent a self-defense justification. Article 6 (1) ICCPR, enshrining the right to life, holds that ‘[n]o one shall be arbitrarily deprived of his life’. Because the right applies to ‘[e]very human being’, it does not exclude a priori those whose killings might be lawful under IHL. Indeed, General Comment 36 posits that ‘[u]se of lethal force consistent with international humanitarian law …is, in general, not arbitrary’.67 By inserting the caveat of ‘in general’, the HRC seems to imply that there are situations when killings might be lawful under IHL, but would still constitute a violation of the right to life.68 Presumably, such situations can include the decision to resort to hostilities in absence of a credible claim of self or other defense.69 If this is true, it could be said that international law as it is today already protects the general interest against internal force, and therefore a leap to a criminal prohibition would not be too dramatic in normative terms. This standard can undoubtedly apply to governments qua representatives of the State. A more complicated question—which will not be exhausted here—is whether such a primary prohibition can apply to opposition groups that decide to resort to 66

Hessbruegge 2017, p. 147; see also Dworkin 2017, p. 488. UN Doc CCPR/C/GC/36 of 30 October 2018 (General Comment on the Right to Life), para 64. 68 See Haque 2017, pp. 35–37; Lieblich 2019. 69 I set aside here the question whether the right to life remains in its essence unaltered during armed conflict, and therefore regulates every single killing. For a position of this order, see Haque 2017. Crucially, if the right to life regulates every single killing during hostilities, then arguably, a general norm of internal jus ad bellum is unnecessary—since each attack requires its own ‘micro jus ad bellum’ decision. Yet, it seems that the predominant position remains that once an armed conflict erupts, the contours of ‘arbitrary’ killings—at least in the context of the conduct of hostilities—are determined mainly by IHL. See ICJ, Advisory Opinion of 8 July 1996 (Legality of the Threat or Use of Nuclear Weapons), paras 24–25, ICJ Reports (1996). In any case, it seems that even if the right to life would apply to every single killing, there is still value in conceptualizing the wrongfulness of the general decision to resort to hostilities. 67

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hostilities absent a valid self-defense claim against the government. While it is true that on the orthodox view, international human rights law applies only to States, recent scholarship and practice casts doubt on the continuing validity, or at least viability, of this position.70 Recently, a UN Special Rapporteur, Agnes Callamard, argued that IHRL—and specifically the right to life—can apply to non-state actors at least functionally, in light of the nature of their control, degree of organization, or capacity to affect the rights of individuals.71 Indeed, it is hard to explain why non-state actors can and should be bound directly by IHL, but not by basic norms of IHRL, to the extent that their actions affect the enjoyment of such rights. In sum, on the proposed construction, the relation between the right to life and IHL parallels that between Article 2 (4) UN Charter and IHL. Both realms regulate different levels of decision-making, although both apply concurrently.72 Practically, recognizing Article 6 ICCPR as a norm governing internal resort to force would require to ask two questions when analyzing whether life was taken arbitrarily: first, whether the general decision to resort to hostilities was justified as a self-defense action; and second, whether the specific action was lawful under IHL.

6.6 Internal Resort to Force and Existing International Criminal Law Much like international law in general, it seems that existing international criminal law does not capture neatly the wrong of unjustified resort to armed hostilities within States. As aforementioned, the crime of aggression is explicit in its inter-state nature. Even if we understand it as chiefly meant to protect individuals against the scourge of war, or a form of a cross-border crime against humanity,73 this does not alter the black-letter requirement that the conduct be against another State. War crimes, as defined in Article 8 Rome Statute, also cannot capture the internal resort to force, for the simple reason that these crimes refer to violations of jus in bello only. They per se exclude the lawful killing of soldiers, of other persons that lose their protection under IHL, or of civilians caught as (proportionate) collateral damage. More interpretational leeway can be found in crimes against humanity (CaH). CaH, under the Rome Statute, refer to certain enumerated acts ‘when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack’.74 At face value, some of the enumerated acts can capture conducts that could be lawful under jus in bello.75 Yet, there are significant 70

For the most comprehensive treatment of this question, see Murray 2016. UN Doc A/HRC/38/44 of 5 June 2018 (The Protection of the Right to Life). 72 See Lieblich 2020. 73 See Ferencz 2015. 74 Article 7 Rome Statute. 75 For instance, ‘murder’ can apply to the intentional targeting of defending soldiers; ‘other inhumane acts’ can include a myriad of other wartime activities. 71

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barriers in deploying CaH in the context internal resorts to force. The most significant hurdle, of course, is the requirement that the acts be directed ‘against any civilian population’. This seems to rule out completely resort to force by opposition groups against members of the State’s armed forces.76 Granted, international law certainly allows the State, in such cases, to hold the attackers liable under domestic criminal law.77 However, where a State is too weak to hold the attackers accountable, or when the attackers prevail in the conflict altogether, there is no straightforward international rule that would provide any type of residual accountability.78 Arguably, the complex web of international counter-terrorism law might fill this gap, as some of these instruments apply also to the killing of members of armed forces by non-state actors.79 Yet, it is doubtful whether these norms apply once an armed conflict erupts, and as Tom Ruys observes, there is much inconsistency in the manner in which these instruments are applied.80 The situation is more complex when considering resorts to force by the government. Indeed, resort to force prior to an armed conflict quite easily constitutes a CaH, since at this stage, the targets are clearly civilians.81 Once, however, the opposition responds by arming itself, it is unclear to what extent further attacks—so long as they conform to jus in bello—could constitute CaH. This is because it is doubtful whether members of organized armed groups retain their civilian status.82 Even if the latter is controversial,83 it is unlikely that the term ‘civilians’ under CaH can be construed to include those who have lost protection under IHL, not least because CaH have to be ‘strictly construed’ and refer to acts which are ‘impermissible under generally applicable international law’.84 Furthermore, it would be difficult to argue that CaH captures proportionate incidental harm to civilians. Granted, the definition of CaH includes ‘other inhumane acts’ as residual clause,85 which could potentially apply to incidental harm to civilians caused through an unlawful resort to force. Yet, all crimes against humanity must be committed as part of an attack directed against a civilian population, while incidental harm per se occurs in attacks against military objectives. It is also highly 76

Under IHL, combatants are ‘members of armed forces’, and do not enjoy civilian status; see Article 4 Geneva Convention I; Articles 43, 50 Protocol I Additional to the Geneva Conventions. 77 Cf. Dannenbaum 2018, pp. 87–88. 78 Article 10 Draft Articles on Responsibility of States for Internationally Wrongful Acts, U.N. Doc. A/56/10, would be of limited value here because even if the initial resort to force by the rebels could be attributed to the state if the rebels prevail, it is unlikely that this would alone transform the soldiers they killed to ‘civilians’. 79 Ruys 2020, p. 17. 80 Ibid., pp. 17–18. 81 Ibid., p. 12. 82 See ICRC 2010, pp. 27–36. 83 HCJ, Decision of 14 December 2006 (Pubic Committee Against Torture in Israel v. Government of Israel), HCJ 769/02, para 40. 84 Elements of Crimes on Article 7 (1) Rome Statute. 85 Article 7 (1) (k) Rome Statute.

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doubtful whether incidental harm—which is by definition unintended—satisfies the required mental element of the crime. 86 It seems, therefore, that concerning opposition groups, there is no clearly applicable international crime of unjust killing of States’ soldiers, or of incidentally harming civilians, if these killings conform to IHL. Conversely, from the point of view of governments, an additional norm is needed to capture conducts beyond the point in which an initial crime against humanity deteriorates into an internal armed conflict. Since the last point can be confusing, some elaboration is required. Tom Ruys argues, concerning this issue, that ‘[t]he possibility to criminally prosecute (former) State leaders that order the use of deadly force against unarmed demonstrators for crimes against humanity would seem to eclipse (at least partly) the need for a separate criminalization of ‘internal aggression’.87 To me, however, even if a person is convicted for the initial crime against humanity of resorting to force prior to an armed conflict, this would not obviate the need for an additional norm, for at least three reasons. First, to the extent that the killings in the armed conflict stage were wrongful, there would remain an accountability gap concerning these killings even if the person is convicted of CaH. Simply put, the perpetrator would be punished, but not for these killings.88 Second, absent an additional norm, the wrongfulness of these killings would not receive significant expressive recognition.89 Third, such a conviction will not grant those harmed in the hostilities victim status.90 If this is all true, what could be the structure of a crime of internal aggression? The last section offers a preliminary exploration of this idea.

6.7 Imagining the Act and Crime of Internal Aggression When imagining a crime of internal aggression, it becomes obvious that some of the challenges that complicate to the crime of international aggression would also apply to the former. Internal aggression, just as external aggression, gives rise to complex questions concerning the allocation of responsibility between political leaders and members of armed forces. Like external aggression—and perhaps even more—the factual determination of internal aggression is difficult.91 The crime of international aggression is partly structured to address these challenges. Therefore, a helpful point of departure is to follow the current definition of the act and crime of aggression,

86

Article 30 Rome Statute. Ruys 2020, p. 12. 88 And I am setting aside the interesting question whether the harm caused by an armed conflict subsequent to a crime against humanity can figure in the determination of the sentence (for instance when considering the gravity of the crime), cf. Article 78 Rome Statute. 89 Cf. Sloane 2007. 90 For a similar idea, see Dannenbaum 2018, pp. 256–262. 91 On the indeterminacy of aggression, see Koskenniemi 2016, pp. 1360–1362. 87

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and to construct the imagined crime of internal aggression similarly, while making modifications where needed. An ‘act of aggression’, pursuant to Article 8bis Rome Statute, traces the primary norm enshrined in Article 2 (4) UN Charter, by referring to ‘the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations’.92 An act of internal aggression could similarly trace Article 6 (1) ICCPR, by referring to ‘the use of armed force within a State’s territory, by that State or by an organized armed group, in contravention of the right to life as enshrined in Article 6 paragraph 1 of the International Covenant on Civil and Political Rights’. The problem, however, is that this definition could theoretically capture any weaponized violence within States, effectively introducing the ‘simple’ crime of murder into international criminal law. Yet, this can be avoided by assigning a limiting function to the term armed force. Accordingly, a caveat can be inserted along these lines: ‘for the purpose of this Article, “armed force” means any attack that would be subject to the laws and customs applicable in armed conflict not of an international character’. This caveat would clarify that the offense would not apply to any violation of the right to life, but only to those consisting of armed hostilities. Importantly, the crime of aggression does not apply to all acts of aggression. Rather, owing to some of the challenges mentioned above, it is narrower. First, the crime of aggression contains a ‘leadership clause’, by referring only to acts by those ‘in a position effectively to exercise control over or to direct the political or military action of a State’.93 In other words, only leaders are criminally liable for violations of jus ad bellum. The leadership clause could be justified on principled as well as pragmatic accounts: some argue that soldiers are either not morally culpable, or not culpable enough, to be held criminally responsible for ad bellum decisions; others emphasize that in any case, it is impracticable to hold all of the aggressor’s soldiers responsible, and would also be counterproductive in terms of incentives.94 The same considerations apply, mutatis mutandis, to internal aggression. Granted, it is possible to argue that the principled justifications for non-liability of soldiers in inter-state wars do not apply with the same force in the internal sphere. For instance, it seems reasonable that in comparison to international uses of force, soldiers are in a much better position to assess the justness of an internal resort to force—as they are presumably more knowledgeable of the prevailing circumstances within their own societies. In the same vein, one can argue that in most cases (but certainly not all), members of opposition groups wilfully volunteer to fight, and are much less likely to be coerced to do so. Be that as it may, it seems that the pragmatic reasons behind the non-liability of soldiers for ad bellum violations apply similarly in the internal sphere. The crime of internal aggression, thus, would refer only to acts by a person

92

Article 8bis (2) Rome Statute. See Kreß 2016, pp. 418–421. Article 8bis (1) Rome Statute. 94 See Dannenbaum 2018, pp. 217–226; May 2016, p. 283; for a doctrinal overview, see Coracini and Wrange 2016, pp. 309–312. 93

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‘in a position effectively to exercise control over or to direct the political or military action of a State or an organized armed group’.95 Furthermore, partly because of the factual difficulties in determining the existence of an act of aggression, a criminal act of aggression refers only to acts that cross a threshold of ‘character, gravity and scale’, and thereby constitute ‘manifest’ violations of the UN Charter.96 The same problem applies in the internal sphere, and perhaps more so. Because of the internal presumption of coercion, the sliding scale between legitimate coercion and unjust force, and the difficulty in identifying and attributing violent acts in the often chaotic circumstances of non-international armed conflicts, it seems reasonable that the crime would only refer to acts that cross a certain threshold. In sum, the crime of internal aggression can be envisioned as ‘the planning, preparation, initiation or execution, by a person in a position effectively to exercise control over or to direct the political or military action of a State or an organized armed group, of an act of internal aggression which, by its character, gravity and scale, constitutes a manifest violation of Article 6 paragraph 1 of the International Covenant on Civil and Political Rights’.

6.8 Conclusion Since the advent of the UN Charter, it has been taken for granted that inter-state resort to force is generally prohibited, while intra-state force is by and large beyond legal regulation. However, if the core of the prohibition on the use of force, and the crime of aggression that flows from it, is the need to protect all persons from the scourge of unjust war, it seems peculiar that international law does not address, in a straightforward manner, internal force—which is the most common and destructive form of violence in the current international system. This chapter offered an outline of an idea: an international crime of internal aggression. To make a case that this crime is both theoretically possible and practically needed, I demonstrated that the exclusion of internal resorts to force from international regulation is difficult to defend both in jurisprudential terms, and in terms of legal coherence. Furthermore, this chapter showed that positive international human rights law can be interpreted to include a prohibition on internal force, and that this primary norm can be supplemented, de lege ferenda, with a new international crime of internal aggression. This crime would be modeled on, but would deviate from, the existing crime of aggression, and will add an additional layer of responsibility for the wrongful killings that result from unjust resorts to internal force, even if the former do not violate jus in bello. Importantly, this chapter does not overlook the difficult, perhaps insurmountable, political challenges that make the adoption of this or a similar standard highly unlikely 95

Article 8bis (1) Rome Statute. Article 8bis (1) Rome Statute; May 2016, pp. 284–285; cf. Coracini and Wrange 2016, pp. 321– 323.

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at this time. However, it seeks to offer a normative signpost—or, at least, an invitation for a discussion. Acknowledgments The author wishes to thank Tomer Levinger for his research assistance. This research was supported by the Israel Science Foundation (Grant no. 1787/17).

References Aquinas T (1947) Summa Theologica Part II: Question 40: Of War, Fathers of the English Dominican Province (trans. Benziger Brothers). New York Banks W C, Criddle E J (2016) Customary Constrains on the Use of Force: Article 51 with an American Accent. Leiden Journal of International Law 29:67–93 Benvenisti E (2013) Sovereigns as Trustees of Humanity: On the Accountability of States to Foreign Stakeholders. American Journal of International Law 107:295–333 Bernard M (1860) On the Principle of Non-intervention: A Lecture Delivered in The Hall of All Souls’ College. Parker, Oxford Criddle E J, Fox-Decent E (2016) Fiduciaries of Humanity: How International Law Constitutes Authority. Oxford University Press, New York Dannenbaum T (2018) The Crime of Aggression, Humanity and the Soldier. Cambridge University Press, Cambridge De Vitoria F (1991) On Civil Power. In: Pagden A, Lawrance J (eds) Vitoria: Political Writings. Cambridge University Press, Cambridge, pp 18–19 Dinstein Y (2014) Non-International Armed Conflicts in International Law. Cambridge University Press, Cambridge Dworkin A (2017) Individual, Not Collective: Justifying the Resort to Force against Members of Non-State Armed Groups. International Law Studies Series, US Naval War College 93:475–525 Eritrea-Ethiopia Claims Commission (2006) Partial Award – Jus ad Bellum, Ethiopia’s Claims. International Legal Materials 45:430 Ferencz B B (2015) The Illegal Use of Armed Force as a Crime Against Humanity. Journal on the Use of Force and International Law 2:187–198 Franck T M (1990) The Power of Legitimacy Among Nations. Oxford University Press, New York Frowe H (2014) Defensive Killing: An Essay on War and Self Defence. Oxford University Press, Oxford Frowe H (2018) The Just War Framework. In: Lazar S, Frowe H (eds) The Oxford Handbook of Ethics of War. Oxford University Press, New York, pp 41–58 Hakimi M, Katz Cogan J (2016) The Two Codes on the Use of Force. Journal of International Law 27:257–291 Hall W E (1884) A Treatise on International Law, 2nd edn. Clarendon Press, Oxford Haque A A (2017) Law and Morality at War. Oxford University Press, Oxford Havercroft J (2021) Why Is There No Just Riot Theory? British Journal of Political Science 51: 909–923 Hessbruegge J A (2017) Human Rights and Personal Self-Defense in International Law. Oxford University Press, New York ICRC (2010) Interpretive Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law. ICRC, Geneva ICRC (2013) Expert Meeting. The Use of Force in Armed Conflict: Interplay Between the Conduct of Hostilities and Law Enforcement Paradigms. ICRC, Geneva Kammerhofer J (2016) Introduction: The Future of Restrictivist Scholarship on the Use of Force. Leiden Journal of International Law 29:13–18

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Kathman J D (2010) Civil War Contagion and Neighboring Interventions. International Studies Quarterly 54:989–1012 Kelsen H (1967) Pure Theory of Law, 2nd edn. University of California Press, Berkeley Koskenniemi M (2016) ‘A Trap for the Innocent…’. In: Kreß C, Barriga S (eds) The Crime of Aggression: A Commentary. Cambridge University Press, Cambridge, pp 1359–1385 Kreß C (2016) The State Conduct Element. In: Kreß C, Barriga S (eds) The Crime of Aggression: A Commentary. Cambridge University Press, Cambridge, pp 412–564 Lauterpacht H (1947) Recognition in International Law. Cambridge University Press, Cambridge Lauterpacht H (1950) International Law and Human Rights. Praeger, New York Lesaffer R (2018) Aggression before Versailles. European Journal of International Law 29:773–808 Lieblich E (2013) International Law and Civil Wars: Intervention and Consent. Routledge, New York Lieblich E (2016) Internal Jus ad Bellum. Hastings Law Journal 67:687–748 Lieblich E (2019) The Facilitative Function of Jus in Bello. European Journal of International Law 30:321–340 Lieblich E (2020) On the Continuous and Concurrent Application of ad Bellum and in bello Proportionality. In: Kreß C, Lawless R (eds) Necessity and Proportionality in International Peace and Security Law. Oxford University Press, Oxford Luban D (2004) Preventive War. Philosophy & Public Affairs 207:207–248 Maˇcák K (2018) Internationalized Armed Conflicts in International Law. Oxford University Press, Oxford May L (2016) Just War Theory and the Crime of Aggression. In: Kreß C, Barriga S (eds) The Crime of Aggression: A Commentary. Cambridge University Press, Cambridge, pp 273–286 McMahan J (2009) Killing in War. Oxford University Press, New York Mégret F (2016) What is the Specific Evil of Aggression? In: Kreß C, Barriga S (eds) The Crime of Aggression: A Commentary. Cambridge University Press, Cambridge, pp 1398–1453 Murray D (2016) Human Rights Obligations of Non-State Armed Groups. Hart Publishing, Oxford Neff S C (2014) Justice Among Nations: A History of International Law. Harvard University Press, Cambridge Ohlin J D (2016) The Crime of Bootstrapping. In: Kreß C, Barriga S (eds) The Crime of Aggression: A Commentary. Cambridge University Press, Cambridge, pp 1454–1479 Oppenheim L (1912) International Law – A Treatise, Vol. II, 2nd edn. Longmans, Green and Co., London Paddeu FI (2020) Military Assistance on Request and General Reasons Against Force: Consent as a Defence to the Prohibition of Force. Journal on the Use of Force in International Law 7:227–269 Pobje E (2016) Victims of the Crime of Aggression. In: Kreß C, Barriga S (eds) The Crime of Aggression: A Commentary. Cambridge University Press, Cambridge, pp 816–860 Reisinger Coracini A, Wrange P (2016) The Specificity of the Crime of Aggression. In: Kreß C, Barriga S (eds) The Crime of Aggression: A Commentary. Cambridge University Press, Cambridge, pp. 307–350 Rodin D (2014) The Myth of National Self-Defense. In: Fabre C, Lazar S (eds) The Morality of Defensive War. Oxford University Press, Oxford, pp 69–89 Ruys T (2020) The Quest for an Internal Jus Ad Bellum: International Law’s Missing Link, Mere Distraction or Pandora’s Box? In: Kreß C, Lawless R (eds) Necessity and Proportionality in International Peace and Security Law. Oxford University Press, Oxford Schachter O (1984) The Right of States to Use Armed Force. Law Review 82:1620–1646 Scheffer D (2016) Amending the Crime of Aggression under the Rome Statute. In: Kreß C, Barriga S (eds) The Crime of Aggression: A Commentary. Cambridge University Press, Cambridge, pp 1480–1500 Schmitt C (2005) Political Theology: Four Chapters on the Concept of Sovereignty. University of Chicago Press, Chicago

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Sloane R D (2007) The Expressive Capacity of International Punishment: The Limits of the National Law Analogy and the Potential of International Criminal Law. Stanford Journal of International Law 43:39–94 Verdebout A (2014) The Contemporary Discourse on the Use of Force in the Nineteenth Century: A Diachronic and Critical Analysis. Journal on the Use of Force & International Law 1:223–246 Von Bernstorff J (2018) The Use of Force in International Law before World War I: On Imperial Ordering and the Ontology of the Nation-State. European Journal of International Law 29:233– 260 Walzer M (2006) Just and Unjust Wars: A Moral Argument with Historical Illustrations, 4th edn. Basic Books, New York Weber M (1946) Politics as Vocation. In: Gerth H, Mills C W (eds) From Max Weber: Essays in Sociology. Oxford University Press, New York, pp. 77–129 Witte J (2007) The Reformation of Rights: Law, Religion and Human Rights in Early Modern Calvinism. Cambridge University Press, Cambridge Woolsey T D (1866) Introduction to the Study of International Law: Designed as an Aid in Teaching, and in Historical Studies. James Munroe and Company, Boston/Cambridge

Eliav Lieblich is Associate Professor at Tel Aviv University, Faculty of Law (Tel Aviv, Israel).

Chapter 7

The Versailles Treaty and the Idea of Prosecuting Wars of Aggression Gerd Hankel

Contents 7.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.2 Why Article 227 Was Included in the Versailles Treaty . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.3 On the Meaning and Scope of Article 227 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.4 How the Allies Dealt with Article 227 and Failed . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.5 Article 227 of the Treaty of Versailles from a Contemporary Perspective . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

121 123 127 130 132 136

Abstract This chapter discusses the significance of the attempt to prosecute the former German Kaiser Wilhelm II. The chapter first outlines the circumstances that motivated the Allies to include Article 227 in the Treaty of Versailles. The content of Article 227 is intensively examined in order to determine whether or not its intent was to prosecute Wilhelm II, or merely to politically sanction him. The subsequent section then inquires into the reasons why Article 227 was ultimately not applied. In conclusion, a solution was found that proved more or less agreeable to all stakeholders, including the Allies, the Netherlands, and not least, to Wilhelm II himself. That said, Article 227 is highly significant from the point of view of punishing wars of aggression. For this reason, the chapter concludes with a discussion of the barriers to the drafting and use of Article 227. These were later reviewed so that a new beginning could be more easily forged. Keywords Treaty of Versailles · Article 227 · World War I · ius ad bellum · ius ad bello · Wilhelm II

7.1 Introduction In September 1870, there appeared an article in the ‘National Zeitung’ which heavily criticized the ‘considerate treatment’ of the French Emperor, Napoleon III, after the Battle of Sedan. ‘The German victors’, this article maintained, ‘should have been less G. Hankel (B) Hamburger Institut für Sozialforschung, Mittelweg 36, 20148 Hamburg, Germany e-mail: [email protected] © t.m.c. asser press and the authors 2022 S. Bock and E. Conze (eds.), Rethinking the Crime of Aggression, https://doi.org/10.1007/978-94-6265-467-9_7

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gallant in their treatment (…) of the plotters of the current horrible war’. One man who disagreed with this view was Otto von Bismarck, Prussian Minister President and then Chancellor of the German Reich. Such a punitive view may well have accurately reflected public opinion but, according to Bismarck, Public opinion in general is too willing to judge political relationships and events in the way they do private justice and private things. In general, public opinion requires the victor to have a moral code book in his hand when deciding conflicts between countries in order to determine what is just and the appropriate punishment for what has been perpetrated not only upon itself but, where possible, upon others. Such a demand is completely unjustified; it places the nature of political things under the concept of punishment, reward, and revenge, ideas that don’t belong, and completely misses the point, even as it attempts to address it, essentially skewing the basis of politics.1

In light of what was commonly practiced by States at this time, Bismarck was right. Since the Peace of Westphalia, the communis opinio—the general conviction regarding justice in Europe—generally held that amnesty has a place in every peace treaty. Even in cases where it was not expressly mentioned, it remained a self-evident component of such treaties. This was clear from the invariable appearance of the phrase; ‘in amnestia substancia pacis’—namely, peace is grounded in amnesty.2 However, a break with this understanding of justice occurred after the First World War. According to the Allies and their associates (for the sake of simplicity I will use the term ‘Allies’ or ‘Allied Powers’), Germany alone was responsible for the outbreak of the war and for the crimes perpetrated during the course of the war. This included the atrocities committed during the invasion of Belgium in August 1914, the deportation of Belgian civilians to Germany, and the unrestricted use of U-boats. Essentially, the Allies assumed that the German military and civilian population were collectively responsible for war crimes. Articles 228–230 of the Treaty of Versailles stipulated that those suspected of involvement in these crimes were to be taken before a military tribunal. If they had perpetrated crimes in more than one Allied country, these individuals were expected to be brought before an international court. Articles 228–230 and their legal implications will be revisited at the end of this chapter. First, however, I would like to examine an Article of the Versailles Treaty that serves as the basic framework for this chapter; namely, Article 227, which states that: The Allied and Associated Powers publicly arraign William II of Hohenzollern, formerly German Emperor, for a supreme offence against international morality and the sanctity of treaties. A special tribunal will be constituted to try the accused, thereby assuring him the guarantees essential to the right of defense. It will be composed of five judges, one appointed by each of the following Powers: namely, the United States of America, Great Britain, France, Italy and Japan. In its decision the tribunal will be guided by the highest motives of international policy, with a view to vindicating the solemn obligations of international undertakings and the validity 1 2

Busch 1899, pp. 202–203. Fisch 1979, pp. 103–104, 112–113.

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of international morality. It will be its duty to fix the punishment which it considers should be imposed. The Allied and Associated Powers will address a request to the Government of the Netherlands for the surrender to them of the ex-Emperor in order that he may be put on trial.3

Such a definition of culpability and punishment does not feature in any of the other four peace treaties, which were also signed in a suburb of Paris in 1919/20. The question thus arises of why this passage was included in the peace treaty which dealt with Germany. We must also ask why the Allies, through their inclusion of Article 227, essentially broke with a prevailing definition of justice that even Bismarck had subscribed to. Yet more questions arise here with respect to the definition and scope of the requirements for prosecution. What is understood by ‘a supreme offence against international morality and the sanctity of treaties’? Precisely what instance would justify a ‘special tribunal’? Finally, there is the question of the effects of codification of Article 227. We know today that Wilhelm II was not brought before an international court. Why did this not happen? Why was the peace treaty not followed, even though it was so clear and decisive on this point? Among the answers to this question, there remains another question around the relevance of Article 227 from a contemporary perspective. Was it wise to include Article 227 in the Versailles Treaty?

7.2 Why Article 227 Was Included in the Versailles Treaty In October 1914, an anonymous article appeared in the British Edinburgh Review, demanding the just punishment of war crimes. The article stated: The thinkers of Europe must combine a sanction for the principles of international law; must make it clear that civilization does not ultimately rest upon Might but upon Right. […] In particular, the dignity and authority of international law must be asserted by the setting up of a special tribunal to deal with the men responsible for the violation of Belgian neutrality. The invasion of Belgium was not an “act of war” but a criminal act, and the nations of the world must devise means to bring the authors of such acts to trial and punishment.4

With this it was clear that Allied demands for punishment would run like a red thread through the following years. In the name of civilisation, might should not make right. International law should be the yardstick for the legitimacy of acts of war. Transgressions against this law must be brought before the courts and their authors punished. The Allies were seemingly united in their opinion that the individual who bore most responsibility for these crimes was the German Head of State, Wilhelm II. The Kaiser appeared as the instigator of a war that had brought misery and suffering to the 3 4

Reichsgesetzblatt (Imperial Law Gazette) 1919, p. 980. See Willis 1982, p. 11.

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populations of those countries affected. As the Commander in Chief of the German army and marines, he bore ultimate responsibility for the German method of waging war. This included the invasion of neutral Belgium (and also of neutral Luxemburg) on 4 August 1914. Judging by many of the propaganda post-cards of the time, this invasion was imagined as the attack of a bloody beast on an innocent and unsuspecting young woman. Such postcards also depicted war crimes committed in the wake of the invasion. The rape of women, children with missing hands, and ruined cultural monuments were all portrayed as hallmarks of brutal German behaviour. According to the Allies, the omnipresence of war crimes was characteristic of German invasions, not only in Belgium, but also in northern France.5 The same was true for the war at sea. Indeed, there was a seminal event that gave a name to these early fears and served as a beacon throughout Europe, as well as the entire world. On the afternoon of 7 May 1915, a German U20 submarine off the southwest coast of Ireland sank the British passenger ship the Lusitania. Operating at 31.500 BRT, it was the largest passenger ship of its time. Of the almost 2,000 people on board, 1,198 died, among them 120 from the neutral USA.6 The sinking of the Lusitania triggered a storm of international protest. In an announcement on 4 February 1915, Germany had declared the area around Great Britain and Ireland as a war zone in which any enemy ship could be destroyed without warning and without regard for crew or passengers. But public opinion in countries opposed to Germany perceived the sinking of the Lusitania as an act of barbarism, and as the most devious and horrible act of murder that had ever been perpetrated at sea. The US government sent several letters of protest to the German government, in which the torpedoing of the Lusitania was described as a blatant breach of the recognized rules of naval warfare and threatened that Germany would be held responsible for it. British politicians were more concrete. They spoke openly of the ‘personal responsibility of the German Emperor and others in authority in Germany for any outrages perpetrated’. A famous politician said he ‘hoped people would not forget about punishment at the end of the war’ and called on his fellow citizens ‘to compel whatever Government might be in power to enforce this at any rate as one of the conditions of any peace we made’.7 In July 1915, a British Grand Jury investigating the sinking of the Lusitania, concluded that: This appalling crime was contrary to international law and the convention of all civilized nations, and we therefore charge the owners of the submarine, the Emperor and the Government of Germany, under whose orders they acted, with the crime of wilful and wholesale murder.8

In France, the Société générale des prisons, an organization of criminal and international lawyers, addressed themselves to this very question in 1915. Representatives of this society asked to what extent national criminal law could judge acts of war 5

For contemporaneous reports about the East Front and its use for propaganda purposes, there is little systematic research. Examples can be found in Groß 2006 or Weber and Seeger 2018. 6 Cartier 1984, pp. 290–291. 7 See Willis 1982, p. 21. The prominent politician was Lord Robert Cecil. 8 See Hankel 2014, p. 14.

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contrary to international law. They came to the almost unanimous conclusion that such acts could be prosecuted either under French criminal law and/or military law. Contrary legal principles or doubts, such as sovereign immunity or the questionable authority to punish foreign nationals, carried no weight. Instead, they claimed that a new law of nations was emerging—in fact, had already been born—through the power of circumstance and general acceptance.9 As they wrote in a report that soon became the official French position, ‘this new law recognizes no unaccountable authorities, not even at the highest ranks. It makes the State descend from its pedestal and subjects it to the judge’s verdict’.10 In September 1918, when the military collapse of the German Reich was foreseeable, the French Prime Minister Georges Clemenceau announced that ‘no victory could justify an amnesty for so many crimes’.11 Two months later, after an election in which he received a new mandate, his British colleague, Prime Minister David Lloyd George, demanded that ‘Prussian military power must not only be beaten, but Germany herself must know that. The German people must know that if their rulers outrage the laws of humanity, Prussian military strength cannot protect them from punishment’. And he added, ‘There is no right you can establish, national or international, unless you establish the fact that the man who breaks the law will meet inevitable punishment. Unless this is accomplished, the loss, the suffering, and the burdens of this war will have been in vain’.12 With the popular slogans ‘Hang the Kaiser’ and ‘Germany will pay’, Lloyd George ultimately won the election.13 In December 1918, three weeks after the declaration of a ceasefire, a conference was held in London and attended by the Prime Ministers of France and Great Britain, as well as Italian Prime Minister Vittorio Emanuele Orlando. All three were in agreement that those guilty of war crimes and those who initiated the war—above all, the former German Emperor Wilhelm II—should be punished. They announced their aim to set up a tribunal, and furthermore, an Allied tribunal without German judges or judges from neutral countries.14 At this point, it was unclear what position the US would take. American newspapers had decried German crimes,15 and President Woodrow Wilson had condemned the ‘illegal and inhumane practices’ of German warfare.16 However, before the end of the war, there had been no official mention of legal prosecution of these crimes. That said, the intended actions of the major European powers directly reflected Wilson’s 9

See Pic 1916, pp. 243–268; Pillet 1916, pp. 5–31, 203–243. From the assessment by Larnaude and de Lapradelle, quoted in Dickmann 1963, p. 20. 11 Quoted in Schwengler 1982, p. 71 with fn. 4. 12 Lloyd George 1936, p. 3251. 13 See Willis 1982, pp. 58–59. 14 Willis 1982, pp. 62–64. 15 The New York Times, for example, wrote in June 1915, when the United States was still neutral, that Germany had excluded itself from the League of Nations as a result of the atrocities committed in its name; it was ‘eyed with distrust and fear and considered a disturber of the peace’. See Nagler 2000, p. 109. Further examples are found in Willis 1982, pp. 37–48. 16 See Note from the United States to Germany on 14 October 1918, in Berber 1939, Vol. I, p. 10. 10

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concept of a new world order. Such a world would no longer base itself on force as a means of resolving conflicts. Instead, it would be based on law.17 However, a legal evaluation commissioned by Wilson concluded that prosecution of the former German Kaiser would entail a founding of this new world order on the basis of a fundamentally unjust act. In the end, the principle of legal immunity for heads of State still applied. After all, in 1914, it remained the sovereign right of every State to wage war, since war as a tool of politics had not been prohibited under international law. With respect to violations of the laws and customs of war, the evaluation concluded that, with the aforementioned limitations, it was certainly possible to punish those responsible. The peace treaty drafted at Versailles in January 1919, with the participation of Japan and the associated powers, was submitted to the German delegation on 7 May 1919—exactly four years after the sinking of the Lusitania. The treaty provided for a compromise over the former German head of State. Wilhelm II would be tried by an international court for a non-existent crime, ‘a supreme offence against international morality and the sanctity of treaties’ (this was a diplomatic circumlocution). A ‘special tribunal’ was to be established in which five judges should decide whether or not Wilhelm II was guilty of the charges. If we compare the reports of the Allies and their reservations about the possible contents of Article 227 with the final version of Article 227, there are obvious differences. A solution was found that looked very much like a compromise. On the one side, the USA and Japan shied away from a criminal trial for Wilhelm II; while on the other, France, Great Britain and Italy did not adhere to immunity for heads of State. Or at least, this was how it appeared. What was the content of this compromise? We will come to this question presently. What we know for certain, however, was that Bismarck’s dictum—that a war should be judged solely on political criteria—was no longer valid. For four long years, the guilt of war and the deeds of war were held up to moral scrutiny and were continually found to be criminal. Law became the yardstick by which to judge civilized or barbaric activity. As a consequence of this thinking, the victors in Paris saw themselves as representatives of ‘practically the whole civilized mankind’, from whose perspective Germany was a ‘criminal State’.18 Criminal acts had to be punished, something well known from domestic legislation.

17

See the four speeches given by Wilson, including the Fourteen Points speech that would become famous, between January and September 1918. They are reprinted, inter alia, in Berber 1939, Vol. I pp. 2–7; for the Fourteen Points speech, see http://history1900s.about.com/od/1910s/fl/WoodrowWilsons-14-Points-Speech.htm (accessed 1 March 2021). 18 See Conze 2018, p. 27.

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7.3 On the Meaning and Scope of Article 227 An ordinary criminal offence is viewed differently from the definition outlined in Article 227 of the Versailles Treaty. This remains so even if we take into account that international sanctions differ from national law. On the one hand, national law requires statements of fact and carries legal consequences with threats of punishment. On the other hand, international law simply stipulates the prohibition of a particular action without necessarily stating any concrete legal consequences for it. An example is provided here by Subcommittee III, which concerned itself with violations of the laws and customs of war in preparation for the creation of the treaty. Under the auspices of this subcommittee, the Allies listed 32 violations under a general formula which, in their opinion, constituted war crimes. The violations extended to murder, massacres, and systematic terror (No. 1), to the death of hostages (No. 2), torture (No. 5), the imposition of collective fines (No. 17), giving a command to withhold pardon (No. 28), or to the poisoning of a well (No. 32).19 No legal consequences were outlined; these were to be determined by the courts. Given this background of undefined and extremely abstract criminal charges, how are we to understand ‘the supreme offence against international morality and the sanctity of treaties’ outlined in Article 227? In general, the conditions of the Versailles Peace Treaty (and all of the other Paris accords) comprised a three-stage process: (1) commissions made recommendations; (2) heads of State either approved, changed or rejected them; (3) the editorial committee rendered the decisions into the appropriate and technically approved contractual form.20 Subcommittees I and II were responsible for factual and legal appraisals concerning the beginning of the war. Their work was simplified by the fact that Chancellor Theobald von Bethmann Hollweg had demonstrably declared in the Reichstag on 4 August 1914: Gentlemen, we are now in a situation of self-defense [Notwehr]; and necessity knows no law [Not kennt kein Gebot]! Our troops have occupied Luxemburg, and perhaps have already entered Belgian territory. Gentlemen, that contradicts international law. The French government has declared to Brussels that it will respect Belgian neutrality so long as the enemy does. But we knew that France stood ready to attack. France could wait, we could not! A French attack on our flank on the lower Rhine could have become disastrous [verhängnisvoll]. So, we were forced to override the legitimate protest of the governments of Luxemburg and Belgium. This injustice [Unrecht] – I speak openly – this injustice that we are doing, we will seek to make good as soon as our military goal is reached. Whoever is as threatened as we are and who fights for his most important goals [sein Höchstes], can only think about how he shall hack his way through!21

At this point it is not certain whether necessity, a state of emergency, or the necessity of war are the correct legal concepts with which to either justify or to excuse Germany’s actions. The most pressing question is whether these actions amounted 19

La Paix de Versailles 1930, p. 473. More detail on this process in Payk 2018, pp. 318–355. 21 Quoted from Hull 2014, p. 44. 20

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to a statutory offence. According to the highest political and military authorities of the time (Article 11 of the Constitution of 1871), Kaiser Wilhelm II was personally responsible for this offense. In this regard, it soon became clear that the legal assessment of the subcommittees differed starkly from the proclamations of the Allied politicians. To be sure, despite the whole-hearted concessions of Bethman Hollweg, the members of the Commission had no doubt that Austria-Hungary plotted with Germany in order to render a conflict with Serbia unavoidable; that Germany supported the Austrian policy, fully conscious of the consequences it would entail, and defeated all attempts on the part of the Entente Powers to bring about a peaceful resolution of the question at issue […] and […] that the neutrality of Belgium and Luxemburg was deliberately and flagrantly violated.22

However, in terms of international law and even more in terms of criminal law, the problem appeared in a different light. In the minds of the members of the Commission, Germany’s initiation of a war of aggression would be condemned in the realm of public opinion and would be judged by history, but it was not deemed a transgression for which the former German Kaiser could be held personally responsible. There was now no longer any discussion of a new era in international law. As already mentioned, such an era had been foreseen by (particularly) French lawyers, with their vision of an international law which no one, not even a head of State, was exempt from. In reality, however, American reservations proved to be stronger: ‘[A] war of aggression ought to be declared an international crime. But it is not now. It has not been so declared.’23 Accordingly, the draft of the Commission’s report stressed that the Hague Convention of 1907 did not contain a mechanism for compulsory settlement of disputes and therefore ‘a war of aggression may not be considered as an act directly contrary to positive law, or one which can be successfully brought before a tribunal’.24 This two-fold implication, as drafted in the plan with mild limitations, can also be found in the commission’s final report. In the introduction, the report makes clear that ‘no criminal charge can be made against the responsible authorities or individuals (and notably the ex-Kaiser) on the special head case of the breaches of neutrality’.25 The report then proceeds to make the following recommendation: On the whole case, including both the acts which brought about the war and those which accompanied its inception, particularly of the neutrality of Belgium and Luxembourg, it is a matter for the Peace Conference to consider whether it might not be right, in a matter so unprecedented, to adopt special measures, and even to create a special organ in order to deal as they deserve with the authors of such acts.26

22

See Schabas 2018, p. 124. Robert Lansing, US-American Secretary of State and Chairman of the three subcommittees, ‘Commission on the Responsibility of the Authors of the War and on Enforcement of Penalties’, cited in Schabas 2018, p. 129. 24 Ibid., p. 128. 25 Ibid., p. 137. 26 Ibid., p. 138. 23

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The Commission obviously seemed to have had in mind a political conviction and an official condemnation, as was the case in 1814/15 in the treatment of the former French Emperor Napoleon I. During the proceedings at Versailles, the historical precedent of Napoleon’s banishment to Elba and then to St. Helena was very much on the minds of the participants. Napoleon’s banishment had not resulted from a legal court decision or verdict by his captors; in fact, it was carried out based purely on the decree of his victors. It did not occur to anyone in 1814 that the former French Emperor would be judged in terms of international law. The aim was merely to dispose of a dangerous upstart and give themselves free rein to shape Europe according to their own ideas.27 A question arises here. How is the interpretation of the text in Article 227 to be reconciled with that of a ‘tribunal’, of an ‘accused’, of ‘judges’, ‘punishment’ and of a ‘trial’? Is there more to Article 227 than a ‘Court of Conscience’28 that pursued moral transgressions? The answer to both questions can be found in an area that is not part of the previous discussion concerning ius ad bellum (right to war) and its possible violations but rather concerns ius in bello (laws in waging war). The Commission was clear on what was involved with respect to ‘laws in waging war’: All persons belonging to enemy countries, however high their position may have been, without distinction of rank, including Chiefs of State, who have been guilty of offences against the laws and customs of war or the laws of humanity, are liable to criminal prosecution.29

As the Commission itself affirmed, the sentencing of a war of aggression required it to circumnavigate the cliff of ex post facto and the immunity of State officials. By contrast, the punishment of war crimes was not, in the Commission’s view, confronted by any barriers. To be sure, the Commission saw no issue in ruling on the responsibility for criminal conduct or neglect up to the rank of Kaiser Wilhelm II.30 At least, this is how it first appeared. At this point, however, dissenting votes were cast by the American delegates, Robert Lansing and James Brown Scott. Indeed, as both men admitted, their position on this question was one of ‘fundamental’ and ‘radical’ opposition. The former Kaiser, they claimed, enjoyed immunity from prosecution by an international court. If necessary, a ‘Commission of Inquiry’ could be initiated that would concern itself with his past behaviour. Apart from that, however, crimes against ‘laws of humanity’ did not constitute a criminal offence. They were simply too vague.31 This position received renewed support from the Japanese delegation on this matter. In sum, they categorically rejected the notion of international prosecution of a (former) 27

‘Whereas it is necessary for the Preservation of the Tranquillity of Europe, and for the general Safety, that Napoleon Buonaparte should be detained and kept in Custody as is hereafter provided’, cited in Schabas 2018, p. 40. 28 So Baldwin 1919, p. 80. 29 See Mevis and Reijntjes 2014, p. 224. 30 See Schabas 2018, pp. 169–173; Mevis and Reijntjes 2014, pp. 241–248. 31 See La Paix de Versailles 1930, pp. 533–550.

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head of State. They further used the term ‘negative criminality’ in their statement, which entailed a rejection of the idea that commanders are liable for the criminal conduct of their subordinates.32 In other words, the formulation of Article 227, with its use of the terms ‘tribunal’, ‘accused’, ‘judges’ ‘punishment’ and ‘trial’, is to be understood as a concession to those countries who wished to punish the former German Kaiser for his massive violations of the ius ad bellum and the ius in bello. By contrast, the central statement concerning the ‘supreme offence against international morality and the sanctity of treaties’ revealed the influence of the American delegation and US President Woodrow Wilson.33 The statement was intended to encompass everything that was included in the Commission’s discussions concerning the culpability of Wilhelm II: the initiation of a war of aggression by Germany, the invasion of neutral Belgium and Luxemburg, and crimes committed by soldiers of the Kaiser’s army during the course of the war. Above all, the statement determined the personal responsibility of the Kaiser for all of these acts. The tribunal was not intended to be a prosecuting tribunal because there was a lack of punishable cases in light of immunity of the former head of State, Wilhelm II, and also due to the lack of culpability for initiating a war of aggression. In fact, it was intended to serve as a mechanism that would come very near Lansing’s idea of a ‘Commission of Inquiry’. This was also Scott’s opinion, as he later stated: Arraigning the Kaiser solely for an offense against international morality and the sanctity of treaties, and declaring that the judgement of the tribunal would be guided by the highest motives of international policy, were in effect an admission that law, in the legal sense of the word, did not exist for either offense, or that its violation was not a crime in the sense of criminal law.34

7.4 How the Allies Dealt with Article 227 and Failed It is no surprise that the German government and the German people, after the effects of war and a regime change, vehemently rejected the Versailles Treaty. Articles 227– 230, published under the heading of ‘Penalties’, were seen as a shameless and wilful means to humiliate and dishonour Germany. The Articles themselves confirmed—in a somewhat unfortunate way—the concerns already raised by German lawyers during the peace negotiations. These comprised the fear that ‘international law in force provides punishment as a sanction for commandments and prohibitions; no law of any of the interested powers threatens with punishment the violation of international law of morality or the breach of treaties’. There was no ‘criminal tribunal competent to decide the impeachment in question’. Finally, Germany could not allow a German to be placed before a foreign special tribunal, ‘to be convicted on the basis of an exceptional law promulgated by foreign powers solely against him, on the principles 32

Ibid., pp. 553–554; Schabas 2018, pp. 169–173. Schabas 2018, pp. 195, 299–301. 34 Scott 1921, p. 237. 33

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not of right, but of politics, and to be punished for an action which was not punishable at the time it was committed’.35 The Treaty of Versailles entered into force on 10 January 1920. The US Senate rejected the ratification, which meant that the US was not party to the Versailles Treaty. Out of the ‘counsel of five’, the first instance of the Allied parties, there was now a ‘council of four’. Indeed, it was questionable whether the US would even send a judge to the planned special tribunal. However, the clarification of this was not considered an urgent issue. The Allies and the planned tribunal first had to have the prospective defendants in custody. On 9 November 1918, Wilhelm II, along with his closest advisors, had fled from the German headquarters in Spa, Belgium, to Holland.36 The Kaiser then formally abdicated on 29 November 1918. According to Article 227 of the Versailles Treaty, there had to be a formal extradition process. This process, if it was to be successful, required convincing evidence and a clear demonstration of unanimity. This would prove problematic. On 15 January 1920, the first Allied note was received by the Dutch government. In it, the Allies again recounted the numerous crimes committed during the war, for which moral responsibility—at the very least—extended to the highest leadership circles. The note ended with the contention that Holland, which has always shown respect for the right and love of justice, having been one of the first to claim a place in the society of nations, will not be willing to cover by her moral authority the violation of principles essential to the solidarity of nations, all of which are equally interested in preventing the return of a similar catastrophe.

This was followed by a sentence that can readily be characterized as moral extortion: ‘It is in the highest interests of the Dutch people,’ wrote the Allies, ‘not to appear to protect the principal author of this catastrophe by allowing him shelter on their territory, and also to facilitate his trial, which is claimed by the voices of millions of victims.’37 The negative Dutch response came immediately and underscored three aspects. The first counterargument was that the Netherlands was not a party to the peace treaty, which therefore could not form the basis of any obligations. The second emphasized the fact that no statute had existed before the war concerning war crimes and their punishment which might now provide a basis for international jurisprudence. In contrast, and as the third argument suggested, the granting of asylum was an expression of fundamental legal convictions and centuries-old tradition. It was inconceivable that the trust of those who had depended on this tradition should now be disappointed. The response ended with an allusion to the below-the-belt diplomatic nature of the Allied note. The Dutch expressed their confidence that these three 35

All quotations from Schabas 2018, p. 205. He told a confidante: ‘I have just abdicated. I have no desire to be hanged by some strangers [supposedly approaching revolutionary troops].’ He added, ‘Who would have thought it would come to this. The German people is a pack of bastards.’, quoted in Ullrich 1999, pp. 571–572. 37 Quoted in Berber 1939, Vol. II No. 443 p. 1196 and in Scott 1921, p. 243. 36

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counterarguments ‘elude any human judgment and seem so clear that they could not, honestly, place the Netherlands in a false light.’38 The second request for extradition was submitted to the Netherlands in midFebruary 1920. The refusal to extradite, wrote Lloyd George as the Allied representative, created an inauspicious precedent that would make any international trial against high-level defendants impossible. At the same time, it defied the joint demand of the 26 Allied and associated powers, and thus the majority of civilized nations. It also constituted an apparent overlooking of the acts for which Wilhelm II bore serious responsibility (a brief list of the numbers of dead and injured and the destruction caused by the war were included in the request). Finally, the government of the Netherlands surely recognized the danger emanating from the presence of the former German emperor only a short distance from the German border. He could easily become a renewed threat to humanity—the example of Napoleon I on Elba was an historical model.39 In its answer, the Netherlands specifically pointed out that, in the exercise of its sovereignty, it was able to take effective measures to protect itself in such a case. Otherwise, the note repeated the arguments made in the first answer, emphasizing the fact that such a violation of law and justice was not compatible with the Netherlands’ honor. Denying a refugee the rights owed to him on sovereign Dutch territory would constitute such a violation.40 At this stage, the chapter on the ‘extradition und sentencing of the Kaiser’ was as good as closed. On 30 March 1920, the Dutch government was handed yet another note from Lloyd George in which it was assigned exclusive responsibility for any consequences resulting from the presence of the former German Kaiser.41 It is difficult to read more into this than an attempt at the most honorable retreat possible. The former German Kaiser Wilhelm II remained in the Netherlands and died there in 1941.

7.5 Article 227 of the Treaty of Versailles from a Contemporary Perspective Is it really the case that, by deciding not to extradite Wilhelm II, Holland performed a service to the law? As already mentioned, precisely this point was put to President Wilson by the American judge and legal advisor James Brown Scott a year later.42 Scott even spoke of a ‘miserable business’ that was avoided thanks to the US, Japan and ‘little Holland’. He pointed out that none of the Allied countries had an extradition treaty with the Netherlands that would have extended to political offenses. To have 38

Quoted in Berber 1939, Vol. II No. 444 pp. 1196–1198. Ibid., No. 445 p. 1198 and Scott 1921, p. 244. 40 Ibid., No. 446 p. 1201 and Scott 1921, p. 245. 41 See Berber 1939, Vol. II p. 1202 with fn. 1. 42 Scott 1921, p. 240. 39

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nevertheless extradited and convicted Wilhelm II would have made a hero of him, due to this blatant violation of law.43 The reference to the fact that extradition in cases of prosecution on political grounds was not permitted in treaties with the Netherlands—a clause corresponding to customary law44 —is important here. This points directly to the problem with the extradition requests, and at the same time to the Allies’ dilemma. Article 227 of the Versailles Treaty aimed above all at a political trial.45 This, however, would have required extradition, which was expressly prohibited under treaty law and customary law. German jurists were never tired of pointing this out—at times with condescending superiority.46 As one observer pointed out, this was ‘a highly unusual view’, and indeed, all extradition treaties concluded with Holland listed precisely and exhaustively the criminal acts (for example murder, counterfeiting, bigamy and burglary) that could form the basis for an extradition request. The conclusion: ‘one can only shake one’s head’. The observer continued: Is there a provision in French, Belgian, English, American criminal law under which a declaration of war by a foreign sovereign, or a violation of guaranteed neutrality, or the violation of the international laws and customs of war by a foreign sovereign is punishable? Is there an extradition treaty that has included such acts in the catalogue of extraditable offenses? An impossible idea.47

To another commentator, Wilhelm II was quite simply the wrong target. A ruler’s acts of State were not at the same time his personal acts—‘state crime is not simultaneously ruler crime’. As a result, the Kaiser could not be held accountable for a war fought by the German Reich, even if crimes had been committed during this war. Beginning and waging war was not a personal but a political decision that was not open to judgement by third States.48 Still other observers provided detailed descriptions of the Dutch legal situation regarding extradition issues. Against this background, the Allied defiance of elementary legal principles (prohibition of retroactivity, no extradition for political offenses) if they insisted on their extradition demands was underscored.49 The additional dilemma that existed especially for France, Great Britain and most of the associated States was that they could not showcase the penal aspect of the prosecution of Wilhelm II without risking—and possibly destroying—the already fragile alliance on this issue. Yet it was this very aspect that might have made it possible 43

Ibid., pp. 246–247. ‘[…] the best way to make a goose a swan is to cut its head off. It may be said that the best way to restore a dynasty seems to be to decapitate its headless ruler.’ 44 See Frank 1920, pp. 140–141. 45 This had also repeatedly been emphasized to Germany, most recently in June 1919 when giving an ultimatum for acceptance of the peace treaty (‘la mise en accusation […] n’aura pas le caractère juridique quant au fond, mais seulement quant à la forme’). See Jeschek 1952, p. 60. 46 See Mendelssohn Bartholdy 1920, pp. 103–112; Jellinek 1919, col. 42–47; Triepel 1919, pp. 299– 305; Frank 1920, pp. 139–147. 47 Triepel 1919, pp. 302–303. 48 Jellinek 1919, col. 44–46. 49 Mendelssohn-Bartholdy 1920, pp. 110–111; Frank 1920, pp. 142–144.

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to circumvent the restrictions in the Dutch extradition treaties. Finding Wilhelm II guilty of acts that were also crimes in ordinary national criminal law50 might have penetrated the armor of state sovereignty that protected these acts with the support of Japan and the United States. In this way, however, the Allies maneuvered themselves into an impossible situation: the intended political trial failed, and insistence on a criminal trial would have destroyed the Alliance, independent of the Dutch reaction. What remained was the vague formulation in Article 227 of the Peace Treaty. Even its advocates soon came to realize that it had to remain mere window dressing.51 But let us return to the question posed above, whether the failure to extradite or convict Wilhelm II did the law a service. The story until now suggests that it did, and from today’s perspective, the answer must be ‘yes’ for two reasons—one factual and one legal. First of all, the German Reich was not solely responsible for the outbreak of World War I. It is true that the Allies were firmly convinced of Germany’s primary responsibility as the driving force among the Central Powers. This was evident from, among other things, the so-called war guilt clause, Article 231 Versailles Treaty.52 However, the idea that Germany and its allies had destroyed an idyllic peace by attacking their innocent neighbors, who were then forced against their will into a war, no longer holds up today. It arguably did not even hold up at the time.53 This is not to suggest that responsibility for the outbreak of war in 1914 can be ascribed to a collective European neurosis, as British military historian John Keegan or Australian historian Christopher Clark have argued.54 Nor is it to impute a willingness to go to war equally to all parties, as do Johannes Burkhardt and others.55 Nonetheless, we cannot ignore the interests of Russia, France and Great Britain in maintaining, reacquiring or increasing their power.56 Certainly the major and decisive portion of responsibility lay with Germany (without unconditional German cover, AustriaHungary could not have declared war on Serbia).57 But it is simply untrue that

50

In this spirit, e.g., Mérignhac 1920, pp. 41–42. See also Le Fur 1920, pp. 9–12, 378–80. See, e.g., Travers 1921, pp. 134–135. 52 ‘The Allied and Associated Governments affirm and Germany accepts the responsibility of Germany and her allies for causing all the loss and damage to which the Allied and Associated Governments and their nationals have been subjected as a consequence of the war imposed upon them by the aggression of Germany and her allies.’ On the significance of Article 231, see Fisch 1979, pp. 204–206. 53 On current views, see Leonhard 2014, pp. 83–127; Münkler 2013, pp. 62–71. 54 ‘An army which did not strike as soon as time permitted might be destroyed in mid-mobilization.’ Keegan 2000, p. 49; Clark 2013, pp. 709–718. 55 Burkhardt 1996, p. 76; Schöllgen G (1 August 1997), Zum Erfolg verdammt. Neue Studien über Kriegsgefahr und Krisenmanagement vor dem Ersten Weltkrieg. In: Die Zeit, p. 13; Mann 1958, p. 585. 56 Of the many sources, see, e.g., Kruse 1987, pp. 11–25. 57 See, e.g., Winkler 2000, vol. 1, p. 332. 51

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Germany was solely responsible, even if the Allies saw it or wanted to see it that way.58 Second, there is no way in which the legal situation at the time could have led to a criminal prosecution of Wilhelm II. Firstly, under Article 11 (2) of the Reich’s Constitution, he needed the agreement of the Bundesrat, headed by Reich Chancellor Bethmann Hollweg, for a declaration of war. This fact alone indicates that the Kaiser was not solely responsible. Moreover, however, there was no general legal theory under which starting a war could be considered illegal, criminal behavior.59 Certainly it was condemned morally and politically, and after 1914, the international view of ius ad bellum was changing—but that was after 1914, not before. This limitation was not true for violations of ius in bello, as customary law recognized the prosecution of such acts.60 But on this point, the same legal obstacle that hindered the attempt to convict Wilhelm II politically would surely have come into play; the principle of sovereign immunity for state actions. Before 1914, this principle was completely uncontroversial; during and after the war it was, as already shown, the subject of a debate that did not, however, consider more closely the decisive question of whether it could be applied to a former sovereign. The Frenchman Maurice Travers dealt most thoroughly with this issue. He answered in the negative, arguing that denying immunity to a former sovereign did not affect either the dignity of the State he had represented or the independence associated with the former function, as this sovereign would now be treated identically to that of a simple citizen, to whom none of this applied.61 Others looked to the ideas already espoused by those French lawyers who asserted that the international community, due to its special circumstances, has the right to determine new international laws. This might entail a removal of immunity and ex post facto.62 German lawyers came to a completely different conclusion. Walter Jellinek, for example, was of the opinion that Wilhelm II had ruled at a time when punishment of a former monarch was generally unacceptable, in order to protect the kingdom’s dignity. Asserting the opposite now would be like decreeing a new criminal law; but 58

The report of the preparatory commission for the Versailles Treaty did not mention, e.g., the Russian general mobilization on 30 July 1914, which triggered the German ultimatum and declaration of war. See La Paix de Versailles 1930, pp. 464–5. Dickmann correctly calls this part of the commission report a ‘shamefully superficial portrayal’, Dickmann 1963, p. 29. The American delegates, in their dissenting vote, suggested a reinvestigation of this question by a commission with a longer temporal mandate, but the suggestion was rejected. See La Paix de Versailles 1930, p. 542. 59 This is based only on the principle of nullum crimen sine lege, which arises from the treatment of war crimes under international law, and not its extension, nulla poena sine lege. See Triffterer 1966, pp. 92–127. 60 Here, however, the question would have arisen to what extent the Supreme Army Command, equipped with dictatorial powers—consider the Third Supreme Army Command under Hindenburg and Ludendorff—was primarily responsible for German war making. 61 Travers 1921, p. 127; similarly, if somewhat more restrained, see the Public Prosecutor of Paris to the French Minister of Justice in a letter on 9 December 1918, AN Paris, BB/18/2568(2). 62 Baldwin 1919, p. 79. The idea is also taken up in Mevis and Reijntjes 2014, p. 235 and Schabas 2018, pp. 162–169.

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such a law could not have retroactive force.63 Others, such as Robert Lansing and James Brown Scott, the American delegates to the preparatory conference, claimed succinctly that immunity did not apply to a ruler who had abdicated, but that it would nevertheless be impractical to start a trial against him.64 Still others—such as the abovementioned Japanese delegates, as well as representatives of the Belgian kingdom—considered it a matter of course that sovereign immunity be maintained under all circumstances.65 In short, no international legal principle could be shown at the time recognizing that a sovereign who abdicated could be prosecuted or even condemned for earlier government acts, including waging war.66 To make a new ruling against the preponderance of evidence in the case, the tribunal would have to try to reconcile the actual events with what appeared to be an extremely doubtful case. The dismissal of such a verdict as mere ‘victor’s justice’ would have been very hard to deny. Nevertheless, it would be premature to describe Article 227 as a mistake (duly noted: only as in recognition of the further development of the events). The same could also be said of Articles 228–230 Versailles Treaty as well. Like Article 227, these were never applied. Instead, Germany conducted trials under the watchful eye of the Allies against 17 military personnel (ten convictions, seven acquittals). The proceedings and the decisions were, with good reason, heavily criticized.67 However, this did not alter the fact that something was attempted here for the first time; to try war crimes by employing codified or customary international rules. The idea was now part of modern international law, as was the provision of limitations to ius ad bellum and an alteration to the weight of immunity through Article 227. The Versailles Treaty was intended to be a treaty based on law. It should therefore be considered a legal contract that would form the basis for a legally based international community.68 Indeed, to some extent, it did serve as such. Bismarck’s arguments were no longer valid.

References Baldwin S E (1919) The Proposed Trial of the Former Kaiser. Yale Law Journal 29:75–82 Berber F (ed) (1939) Das Diktat von Versailles: Entstehung – Inhalt – Zerfall: Eine Darstellung in Dokumenten. Essener Verlagsanstalt, Essen 63

Jellinek 1919, col. 43. See La Paix de Versailles 1930, p. 540. 65 Ibid., pp. 275–276, 553–554. It is not known to what extent the Belgian Crown was thinking here of the behaviour it had ordered or tolerated in Congo (decimation of millions of the native population, systematic pillaging of the country), which was Leopold II’s private domain until 1908. 66 The fact is often overlooked that after Napoleon I’s internment on St. Helena, the procedure was legalized by a British Act of Parliament in 1816, and indemnity granted to all participants through a second Act. See Dahm 1961, Vol. III p. 289 fn. 4. 67 See Hankel 2014, pp. 2, 131–135, 257–260. 68 More details in Payk 2018, pp. 5–12, 655–666. 64

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Burkhardt J (1996) Kriegsgrund Geschichte? 1870, 1813, 1756 – historische Argumente und Orientierungen bei Ausbruch des Ersten Weltkriegs. In: Burkhardt J et al (eds) Lange und kurze Wege in den Ersten Weltkrieg. Vier Augsburger Beiträge zur Kriegsursachenforschung. Verlag Ernst Vögel, Munich, pp 9–86 Busch M (1899) Tagebuchblätter: Graf Bismarck und seine Leute während des Krieges mit Frankreich 1870–1871 bis zur Beschießung von Paris, Vol. 1. Verlag Friedrich Wilhelm Grunow, Leipzig Cartier J-P (1984) Der Erste Weltkrieg 1914–1918. Piper, Munich/Zurich Clark C (2013) Die Schlafwandler. Wie Europa in den Ersten Weltkrieg zog. Deutsche VerlagsAnstalt, Munich Conze E (2018) Die große Illusion. Versailles 1919 und die Neuordnung der Welt. Siedler, Munich Dahm G (1961) Völkerrecht, Vol. III. Kohlhammer, Stuttgart Dickmann F (1963) Die Kriegsschuldfrage auf der Friedenskonferenz von Paris 1919. Historische Zeitschrift 197:1–101 Fisch J (1979) Krieg und Frieden im Friedensvertrag. Eine universalgeschichtliche Studie über Grundlagen und Formelemente des Friedensschlusses. Klett-Cotta, Stuttgart Frank R (1920) Wesen und Tragweite der Auslieferungsgesetze. In: Festgabe für Dr. jur. h. c. Otto Liebmann, den Begründer, Verleger, Schriftleiter und Herausgeber der Deutschen JuristenZeitung. Verlag Otto Liebmann, Berlin, pp 139–147 Groß GP (ed) (2006) Die vergessene Front. Der Osten 1914/15. Ereignis, Wirkung, Nachwirkung. Ferdinand Schöningh, Paderborn et al. Hankel G (2014) The Leipzig Trials: German War Crimes and their Legal Consequences after World War I. Republic of Letters, Dordrecht Hull I V (2014) A Scrap of Paper. Breaking and Making International Law during the Great War. Cornell University Press, Ithaca Jellinek W (1919) Wilhelm II. in den Niederlanden. Deutsche Juristen-Zeitung, col. 42–47. Jeschek H-H (1952) Die Verantwortlichkeit der Staatsorgane nach Völkerstrafrecht. Verlag Lothar Röhrscheid, Bonn Keegan J (2000) The First World War. Vintage, London Kruse W (1987) Ursachen und Auslösung des Krieges. In: Kruse W (ed) Eine Welt von Feinden. Der Große Krieg 1914–1918. Fischer, Frankfurt am Main, pp 11–25 La Paix de Versailles (1930) Responsabilité des auteurs de la Guerre et Sanctions. Les Éditions Internationales, Paris Le Fur L (1920) Guerre juste et juste paix. Revue Générale de Droit International Public 27:9–75, 268–309, 349–405 Leonhard J (2014) Die Büchse der Pandora. Geschichte des Ersten Weltkriegs. C.H. Beck, Munich Lloyd George D (1936) War Memoirs, Vol. VI. Ivor Nicholson & Watson, London Mann G (1958) Deutsche Geschichte des 19. und 20. Jahrhunderts, 19th edn. Fischer, Frankfurt am Main Mendelssohn Bartholdy A (1920) Die ‘Sanktionen’ des Vertrages von Versailles. In: Festgabe für Dr. jur. h. c. Otto Liebmann, den Begründer, Verleger, Schriftleiter und Herausgeber der Deutschen Juristen-Zeitung. Verlag Otto Liebmann, Berlin, pp 103–112 Mérignhac A (1920) De la responsabilité pénale des actes criminels commis au cours de la guerre de 1914–1918. Revue de Droit International et de Législation Comparée 47:34–70 Mevis P, Reijntjes J (2014) Hang Kaiser Wilhelm! But for what? A criminal law perspective. In: Bergsmo M et al (eds) Historical Origins of International Criminal Law: Volume I. Torkel Opsahl Academic EPublisher, Brussels, pp. 213–257 Münkler H (2013) Der Große Krieg. Die Welt 1914–1918. Rowohlt, Berlin Nagler J (2000) Nationale Minoritäten im Krieg: “Feindliche Ausländer” und die amerikanische Heimatfront während des Ersten Weltkriegs. Hamburger Edition, Hamburg Payk M M (2018) Frieden durch Recht? Der Aufstieg des modernen Völkerrechts und der Friedensschluss nach dem Ersten Weltkrieg. Walter de Gruyter, Berlin/Boston

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Pic P (1916) Violation systématique des lois de la guerre par les Austro-Allemands. Les sanctions nécessaires. Revue Générale de Droit International Public 23:243–268 Pillet A (1916) La guerre actuelle et le droit des gens. Revue Générale de Droit International Public 23:203–243 Schabas W A (2018) The Trial of the Kaiser. Oxford University Press, Oxford Schwengler W (1982) Völkerrecht, Versailler Vertrag und Auslieferungsfrage. Die Strafverfolgung wegen Kriegsverbrechen als Problem des Friedensschlusses 1919/20. Deutsche Verlags-Anstalt, Stuttgart Scott J B (1921/1949) The Trial of the Kaiser. In: House E M, Seymour C (eds) What really happened at Paris. The story of the Peace Conference 1918–1919. Greenwood Press, Westport, pp. 231–258. Travers M (1921) Les traités de paix et les idées courantes en matière d’extradition. Revue de Droit International et de Législation Comparée 48:125–146 Triepel H (1919) Die Auslieferung des Kaisers. Deutsche Politik 4:299–305 Triffterer O (1966) Dogmatische Untersuchungen zur Entwicklung des materiellen Völkerstrafrechts seit Nürnberg. E. Albert Verlag, Freiburg im Breisgau Ullrich V (1999) Die nervöse Großmacht 1871–1918. Aufstieg und Untergang des deutschen Kaiserreichs. Fischer, Frankfurt am Main Weber W, Seeger A (eds) (2018) Gewalteskalation und Kriegsgräuel im Ersten Weltkrieg. Vienna University Press, Vienna Willis J F (1982) Prologue to Nuremberg. The Politics and Diplomacy of Punishing War Criminals of the First World War. Greenwood Press, Westport/London Winkler H A (2000) Der lange Weg nach Westen: Deutsche Geschichte vom Ende des Alten Reiches bis zum Untergang der Weimarer Republik, Vol. I. C.H. Beck, Munich

Dr. Gerd Hankel focusses on International Law, International Criminal Law and Linguistics. He is affiliated to the Hamburger Institut für Sozialforschung (Hamburg, Germany) and Chairman of the Initiative Kongo e.V.

Chapter 8

Institutional Attitudes Towards Acts of Aggression Sergey Sayapin

Contents 8.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.2 The Role of the United Nations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.2.1 Security Council . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.2.2 General Assembly . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.2.3 International Court of Justice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.2.4 Other UN Organs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.3 The Role of Regional Organisations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.3.1 Regional Security Organisations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.3.2 African Court of Justice and Human and Peoples’ Rights . . . . . . . . . . . . . . . . . . . 8.4 The Role of Other International Institutions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.5 The Potential Role of the International Criminal Court (ICC) . . . . . . . . . . . . . . . . . . . . . . 8.6 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Abstract Contemporary international law contains quite adequate substantive rules aimed at the prevention and suppression of State acts of aggression but the efficiency of those provisions is weakened by procedural shortcomings inherent, in particular, in the operation of the UN Security Council. Until a comprehensive reform of the United Nations eliminates those procedural deficiencies, the General Assembly and the International Court of Justice should be more active in maintaining international peace and security, and in reacting to threats to the peace, breaches of peace and acts of aggression. An important role in the maintenance of international peace and security is played by regional security organisations, as well as by international organs and institutions monitoring compliance, in particular, with international human rights law, international humanitarian law, the law of the sea, and environmental law. By contrast, despite the formal activation of the International Criminal Court’s jurisdiction with respect to the crime of aggression as of 17 July 2018, the Court is unlikely to prosecute individuals for the crime of aggression, and domestic prosecutions or, potentially, prosecutions by the African Court of Justice and Human and Peoples’ Rights are more likely. S. Sayapin (B) KIMEP University School of Law, 2 Abai Ave, Almaty 050010, Kazakhstan e-mail: [email protected] © t.m.c. asser press and the authors 2022 S. Bock and E. Conze (eds.), Rethinking the Crime of Aggression, https://doi.org/10.1007/978-94-6265-467-9_8

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Keywords Aggression · General Assembly · International Court of Justice · Regional Organisations · Security Council · United Nations · Ukraine · Use of Force

8.1 Introduction Unfortunately, State acts of aggression and individual crimes of aggression have not been as carefully addressed in the practice of universal international organisations and institutions as they should have been, since the completion of the Nuremberg follow-up trials in the 1940s.1 Although the UN Security Council bears the primary responsibility for the maintenance of international peace and security in accordance with Chapter VII of the Charter of the United Nations, it has determined the existence of only a few acts of aggression, and has been reluctant to qualify some of the manifestly unlawful uses of force as acts of aggression. Reasonable explanations of this include such practical factors as the permanent members’ veto power, which is capable of protecting those very members and their allies against the Council’s enforcement measures,2 as well as the Council’s political nature, which means that such selective measures are inherent to the Council, and it cannot be expected to act as impartially as an international judicial body would.3 In other words, the Security Council is selective in its blaming of States for unlawful uses of force not because the Council does not work as properly as it should but because the founders of the United Nations designed the Council to be selective, and to secure the interests of the most powerful States. Now, this practice cannot change, unless the very nature of the Council were to change. And this, in turn, cannot be done without a profound reform of the entire United Nations machinery.4 In accordance with Article 1 UN Charter, the maintenance of international peace and security is a purpose of the United Nations. However, despite that international peace was breached time and again since the establishment of the United Nations in 1945, States responsible for such actions were not sanctioned in a systematic manner. Moreover, no member of the United Nations has ever been expelled from the Organisation for its engagement in an act of aggression, despite that such a possibility is envisaged in Article 6 UN Charter.5 By way of comparison, the USSR was expelled from the League of Nations on 14 December 1939 for aggression against Finland, which arguably shows the League’s relatively more resolute stance with respect to aggression than that of the United Nations. On the other hand, the League could not prevent the Second World War, and one of the reasons probably was that the League 1

See Werle and Jessberger 2014, pp. 11–12; Sayapin 2014, pp. 180–190. See Ipsen 2014, pp. 252–253. 3 See von Arnauld 2014, pp. 60–64. 4 See Alston 2012; Fassbender 2012. 5 Cf. Article 6 UN Charter: A Member of the United Nations which has persistently violated the Principles contained in the present Charter may be expelled from the Organization by the General Assembly upon the recommendation of the Security Council. 2

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could not appropriately affect the conduct of States, which were not its members.6 In this sense, not expelling States from the United Nations for breaches of Article 2 (4) UN Charter7 is probably wise as a matter of practice, because thus, delinquent States remain within the system, and there remains a continued opportunity to affect their conduct through various organs and institutions of the United Nations. This chapter will review four characteristic approaches, which various international organisations and their organs, as well as international institutions, could adopt with respect to alleged acts of aggression. Since Russia’s ongoing use of force against Ukraine since 2014 is a top item on the international agenda, along with a number of other challenges to international security,8 it is used as a recent case study.9

8.2 The Role of the United Nations The first approach is related to the United Nations. As this author noted elsewhere, [a]lthough the United Nations was incapable of preventing the proliferation of noninternational armed conflicts after the Second World War, […] it seems to have succeeded, overall, in reinforcing the principle that the right of States to go to war with one another was no longer unlimited […] After 1945, States have almost always endeavored to explain their international uses of force, in one way or another, by way of interpreting the relevant provisions of the Charter or of other international instruments […].10

In other words, the United Nations is central to the settlement of international conflicts, including armed ones, and although the success of the United Nations’ peacemaking efforts has not been unconditional, the world certainly became a safer place since 1945 than it had been before. Within the United Nations, the primary responsibility for the maintenance of international peace and security is the Security Council’s, whereas other main and subsidiary organs play an auxiliary role in this process.

8.2.1 Security Council The Security Council is a central organ in the United Nations’ peacemaking system. It includes some of the major powers as permanent members,11 and non-permanent 6

Cf. Ipsen 2014, p. 236. Cf. Article 2 (4) UN Charter: All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations. 8 See Sayapin 2018a. 9 See Sayapin and Tsybulenko 2018. 10 Sayapin 2014, p. 46, footnotes omitted. 11 Notably, such important regional powers as, for example, Australia, Brazil, Germany, India, Japan or South Africa are not permanent members of the Security Council. Whereas Germany and 7

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members of the Council are elected for two-year terms.12 Despite its central role laid down in the Charter, due to realities of the Cold War,13 the Security Council was not fully operational in the first forty-five years of its existence: Under Article 39 of the Charter, the Security Council has been given the primary responsibility for the maintenance of international peace and security, including the power to ‘determine the existence of any […] act of aggression’ […] Yet, according to some commentators, the Security Council was largely biased in the exercise of that power, for until the adoption of the General Assembly resolution 3314, on 14 December 1974 […], the Council did not have any normative guidance as to what should (or might) constitute aggression. From 1946 to 1986—when dozens of international armed conflicts took place—the Council passed only two decisions under Article 39 that there was a “breach of the peace” (with respect to Korea in 1950 […] and to the Falkland Islands in 1982) […] During the same period, the Security Council referred to ‘aggression’ only in the instances of Israel […] and South Africa, and determined no more than seven cases of “threat to international peace and security” […] The Security Council did not classify the Soviet invasion in Afghanistan on 25 December 1979 as an act of aggression, […] and even the Iraqi invasion in Kuwait on 2 August 1990 was characterized as a breach of international peace and security […] Given the recurrent use of vetoes […] in the Council between 1945 and 1992, […] it is not surprising that acts of aggression were determined only exceptionally rarely […].14

The Security Council was relatively successful between the first Gulf War (1990– 1991) and the invasion of Iraq in 2003. During this period, the Council responded, fairly effectively, to a number of military challenges, including the armed conflicts in the former Yugoslavia and against Al Qaeda in Afghanistan. With regard to the former, the Security Council established an International Criminal Tribunal (ICTY), and Al Qaeda’s attack of 11 September 2001 was unanimously regarded in the Security Council as a ground for the exercise of the right to self-defence in the sense of Article 51 UN Charter.15 At the same time, notably, the Security Council refrained from formally establishing the existence of an act of aggression in any of these scenarios. After 2003, the Security Council has been consistently divided over all

Japan were, for some time after the Second World War, subject to the so-called ‘enemy clause’ (cf. Article 53 [2] UN Charter), Australia, Brazil, India, and South Africa were among the original UN Members and hence, not including them as permanent members in the Security Council is arguable. It is suggested that a possible reform of the UN Security Council should take account of regional powers’ important roles. An even better reform of the UN Security Council would consist in doing away with the status of permanent members altogether. 12 cf. Article 23 (1) UN Charter: The Security Council shall consist of fifteen Members of the United Nations. The Republic of China, France, the Union of Soviet Socialist Republics, the United Kingdom of Great Britain and Northern Ireland, and the United States of America shall be permanent members of the Security Council. The General Assembly shall elect ten other Members of the United Nations to be non-permanent members of the Security Council, due regard being specially paid, in the first instance to the contribution of Members of the United Nations to the maintenance of international peace and security and to the other purposes of the Organization, and also to equitable geographical distribution. 13 See Leffler and Westad 2010. 14 See Sayapin 2014, pp. 48–49, footnotes omitted. 15 UNSC Resolution S/RES/1368 of 12 September 2001.

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major international armed conflicts, in particular, Syria and Ukraine,16 and rhetoric of a ‘new Cold War’ is becoming ever louder.17

8.2.2 General Assembly Because the veto power of the Security Council’s permanent members makes it difficult to react appropriately to alleged acts of aggression, especially where one or more permanent members of the Council are themselves involved in a conflict to be dealt with by the Council (such as in Syria or Ukraine), the role of other main UN organs in the maintenance of international peace and security, especially of the General Assembly and the International Court of Justice, should become more prominent. Already in 1950, just five years after the establishment of the United Nations, an alternative procedure was introduced, in order to improve the quality of peacemaking through the efforts of the UN General Assembly.18 The ‘Uniting for Peace’ mechanism empowered the General Assembly to react to threats to the peace, breaches of peace, and acts of aggression in situations where the Security Council could not react speedily and efficiently. Quite unfortunately, this mechanism has not been used as often as it probably should, and recalling it for the purpose of this paper is certainly worthwhile. According to the UN website, since 1956, no more than ten emergency specials sessions were convened in accordance with the resolution: three dealt with the Middle East, three with Palestine, and the remaining four sessions dealt, respectively, with situations in Hungary, Congo, Afghanistan and Namibia. The potential of the ‘Uniting for Peace’ mechanism has certainly been underestimated, and it should be used more often. In addition to the ‘Uniting for Peace’ format, the General Assembly can react to unlawful uses of force by States in various other ways. Although resolutions adopted by the General Assembly formally possess no legal force, they are still useful, because in them, the General Assembly records the consequences of the internationally unlawful uses of force, even if such notions as ‘aggression’ do not feature in the respective resolutions explicitly. Even though the General Assembly usually did not name States, which used force unlawfully, the identity of such States was usually clear from the context of the resolutions. The first resolution pertaining to the situation in Ukraine, A/RES/68/262 (2014),19 which dealt with the territorial integrity of Ukraine, followed this traditional model. Importantly, more recent resolutions pertaining to the same situation—A/RES/71/205 (2016)20 A/RES/72/190

16

See Sayapin 2018a, pp. 275–281. See Blokker 2005; Wedgwood 2003; Wheatley 2006. 18 See Woolsey 1951; Andrassy 1956. 19 UNGA Resolution 86/262 of 17 March 2014. 20 UNGA Resolution 71/205 of 19 December 2016. 17

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(2017),21 and A/RES/73/263 (2018),22 which dealt with the situation of human rights in the Autonomous Republic of Crimea and the city of Sevastopol, as well as resolution A/RES/73/194 (2018)23 pertaining to the problem of the militarisation of the Autonomous Republic of Crimea and the city of Sevastopol, as well as parts of the Black Sea and the Sea of Azov, were explicit in condemning the annexation and temporary Russian occupation of Crimea. This is quite a new trend. To conclude with, such resolutions reaffirm relevant binding rules of international law—in particular, the prohibition of the use of force, and the territorial integrity and political independence of States—and thus apply those binding rules to the situations in question. One may even suggest that in this part, resolutions of the General Assembly are legally binding, because they restate fundamental rules of international law, some of which possess the jus cogens character.24

8.2.3 International Court of Justice As the principal judicial organ of the United Nations,25 the International Court of Justice (ICJ) has a say in situations involving the allegedly unlawful use of force. As Gray observed, since the Nicaragua case26 —historically, the first leading case on the use of force dealt with by the ICJ—the Court was consistent in reaffirming its competence to deal with any matters of international law, including the legality of the use of force.27 The Court recalled in that decision that the Security Council’s authority in the maintenance of international peace of security was primary but not exclusive, and so nothing should prevent States from using alternative legitimate means for the settlement of disputes involving the use of force. Subsequently, States brought before the ICJ no less than seventeen cases on the use of armed force in international relations,28 and in August 2008, one more case—formally relative to the application of the International Convention on the Elimination of All Forms of Racial Discrimination but essentially dealing, among other things, with the use of force—was instituted by Georgia against the Russian Federation.29 It is suggested that the ICJ should play an increasing role in reinforcing the authority of international 21

UNGA Resolution 72/190 of 19 December 2017. UNGA Resolution 73/263 of 22 December 2018. 23 UNGA Resolution 73/194 of 17 December 2018. 24 See Sayapin 2015, p. 20. See also Kadelbach 2006. 25 cf. Article 92 UN Charter. 26 See ICJ, Judgement of 26 November 1984 (Nicaragua v. United States of America, Case concerning Jurisdiction and Admissibility), para 94, ICJ Reports (1984). 27 See Gray 2003; Gray 2008, at 15. See also Alvarez 1996. 28 See Gray 2008, p. 16. 29 See ICJ, Judgment of 1 April 2011 (Georgia v. Russian Federation, Case concerning Application of the International Convention on the Elimination of All Forms of Racial Discrimination—Preliminary Objections), ICJ Reports (2011). 22

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law rules on the use of force. The limited jurisdiction of the Court is, of course, an obstacle. For instance, Ukraine could not institute a case against the Russian Federation on the account of an unlawful use of force, because Russia does not recognise the jurisdiction of the Court as compulsory.30 The ongoing proceedings between Ukraine and Russia31 concern the application of the International Convention for the Suppression of the Financing of Terrorism and of the International Convention on the Elimination of All Forms of Racial Discrimination, which do provide for a compulsory jurisdiction of the ICJ. The outcomes of this litigation remain to be seen.

8.2.4 Other UN Organs The maintenance of international peace and security is also on the agenda of some other UN organs and officials. Thus, in accordance with Article 99 UN Charter, the Secretary-General may ‘bring to the attention of the Security Council any matter which in his opinion may threaten the maintenance of international peace and security’. Especially after the end of the Cold War, the role of the Secretary-General in the settlement of international conflicts has been focal.32 In turn, an expert body of the General Assembly, the International Law Commission, played a role in the codification and progressive development of international law rules pertaining to the responsibility of States for internationally wrongful acts, including serious breaches of obligations under peremptory norms of general international law,33 and to the individual criminal responsibility for the crime of aggression.34

8.3 The Role of Regional Organisations 8.3.1 Regional Security Organisations The second approach has to do with regional organisations in the sense of Chapter VIII of the UN Charter. Regional organisations—such as the OSCE, the Council of Europe, the Shanghai Cooperation Organisation, or the African Union (AU) or, more specifically, regional military organisations such as NATO or the Collective Security Treaty Organisation (CSTO)—should play an increasingly significant role in the maintenance of international peace and security, as they are more flexible than 30

As of this writing, 74 States recognise the ICJ jurisdiction as compulsory, see: https://www.icjcij.org/en/declarations (accessed 1 March 2021). 31 See documents relative to the proceedings at: https://www.icj-cij.org/en/case/166 (accessed 1 March 2021). 32 See Franck 1995; Sayapin 2014, pp. 53–54. 33 See Sayapin 2014, pp. 98–104. See also Klein 2002; Orakhelashvili 2005. 34 Sayapin 2014, pp. 54–55.

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the UN, may claim to have a better understanding of regional contexts and issues, and, probably most importantly, share common legal and political ideologies and values.35 To give a few examples, some European organisations were more explicit in the qualification of the armed conflict between Russia and Ukraine than the United Nations was.36 Thus, the Parliamentary Assembly of the Council of Europe did not hesitate, in October 2016, to qualify the situation as ‘the Russian aggression in Ukraine’.37 In January 2018, the same Assembly explicitly referred to the same situation as ‘the ongoing Russian war against Ukraine’.38 In turn, the Parliamentary Assembly of the OSCE was explicit, as early as in 2014,39 in condemning the ‘occupation of the territory of Ukraine’, and ‘military aggression as well as various forms of coercion designed to subordinate the rights inherent in Ukraine’s sovereignty to the Russian Federation’s own interests’. In 2015, the OSCE Parliamentary Assembly reiterated its support for Ukraine and confirmed ‘that the actions by the Russian Federation in the Autonomous Republic of Crimea and the city of Sevastopol, as well as in certain areas of the Donetsk and Luhansk regions of Ukraine, constitute acts of military aggression against Ukraine’.40 Remarkably, a statement made by the European Union in November 201641 was entitled ‘Russia’s Ongoing Aggression against Ukraine and Illegal Occupation of Crimea’ but the word ‘aggression’ appeared only in the title but not in the text of the statement. On the other hand, the content of the statement leaves no doubt to the effect that the word ‘aggression’ was employed in the title in its technical legal sense, and that the European Union condemned the effects of Russia’s aggression against Ukraine in the strongest terms. Most recently, on 18 March 2019, the North Atlantic Council condemned Russia’s use of force against Ukraine ‘to illegally and illegitimately annex Crimea’, called on Russia to ‘return control of Crimea to Ukraine’, and to ‘bring an immediate end to all violations and abuses’ of human rights on the peninsula. The Council also noted quite unequivocally that ‘Russia’s unjustified use of military force against Ukrainian 35

See Gazzini 2003; Wolfrum 1993; Abass 2000; Al-Qahtani 2006. Cf. also Sayapin and Tsybulenko 2018, Appendix I and Sayapin S (2019) ‘The End of Russia’s Hybrid War against Ukraine?’, Opinio Juris, available at: http://opiniojuris.org/2019/01/04/the-endof-russias-hybrid-war-against-ukraine/ (accessed 1 March 2021). 37 Parliamentary Assembly of the Council of Europe Resolution 2132 (2016) of 12 October 2016. 38 Parliamentary Assembly of the Council of Europe Resolution 2198 (2018) of 23 January 2018. 39 See Parliamentary Assembly of the OSCE, Resolution on clear, gross and uncorrected violations of Helsinki Principles by the Russian Federation: http://www.oscepa.org/documents/all-documents/ annual-sessions/2014-baku/declaration-2/2540-2014-baku-declaration-eng/file (accessed 1 March 2021). 40 See Parliamentary Assembly of the OSCE, Resolution on the continuation of clear, gross and uncorrected violations of OSCE commitments and international norms by the Russian Federation: http://old.oscepa.org/meetings/annual-sessions/2015-helsinki-annual-session/2015-helsinkifinal-declaration/2282-07 (accessed 1 March 2021). 41 See EU statement on ‘Russia’s Ongoing Aggression against Ukraine and Illegal Occupation of Crimea’, PC.DEL/1558/16, 11 November 2016: https://eeas.europa.eu/delegations/kosovo/ 14165/eu-statement-on-russias-ongoing-aggression-against-ukraine-and-illegal-occupation-of-cri mea_en (accessed 1 March 2021). 36

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ships and naval personnel near the Sea of Azov and the Kerch Strait in November 2018 is part of the larger pattern of Russian aggressive actions in the region’.42 It may reasonably be predicted that the future of international security is one of multiple regional security organisations ensuring their members’ security against potential threats emanating from members of other regional security organisations and armed non-State actors. Traditionally, aggression was regarded as a State-toState relationship—however, with the emergence of violent non-State actors, States should be prepared to react to possible armed attacks emanating from the former. A prospective regional mechanism for the African continent takes account of this threat.

8.3.2 African Court of Justice and Human and Peoples’ Rights The mechanism was agreed upon in June 2014 (but not activated yet) under Article 28M of the so-called Malabo Protocol,43 which enables the jurisdiction of the African Court of Justice and Human and Peoples’ Rights with respect to the crime of aggression. To this author’s knowledge, it is the only regional court potentially having jurisdiction with respect to the crime of aggression. The definition of the crime under Article 28M Malabo Protocol is largely in line with current international law—in particular, with Article 8bis Rome Statute—but it also contains a number of important regional features and innovations. In particular, Article 28M(A) deviates from the letter and substance of Article 8bis (1) Rome Statute in that it (1) establishes jurisdiction not only with respect to representatives of States but also to those of non-State actors, (2) refers to the Constitutive Act of the African Union, in addition to the Charter of the United Nations, and (3) lists human security of the population of a State Party among protected values. One could be quite optimistic about the potential efficacy of the Malabo Protocol in preventing and repressing individual crimes of aggression, provided that the Protocol would enter into force before too long: It is this author’s hope that the Malabo mechanism would help turn Africa into a more peaceful continent, and that the authors of unlawful uses of force on that continent would be held accountable. True, the provision on immunities of serving AU Heads of State or Government, or anybody acting or entitled to act in such capacity, or other senior state officials based on their functions, during their tenure of office, which was included in Article 46A bis of the Malabo Protocol, would be a serious impediment to the timely exercise of justice. However, this provision should not prevent prosecutions of former senior State officials, once their tenure is over, and, knowing this, many of such officials should hopefully refrain from exercising their authority in violation of international law, while in office. Besides, quite a 42

See Statement of 18 March 2019 by the North Atlantic Council on Crimea, PR (2019) 039, https://nato.cmail20.com/t/ViewEmail/r/16FD76B1E5D878B32540EF23F30FEDED/ 59BEB87FBDEFF95F2438807772DD75D1 (accessed 1 March 2021). 43 See Abass 2017; Ambos 2017.

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number of African States have already enacted domestic provisions criminalising aggression and other crimes against peace, […] and prospects of domestic “Habré-style” prosecutions should be another restraining factor.44

8.4 The Role of Other International Institutions The third approach is related to indirect and non-military effects of acts of aggression. Since unlawful uses of force also cause other effects than purely military ones, the role of human rights, environmental and other thematic international organs and institutions, as well as of NGOs, is crucial. In particular, after the outbreak of an international armed conflict (which more often than not would result from an act of aggression), international institutional monitoring of both the aggressor and victim States’ obligations, in particular, under international humanitarian law (IHL) and international human rights law (IHRL) should be carried out. In such situations, the role of the Office of the UN High Commissioner for Human Rights is essential. The invocation by the International Committee of the Red Cross (ICRC) of IHL rules applicable in international armed conflicts, and, where appropriate, of selected rules of IHRL,45 may reasonably be interpreted as a qualification of the situation as an international armed conflict. The Office of the ICC Prosecutor monitors relevant developments from a perspective of international criminal law but at this stage, the monitoring is limited to genocide, crimes against humanity and war crimes (on the potential role of the ICC in prosecuting aggression, see infra Sect. 8.5).46 The European Court of Human Rights (ECHR) and other human rights courts and expert bodies monitor States’ obligations under IHRL, and may occasionally refer to IHL in their reasoning—which may suggest at least an implicit recognition of the existence of an (international) armed conflict.47 Last but not least, thematic arbitral institutions have a role to play. For instance, the occupation of Crimea resulted in significant losses related to the exploitation by Russia of Ukraine’s marine and submarine resources, and more recently, Russia started blocking Ukraine’s access to the Sea of Azov.48 The outcomes of arbitration between Ukraine and Russia under the United Nations Convention on the Law of the Sea remain to be seen.49

44

See Sayapin 2019, p. 335. See Sayapin 2009. 46 See reports by the ICC Prosecutor at: https://www.icc-cpi.int/about/otp/Pages/otp-reports.aspx (accessed 1 March 2021). 47 See Heintze 2013. 48 See Sayapin S (2019) ‘The End of Russia’s Hybrid War against Ukraine?’, Opinio Juris, available at: http://opiniojuris.org/2019/01/04/the-end-of-russias-hybrid-war-against-ukraine/ (accessed 1 March 2021). 49 See Schatz V (2018) ‘Insights from the Bifurcation Order in the Ukraine vs. Russia Arbitration under Annex VII of UNCLOS’, available at: https://www.ejiltalk.org/insights-from-the-bifurcationorder-in-the-ukraine-vs-russia-arbitration-under-annex-vii-of-unclos/ (accessed 1 March 2021). 45

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8.5 The Potential Role of the International Criminal Court (ICC) Finally, a few words should be said about the fourth approach—that is, the prospective attitude of the International Criminal Court towards the crime of aggression. As hopeful as the journey towards the international criminalisation of aggression was, this author is quite sceptical about the ICC’s potential efficiency in prosecuting individuals for the crime of aggression. Most States that have ratified the 2010 Kampala amendments on the crime of aggression are not likely to commit acts of aggression, either due to their apparent military weakness, or because they exhibit no militarist ambitions.50 It is likely that future prosecutions, if any, would be limited to leaders of relatively weak States with no consistent allies among the permanent Members of the UN Security Council. No prosecutions at all would be possible against the leaders of the permanent Members and their allies, due to their veto power (see supra Sect. 8.2.1) and the Security Council’s right to defer an investigation or prosecution.51 In that sense, the Kampala amendments are likely to remain a dead letter for years to come. By contrast, one could be quite optimistic about the criminalisation of aggression at the national level, as an alternative to international prosecutions. According to this author’s calculations, at least forty-two States have introduced individual criminal responsibility for aggression and other crimes against peace,52 and those mechanisms may be used, if there is sufficient political will on the part of the State concerned. For example, in 2016, Ukraine completed a landmark criminal trial on charges of aggression, which resulted in a conviction.53 The future of domestic criminal prosecutions on charges of aggression remains to be seen.

8.6 Conclusion International law on the use of force requires reinforcement.54 The efficiency of the United Nations collective security system based on the primary responsibility of the Security Council for the maintenance of international peace and security was limited, although the Council should indeed be credited with a major achievement—that 50

As of this writing, 41 States ratified the Kampala amendments on the crime of aggression, see: https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=XVIII-10-b& chapter=18&lang=en (accessed 1 March 2021). 51 Cf. Article 16 Rome Statute: No investigation or prosecution may be commenced or proceeded with under this Statute for a period of 12 months after the Security Council, in a resolution adopted under Chapter VII of the Charter of the United Nations, has requested the Court to that effect; that request may be renewed by the Council under the same conditions. 52 See Sayapin 2014, pp. 199–222. 53 See Sayapin 2018b. 54 See Sands 2012.

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is, the prevention of a Third World War. After a phase of relatively fruitful cooperation between the Security Council members (1990–2003), the Council became divided again, especially, over Syria and Ukraine. Hence, the role of other main UN organs—in particular, the General Assembly and the International Court of Justice— in reacting to internationally unlawful uses of force should grow. It is hoped that a prospective UN reform would put in place a more functional system of global collective security. In turn, regional organisations should play an increasingly important role’ in the maintenance of peace in the areas of their geographic responsibility, with due regard to their regional expertise. It appears that the share of the International Criminal Court in prosecuting individuals for the crimes of aggression resulting from State acts of aggression would be very modest, given the insignificant number of ratifications of the 2010 Kampala amendments, and the UN Security Council’s power to defer investigations or prosecutions. Potentially, the African Court of Justice and Human and Peoples’ Rights, as reformed by the 2014 Malabo Protocol, and domestic courts might play a more active role in prosecuting individuals for aggression and other crimes against peace, in conformity with the principle of complementarity.

References Abass A (2000) The New Collective Security Mechanism of ECOWAS: Innovations and Problems. Journal of Conflict and Security Law 5:211–229 Abass A (2017) Historical and Political Background to the Malabo Protocol. In: Werle G, Vormbaum M (eds) The African Criminal Court: A Commentary on the Malabo Protocol. T.M.C. Asser Press, The Hague, pp 11–28 Al-Qahtani M (2006) The Shanghai Cooperation Organization and the Law of International Organizations. Chinese Journal of International Law 5:129–147 Alston P (2012) The United Nations: No Hope for Reform? In: Cassese A (ed) Realizing Utopia: The Future of International Law. Oxford University Press, Oxford, pp 38–51 Alvarez JE (1996) Judging the Security Council. American Journal of International Law 90:1–39 Ambos K (2017) Genocide (Article 28B), Crimes Against Humanity (Article 28C), War Crimes (Article 28D) and the Crime of Aggression (Article 28M). In: Werle G, Vormbaum M (eds) The African Criminal Court: A Commentary on the Malabo Protocol. T.M.C. Asser Press, The Hague, pp 31–55 Andrassy J (1956) Uniting for peace. American Journal of International Law 50:563–582 Blokker N (2005) The Security Council and the Use of Force – on Recent Practice. In: Blokker N, Schrijver N (eds) The Security Council and the Use of Force: Theory and Reality – a Need for Change? Martinus Nijhoff Publishers, Boston, pp 1–29 Fassbender B (2012) The Security Council: Progress is Possible but Unlikely. In: Cassese A (ed) Realizing Utopia: The Future of International Law. Oxford University Press, Oxford, pp 52–60 Franck T M (1995) The Secretary-General’s Role in Conflict Resolution: Past, Present and Pure Conjecture. European Journal of International Law 6:360–387 Gazzini T (2003) NATO’s Role in the Collective Security System. Journal of Conflict and Security Law 8:231–263 Gray C (2003) The Use and Abuse of the International Court of Justice: Cases concerning the Use of Force after Nicaragua. European Journal of International Law 14:867–905 Gray C (2008) International Law and the Use of Force, 3rd edn. Oxford University Press, Oxford

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Heintze H J (2013) Theories on the Relationship between International Humanitarian Law and Human Rights Law. In: Kolb R, Gaggioli G (eds) Research Handbook on Human Rights and Humanitarian Law. Edward Elgar, Cheltenham, pp 53–64 Ipsen K (2014) Völkerrecht, 6th edn. C. H. Beck, Munich Kadelbach S (2006) Jus Cogens, Obligations Erga Omnes and Other Rules – the Identification of Fundamental Norms. In: Tomuschat C, Thouvenin J M (eds) The Fundamental Rules of the International Legal Order: Jus Cogens and Obligations Erga Omnes, Martinus Nijhoff Publishers, pp 21–40 Klein P (2002) Responsibility for Serious Breaches of Obligations Deriving from Peremptory Norms of International Law and United Nations Law. European Journal of International Law 13:1241–1255 Leffler M P, Westad O A (2010) The Cambridge History of the Cold War, Volume II: Crises and Détente. Cambridge University Press, Cambridge Orakhelashvili A (2005) The Impact of Peremptory Norms on the Interpretation and Application of United Nations Security Council Resolutions. European Journal of International Law 16:59–88 Sands P (2012) Operationalizing the UN Charter Rules on the Use of Force. In: Cassese A (ed) Realizing Utopia: The Future of International Law. Oxford University Press, Oxford, pp 343–358 Sayapin S (2009) The International Committee of the Red Cross and International Human Rights Law. Human Rights Law Review 9:95–126 Sayapin S (2014) The Crime of Aggression in International Criminal Law: Historical Development, Comparative Analysis and Present State. T.M.C. Asser Press, The Hague Sayapin S (2015) The United Nations General Assembly Resolution 68/262 in the Context of General International Law. Evropsky politicky a pravni diskurz 2:19–30 Sayapin S (2018a) International Law on the Use of Force: Current Challenges. In: Sadat L N (ed) Seeking Accountability for the Illegal Use of Force: Challenges and Future Prospects. Cambridge University Press, Cambridge, pp 272–282 Sayapin S (2018b) A Curious Aggression Trial in Ukraine: Some Reflections on the Alexandrov and Yerofeyev Case. Journal of International Criminal Justice 16:1093–1104 Sayapin S (2019) The Crime of Aggression in the African Court of Justice and Human and Peoples’ Rights. In: Jalloh C, Clarke M K, Nmehielle V (eds) The African Court of Justice and Human and Peoples’ Rights in Context: Development and Challenges. Cambridge University Press, Cambridge, pp 314–335 Sayapin S, Tsybulenko E (2018) The Use of Force against Ukraine and International Law: Jus ad Bellum, Jus in Bello, Jus post Bellum. T.M.C. Asser Press, The Hague von Arnauld A (2014) Völkerrecht, 2nd edn. C. F. Müller, Heidelberg et al. Wedgwood R (2003) The fall of Saddam Hussein: Security Council mandates and preemptive self-defense. American Journal of International Law 97:576–585 Werle G, Jessberger F (2014) Principles of International Criminal Law, 3rd edn. Oxford University Press, Oxford Wheatley S (2006) The Security Council, democratic legitimacy and regime change in Iraq. European Journal of International Law 17:531–551 Wolfrum R (1993) Der Beitrag regionaler Abmachungen zur Friedenssicherung: Möglichkeiten und Grenzen. Zeitschrift für ausländisches öffentliches Recht und Völkerrecht 52:576–602 Woolsey L H (1951) The ‘Uniting for Peace’ resolution of the United Nations. American Journal of International Law 45:129–137

Sergey Sayapin is Associate Professor and Associate Dean at KIMEP University’s School of Law (Almaty, Kazakhstan).

Part IV

Legitimizing Aggression

Chapter 9

State Sovereignty and the Legitimacy of Aggression Wilfried von Bredow

Contents 9.1 Prologue . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.2 Sovereignty . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.3 Sovereignty at Bay? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.4 Aggression by States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.5 Aggression as a State Crime . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.6 Targeted Killing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.7 Preliminary Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Abstract The formerly uncontested acceptance of sovereign States’ right to wage war has been legally reduced to the right of self-defence against military aggression. The recently adopted definition of the crime of aggression paved the way for criminal proceedings against military aggressions by States before the International Criminal Court. This further taming of state sovereignty in traditional (‘Westphalian’) terms is a consequence of the dynamic process of globalization. Globalization has restricted many traditional functions of the modern State. However, this does not mean that organized violence and war are currently on the decline. On the contrary, in parallel with the de-legitimizing of organized violence and war by States, their re-legitimation in the post East-West conflict era has also proceeded apace. Two main reasons for this are growing pressure by internationally linked terrorist groups, and the emergence of new destructive technologies. Keywords Sovereignty · Human Security · Crime of Aggression · Asymmetric Wars · Targeted Killing

W. von Bredow (B) Department for Social Science, Philipps-Universität Marburg, Wilhelm-Röpke-Straße 6, 35032 Marburg, Germany e-mail: [email protected] © t.m.c. asser press and the authors 2022 S. Bock and E. Conze (eds.), Rethinking the Crime of Aggression, https://doi.org/10.1007/978-94-6265-467-9_9

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9.1 Prologue In the 16th year of the Peloponnesian War between Athens and Sparta and their respective allies Athens sent an expeditionary force to the island of Melos, an independent colony of Sparta. Until then, the leaders of Melos had endeavoured to keep their island out of the conflict. The Athenians did not respect Melian neutrality; they were ready to attack and devastate the island. In the end, the Athenian troops were powerful enough to force the Melians to surrender unconditionally. Athens subsequently ‘put to death all men of military age whom they took, and sold the women and children as slaves’.1 The demise of Melos plays only a short and rather marginal role in the course of the Peloponnesian War. However, it occupies some important space in the history of political theory. This is primarily because the fighting and atrocities were preceded by negotiations between the representatives of the Athenian military and the Melians. The ‘Melian Dialogue’, as recorded (or invented) by Thucydides is an early document of a deeply sceptical assessment of the relation between power and moral authority, fair play, and the weight of common civil values. From a military perspective, the Melians were evidently in a weak position. They thus tried to appeal to the good will of the Athenians by underlining their neutrality in the conflict between Athens and Sparta—in vain. The reply of the Athenians was blunt and brutal: Instead we recommend that you should try to get what is possible for you to get, taking into consideration what we both really do think; since you know as well as we do that when these matters are discussed by practical people, the standard of justice depends on the equality of power to compel and that in fact the strong do what they have the power to do and the weak accept what they have to accept.2

Re-reading the history of the Peloponnesian War and the histories of other wars in the past, we are torn between an exceedingly strong fatalism (‘there is no trustworthy moral progress in domesticating violence and war’) and equally strong hopes in the growth of civilization (‘we must find a way to bind power to right and justice’). This gap between what ‘realists’ consider a quasi-eternal fact of human life, and what ‘idealists’ strive to overcome with reason and good will, is as broad and distressing today as it surely was to the Melians.

9.2 Sovereignty As political scientists like to quip, sovereignty isn’t what it used to be. Developments such as the globalization of trade, finance, communication, and transportation, or the emergence of global problems like climate change and other environmental deteriorations, have effected a (partial) downgrading of sovereignty. Does globalization, through both its positive and negative effects, generate a world without state 1 2

Thucydides 1972, p. 408. Thucydides 1972, pp. 401–402.

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sovereignty—that is, a kind of international governance in which national governments play no important role? Do we live in an era where international politics, conflicts and war can be transformed into international regimes3 with consensual rules and peaceful arbitration? Evidently, there is a disjunct between the optimistic perspective of a steady legalization of international politics on the one hand, and the conditions under which States, other transnational actors, and subnational (regional or local) warlords are currently operating on the other. The focus of this chapter lies on this very disjunct— that is, the structural contradiction of the so-called international community. Indeed, in its current condition, this does not meaningfully resemble anything that we might usually refer to as a ‘community’.4 Section 9.2 is dedicated to the concept of state sovereignty and its institutional and behavioural dimensions. This concept is exhaustively treated in innumerable books and articles, so we will only consider a rough sketch of it here. Section 9.3 deals with an important aspect of state sovereignty: its partial decline in recent decades and the consequences of this development for the scope of government action. Section 9.4 concentrates on a special form of the use of violence and military means by States which are pushing to re-legitimate their military actions. Historians and political scientists have traditionally conceptualised sovereignty in rather solemn terms as ‘a principle which maintains […] that there must be a supreme authority within the political community if the community is to exist at all, or at least if it is to be able to act as its character and circumstances require it to’.5 Without such a supreme authority, there would be no social and political continuity, because relations between individuals, groups, and larger political entities, would be in constant danger of imploding. This reference to a supreme authority within a territory6 (internal sovereignty) corresponds with what can be called ‘constitutional independence’7 of a State. Constitutional independence implies the basic precepts of non-interference of a State (government) in another State’s internal affairs. It also entails an obligation on the part of the State and its organs to protect its citizens against any aggression from abroad. Both precepts are two sides of the same coin. The modern (‘Westphalian’) state system, which emerged in the mid-17th century, is based on these principles of internal and external state sovereignty. Since then, the ownership and source of sovereignty has shifted from dynastic rulers to the people of a nation. Popular sovereignty (government by the people for the people) poses some severe organizational problems to both political theorists and practitioners. Since the 20th century, popular sovereignty is usually equated with national self-determination and democratic institutions (above all general elections). There exist different forms of

3

Keohane 1983, pp. 170–171. von Bredow 2010, p. 306. 5 Hinsley 1966, p. 219. 6 Territory means a space with politically defined borders. 7 Holsti 2004, p. 113. 4

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democracy—and not a few of them hide autocratic structures, repression and political manipulation behind their facades. For centuries, the principles of sovereignty have found and continue to find their way into international documents, treaties and agreements between States. The UN Charter of 1945 or the CSCE Final Act of 1975 are just two prominent examples from the second half of the 20th century. However, principles are called principles because they allow for exceptions. They do not impede double standards—sometimes, they even encourage them. Furthermore, they are (usually) not set in stone; they are prone to the natural tendency of change over time. And it is noteworthy that the above cited documents can also be read as attempts to limit the sovereignty of States by confirming a set of norms, rules and regulations whose function is to restrict States’ room for manoeuvre. ‘The social understandings that were thought to define war, territory, sovereignty, and more seem to fit poorly’8 around new political practices and military strategies. If this observation is true, then it invites at least three questions: Firstly, will the partial decline of state sovereignty eventually lead to a world where international relations are dominated and regulated by international law? Secondly, is the nearly one-hundred-year-old trend of de-legitimizing the use of violence as an instrument of sovereign (state) policy successful to the extent that it helps lower the level, scope and destructive intensity of violence in international relations? Or—and thirdly—do the new political practices and military strategies entail a re-legitimization of aggressive state policies with military means?

9.3 Sovereignty at Bay? A considerable part of the political science literature of the past 20, 30 years is rather sceptical about the prospects of state sovereignty,9 and even, in some cases, about the State.10 This scepticism derives from one of the main trends in the international system—the seemingly unstoppable advance of globalization. Communication and transport technologies have made state borders porous. Economic developments in production, trade and finance have shifted power from the State to non-governmental organizations—multinational organizations (MNO) and business international organizations (BINGO). Hundreds of humanitarian non-governmental organizations (NGOs) define themselves as actors ‘without borders’ (like médecins sans frontiers) and pursue the objective of relieving the short-term consequences of violent conflict and wars, and of further delegitimizing war as an instrument of state politics.

8

Hurd 2017, p. 308. Among others: Kratochwil 1989; Bateson 1990; Rosenau 1990; Knieper 1991; Rosenau and Czempiel 1992; Elkins 1995; Weber 1995; Biersteker and Weber 1996. 10 Among others: Schmidt 1995; Strange 1996. 9

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Globalization links the private and professional lives of ever-increasing numbers of people worldwide, though in a rather asymmetric way. To some extent, this implies a partial devaluation of state sovereignty and of state-centric international policy. According to James Rosenau,11 the modern state-centric (‘Westphalian’) system of world politics must now co-exist with an equally powerful, more decentralized multicentric system beyond the state level. This makes the exercise of state authority much more problematic. Other authors proclaim a future of ‘governance without governments’.12 Globalization is not necessarily identical with the expansion of ‘liberal values’13 However, as long as these values propound a growing distance to state authority, their strengthening indeed works at the expense of state sovereignty.14 A benign interpretation of globalization also re-enforces aspirations for a cosmopolitan world order in which internationally accepted norms and rules will eventually gain priority over national norms and rules. The institutions of this world order will ultimately take over important functions from the States. Globalization implies a ‘reconfiguration of sovereignty’15 and intensifies the process of disaggregating it. The driving force of this process is ‘the willingness of states to share authority in the face of environmental, economic, and social problems that go well beyond their individual capacity to manage on their own’.16 This cosmopolitan approach entails a moral, pacifist or humanitarian belief that a world without war is feasible. In the long run, the principle of external sovereignty should be replaced by an international regime of justice and collective security. This regime is to be based on legal norms that are strong enough to change the nature of politics. A much less benign interpretation of globalization maintains that the quasipermanent weakening of state sovereignty is caused by the triumph of economic actors in international relations. These actors undermine state sovereignty by debilitating the ability of governments and administrations to function according to the principles of national self-determination. They bribe political elites in search of their own economic benefit, thereby reinforcing the process of state failure. The loss of state authority and sovereignty can generate zones of state-free anarchy and at other times the opposite—the seizure of power by a political or military leader who does not care for human rights, democratic rule, and the reduction of violence. This development is sometimes repressed in the mind of observers who prefer to regard historical development since the late 19th century, and especially since the end of World War I, as the gradual but unstoppable progress of international humanitarian law. First, humanitarian law restricted the use of certain weapons and regulated the handling of civilians and war prisoners. In a second step, international agreements aimed to de-institutionalize war and military conquest as instruments of state policy. 11

Rosenau 1990, p. 11. Rosenau and Czempiel 1992. 13 The term ‘liberal’ is somewhat opaque, either more coloured by individualism and secularization or by economic considerations about the freedom of the market. 14 Großklaus 2017, p. 262. 15 Levy and Sznaider 2006, p. 660. 16 Agnew 2005, p. 441. 12

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The organized use of violence was permitted only in cases of self-defence or (since 1945) as a response to a demand by the United Nations’ Security Council.17 A third step was the emergence of international criminal law institutions. States and their leading personnel are now confronted with binding norms that criminalize certain war crimes, crimes against humanity, genocide, and the crime of aggression. This is undoubtedly a severe limitation of state sovereignty which many of them have accepted—at least nominally. In fact, the attempted de-institutionalization of war as an instrument of policy has not proven particularly successful. If it had, there would be no more aggressors; military self-defence would become unnecessary; peace would prevail. This is clearly not what has happened since the Kellogg-Briand Pact18 of 1928 first banned war explicitly and condemned it as evil. On the contrary, from the 1930s on, the 20th century (as well as the 21st) was characterized by repeated wars and organized violence. But in spite of these developments, and leaving all utopian expectations aside, we have reasonable grounds to assume that small steps have been taken in the direction of enhanced human security.19 These include the ascent of international humanitarian law, the build-up of political and legal institutions above the level of States, and especially the various attempts to strike violent aggression and war from the list of legitimate state behaviour. Some authors contend that sovereignty was never a clear and consistent political concept. Instead, it always obscured the considerable power disparities of States and thus their quite different potential to enforce their national interests. The ‘organized hypocrisy’ approach20 to explain how sovereignty functions emphasises the differences and sometimes contradictions between its aspects. These include international legal sovereignty, political sovereignty (which mostly refers to the exclusion of external interference in ‘authority structures’ within a State), domestic sovereignty and interdependence sovereignty. The modern (European) state system which emerged after the Thirty Years War was built on the premise of a comprehensive sovereignty. But this was always a fiction. In fact, differences of size and (soft and hard) power between States, as well as their conflicting interests (and those of their governments), never prevented stronger States from violating the sovereignty of weaker States. Therefore, international legal and political sovereignty became part of a double standard in the great game of power politics. There was and there remains no way out of this organized hypocrisy.21 We can point to an abundance of empirical examples for these enduring double standards. All governments claim sovereignty for themselves. And yet, when they are 17

Holsti 2004, p. 283. The official name of the Kellogg-Briand Pact is ‘General Treaty for Renunciation of War as an Instrument of National Policy’. 19 Buzan and Hansen 2010, pp. 202–205; Ulbert and Werthes 2008. 20 Krasner 1999, pp. 3–4. 21 Acharya 2007, p. 274, plays with the term ‘organized hypocrisy’ and calls the ‘selected sovereignty’ approach of the Bush administration after 9/11 ‘disorganized hypocrisy’. 18

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in a position to infringe on the sovereignty of other States, most of them apparently have considerable difficulty resisting the temptation to do so. Even superficial analyses of recent military confrontations—Kosovo 1999; Iraq 2003;22 Georgia 2008; Libya 2011;23 Syria 2015;24 to name but a few—confirm the suspicion that many governments instrumentalize the principle of sovereignty and international law for their own interests, sometimes without even trying to steer clear of internal contradictions. Furthermore, they often work with fake news and propaganda to influence national and international public opinion.25 It should be noted that, against a strong current of criticism concerning sovereignty, some scholars cling to the idea that one of the main functions of sovereignty is to sustain a viable international order. For Keohane, ‘the traditional functions of sovereignty—to clarify boundaries, institutionalize practices of reciprocity, and limit intervention’ will probably remain salient. This is at least partly because ‘the danger that sovereignty was invented to deal with—chronic, ideologically justified intervention—will remain prominent’.26 On the theoretical level, a growing minority of scholars are increasingly expressing their discontent with the prevailing view of sovereignty in the social sciences. They argue ‘that the current movement against state sovereignty participates in the degradation of political agency at both the domestic and international levels’.27 What appears to be a new horizon for political imagination in fact limits the sense of political possibility. This criticism has, of course, no points of contact with attempts by some powerful States to emphasize their sovereignty by a unilateral policy and to re-introduce war as a legal and demonstrative instrument of politics.28 This new strain of militarized state policy distinguishes itself from more ‘traditional’ forms of illegal state violence such as state terrorism.29 Whether this is predominantly a sign of hegemonial unilateralism in a transitional period of the international system remains to be seen.

9.4 Aggression by States The definition of aggression as formulated by the General Assembly of the United Nations in 1974 focuses on the first use of armed force by a State against the sovereignty, territorial integrity or political independence of another State. Any invasions or attacks, bombardments, blockades or the deployment of irregulars and 22

Kramer and Michalowski 2005. Wedgwood and Dorn 2015. 24 Wissenschaftliche Dienste des Deutschen Bundestages 2018. 25 An informative case study about Putin’s Russia is Schaller 2018. 26 Keohane 2002, p. 81. 27 Bickerton et al. 2007, p. 1. 28 Leidenmühler 2005, p. 84. 29 Jackson 2008. 23

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mercenaries are regarded as aggressions and, therefore, viewed as a violation of the Charter of the United Nations. According to the Rome Statute, which established the International Criminal Court (ICC) in 2002, the crime of aggression belongs to the four core crimes which fall under the jurisdiction of the Court. The other three are war crimes, crimes against humanity, and genocide. The review conference at Kampala30 (May/June 2010) adopted some amendments of the Rome Statute, among them Article 8bis, which lists three essential elements as requirements that constitute a crime of aggression: (1) (2) (3)

Perpetrators must be responsible political or military leaders and effectively exercise control over the discriminated actions of a State. The Court must prove that the perpetrator was involved in the planning, preparation, initiation or execution of a State act of aggression. Only the most serious forms of illegal use of force between States can be subject to the Court’s jurisdiction.31

Since 17 July 2018 the ICC at The Hague has been authorised to prosecute the crime of aggression. The judges of the Court now have the authority to decide which side in a violent conflict between States or sub-state political organizations is the aggressor and which one acts based on legal self-defence. For some rather delighted observers, such as Bertram Schmitt, a Judge at the ICC, this entails a remarkable growth in the power of the Court, and perhaps even the beginning of a new epoch in international law.32 This optimism seems somewhat premature, especially in light of recent developments in international politics. These comprise myriad violent conflicts which appear to be beyond the reach of any manner of cooperative international conflict management or judicial resolution.

9.5 Aggression as a State Crime The organized hypocrisy perspective is certainly painful to accept even provisionally. Nonetheless, it can serve as a point of departure for a critical exploration of an otherwise puzzling paradox. This paradox consists in the apparent co-existence of the ongoing delegitimization of aggression and war, alongside a seemingly unending boom in organized violence on nearly every continent. It is this strange and uneasy coexistence which prevents us from regarding the current step in the institutionalizing of international criminal law either as a breakthrough or merely as ineffective paper pushing.

30

Kreß and von Holtzendorff 2010. For a first extensive commentary see: Kreß and Barriga 2017. 32 Cf. Steinke R (16 July 2018), Mehr Biss fürs Völkerrecht. In: Süddeutsche Zeitung, https://www.sueddeutsche.de/politik/den-haag-mehr-biss-fuers-voelkerrecht-1.4056586 (accessed 1 March 2021). 31

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Defining ‘crime of aggression’ in the Rome Statute proved to be a difficult process. There were some doubts, both in political and legal terms.33 Firstly, it is impossible to overlook the (serious) problem of incomplete compliance with the moral convictions, the political obligations, and the legal agreements concerning the UN-ban of aggressive use of force. Moreover, proponents of the criminalization of aggression are compelled to concede that several factors represent severe hindrances to progress in eliminating organized violence and acts of aggression. Such factors include the partial decline (or reconfiguration) of sovereignty, the backlash against the universalistic expansion of liberal values such as human rights, and, last but not least, changes in military technology and new operational modes of military operations. Article 8bis Rome Statute defines the crime of aggression as ‘the planning, preparation, initiation or execution, by a person in a position effectively to exercise control over or to direct the political or military action of a State, of an act of aggression which, by its character, gravity or scale, constitutes a manifest violation of the Charter of the United Nations.’ An act of aggression means ‘the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State’.34 The contemporary international system is characterized by a high number of weak and failing States on the one hand and powerful non-state actors capable of perpetrating organized violence on the other. In such a system, these regulations are in danger of leaving out substantial sources of aggressive military behaviour in conflicts where governments play only a secondary role or no role at all. Several scholars have suggested that the aforementioned concept of human security (as opposed to state security) is indeed a new paradigm for global order.35 If we accept this definition, then it makes sense to steer the aggressive war definition away from territorial and sovereignty aspects (state level) and integrate it into ‘the broader project of international criminal law […] the protection of individuals and groups from the most egregious violations of their rights and dignity’.36 For Dannenbaum, then, aggressive war is a crime not because it infringes on a State’s sovereignty, but ‘because it entails killing without justification’.37 This is a morally satisfying contention. However, it creates political problems of its own, for the text of Article 8bis Rome Statute exclusively relates to actions of armed forces of a State (perpetrator) against another State (victim).38 Therefore, it would constitute a very bold step to remove state sovereignty from the centre of this Article and to replace it with attacks on, or threats to, the lives of human beings. How many of the signatories of the Rome Statute subscribe to this interpretation? 33

Among others: Murphy 2009; Koh and Buchwald 2015. Weisbord 2019. 35 Senn and Troy 2017, p. 191. 36 Dannenbaum 2017, p. 1317. 37 Ibid., p. 1242. 38 Article 8bis Rome Statute enumerates seven state actions, which qualify as acts of aggression, among them the blockade of ports or coasts of a State by another State. These are, indeed, illegal acts of a State, but do they involve to a large extent direct attacks on the lives and physical integrity of human beings? 34

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Probably only a minority, and certainly not the ‘big shots’ on the international stage. The United States, Russia, and China, three of the five Permanent Members of the UN Security Council, never endorsed it. Their governments are not likely to accept that any military actions they undertake could be regarded as crimes of aggression. A recent article on the Confucian position on the legitimate use of military force makes the point that the Chinese political thinking of Mencius and Xunzi (4th and 3rd century B.C.) already distinguished between legitimate ‘punitive expeditions’ and illegitimate aggressive war.39 This distinction is still highly regarded by the leaders of the People’s Republic of China. Other governments make similar distinctions to legitimize the use of violence. For the last two decades, the ‘war on terrorism’ has served as one of the main frameworks for legitimising the use of force. It was and remains a largely unconvincing argument.

9.6 Targeted Killing Inter-state wars with a clear demarcation between attacker and attacked are relatively rare today. Instead, we are presented with the expansion of a grey zone of organized violence, hybrid warfare and attempts by governments and various kinds of non-governmental actors to legitimize their use of violence based on national self-determination, political religions or a responsibility to protect. The last of these principles may be in accordance with the R2P rules of the United Nations, or it may simply be invoked by one of the parties to a conflict. Yet so-called new and asymmetric wars often challenge the traditional wisdom of military strategists. In the 1990s, a strong current in the politico-military discourse supported the distinction between a military mission for a ‘good cause’ (i.e. humanitarian intervention) and the use of force for a ‘bad cause’ (such as, for example, by the leaders of so-called rogue States, by greedy warlords in state-free zones, or by political and religious fundamentalists). This distinction seemed simple and self-evident, but in practice it proved to be a rather weak and biased construction. Meanwhile, the widespread euphoria in certain circles about the healing effects of humanitarian interventions has evaporated. However, in the name of the ‘international community’ and legitimated by various resolutions of the Security Council and the General Assembly of the United Nations, some States continue to reserve for themselves the moral right to intervene military. They do so when—and presumably because—their intervention helps to overcome human catastrophes created either by natural causes or, more frequently, by repression and other serious violations of human rights. In many cases, the hidden intentions and the results of self-declared humanitarian intervention have proven to be ambivalent or even deleterious. After the end of the East-West conflict, the discourse on humanitarian intervention mingled with the more robust discourse on external democracy promotion, regime change, and with the yet-more robust discourse on preventive and/or pre-emptive 39

Twiss and Chan 2012, p. 455.

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strikes. The multi-layered debates on these issues eventually led to a (temporary?) erosion of a stricter version of the ban of violence in international law.40 This process was further reinforced by two developments. First, it became increasingly apparent that, in some conflicts between Western militaries and their non-state enemies, the former’s technological superiority could be partly neutralized through unconventional attacks without much consideration for the rules of humanitarian law.41 This asymmetric constellation has been deepened by new developments in arms and communication technology. The operational codes of the military have been similarly transformed. Cyber warfare, for instance, is a form of aggression in which the perpetrator is difficult to localise. According to one of the most thoughtful scholars of war and military strategy, the main factor in these developments has been the overt readiness of the West to use war as in instrument of policy.42 In the recent years, an increasingly important part of the discourse on the legitimacy or illegitimacy of the aggressive use of organized violence has concentrated on so-called targeted killing.43 Until the Renaissance, the targeted assassination of state leaders was, so to speak, a common instrument of politics.44 The modern (Westphalian) state system generated the institution of mutually recognized state sovereignty, part of which was the tabooization of targeted killings. ‘The rise of this norm followed not only from growing moral revulsion against treacherous killing (e.g. by poisoning), but also from concerns about instability and disorder that would follow from the killing of state leaders’.45 So, this prohibition norm combines elements of the sovereignty perspective (the State claiming supreme authority over its territory) with elements of the liberal value perspective (centred around the rights and liberties of the individual). To be sure, the second half of the 20th century has witnessed a ‘rise of liberal norms precisely at the expense of the importance of state sovereignty’.46 And yet the recent advancement of state-sponsored killing is more closely related to sovereignty than to liberal values.47 Evidently, we are observing a remarkable transformation of norms.48

40

Kolb R (2002) Perspektiven des humanitären Völkerrechts. Erosion des Gewaltverbots nach dem Kalten Krieg? Neue Zürcher Zeitung, 7/8 September. 41 Thornton 2007, p. 181. 42 Strachan 2013, p. 22. 43 Senn and Troy 2017, p. 186, define targeted killing as ‘the use of intentionally lethal violence against a prominent or culpable person or a small group of persons (the target) not on the physical custody of the agent using violence (the source)’. 44 Großklaus 2017, p. 268. 45 Senn and Troy 2017, p. 183. 46 Großklaus 2017, p. 276. 47 Witzleben 2016. 48 Pratt 2018.

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Assassination attempts by States against leaders of other States never vanished completely from the backstage of international politics.49 That said, in the last two decades, there has been an appreciable transformation in the practice of targeted killing. This has emerged as a legitimate mode of operation in the ‘war against terrorism’, and the number of targeted killing missions has steadily increased. The new hardware (drones) and software technologies (surveillance, accurate control over thousands of miles) explain the military attractiveness of such missions. States like the US and Israel have voluntarily lifted the curtain of secrecy regarding targeted killing. Targeted killing is certainly a very controversial issue, in political as well as in moral and legal terms. It is not inconceivable that it will transform the rules of war by legitimizing a form of aggression both against the claimed sovereignty of another State50 and against certain individuals regarded by the attackers as terrorists. The dilemma of this mode of violent attack is well captured in the following phrases by Renic: Participants in war have long sought to neutralise both the threat-capacity of the other side and the risk exposure to their own. The drive towards risklessness in battle is logical, as dictated by the exigences of war, and laudable, as dictated by the moral and political demands of force protection. The same drive, however, is moving us ever closer to a mode of violence that strains the basic foundations upon which or moral justification for killing in war rest.51

9.7 Preliminary Conclusion After the Athenian military had defeated the Melians, they killed all men of military age and sold the women and children as slaves. In the two thousand long and rocky years since, modern civilization has introduced more humane standards for organized violence and war. This process has placed some restraints on violence as a political instrument, and it has proclaimed the pursuit of peace and justice as desirable common goals. States and their governments are called upon to support this process. On the rhetoric level, they have certainly expended much effort in expressing their collaboration to achieve these goals, as well as their compliance with documents like the Charter of the United Nations. Sometimes, a little violence (or, in some cases, a lot) has been required in order to remind States to fulfil the rules which nearly all States have endorsed by signing documents like the Charter of the United Nations. Nevertheless, organized violence and war continue to characterize the present age. In general, States still have the lion’s share of the world’s military resources at their disposal. And yet only in exceptional circumstances do modern wars take the form of inter-state wars. Some authors have suggested that, in the 21st century, war will not be waged by armies ‘but by groups whom we today call terrorists, guerrillas, bandits, and 49

States used some special agencies for these purposes. Usually their activity was hidden behind a firewall of secrecy. 50 US drone attacks on terrorists in Pakistan, see: Peron 2014. 51 Renic 2018, p. 425.

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robbers, but who will undoubtedly hit on more formal titles to describe themselves’.52 Perhaps this is a premature judgement. Nonetheless, the focus on sovereign States as potential perpetrators and culprits of crimes of aggression overlooks a growing proportion of wars and war-like aggressions. Evidently, international law can shape practices within the international system only in a reflexive sense.

References Acharya A (2007) State Sovereignty After 9/11: Disorganised Hypocrisy. Political Studies 55:274– 296 Agnew J (2005) Sovereignty Regimes: Territoriality and State Authority in Contemporary World Politics. Annals of the Association of American Geographers 95:437–461 Bateson M C (1990) Beyond Sovereignty: An Emerging Global Civilization. In: Walker R B J, Mendlovitz S H (eds) Contending Sovereignties. Redefining Political Community. Lynne Rienner Publishers, Boulder, pp 145–158 Bickerton C J, Cunliffe P, Gourevitch A (2007) The Unholy Alliance against Sovereignty. In: Bickerton C J et al (eds) Politics Without Sovereignty: A Critique of Contemporary International Relations. UCL Press, New York, pp 1–19 Biersteker T, Weber C (eds) (1996) State Sovereignty as Social Construct. Cambridge University Press, Cambridge Buzan B, Hansen L (2010) The Evolution of International Security Studies. Cambridge University Press, Cambridge Dannenbaum T (2017) Why Have We Criminalized Aggressive War? Yale Law Journal 126:1242– 1318 Elkins D J (1995) Beyond Sovereignty. Territory and Political Economy in the 21st Century. Toronto University Press, Toronto Großklaus M (2017) Frictions, Not Erosion: Assassinations Norms at the Fault Line between Sovereignty and Liberal Values. Contemporary Security Policy 38:260–280 Hinsley F H (1966) Sovereignty. C. A. Watts & Co, London Holsti K J (2004) Taming the Sovereigns: Institutional Change in International Politics. Cambridge University Press, Cambridge Hurd I (2017) Targeted Killing in International Relations Theory: Recursive Politics of Technology, Law, and Practice. Contemporary Security Policy 38:307–319 Jackson R (2008) The Ghosts of State Terror: Knowledge, Politics and Terrorism Studies. Critical Studies on Terrorism 1:377–392 Keohane R O (1983) The demand for international regimes. In: Krasner S (ed) International Regimes. Cornell University Press, Ithaca, pp 141–171 Keohane R O (2002) Power and Governance in a Partially Globalized World. Routledge, London Knieper R (1991) Nationale Souveränität: Versuch über Ende und Anfang einer Weltordnung Fischer, Frankfurt am Main Koh H H, Buchwald T F (2015) The Crime of Aggression: The United States Perspective. Yale Law School Faculty Scholarship Series, Paper 5006 Kramer R C, Michalowski R (2005) War, Aggression and State Crime: A Criminological Analysis of the Invasion and Occupation of Iraq. British Journal of Criminology 45:446–469 Krasner S D (1999) Sovereignty: Organized Hypocrisy. Princeton University Press, Princeton Kratochwil F V (1989) Rules, Norms, and Decisions: On the Conditions of Practical and Legal Reasoning in International Relations and Domestic Affairs. Cambridge University Press, Cambridge 52

van Creveld 1991, p. 197; also van Creveld 2006, pp. 261–270.

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Kreß C, Barriga S (eds) (2017) The Crime of Aggression: A Commentary. Cambridge University Press, Cambridge Kreß C, von Holtzendorff L (2010) The Kampala Compromise and the Crime of Aggression. Journal of International Criminal Justice 8:1179–1217 Leidenmühler F (2005) Von der Rückkehr des Krieges in das Recht. Das Konzept des Präventivkrieges als Versuch der Re-Etablierung des bellum legale. In: Becker J, Hödl G, Steyrer P (eds) Krieg an den Rändern. Von Sarajewo bis Kuito. Promedia, Vienna, pp 74–91 Levy D, Sznaider N (2006) Sovereignty Transformed: A Sociology of Human Rights. British Journal of Sociology 57:657–676 Murphy S D (2009) Aggression, Legitimacy and the International Criminal Court. European Journal of International Law 20:1147–1156 Peron A E (2014) The ‘Surgical’ Legitimacy of Drone Strikes? Issues of Sovereignty and Human Rights in the Use of Unmanned Aerial Systems in Pakistan. Journal of Strategic Security 7:81–93 Pratt S F (2018) Norm transformation and the institutionalization of targeted killing. European Journal of International Relations 25:723–747 Renic N C (2018) Justified Killing in an Age of Radical Asymmetric Warfare. European Journal of International Relations 25:408–430 Rosenau J N (1990) Turbulence in Words Politics: A Theory of Change and Stability. Princeton University Press, Princeton Rosenau J N, Czempiel E-O (eds) (1992) Governance Without Government: Order and Change in World Politics. Cambridge University Press, Cambridge Schaller C (2018) Völkerrechtliche Argumentationslinien in der russischen Außen- und Sicherheitspolitik: Russland, der Westen und das ‘Nahe Ausland’. Stiftung Wissenschaft und Politik, Berlin (SWP-Studie 10/June 2018) Schmidt V A (1995) The New World Order, Incorporated: The Rise of Business and the Decline of the Nation-State. Daedalus 124:75–106 Senn M, Troy J (2017) The Transformation of Targeted Killing and International Order. Contemporary Security Policy 38:175–211 Strachan H (2013) The Direction of War: Contemporary Strategy in Historical Perspective. Cambridge University Press, Cambridge Strange S (1996) The Retreat of the State. The Diffusion of Power in the World Economy. Cambridge University Press, Cambridge Thornton R (2007) Asymmetric Warfare: Threat and Response in the 21st Century. Polity Press, Cambridge Thucydides (1972) History of the Peloponnesian War (translation by Warner R). Penguin Books, London Twiss SB, Chan J (2012) The Classical Confucian Position on the Legitimate Use of Military Force. Journal of Religious Ethics 40:447–472 Ulbert C, Werthes S (eds) (2008) Menschliche Sicherheit: Globale Herausforderungen und regionale Perspektiven. Nomos Verlag, Baden-Baden Van Creveld M (1991) The Transformation of War. The Free Press, New York Van Creveld M (2006) The Changing Face of War: Lessons of Combat from the Marne to Iraq. Ballantine Books, New York Von Bredow W (2010) Ein Konstrukt, kein Akteur: Die internationale Gemeinschaft zwischen Heterogenität und Verrechtlichung. In: Lappenküper U, Marcowitz R (eds) Macht und Recht. Völkerrecht in den internationalen Beziehungen. F. Schöningh, Paderborn, pp 295–313 Weber C (1995) Simulating Sovereignty. Intervention, the State and Symbolic Exchange. Cambridge University Press, Cambridge Wedgwood A, Dorn W (2015) NATO’s Libya Campaign 2011: Just or Unjust to What Degree? Diplomacy & Statecraft 26:341–362 Weisbord N (2019) The Crime of Aggresson: The Quest for Justice in an Age of Drones, Cyberattacks, Insurgents, and Autocrats. Princeton University Press, Princeton

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Wissenschaftliche Dienste des Deutschen Bundestages (2018), Völkerrechtliche Implikationen des amerikanisch-britisch-französischen Militärschlags vom 14. April 2018 gegen Chemiewaffeneinrichtungen in Syrien, Berlin, https://www.bundestag.de/blob/551344/f8055ab0bba0ced333ebc d8478e74e4e/wd-2-048-18-pdf-data.pdf (accessed 1 March 2021) Witzleben F (2016) Gezielte Tötung: Ein Legitimationsproblem aus völkerrechtlicher Sicht. LogosVerlag, Berlin

Prof. Dr. Wilfried von Bredow was Professor in Political Science at the Philipps-Universität Marburg (Marburg, Germany) until 2009 and is now retired.

Chapter 10

The Crime of Aggression and the Prohibition of the Use of Force—Reflections on the Relationship between the Rome Statute and General Public International Law Michael Lysander Fremuth

Contents 10.1 The Prohibition of the Use of Force under Public International Law and the Crime of Aggression—On the Relationship between Two Revolutionary Developments . . . . . 10.1.1 The Prohibition of the Use of Force as an Emblem of Modern Public International Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.1.2 International Criminal Law as a Peace Project . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.1.3 The Relationship between the Crime of Aggression and General PIL . . . . . . . . . 10.2 The Prohibition of the Use of Force and Its Exceptions . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.2.1 The Prohibition of the Use of Force . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.2.2 Exceptions from the Prohibition of the Use of Force . . . . . . . . . . . . . . . . . . . . . . . 10.2.3 Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.3 The Institutional Relationship between the ICC, the UNSC and the ICJ—Who Is the Custodian of International Peace? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.4 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Abstract The crime of aggression becoming operational under the Rome Statute of the ICC can be seen as recourse to the early times of modern international criminal law when securing international peace had been its very rationale. The crime The author wishes to thank particularly Andreas Sauermoser and Laura Thimm-Braun for their assistance with the footnotes and for helpful discussions; he further wishes to thank Magdalena Steringer, Roman Friedrich and Luci Haspinger for their critical reading of the text. M. L. Fremuth (B) Department of Law, Universität Wien, Renngasse 6-8, 1010 Vienna, Austria e-mail: [email protected] Ludwig Boltzmann Institute of Fundamental and Human Rights, Freyung 6 (Schottenhof) 1. Hof, Stiege II, 1010 Vienna, Austria © t.m.c. asser press and the authors 2022 S. Bock and E. Conze (eds.), Rethinking the Crime of Aggression, https://doi.org/10.1007/978-94-6265-467-9_10

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of aggression might become a subjective pillar of the prohibition of the use of force under the UN Charter. However, while the prohibition of the use of force is comprehensive and partially open to new developments of modern warfare, the crime of aggression knows a narrow definition that will also raise difficulties of delimiting the competencies of the ICC in relation to organs of the UN in particular. Combined with the strong (political) opposition to the ICC in general, this might cast doubt as to whether the crime of aggression will actually become a real contribution to the protection of international peace in the near future. Keywords Crime of Aggression · State Conduct · Prohibition of the Use of Force · Statehood · Legitimate Use of Force · Authorisation by the Security Council · Self-defence · Humanitarian Intervention · Institutional Relations between ICC, ICJ and UNSC

10.1 The Prohibition of the Use of Force under Public International Law and the Crime of Aggression—On the Relationship between Two Revolutionary Developments It was only after 1945 that the international community of States could agree upon a comprehensive prohibition of the use of force as the cornerstone of modern public international law (PIL) (see Sect. 10.1.1). In its early times, international criminal law (ICL) was intended to serve the interest of ensuring international peace. While its focus partially shifted to the prevention of atrocities, the inclusion of the crime of aggression in the Rome Statute of the International Criminal Court (Rome Statute), agreed upon in 1998 and entering into force in 2002, and the activation of the jurisdiction of the International Criminal Court (ICC) can be regarded as a renewed attempt to make international criminal law a peace project that undergirds the objective prohibition of the use of force by invoking individual criminal responsibility for aggressors (see Sect. 10.1.2). In the end, whether the possibility to prosecute aggressors contributes to maintaining peace will depend, i.a., on the interpretation of the relationship of the crime of aggression with PIL in general (see Sects. 10.1.3 and 10.1.2) and on striking a fair balance between competing interests.

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10.1.1 The Prohibition of the Use of Force as an Emblem of Modern Public International Law Even though it might amount to a provocation in times of globalisation, which is sometimes assumed to diminish the capabilities of States and challenge the foundations of the international legal order,1 PIL is still founded on the principle of sovereignty.2 As an emanation thereof, the principle of consent and the assumption that what has not been forbidden by virtue of a well-established legal rule binding upon the States in question is permitted under PIL remains valid3 in general, irrespective of a controversial debate.4 In the absence of a prohibition and tracing back i.a., to the theoretical work of Jean Bodin,5 waging war within international relations for centuries has not been deemed to constitute a violation of PIL but rather to constitute a sovereign right of States.6 The Westphalian international legal order, established after 1648 and an initial point of PIL,7 was an order of sovereign territorial States with little restrictions. Even though restrictions on how to wage war came into existence in the late 19th century (ius in bello),8 the ius ad bellum remained unaffected. A first attempt to delegitimise war was made in 1928 by the Kellogg-Briand-Pact,9 whereas the Covenant of the League of Nations did not generally forbid wars but only tried to prevent them by a mechanism of settling disputes peacefully and a

1

E.g. Ohmae 1995, pp. 79 et seq., arguing in favour of region States due to economic globalisation; for further reading, see Krasner 2001 passim; in favour of the continuing relevance of the nation State, cf. Fremuth forthcoming; Giraud 2012, pp. 149 et seq. 2 See PCA, Decision of 4 April 1928 (The Netherlands v. United States of America, The Island of Palmas Case), Judge Huber, Award, R.I.A.A. Vol. XI, p. 838–840; ICJ, Judgment of 3 February 2012 (Germany v. Italy, Case Concerning Jurisdictional Immunities of the State), p. 99 para 57, ICJ Reports (2012); ICJ, Judgment of 27 June 1986 (Nicaragua v. United States of America, Case Concerning Military and Paramilitary Activities in and against Nicaragua), p. 14 paras 212, 265, ICJ Reports (1986); Besson 2011, paras 1–7, 86–156; Crawford 2012, pp. 447–455. 3 See PCIJ, Judgment of 7 September 1927 (France v. Turkey, The Case of the S.S. ‘Lotus’), p. 18, Series A No. 10; furthermore, see recently ICJ, Advisory Opinion of 25 February 2019 (Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965), para 85 (not yet officially published); confirming consent being necessary for disputes to be submitted to judicial settlement. On the decay of consent outside of the channel of traditional law making Krisch 2014, pp. 1 et seq. 4 Cf. Hertogen 2015, pp. 901 et seq., with a critical appraisal of the reception of the Lotus Judgment (see next footnote) and a reading differing from the predominant interpretation; Handeyside 2007, pp. 75 et seq., arguing that the Lotus principle plays hardly any role in the jurisprudence of the ICJ. 5 For Bodin 1583, pp. 223 et seq., father of the modern concept of sovereignty, declaring war was a sovereign right (deriving from the right to legislate) of the monarch being the predecessor of the modern State. 6 For a sceptical historical view, cf. Bernstorff 2018, pp. 233 passim. 7 Gross 1948, pp. 28 et seq. 8 Greenwood 1983, pp. 225 et seq. 9 Traité général de renonciation à la guerre comme instrument de politique nationale, 96 LNTS (1929), 58.

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system of collective security.10 Only after the tragedy of the Second World War could the international community of States—as the legislators of PIL—agree upon a comprehensive prohibition of the use of force (exceeding the mere prohibition of war11 ) enshrined in Article 2 (4) UN Charter as the cornerstone of the Charter12 and accompanied by a system of collective security. That war and the use of force legally are no longer instruments of politics, as von Clausewitz prominently formulated in 1832,13 marked a watershed event in 1945 (when the UN Charter came into force) and formed part of the ‘peaceful revolution’ in modern PIL.

10.1.2 International Criminal Law as a Peace Project Another ‘revolution’ justifying the attribute ‘modern’ for PIL is the changed role of the individual. In classical times, the individual was not a legal subject of PIL but mediatised by its home State (meaning that individuals were dependent on their home countries to defend their interests).14 Today, the individual can claim to be a partial legal subject under PIL: While it is granted rights by international human rights law, it is ICL that might impose duties upon individuals. Already Article 227 of the Treaty of Versailles provided for a special tribunal to try German Emperor William II after the First World War.15 However, he escaped criminal responsibility by receiving asylum in the Netherlands, which rejected his extradition as it saw no legal basis for criminal responsibility of heads of States under PIL at that time.16 The Commission on the Responsibility of the Authors of the War and on Enforcement of Penalties in its report of 29 March 1919 presented to the Preliminary Peace Conference confirmed that ‘[…] a war of aggression may not be considered as an act directly contrary to positive law, or one which can be successfully brought before a tribunal […]’ and it did ‘[…] not advise that the acts which provoked the war should be charged against their authors and made the subject of proceedings before a tribunal.’17 Even though already between 1919 and 1925 scholars, such as Pella, tried to establish the idea 10

Randelzhofer and Dörr 2012, paras 4 et seq. The Briand-Kellogg Pact only banned war, not the use of force in general. According to its definition of war, a State party was still allowed to resort to armed force if it claimed to act without animus belligerendi or employed force ‘short of war’; cf. Neuhold 2015, pp. 19 et seq. 12 See ICJ, Judgment of 19 December 2005 (Democratic Republic of the Congo v. Uganda, Case Concerning Armed Activities on the Territory of the Congo), para 148, ICJ Reports (2005); Schrijver 2015, p. 473: ‘mother of all provisions’. 13 von Clausewitz 1832, p. 87; note that even though von Clausewitz, calling war a continuation of policy by other means, intended to tame war by stressing that war is not an end in itself. 14 Doehring 2004, paras 245 et seq. 15 Article 227 Treaty of Versailles referred to a supreme offence against international morality and the sanctity of treaties, thus, it did not criminalise acts of aggression as such. 16 Sellars 2016, p. 46. 17 Commission on the Responsibility of the Authors of the War and on Enforcement of Penalties (1920), pp. 118 et seq. 11

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that aggressive war is a crime of States and individuals under PIL,18 only after the Second World War the persons primarily responsible for the war were prosecuted by the International Military Tribunals (IMT) in Nuremberg and Tokyo. Although the initiation of a war of aggression has been labelled ‘the supreme international crime’ by the Nuremberg Court,19 only a few defendants have ultimately been convicted20 and the entire trials have been opposed with reference to the prohibition of the retroactive application of criminal law.21 The Court rejected this argument by having recourse to the Kellogg-Briand-Pact.22 Even though this treaty did not contain a penal sanction, the referral can be seen as an early proof of the relationship between general PIL and ICL. The Nuremberg Principles, as codified by the International Law Commission23 in 1950 after a request by the General Assembly of the United Nations (UNGA),24 included crimes against the peace (principle VI lit. a). Although the UNGA did not formally approve the codification, the criminal character of crimes against the peace has been regarded as forming part of customary international law.25 However, crimes against the peace for decades did not become operational and were not covered by the criminal tribunals having been established by the Security Council of the United Nations (UNSC) for Former Yugoslavia26 and Rwanda.27 Rather, ICL underwent a shift from the sanctioning of peace violations to the prevention of atrocities and from inter-state conflicts to non-international conflicts.28 The definition of aggression established by a resolution of the UNGA (DoAR)29 defined an act of aggression in the sense of Article 39 UN Charter (in reaction to inaction of the UNSC) and mentioned a war of aggression as ‘a crime against international peace’ (Article 5 [1] [1] DoAR), yet, without further elaborating on this issue. The crime of aggression was finally—met with some scepticism30 —enshrined in Article

18

Pella 1925. IMT Nuremberg, Judgment of 1 October 1946 (Prosecutor v. Goering et al.), AJIL 41 (1947), p. 186. 20 Further reading: Heller 2011, pp. 179–202. 21 The non-reactivity principle derives from the nullum crimen sine lege principle which prohibits criminalising acts committed prior to the entry into force of a rule banning such conduct as a crime and which is part of international human rights law; on the debate cf. Popple 1989, pp. 253 et seq. 22 IMT Nuremberg, Judgment of 1 October 1946 (Prosecutor v. Goering et al.), AJIL 41 (1947), pp. 217 et seq. 23 Yearbook of the International Law Commission, 1950, Vol. II, p. 374. 24 UNGA Resolution 177 II of 21 November 1947. 25 Lawrence 1989, pp. 406 et seq. 26 UNSC Resolution 827 (1993) of 25 May 1993. 27 UNSC Resolution 918 (1994) of 17 May 1994. 28 Mégret 2018, pp. 835 et seq., expressing fear that the new focus of ICL can undermine traditional prohibitions on the use of force (pp. 843, 848 et seq.). 29 UNGA Resolution 3314 (XXIX) of 14 December 1974. 30 Creegan 2012, pp. 62 et seq., calling aggression a ‘political crime’ requiring a political judgment on potential good reasons for the use of force; Paulus 2009, pp. 1119 et seq., holding that time is not ripe due to the indeterminacy of the definition, its uncertain application to recent cases, the role 19

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5 (1) (d) Rome Statute.31 However, the States then could not agree upon the crime’s definition and questions concerning the jurisdiction of the ICC. Such consensus was reached at the Kampala Conference in 201032 and Article 8bis was introduced into the Rome Statute. It establishes international criminal responsibility for leading persons in States33 as being responsible for an act of aggression.34 Finally, the jurisdiction of the ICC over the crime of aggression has been activated as of 17 July 2018 by the Assembly of States Parties on 14 December 2017.35 This might lead to the establishment of another column of the international peace and security architecture by supplementing the objective prohibition of the use of force by way of international criminal responsibility of the leading perpetrators of acts of aggression as subjective law. Yet much depends on the future interpretation of the crime of aggression and its relationship with PIL in general.

10.1.3 The Relationship between the Crime of Aggression and General PIL The relevance of general PIL for the crime of aggression follows from the referrals of the Rome Statute to the prohibition of the use of force under the UN Charter and to the definition of aggression by the UNGA. According to Article 8bis (2) Rome Statute an act of aggression means ‘the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations.’ Thus, not only the wording of Article 2 (4) UN Charter is reflected but a general referral to the UN Charter as a yardstick for legality has been enshrined herein. Furthermore, several acts are de jure qualified as acts of aggression, i.a., invasions or attacks by armed forces, bombardments, blockades of ports, the sending of armed bands and so on. This enumeration, the exhaustive character of which is controversial,36 refers to the Annex to Resolution 3314 (XXIX) of December 1974 by the UNGA (DoAR, see Sect. 10.1.2). This resolution for its part inspired, i.a., the Nicaragua-Judgment of the

of the UNSC and potential dangers from concentrating issues of jus in bello and jus contra bellum in one single court. 31 Note that para 2 of Article 5 was deleted after the Kampala Compromise. 32 ICC Resolution RC/Res.6 of 11 June 2010. 33 The range of the leading persons in the State is controversial, cf. Ambos 2010a, pp. 658 et seq. 34 Cf. Article 25 (3bis) Rome Statute. 35 ICC Resolution ICC-ASP/16/Res.5 of 14 December 2017, para 1. The decision was, in fact, adopted by consensus on Friday, 15 December 2017; for more details, see Kreß 2018, pp. 1 et seq., calling the signal that has been sent to the conscience of mankind to be timely (p. 17). 36 In favour Ambos 2010b, p. 487 referring to the principle of legality; contrarily Zimmermann and Freiburg 2016a, Article 8bis para 99; Kreß 2017a, pp. 435 et seq., 451 et seq.; open Paulus 2009, p. 1120.

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International Court of Justice of the United Nations (ICJ)37 as a leading decision on the interpretation of Article 2 (4) UN Charter and its exceptions. Obviously, the crime of aggression is linked to PIL and its interpretation by international jurisprudence. This makes it necessary to apply a two-tier approach:38 First, it has to be examined whether a specific type of conduct constitutes a forbidden use of force under general PIL. That requires determining the ambit of Article 2 (4) UN Charter and discussing potential exceptions from the prohibition of the use of force. Second, even if an act amounts to a prohibited use of force, being unlawful under general PIL, and even to an act of aggression, it has to be questioned whether it entails criminal responsibility under the Rome Statute. Not any such act constitutes a crime of aggression. While Article 2 (4) UN Charter prohibits the use of force generally, Article 8bis (1) Rome Statute raises additional requirements before it can be assumed that the use of force constitutes a crime of aggression. Three criteria have to be fulfilled for such a finding: First, the perpetrator has to be a ‘person in a position effectively to exercise control over or to direct the political or military action of a State’, i.e. a political or military leader. Second, the leader has to be involved in the planning, preparation, initiation or execution of such a State act of aggression. Third, the act of aggression must, ‘by its character, gravity and scale’, constitute ‘a manifest violation’ of the UN Charter. Accordingly, a threshold clause, which is of utmost importance as it is intended to ensure that only the most dangerous and serious forms of the illegal use of force are criminally sanctioned,39 must be overcome. Containing a qualitative dimension (‘character’) as well as a quantitative dimension (‘gravity and scale’), low level use of force and controversial hard-to-define-cases (‘grey areas’) are excluded from the scope of Article 8bis Rome Statute limiting the crime of aggression to specific acts that are unlawful under Article 2 (4) UN Charter. In contrast, an animus aggressionis, intended to limit the scope of the crime of aggression, is not a necessary element.40 This chapter will focus on the State conduct element, leaving aside the personal conditions of criminal responsibility as being a question originally of ICL. Consequently, while the crime of aggression depends on the prohibition of the use of force, this prohibition has a broader scope of application under general PIL. Thus, PIL and its development influences the crime of aggression, but this does not occur vice versa.41 Not every use of force that is forbidden under PIL amounts to a crime under ICL and only some of the many questions that remain highly controversial42 can be addressed here.

37

See ICJ, Judgment of 27 June 1986 (Nicaragua v. United States of America, Case Concerning Military and Paramilitary Activities in and against Nicaragua—Merits), p. 14, ICJ Reports (1986). 38 Cf. Kreß 2017a, p. 422 on the basic structure, applying a three-step-approach 39 Kreß 2017a, pp. 509–541 arguing that the threshold clause is also intended to keep the crime of aggression within the limits under customary law. 40 Ambos 2010a, p. 655. 41 Article 10 Rome Statute; for further reading Zimmermann and Freiburg 2016a, Article 8bis paras 88 et seq. 42 For further reading, cf. Kreß 2017a, pp. 412–544.

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Finally, the referral of the Rome Statute to the UN Charter reflects the former’s prevalence over other international agreements as enshrined in Article 103 UN Charter and it confirms the character of the Charter as the constitution of the international community (‘World Constitution’)43 deciding upon the most important questions concerning the maintenance of international peace and security.

10.2 The Prohibition of the Use of Force and Its Exceptions Initially, the ambit of Article 2 (4) UN Charter, prohibiting the use of force, has to be clarified and established in relation to the crime of aggression. Obviously, what is beyond even the prohibition of the use of force might not amount to an act of aggression (State responsibility) and can, therefore, not constitute a crime of aggression (individual responsibility).44 Only afterwards, potential justifications for the use of force and their relevance to the crime of aggression can be discussed. For both aspects, the threshold clause might play a crucial role to exclude ‘grey areas’ from the ambit of a crime of aggression.

10.2.1 The Prohibition of the Use of Force Article 2 (4) UN Charter contains the prohibition of the use of force between States45 as a fundamental rule of modern PIL and reflecting customary law.46 While the norm offers the chance of a quite wide application and is not confined to a mere prohibition of war, the crime of aggression does have a much smaller range of application.

10.2.1.1

The Form and Intensity of the Use of Force

When the UN Charter was drafted, Brazil argued that not only military force but also economic coercion should be covered by the prohibition; 47 yet, that suggestion has been explicitly rejected48 and the UN Charter itself refers to the application of 43

For an understanding of the UN Charter as ‘World Constitution’, cf. Fassbender 1998, pp. 531– 593. 44 Schmalenbach 2010, p. 747. 45 See ICJ, Advisory Opinion of 8 July 1996 (Legality of the Threat or Use of Nuclear Weapons), p. 226 paras 47–50, ICJ Reports (1996), explicitly not addressing the international use of force; Randelzhofer and Dörr 2012, Article 2 (4), para 28; Kreß 2017a, pp. 432–544. 46 See ICJ, Judgment of 27 June 1986 (Nicaragua v. United States of America, Case concerning Military and Paramilitary Activities in and against Nicaragua—Merits), p. 14 paras 187–201, ICJ Reports (1986). 47 6 UNCIO Docs. 559 (1945). 48 6 UNCIO Docs. 334–339, 609 (1945).

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military force when it uses the term ‘force’.49 Today, the ICJ,50 as do most States51 and the vast majority of literature,52 confine the prohibition of the use of force to military action. Article 8bis Rome Statute is perfectly in line with this predominant assumption as the wording of para 2 explicitly requires the use of armed force for an act of aggression. This is also confirmed by Article 1 DoAR (referring to Article 39 UN Charter and not Article 2 [4] UN Charter) and the exemplification of potential acts of aggression (lit. a–g), each of which refer to the armed forces of a State (lit. a– e) or—explicitly (lit. g) or implicitly (lit. f)—to the use of armed force. Accordingly, economic as well as political coercion, which may violate the principle of nonintervention (Article 2 [1] UN Charter), is without any doubt beyond the prohibition of the use of force53 and, thus, the ambit of the crime of aggression. As shown by the DoAR, the presence of armed forces against the will of the affected State can be an act of aggression even without the requirement of an actual military confrontation as it holds true for an invasion, blockade or transgression of consent. As incorporated by Article 8bis (2) Rome Statute, the crime of aggression is not dependent on an actual combat; rather, the deployment of armed force against the will of the respective State might suffice for the ‘use of armed force’.54 This provokes the question as to whether a certain minimum threshold for military force exists. The ICJ—in line with the prevailing view55 —has stated that within the framework of the UN Charter it is necessary to distinguish between the most grave forms of the use of force that amount to an armed attack (Article 51 UN Charter) and other less grave forms that might still be prohibited under Article 2 (4) UN Charter.56 The Court has given little guidance for the distinction; though it initially excluded mere frontier incidents from constituting an armed attacked.57 Later, the Court was not able to

49

Cf. Article 44 UN Charter and para 7 of its preamble; Dörr 2015, para 11; Randelzhofer and Dörr 2012, Article 2 (4) paras 18 et seq. 50 The ICJ was seized with cases including military action; see ICJ, Judgment of 19 December 2005 (Democratic Republic of the Congo v. Uganda, Case concerning Armed Activities on the Territory of the Congo), p. 168, ICJ Reports (2005), where the Court explicitly referred to military operations as well as military assault (para 110) several times. 51 Cf. the Friendly-Relations-Declaration, UNGA Resolution 2625 (XXV) of 24 October 1970, dealing mostly with military force and distinguishing it from economic or political forms of coercion being relevant for the principle of non-intervention. 52 Randelzhofer and Dörr 2012, Article 2 (4) paras 17–20. 53 Randelzhofer and Dörr 2012, Article 2 (4) paras 18 et seq. 54 Kreß 2017a, pp. 439, 434, 445, 522 et seq. 55 Dinstein 2017, p. 205 paras 542 et seq. 56 See ICJ, Judgment of 27 June 1986 (Nicaragua v. United States of America, Case Concerning Military and Paramilitary Activities in and against Nicaragua—Merits), p. 14 paras 191, 195, ICJ Reports (1986). 57 See ICJ, Judgment of 27 June 1986 (Nicaragua v. United States of America, Case Concerning Military and Paramilitary Activities in and against Nicaragua—Merits), p. 14 para 195, ICJ Reports (1986).

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exclude that the mining of a vessel could suffice to bring into play the right to selfdefence.58 In any case, as the rationale behind Article 2 (4) UN Charter is maintaining international peace, a far-reaching interpretation of this norm is preferable so that irrespective of the interpretation of an act of aggression or an armed attack, only absolute minor incidents might be excluded.59 That debate, though, is of little interest to the crime of aggression as it is commonly held that the threshold clause of Article 8bis (1) Rome Statute serves the very interest of excluding doubtful and minor cases which already includes low intensity exercises of force. Such cases do not, at least, constitute a manifest violation of the Charter by their gravity and scale.60 The delicate task is to specify the exact level of force necessary for an act of aggression. Some authors have suggested adopting a three-tier-approach, from the prohibition of the use of force (Article 2 [4] UN Charter) to an armed attack (Article 51 UN Charter) and finally an act of aggression (see Article 39 UN Charter) sufficiently grave to overcome the threshold clause and constitute a crime of aggression.61 The latter use of force shall go even beyond an armed attack. However, criteria for such a strict interpretation remain weak. Even bearing in mind the intention of the drafters to confine the crime of aggression to the most severe violations of the prohibition of the use of force, an armed attack will regularly include a major use of force. It finally all depends on the interpretation of the threshold clause and, therefore, on the ICC which has to draw the line between the low intensity use of force—that might still be forbidden under Article 2 (4) UN Charter—and a use of force sufficient for an act of aggression. Finally, Article 2 (4) UN Charter prohibits the use as well as the mere threat to use force. In contrast, Article 8bis (2) Rome Statute requires the ‘use of armed force’ for an act of aggression. As demonstrated by the exemplifications (a)–(f), it is necessary that force—be it even the mere deployment of troops—has actually been committed so that the mere threat to use force cannot amount to an act of aggression.62 Correspondingly, an attempt to commit a crime of aggression is not subject to prosecution as such as the act of aggression has to be committed.63 Admittedly, 58

See ICJ, Judgment of 6 November 2003 (Islamic Republic of Iran v. United States of America, Case Concerning Oil Platforms), p. 161 para 72, ICJ Reports (2003); critical Dinstein 2017, p. 211 para 553. 59 Schrijver 2015, pp. 465, 471 speaking of a (nearly) fully fledged ban; also against a minimum threshold Dinstein 2017, p. 90 para 247; further reading Ruys 2014, pp. 159 passim on a narrow definition of the term ‘force’ in Article 2 (4) UN Charter. 60 Cf. Kreß 2017a, pp. 425 and 426 et seq., on the question whether Understanding 6 on an intensity requirement refers to the threshold clause under Article 8bis (1) Rome Statute or to the very concept of an act of aggression under para 2. He prefers a connection to para 2, stating that the inherent threshold cannot be high, tough, to preserve an independent meaning of the threshold clause under para 1. 61 Cf. Kreß 2017a, pp. 513–520, arguing, inter alia, that Article 51 UN Charter should not be interpreted too narrowly in order to not make the attacked State legally defenceless against an attack and that such an approach will bring the crime of aggression in line with customary international law. 62 Kreß 2017a, b, p. 424. 63 Cf. Resolution RC/Res.6, Annex II, Elements, para 3; Kreß 2017a, pp. 538–541.

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an attempted commission in the sense of Article 25 (3) (f) Rome Statute could be assumed under the term ‘planning, preparation, initiation’ (Article 8bis [1] Rome Statute) as it has been addressed by the IMT in Nuremberg.64 Article 25 (3bis) Rome Statute, however, requires a narrow reading excluding attempts of aggression that have not led to an act of aggression. Only if such an act has been committed can individual attempts that have not been successful in the end, be prosecuted.65 This said, the difficult consequences for the interpretation of planning or initiating a crime of aggression are beyond the scope of this chapter.66

10.2.1.2

Physical Force and Cyber-Warfare

Confining the use of force to armed force, in the past, implied the use of physical force regularly leading to physical damages. Yet, times are changing and cyber-warfare has become an important aspect of modern warfare. All of the major powers have military cyber-departments and even reluctant Germany has at least a Cyber Security Strategy.67 Digitalisation has made societies dependent on IT infrastructures and led to a specific vulnerability threatened by cyber-attacks, i.e. activities against the IT infrastructure of and within a State with a hostile intent to disrupt or destroy the systems or functions and often causing further harm. Cyber-attacks can, e.g., bring the websites of a government down, distort a State’s nuclear power programme, affect the functioning of national banks, hospitals or critical infrastructures such as the electricity supply system and even bring an aircraft to crash. Cyber-attacks challenge the prohibition of the use of force. Due to encryption technologies and as a matter of facts, it might become difficult to attribute such an attack to a specific State. From a legal perspective, the question under which conditions cyber-attacks constitute a use of force remains controversial.68 Obviously, when the UN Charter was drafted cyber-attacks could not have been even considered. However, the ICJ has stated that the prohibition of the use of force does not depend on the type of weapon69 —thereby opening the door for an evolutionary interpretation of Article 2 (4) UN Charter that adapts to future technological developments. Recently, attempts have been made to re-open the discussion on economic force and subsume the severe disruption of economic activities (e.g. by targeting the national bank of a State) 64

The Tribunal noted that ‘[i]nternational law condemns those who, due to their actual power to shape and influence the policy of their nation, prepare for, or lead their country into or in an aggressive war’, see Military Tribunal XII, Judgment of 27 October 1948 (United States of America v. von Leeb et al.), 11 Trials of War Criminals Before the Nuremberg Military Tribunals Under Control Council Law No. 10 (1950), p. 489. 65 Schmalenbach 2010, p. 748. 66 Cf. Ambos 2010b, pp. 493 et seq. 67 Available under: http://www.bmi.bund.de/cybersicherheitsstrategie/BMI_CyberSicherheitsStrat egie.pdf (accessed 1 March 2021). 68 On the debate, cf. Buchan 2012, pp. 215 et seq. 69 See ICJ, Advisory Opinion of 8 July 1996 (Legality of the Threat or Use of Nuclear Weapons), p. 226 para 39, ICJ Reports (1996).

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under Article 2 (4) UN Charter in cases of cyber-attacks.70 Better arguments ask for a qualification of such coercive activities as an unlawful intervention, though, and a majority of scholars adheres to a narrow interpretation of the term ‘force’. Cyber-attacks might, accordingly, fall under Article 2 (4) UN Charter only if they entail a form of harmful kinetic energy causing damage to human life, health and property reaching a severity threshold comparable to the classical use of armed force.71 Accordingly, it is less physical force but the physical results that count. Article 2 (4) UN Charter is regarded as an effect-based prohibition and cyber-attacks are covered if they can be equated to classical means of force in that respect. Concerning the crime of aggression, Article 8bis (2) (b) Rome Statute uses the term ‘any weapon’. One might consider whether cyber-instruments used by a State’s military might generally and irrespective of the results qualify as weapons, the use of which could constitute an act of aggression. Yet, when the invoked DoAR was adopted, the drafters clearly referred to classical military means, which is underlined by the reference to ‘the territory of another State’—a phrase that might demand a physical impact. Furthermore, as shown, the question of whether the use of cyberweapons with non-kinetic results might constitute a prohibited use of force is controversial, with a majority of scholars opposing. Due to this controversy and even following the minority opinion to assume a violation of Article 2 (4) UN Charter, a cyber-attack without producing physical results comparable to classical means of warfare would not constitute a manifest violation of the UN Charter. Accordingly, only cyber-attacks meeting the high threshold of causing physical damage to humans, infrastructure and property, e.g. causing the breakdown of a water retention dam or the collision of an aircraft, can be an act of aggression under the Rome Statute.72 In contrast, the mere hacking of IT systems and online-defamation, online-espionage (cyber-spying) or attacks against a national bank or the stock exchange fall beyond the scope of Article 8bis Rome Statute.

10.2.1.3

State Conduct, De-facto Regimes, International Organisations and Private Actors

The prohibition of the use of force under Article 2 (4) UN Charter is confined to States which are members of the United Nations.73 Private conduct is, accordingly, not covered by the prohibition irrespective of its intensity and its results potentially causing severe damage. It is also not covered by the prohibition of the use of force

70

Kilovaty 2015, pp. 229–244 whose argumentation becomes fuzzy and inconsistent when he finally proposes that economic harm has to become equivalent to physical harm in scales and effects (p. 244). 71 Further reading: Schmitt 2017, pp. 330–338. 72 Kreß 2017a, p. 451 on cyber-operations as unlisted acts of aggression under Article 8bis (2) Rome Statute. 73 Dörr 2015, para 26.

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under customary international law.74 The crime of aggression explicitly presupposes an act of aggression committed by a State, accordingly merely private conduct is without a doubt beyond the scope of Article 8bis. This is proven by the rejection of proposals to include a ‘crime of terrorism’ due to the fear of politicizing the ICC. Irrespective of all international efforts to fight terrorism and terrorist fighters,75 private terrorism as such cannot be prosecuted as an act of aggression under Article 8bis Rome Statute;76 rather, the criminalisation of terrorism is mostly an issue of domestic law even if required by international treaty law.77 However, it has to be critically analysed whether the conduct in question is actually private or merely private. State-conduct is given, if the conduct of a person is attributable to the State, e.g. if the person is not acting in a private capacity but as a State organ (Article 4 of the Draft Articles on Responsibility of States for Internationally Wrongful Acts (DASR)), if the person is acting as a de facto organ (Article 5 DASR) or if the State is exercising effective control over private persons (Article 8 DASR) committing acts of violence. Admittedly, the International Criminal Tribunal for the former Yugoslavia (ICTY) has adopted an overall-control-test to attribute private conduct to a State.78 However, the ICJ has interpreted this test as being confined to criminal responsibility and the existence of an international armed conflict, while abiding by the effectivecontrol-test for the question of state responsibility.79 Accordingly, for the question of whether a violation of Article 2 (4) UN Charter, as a prerequisite for a crime of aggression, has occurred, having effective control is still the benchmark for attributing the private use of force to a State—besides different categories of attribution under ICL. Furthermore, a State itself—irrespective of the attributability of the conduct of private persons acting—might violate Article 2 (4) UN Charter by way of the indirect use of force against another State, which can be fulfilled by providing training and military support to private groups that commit acts of violence.80 Indirect acts of 74

Dörr 2015, para 21. Cf. the legislative resolutions UNSC Resolution 1373/2001 of 28 September 2001; UNSC Resolution 2178/2014 of 24 September 2014 on the obligation of all States to fight terrorism and foreign terrorist fighters. 76 Zimmermann and Freiburg 2016a, Article 8bis paras 91 et seq. 77 For international treaties requiring States to investigate and prosecute the crime of terrorism cf. Saul 2008, pp. 130 et seq.; also see the United Nations Global Counter-Terrorism Strategy, UNGA Resolution 60/288 of 8 September 2006; the first hybrid tribunal established for the crime of terrorism, was the Special Tribunal for Lebanon, which rendered its judgment in Ayyash et al. on 18 August 2020 cf. Fremuth et al. 2020. 78 ICTY, Judgment of 15 July 1999, IT-94-1-A (Prosecutor v. Tadi´ c), paras 116, 145. 79 See ICJ, Judgment of 27 June 1986 (Nicaragua v. United States of America, Case Concerning Military and Paramilitary Activities in and against Nicaragua), p. 14 para 115, ICJ Reports (1986); ICJ, Judgment of 26 February 2007 (Bosnia and Herzegovina v. Serbia and Montenegro, Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide), p. 43 paras 399–407, ICJ Reports (2007); for a sceptical appraisal, cf. Cassese 2007, pp. 649 et seq. 80 See ICJ, Judgment of 27 June 1986 (Nicaragua v. United States of America, Case concerning Military and Paramilitary Activities in and against Nicaragua), p. 14 para 228, ICJ Reports (1986); ICJ, 75

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aggression of a State are not per se excluded from the scope of Article 8bis Rome Statute.81 What constitutes a State depends on—at least—three factual criteria under customary international law: (1) A people living in (2) a territory under 3) consistent and effective state authority. Following, the prevailing view, recognition of an entity by other States or the international community in order for a State to be constituted is not required.82 Accordingly, some ambiguities and difficulties may come up concerning the question of whether a State does exist so that conduct in question can be assumed to violate the UN Charter. Palestine might serve as an example. This entity is a member of UNESCO since 2011 and was accorded non-member State status within the UN by the UNGA;83 it failed, though, to become a member of the United Nations because of opposition particularly from the United States. Still, some States and in particular the big players are reluctant to recognise the statehood of Palestine. While the former chief prosecutor of the ICC, Ocampo refused to open proceedings on the application of Palestine, his successor Bensouda was not able to detect obstacles and started undertaking a preliminary examination of the situation within the occupied Palestinian territory following the referral of Palestine as a State Party to the Rome Statute.84 Concerning the crime of aggression and the State conduct element, which refers to statehood under (customary) international law,85 the ICC might come to take the position to decide upon such politically delicate questions as the statehood of Palestine and the criminal responsibility of persons in the case of an act of aggression being committed. This might also count for Palestine itself (not being a member of the UN, Palestine would be bound by the prohibition of the use of force under customary law). Thus, being a State party to the Rome Statute not only opens the opportunity for Palestine to internationalise the conflict with Israel, but also brings its leaders to the risk of becoming accused of crimes hereunder (bearing in mind that Israel is not a State party of the Rome Statute yet). As Statehood does not depend on a positive recognition and as, particularly, no such decision is exclusively granted, e.g., to the political bodies of the UN, the ICC is competent to undertake its own assessment86 and wisely advised to show reluctance and sensitivity to the assessments in particular of UN bodies. Entities that have not yet attained all elements of statehood or with a controversial status might constitute de facto-regimes. Many attempts have been made to establish these regimes as subjects of PIL with a particular interest in binding them to the prohibition of the use of force.87 This assumption has meanwhile gained much ground and Judgment of 19 December 2005 (Democratic Republic of the Congo v. Uganda, Case concerning Armed Activities on the Territory of the Congo), p. 168, paras 163–165, ICJ Reports (2005). 81 On difficulties, cf. Kreß 2017a, pp. 445 et seq. 82 Crawford 2006, pp. 17–28. 83 UNGA Resolution 67/19 of 4 December 2012, para 2. 84 OTP 2018, pp. 63–69; Hiéramente 2018, pp. 111 et seq. 85 Kreß 2017a, pp. 422 et seq. 86 Kreß 2017a, pp. 423 stressing its duty to do so. 87 Frowein 1968, pp. 66–69.

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there are good reasons to believe that these not fully-fledged entities are addressees of the prohibition of the use of force under customary international law. The question is, whether this is sufficient for Article 8bis Rome Statute, explicitly requiring State conduct. As criminal law requires a narrow reading and understanding, strong doubts exist concerning an affirmative answer.88 International organisations are not covered by Article 2 (4) UN Charter and Article 8bis Rome Statute.89 Should an international organisation become a truly (supranational) military organisation—having the competence to decide upon military activities by itself and exercising effective control over armed forces, thereby substituting its Member States (as the European Union as a supranational organisation has done in many, though not military, fields)—an act of aggression can be attributed and committed by that organisation. Even though States cannot circumvent their responsibilities under PIL by establishing a supranational organisation,90 it remains questionable if activities of such an organisation with a distinct legal personality from its members could be attributed to the States in total or individually91 to assume State conduct in the sense of Article 2 (4) UN Charter and Article 8bis Rome Statute. Yet, as States are very unlikely to submit military competencies to supranational organisations, even within the EU as the most developed model of a supranational organisation, the risk of relevant legal lacunae is small. Finally, as another State-concerned aspect, only inter-State violence is covered by the prohibition of the use of force (Article 2 [4] UN Charter) and an act of aggression in the sense of Article 8bis Rome Statute; i.e. only situations involving another State might lead to a crime of aggression. Forceful violence within a State is consigned to domestic criminal law,92 even though questions under international human rights and humanitarian law as well as criminal responsibility for other international core crimes (e.g. genocide) besides the crime of aggression might be raised.

10.2.1.4

Consent and Invitation

Article 2 (4) UN Charter is intended to protect States from military interference by other States. No protection is needed, though, if the deployment of troops and the use

88

Critical on the exclusion of ‘Quasi States’ and requiring an amendment of the Rome Statute: Bachmann and Abdelkader 2018, pp. 91 et seq. 89 Kreß 2017a, p. 423. 90 As a rule under human rights law cf. ECtHR, Judgement of 18 February 1999, Application no. 24833/94 (Matthews v. UK), paras 29 et seq.; ECTHR, Judgement of 30 June 2005, Application no. 45036/98 (Bosphorus v. Ireland), paras 150 et seq. 91 Generally, on separate legal personality and the question of lifting the corporate veil, see ICJ, Judgment of 5 February 1970 (Belgium v. Spain, Case Concerning Barcelona Traction, Light and Power Company, Limited), p. 3 paras 55 et seq., ICJ Reports (1970); on the—mostly rejected— responsibility of member States for acts of international organisations, cf. Ryngaert and Buchanan 2011, pp. 131 et seq. 92 Zimmermann and Freiburg 2016a, Article 8bis para 96.

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of force is validly consented to by the concerned State.93 Such an intervention is not a prohibited use of force if the invitation or the consent given is valid and founded on a free decision. The main argument is that such an activity is not against the sovereignty or independence of another State,94 even though Article 2 (4) UN Charter is also invoked to protect the population of the affected State from unjustified killings.95 Article 8bis (2) (e) Rome Statute reflects PIL stating that an act of aggression is given if the conditions of such an agreement are contravened or the presence of armed forces is exceeded beyond the termination of the agreement. In that case, the use of armed force within the territory of another State becomes prohibited and unlawful. Besides this transgression of consent, the validity of a consent, given e.g. by a treaty concerning the stationing of military forces, might be contested if a State argues that it has been coerced into consenting96 as was done by Cuba concerning the Guantanamo Bay Naval Base established and run by the United States.97 If it is clear that consent is absent or has been transgressed, a manifest violation of the UN Charter and accordingly an act of aggression can be given, so that a crime of aggression might be established. A specific form of consent constitutes an intervention by invitation, meaning an intervention by foreign troops to assist a government in an internal armed conflict.98 There is a long-standing practice of interventions by invitation, which as a general rule can be regarded as lawful.99 Yet, some details remain ambiguous and there is a risk of abuse, e.g. concerning the recognition of governments—being competent to render an invitation—by other States and competing claims of recognition. Invitations are mostly held to be valid if they have been expressed by a government still exercising effective authority over representative parts of the territory, as well as by a freely and fairly, i.e. a democratically elected government even if it has almost lost effective authority.100 Such a government might ask for military assistance in fighting an uprising, terrorist attacks or criminal armed groups.

93

See ICJ, Judgment of 27 June 1986 (Nicaragua v. United States of America, Case Concerning Military and Paramilitary Activities in and against Nicaragua), p. 14 para 246, ICJ Reports (1986); ICJ, Judgment of 19 December 2005 (Democratic Republic of the Congo v. Uganda, Case concerning Armed Activities on the Territory of the Congo), p. 168, paras 42–54, ICJ Reports (2005). 94 See ICJ, Judgment of 19 December 2005 (Democratic Republic of the Congo v. Uganda, Case Concerning Armed Activities on the Territory of the Congo), p. 168, paras 149–153, ICJ Reports (2005). 95 Dannenbaum 2017, pp. 1270 et seq., according to whom aggression is criminalised for its human core. 96 Cf. ILC 2001, p. 73, Article 20 paras 4, 8. 97 On the history and difficult legal questions, cf. Maris 1967, pp. 261 et seq. 98 Nolte 2010, para 1. 99 See ICJ, Judgment of 19 December 2005 (Democratic Republic of the Congo v. Uganda, Case Concerning Armed Activities on the Territory of the Congo), p. 168, paras 42–53, ICJ Reports (2005); see also Nolte 2010, paras 4–16. 100 Nolte 2010, paras 17 et seq.

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Should an internal conflict involve the fight for self-determination, the situation becomes complicated. Many authors argue that in the case of a comprehensive uprising or atrocities committed by the government an invitation to intervene is unlawful.101 ‘Negative equality’ towards different groups fighting for selfdetermination and competing for authority to potentially become the next effective government of a State should be ensured.102 In the case of a fight for secession, it has to be borne in mind that such a right is not consistently acknowledged in PIL,103 which might make an invitation more acceptable. Generally, State practice is inconclusive and fluid concerning invitations and self-determination. Syria and Yemen serve as current examples. The Russian Federation intervened in Syria by invitation of the Assad regime fighting the Islamic State as well as an uprising broadly supported by the people; Saudi Arabia and its allies intervened in Yemen on behalf of President Hadi who even lives abroad. Both cases demonstrate the lack of a common assessment of the legality among the States and remain legally controversial.104 The question of whether a State is entitled to intervene with then permitted use of force in the sense of Article 2 (4) UN Charter has to be distinguished from the question as to what it is entitled to do in concreto. Obligations under PIL other than Article 2 (4) UN Charter still apply, and a State shall not invite another State to commit acts itself must not commit. Accordingly, the intervening State must not violate, i.a., human rights or humanitarian law and commit genocide or atrocities. In such cases other international crimes might have been committed but besides that a State cannot invite another State to commit such crimes,105 the question of whether a State committing them loses the ability to generally invite another State to use force is not settled under PIL. Summarising, while generally an invitation or the consent of the government deprives the use of force of its illegal character, in the case of a civil war including the fight for self-determination literature is at odds concerning the applicability of Article 2 (4) UN Charter. As the threshold clause is intended to keep controversial questions outside the scope of Article 8bis Rome Statute, a crime of aggression cannot be assumed. If, however, an invitation is validly provided, a State intervening on behalf of the opposition violates the prohibition of the use of force.106 101

Nolte 2010, paras 21 et seq. On the debate and practical relevance, see De Wet 2017, pp. 308 et seq. 103 For the discussion on secession, the neutrality of PIL and the interest in State unity, see Tancredi 2014, pp. 68 et seq. 104 With UNSC Resolution 2216 (2015) of 14 April 2015 the UNSC initially reacted to the invitation with a strong condemnation of Houthi activities; on the legal assessment of the Russian intervention cf. Kenny and Butler 2018, pp. 172 et seq., arguing against its legality due to a R2P situation and the failure of the Syrian authorities. 105 Cf. Kreß 2017a, pp. 430 et seq., arguing that a government is not entitled to request a foreign use of force to support the commission of such acts. This, however, has to be distinguished from the request of assistance against an uprising that is not intended to commit violations of PIL. 106 In this respect, cf. ICJ, Judgment of 27 June 1986 (Nicaragua v. United States of America, Case Concerning Military and Paramilitary Activities in and against Nicaragua), p. 14 para 246, ICJ Reports (1986). 102

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10.2.2 Exceptions from the Prohibition of the Use of Force An individual cannot be prosecuted for participating in an act that—even though being prima facie a violation of Article 2 (4) UN Charter—107 is justified and, therefore, finally lawful. Such an act does not constitute a ‘violation’ of the UN Charter according to Article 8bis (1) Rome Statute and is ‘not inconsistent with’ it in the sense of Article 8bis (2) Rome Statute.108 Two justifications for the use of force are legally recognized by the UN Charter: an authorisation by the UNSC (Articles 39, 42, see Sect. 10.2.2.1) and self-defence (Article 51, see Sect. 10.2.2.2). Whether unwritten justifications of the use of force outside the UN Charter might be recognised remains controversial in particular concerning humanitarian interventions (see Sect. 10.2.2.3).

10.2.2.1

Authorisation by the UN Security Council

The first exception is an authorisation of the use of force by the UNSC. Under the system of collective security established under Chapter VII of the UN Charter, any decision on the legitimate use of force in international relations is vested with the UNSC. As the UN does not possess its own army—even though this was intended by the drafters of the UN Charter (cf. Article 43), the UNSC can authorise the use of force by an individual State or a group of States after it, first, has determined a threat to the peace, a breach of the peace or an act of aggression under Article 39 UN Charter and, second, if military sanctions are proportional as the last resort after implementing non-military measures according to Article 41 UN Charter to maintain or restore international peace and security (Article 42 UN Charter). The UNSC enjoys a wide margin of appreciation and can consider not only acts of aggression but also attacks on civilians, violations of human rights within a State and even coup d’états against a democratically legitimised government as a threat to or breach of the peace.109 The concept of a responsibility to protect110 acknowledges this competence and refers the task of deciding upon military action to prevent and address atrocities to the UNSC (see Sect. 10.2.3). Whether the UNSC authorises the use of force does not only depend on a majority of member States being in favour but, in practice more 107

It might be discussed whether exceptions of the prohibition of the use of force already negate the application of Article 2 (4) UN Charter or whether they constitute a justification of a use of force that is prima facie prohibited by Article 2 (4) UN Charter. 108 Against Glennon 2009, pp. 88 et seq., holding that unlawfulness is not a requirement inherent in the concept of an act of aggression. See also Kreß 2017a, pp. 453 et seq. 109 UNSC Resolution 841 (1993) of 16 June 1993, para 13 on Haiti; UNSC Resolution 1132 (1997) of 8 October 1997, para 1 on Sierra Leone; UNSC Resolution 1973 (2011) of 17 March 2011, para 4 on Libya. 110 The concept of Responsibility to Protect was adopted in the 2005 World Summit ensuring to ‘take collective action, in a timely and decisive manner, through the Security Council, in accordance with the Charter, including Chapter VII’, cf. UNGA Resolution 60/1 of 16 September 2005, para 139.

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importantly, on the willingness of the permanent members not to lodge a veto against such a resolution. In practice, the UNSC is often politically divided and not able to meet the expectations by the UN Charter and the international community with regard to being the custodian of international peace and security. If, however, the UNSC is able to act under Chapter VII, it regularly uses the phrases ‘all means necessary’ or ‘all measures necessary’ to authorise the use of force. Covered by such an authorisation of the UNSC, the use of force does not constitute an act of aggression in the sense of Article 8bis Rome Statute. Yet, absent of a clear wording, the existence of an authorisation might become controversial. After the attacks of 9/11 the UNSC adopted a resolution referring to the inherent right of the United States to self-defence.111 While it was predominantly held that this referral implied the determination of an armed attack, a justification for the intervention of the United States and its allies in Afghanistan did not remain unchallenged.112 As another example, the UNSC condemned the attempt to overthrow the government in Mali led by Islamic-fundamentalist fighters113 and France founded its military intervention, i.a., on this resolution of the UNSC, which has not been beyond any doubt.114 The UNSC itself could avoid ambiguities, particularly by way of an explicit rejection of the use of armed force in its resolutions. However, it seems too early to hold that any resolution not containing a clearly worded authorisation, as mentioned above, could never serve as a basis for justifications. As shown by the example of France, even permanent members of the UNSC invoke resolutions that contain ambiguities so that no settled and sufficient State practice exists to justify a manifest violation. If the existence of an authorisation itself is not doubtful, its coverage might provoke difficulties. In the case of Libya, the UNSC authorised the limited use of military force to protect civilians from attacks by the Gaddafi-regime. As a consequence, NATO forces not only intervened for the protection of civilians but also decisively contributed to the overthrowing of the regime what could rightly be considered to overstep the UNSC’s mandate.115 Yet, even though the question of an act of aggression committed by NATO forces could reasonably be raised, a crime of aggression should be rejected. Due to the remaining ambiguities and the controversial discussions regarding its legal assessment, the NATO intervention most likely falls within those ‘grey areas’ that should be excluded from the scope of Article 8bis Rome Statute by the threshold clause. Accordingly, as long as no consensus has emerged that a clear-worded, explicit authorisation is necessary in all cases to justify the use of force, it will remain difficult 111

UNSC Resolution 1368 (2001) of 12 September 2001, preamble, recital 3; see also UNSC Resolution 1373 (2001) of 28 September 2001, preamble, recital 4. 112 On the topic, cf. Chinkin and Kaldor 2017, pp. 129–161; Nielsen 2010, pp. 151 et seq., arguing that primary law, yet not secondary law of attribution has changed after 9/11; and Williams 2011, pp. 563 passim, holding that the war in Afghanistan at least has become unlawful. 113 UNSC Resolution 2071 (2012) of 12 October 2012; UNSC Resolution 2085 (2012) of 20 December 2012. 114 On the various potential justifications and assuming that UNSC Resolution 2085 (2012) of 20 December 2012 does justify France’s military intervention, see Laird 2012, pp. 126 et seq. 115 Cf. Hobe and Fremuth 2011, p. 393.

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to argue that a crime of aggression has been committed if it is not beyond reasonable doubt that a resolution of the UNSC can be invoked to justify the use of force.

10.2.2.2

Self-defence and Countermeasures

The right to self-defence is recognised as inherent by Article 51 UN Charter, also forming part of customary international law.116 In reaction to an armed attack, any State is entitled to defend itself by using proportional military force and it can be supported by other States by way of collective self-defence. The difficult question of when the use of force amounts to an armed attack has already been addressed (see above Sect. 10.2.1.1), even though rejecting to invoke the right to self-defence in case of a State using of force on a low-level has not remained uncontested.117 Furthermore, no justification can derive from Article 51 UN Charter in the case of a use of force being disproportional. Minor excesses are not likely to surpass the threshold clause; if a State, however, misuses or abuses self-defence as a welcome occasion for a war of aggression or occupation, an act of aggression can be assumed. Another aspect leading to controversies is the time dimension and the question as to whether and if so what types of anticipatory self-defence (preventive v. preemptive)118 are lawful. It is widely accepted that no State has to wait until a foreign military has already invaded its country or until the first bomb hits the ground. Accordingly, preventive self-defence in such a sense does not seem to violate the prohibition of the use of force,119 if it is a reaction to an ‘instant, overwhelming threat, leaving no choice of means and no moment for deliberation’ (also known as the Caroline test).120 In contrast, pre-emptive self-defence is mostly rejected.121 In such a case, a threat potentially exists but is not instant and imminent so that a forceful reaction would seem premature. The Iraq War led by the United States and a coalition of other willing States in 2003 might serve as an example. Most States and the vast majority of literature held this to violate the UN Charter,122 116

See ICJ, Judgment of 27 June 1986 (Nicaragua v. United States of America, Case Concerning Military and Paramilitary Activities in and against Nicaragua), p. 14 paras 172 et seq., 193, ICJ Reports (1986). 117 On the debate, see Dinstein 2017, p. 208 paras 550–553. 118 The terminology differs, cf. Dinstein 2017, p. 223 para 582. For an opposing definition to the one adopted here, see Deeks 2015, p. 662. 119 For the opposing view on anticipatory self-defence and the ‘Caroline’-exception, cf. Dinstein 2017, p. 222 paras 580 et seq., who, however, creates the category of ‘interceptive self-defence’ (p. 231 paras 606 et seq.), which will most often fall under the term preventive self-defence as used here; for a sceptical, though not conclusive debate, see also Deeks 2015, pp. 675 et seq. (using, though, the term ‘pre-emptive’ self-defense against the wording adopted in this chapter). According to Kreß 2017a, p. 478 the question belongs to the grey areas. 120 Kretzmer 2013, pp. 247 et seq. 121 Neuhold 2015, p. 141; cf. also UNSC Resolution 487 (1981) of 19 June 1981 containing a rejection of Israel’s bombing of a nuclear reactor in Iraq due to the absence of an imminent threat. 122 Simpson 2005, pp. 170–178; Kreß 2017a, p. 475.

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including the discussion and final rejection of a right to self-defence which also has been invoked by the United States.123 Recognising the difficulties on a factual level to differentiate between both forms of self-defence, pre-emptive self-defence, as defined above, might bring an activity into the ambit of Article 8bis Rome Statute due to the overwhelming opposition and as exceptions from the use of force require a narrow reading.124 It has been explained that private conduct falls beyond the ambit of the prohibition of the use of force under Article 2 (4) UN Charter. As armed attacks are an intensified use of force, it would, at first glance, seem consequent and logical to exclude private conduct from the ambit of Article 51 UN Charter too. In fact, the ICJ seems to follow the interpretation that an armed attack must be committed by or at least be attributable to a State.125 However, the prohibition to use force and a justification for the use of force against an attack are separate things. This enables a broader discussion on whether private persons could commit an armed attack and whether the attacked State could forcibly react against the State where these private persons are located.126 One approach to address private attacks is enlarging the criteria for attribution of private conduct to a State by way of the ‘safe haven’ doctrine. According to this concept, a State itself is regarded to be responsible for an armed attack or at least has to accept anti-terror-activities on its soil, if it has provided a safe haven, e.g., to terrorist fighters127 as the Taliban did in Afghanistan with regard to Al-Qaida. Without such a positive attitude by a State towards an attack by private persons, recent approaches try to establish that an attacked State might react by using force against private individuals within the territory of another State that is, though not directly responsible, unwilling or unable to neutralise the harmful private activities.128 Neither of the two approaches is undisputed.129 However, as States repeatedly refer to them, in the case a State actually has provided a safe haven or is unable or unwilling to combat private conduct, one might assume a grey area in which the justification for the use of force is controversial but increasingly gaining recognition.130 As the threshold clause 123

As invoked by the Bush administration, cf. Murphy 2004, pp. 174 et seq. Cf. Ferencz 2009, pp. xii et seq., rejecting self-defense and any other justifications for the Iraq war and calling it a crime of aggression; dissenting Schmalenbach 2010, p. 748. 125 See ICJ, Advisory Opinion of 9 July 2004 (Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory), p. 136 para 139, ICJ Reports (2004); ICJ, Judgment of 19 December 2005 (Democratic Republic of the Congo v. Uganda, Case concerning Armed Activities on the Territory of the Congo), p. 168, para 146, ICJ Reports (2005). 126 Dinstein 2017, p. 241 para 634; Trapp 2015, pp. 679 et seq. 127 Cf. Tams 2009, p. 385 arguing for a more lenient standard of attribution; Chinkin and Kaldor 2017, pp. 160 et seq. 128 Couzigou 2017, pp. 53–55; Trapp 2015, pp. 696 et seq., holding that the parameters are still being worked out in practice. 129 Cf. Finke 2017, pp. 10–42; Starski 2015, pp. 455 passim, adopting a negative stance and referring to the responsibility of the UNSC. In UNSC Resolution 2249 (2015) of 20 November 2015, para 5 the UNSC has called upon Member States to take all necessary measures, i.a., ‘to eradicate the safe haven’ ISIL and its allies ‘have established over significant parts of Iraq and Syria’. In that special case, however, Iraq and Syria had lost effective control over these territories. 130 Kreß 2017a, pp. 462–467. 124

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is intended to exclude controversial issues from the ambit of a crime of aggression, Article 8bis Rome Statute should not apply to the aforementioned cases. Beneath armed attacks and corresponding acts of self-defence, countermeasures— i.e. the breach of an obligation under PIL against a State which is responsible for an internationally wrongful act to induce that State to comply with its obligations (cp. Article 49 [1] DASR)—must not take the form of using force.131 The forceful enforcement of legal obligations in general is, thus, prohibited. Being valid as a general rule, an exception, to be discussed in the following, might be the use of armed force in reaction to a breach of humanitarian obligations.

10.2.2.3

Unwritten Justifications, in Particular: National Liberations Movements and Humanitarian Interventions

Within the UN Charter only the aforementioned justifications of the use of force are relevant—the formally still existent justification to use force against former enemies (Articles 53, 107 UN Charter) is no longer of relevance.132 It is, however, discussed whether additional justifications—enshrined in customary international law or accepted as subsequent State practice (Article 31 [3] [b] Vienna Convention on the Law of Treaties)—exist.133 Two issues have widely gained support and might amount to unwritten justifications: First, the support of national liberation movements struggling to realise their right to self-determination as acknowledged, i.a., by Articles 1 (2), 55 UN Charter, Article 1 International Covenant on Civil and Political Rights and Article 1 International Covenant on Economic, Social and Cultural Rights as well as by customary international law.134 Even though the ICJ has recently rendered an advisory opinion on the fulfilment of the right to self-determination and stressed the crucial role of the General Assembly in the process of decolonisation,135 national liberation movements in a process of decolonisation nowadays play an insignificant role. Whether forceful assistance can be justified outside of the process of decolonisation remains disputed,136 but should be denied due to the utmost importance of the prohibition of the use of force and the need for a restrictive recognition of any unwritten exception. As even the existence of a right to a remedial secession of a suppressed people 131

Article 50 (1) (a) ILC DASR; Crawford 2012, p. 288; ambiguous, however, ICJ, Judgment of 27 June 1986 (Nicaragua v. United States of America, Case concerning Military and Paramilitary Activities in and against Nicaragua), p. 14 para 210, ICJ Reports (1986). The ICJ has, however, not repeated its obiter dictum on forceful countermeasures as ‘the exercise of some right analogous to the right of collective self-defence’. 132 With UNGA Resolution 50/52 of 15 December 1995 the UNGA declared the ‘enemy State’ clauses to have become obsolete. 133 For a brief discussion: Schrijver 2015, pp. 472 et seq. 134 Schrijver 2015, p. 474. 135 See ICJ, Advisory Opinion of 25 February 2019 (Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965), paras 163 et seq. (not yet officially published). 136 Kreß 2017a, pp. 502–504.

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is disputed (see Sect. 10.2.1.4), a forceful intervention by a foreign State should be rejected and can be regarded as a manifest violation. Even though ensuring the right to self-determination is an objective under the UN Charter, the ‘character’ of such military action in the sense of Article 8bis (1) Rome Statute cannot deprive the conduct of its aggressive nature running counter to the interest of outlawing the use of force and intervention in internal affairs. Second, humanitarian interventions as rescue missions for the sake of a State’s own nationals in situations of civil strife or war abroad might be accompanied by the use of force that is strictly limited to the interest of saving life and limb in a situation where the host State is becoming an aggressor or where he is unwilling or unable to offer the protection needed. In these situations, whether one is willing to accept a justification or not,137 at least the threshold clause will not be transgressed as the issue is still under discussion and does not amount to a clear case.138 One might further argue, that these missions due to their solely defensive nature by their ‘character’ do not constitute an act of aggression. In contrast to these predominantly accepted justifications for the use of force, the question of humanitarian intervention in a broader sense remains highly controversial. The term refers to the use of military force by States in order to protect a foreign civilian population from massive human rights violations, international crimes and violations of international humanitarian law without an authorisation by the UNSC (see above Sect. 10.2.2.1). Unlike the situation of support granted to a national liberalisation movement, the interest of the acting States rests less in political change or the overthrow of a government but in the cessation of atrocities. After the tragedy of Rwanda and Srebrenica, UN Secretary General Kofi Annan postulated ‘never again’!139 Among interventions for such humanitarian reasons, the NATO’s Kosovo-bombardment against Serbia has been the most prominent example of an intervention without the authorisation of the UNSC for the compelling humanitarian reason to prevent genocide. However, to maintain the fragile security architecture of the United Nations, to safeguard the monopoly of the UNSC on decisions on the use of force and to avoid abuses as well as because of high opportunity costs, a majority of States and scholars in literature—still—seem to reject the very concept of a unilateral humanitarian intervention.140 This assumption is supported by the concept of the international community’s responsibility to protect (R2P), which has been recognised by the World Summit Outcome 2005141 and might ask for action of the international community against mass atrocity crimes and human rights violations. Unlike the International Commission on Intervention and State Sovereignty, 137

Schrijver 2015, pp. 474 et seq., recognising a consistent element of State practice. Kreß 2017a, p. 488. 139 UN Press Release SG/SM/7263 of 16 December 1999. 140 Valentino 2011, pp. 60 et seq.; Lowe and Tzanakopoulos 2011, paras 10–47 with further references. 141 The concept of Responsibility to Protect was adopted in the 2005 World Summit ensuring to ‘take collective action, in a timely and decisive manner, through the Security Council, in accordance with the Charter, including Chapter VII’, cf. UNGA Resolution 60/1 of 16 September 2005, para 139. 138

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preparing the concept of a responsibility to protect,142 the representatives of the member States included an explicit referral to the competencies and final responsibility of the UNSC to act according to Chapter VII UN Charter. That might be interpreted as an implicit rejection of unilateral action so that one might argue that the invocation of a humanitarian intervention does not preclude an act of aggression in the sense of Article 8bis Rome Statute. However, there are still many authors trying to defend the concept of humanitarian intervention without authorisation by the UNSC and to develop criteria under which conditions it might be justified.143 Others argue, that even though humanitarian interventions are unlawful, they might be justified by moral arguments and should be executed in a manner to get as close to legality as possible.144 During the Kampala conference the exclusion of humanitarian interventions from the crime of aggression was pushed for by the United States145 and had been controversially discussed. Even though the proposal has finally not been adopted, the topic is not settled;146 e.g. the air strikes against Syria after the use of chemical weapons have twice been explicitly justified by the United Kingdom as being for humanitarian reasons.147 This might serve as proof that the international community is still divided on this topic and that the emergence of another unwritten justification for the use of force in future times cannot be excluded.148 In cases of such ambiguities it is convincing that many authors conclude that these cases will not by their character surpass the threshold of a manifest violation of the UN Charter in the sense of Article 8bis (1) Rome Statute.149

142

The ICISS did not entirely rule out the legitimacy of unilateral humanitarian interventions, see ICISS 2001, pp. 53–55. 143 Cassese 1999, pp. 23 et seq.; Fremuth 2012, pp. 91–94. 144 Simma 1999, p. 22. 145 Reprinted in Kreß 2017a, p. 522. 146 Kreß 2017a, pp. 522 et seq. 147 Chemical weapon use by Syrian regime: UK government legal position para 4, published 29 August 2013 following the chemical weapons attack in Eastern Damascus on 21 August 2013, https://www.gov.uk/government/publications/chemical-weapon-use-by-syrian-regime-uk-govern ment-legal-position/chemical-weapon-use-by-syrian-regime-uk-government-legal-position-htmlversion (accessed 1 March 2021); Syria action—UK government legal position para 3, published 14 April 2018 following the chemical weapons attack in Douma on 7 April 2018, https://www. gov.uk/government/publications/syria-action-uk-government-legal-position/syria-action-uk-gov ernment-legal-position (accessed 1 March 2021). 148 See Scharf 2019, pp. 586 et seq., considering the air strikes against Syria as a transformative event for the acceptance of humanitarian interventions. 149 For a deeper discussion, cf. Kreß 2017a, pp. 489–502; Trahan 2015, pp. 54–80; sceptical on whether humanitarian interventions are excluded: Creegan 2012, pp. 69 et seq.; Brown 2014, p. 655, holding that humanitarian interventions are covered.

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10.2.3 Summary The prohibition of the use of force and, even more, potential justifications for the use of force remain controversial to a remarkable degree. Accordingly, many ‘hardto-define-cases’ exist that are likely to fall under the threshold clause of Article 8bis (1) Rome Statute, underlining that the crime of aggression compared to Article 2 (4) UN Charter offers a narrow application only. Due to the recent birth of the crime of aggression, any prediction on its scope is difficult to make and constitutes a conjecture. Ultimately, it is for the ICC to decide on these questions and to define the limits of the crime of aggression under the threshold clause. This prominent role provokes some final considerations regarding the institutional relationship between the Court on the one hand and UN organs on the other hand.

10.3 The Institutional Relationship between the ICC, the UNSC and the ICJ—Who Is the Custodian of International Peace? Finally, the institutional relationship between the ICC as an international organisation of itself on the one hand and the UNSC and the ICJ as organs of the United Nations on the other hand should be briefly contemplated with regard to the crime of aggression. The UNSC plays an eminent role in the system of the United Nations and can be described as the ultimate custodian of international peace (cf. Article 24 [1] UN Charter).150 In accordance with the prevailing view, it is only the Council who may authorise the use of force and even overrule the right to self-defence under Article 51 UN Charter (see above Sects. 10.2.2.1 and 10.2.2.2). Thus, this organ is entrusted with a far-reaching international monopoly on the use of force,151 which is complemented by ICL: the UNSC is competent to refer a situation to the prosecutor (Article 13 [b] Rome Statute) and, thereby, to provide for a universal jurisdiction (i.e. including States that are not party to the Rome Statute) of the ICC for the crime of aggression (Articles 12 [2], 13 [b], 15ter [1] Rome Statute),152 while overcoming the hurdles of its jurisdiction proprio motu. Accordingly, the UNSC is granted an additional tool to react to severe violations of the prohibition of the use of force not only by sanctions adopted under Chapter VII UN Charter, but also by initiating individual criminal responsibility. Quite often, though, the Council is paralysed by competing views and interests, particularly among its five permanent members. This often leads to an inability to address threats to or breaches of the peace as it was the case recently in

150

De Wet 2004, p. 113; Peters 2011, p. 21, stressing that the UNSC is not exclusively responsible. On the debate, cf. Waxmann 2013, pp. 159 et seq. 152 Cf. Zimmermann 2018, pp. 27 et seq.; Schmalenbach 2010, pp. 751 et seq.; Kreß 2017a, p. 421. 151

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Syria153 and will, most likely, also affect its potential role as forerunner in fighting acts of aggression by ICL.154 During the negotiations in Kampala, some delegations asked to ‘extend’ the prominent role of the UNSC under the UN Charter to the Rome Statute by adopting various ‘green light’-solutions concerning the jurisdiction of the ICC.155 That would have enabled the Council to finally decide upon criminal responsibility for an act of aggression. Actually, the UNSC might decide whether an act of aggression occurred and whether its positive determination leads to jurisdiction over this crime (Article 15bis [7] Rome Statute). However, absent of such a determination, the Pre-Trials Division is competent to authorise the commencement of an investigation in respect of a crime of aggression independent of the UNSC (Article 15bis [8] Rome Statute).156 Irrespective of additional legal obstacles, the curtailing of the Council’s role is a remarkable step that has been particularly fostered by non-western States.157 This denial of the Council’s monopoly on the jurisdiction of the ICC can, first, be interpreted as an emancipation of the ICC. Even though the Court is as an international organisation legally distinct from the UN, strong ties between both organisations exist. Particularly, the UNSC is competent not only to refer a situation to the ICC (Article 13 [b], 15ter Rome Statute), it can also defer criminal proceedings (Article 16 Rome Statute, ‘red light’-option), including with respect to the crime of aggression (Article 15bis [8] Rome Statute). Granting this organ of the United Nations the right to finally decide upon jurisdiction beyond Article 16 Rome Statute (which does not privilege the five permanent members as a veto cannot ensure the adoption of a deferring resolution) would have gone even further and made the ICC look like an instrument of the powerful, the permanent five. Second, the autonomous jurisdiction of the ICC—if focussed on clear cases—might contribute to a depoliticization of ICL. Though becoming a State party to the Rome Statutes remains a political decision, granting a political body like the UNSC the right to finally decide on the question of criminal responsibility would, in particular as it is mostly held that the right to veto is hardly limited and might be exercised for political reasons only,158 lead to even more political bargaining. The independence of the ICC with regard to any organ outside the Court concerning the determination of an act of aggression is confirmed by Article 15bis (9); 15ter (4) Rome Statute. It has not been clarified whether this independence relates only to positive determinations (e.g. the UNSC holding that such an act has occurred) or whether it also covers negative determinations (e.g. the 153

Gifkins 2012, pp. 377 et seq. Zimmermann 2018, pp. 28 et seq. 155 Cf. Wenaweser 2010, pp. 884 et seq.; Schmalenbach 2010, p. 749. 156 Cf. Zimmermann and Freiburg 2016b, Article 15bis paras 42–44, stressing that not the Pre-Trial Chamber but the Division has taken the decision due to the relevance and political sensitivity of such a decision; the UNSC can still request a deferral under Article 16 Rome Statute though (Article 15bis [8] Rome Statute). 157 Schmalenbach 2010, p. 746. 158 On the debate on restrictions of the right to veto, an ‘abus de droit’ and procedural requirements in the context of the responsibility to protect, cf. Peters 2011, pp. 13 et seq., 25 et seq. 154

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UNSC holding that such an act has not occurred or is justified).159 In any case, the ICC enjoys a broad independence in a material sense for its own assessment as to whether an act of aggression has been committed. This independence should, though, have limits deduced from the essential functions of the UNSC. In cases, in which the UNSC has authorised the use of force (see above Sect. 10.2.2.1), the ICC is bound by this justification and cannot judge it to constitute an act of aggression. An opposing determination by the Court would run counter to the UN Charter and its regulation of prohibited force, a prerequisite for the crime of aggression. As the UNSC is free to authorise the use of force under Chapter VII UN Charter that organ can within the limits of its competencies decide whether force is prohibited. The ICC, being outside of the UN Charter, has no competence to review a decision of the UNSC—a question being controversially discussed even for the ICJ.160 Furthermore, the question of whether the limits of an authorisation have been respected by acting States, is best answered by the UNSC itself. However, it may not be excluded that the ICC is asked to examine this question as well. Absent of a decision of the UNSC, as to whether an act of aggression has occurred, or in case of an opposing finding by the ICC, frictions may arise and encroach on the responsibilities of the Council.161 The ICJ constitutes the principal judicial organ of the United Nations which is competent to decide upon legal questions by way of judgments in inter-State disputes, as well as by way of (non-binding) advisory opinions (Articles 92–96 UN Charter). Even though under the regime of the UN Charter there is no authoritative interpreter but, rather, the UN Charter entrusts all organs, as well as the member States, with the task of interpretation,162 the ICJ plays a decisive role in that respect.163 Its opinions and (inter partes) binding judgements mostly attain—factually—broad acceptance by the States and they are invoked by literature and the ICJ itself in later decisions— even though the ICJ Statute does not provide for stare decisis and the decisions of the Court do not constitute sources of PIL themselves.164 Since the ICJ is established as an organ under the UN Charter in the function of a ‘World Constitution’, as it can have universal jurisdiction (193 States are members of the UN and having access to the Court according to Article 93 (1) UN Charter) and is competent to decide upon all questions under international law (Article 36 ICJ-Statute), it is—though not 159

Zimmermann and Freiburg 2016b, Article 15bis para 45, arguing in favour of a broader interpretation, though asking the ICC to accept highly persuasive relevant findings made by other judicial bodies. 160 Further reading: De Wet 2004, pp. 25 et seq.; Gowlland-Debbas 1994, pp. 643 et seq. 161 Schmalenbach 2010, pp. 748 et seq. 162 ICJ, Advisory Opinion of 20 July 1962 (Certain Expenses), p. 151, 168, ICJ Reports (1962); Schwindt 2000, pp. 199 et seq. 163 The ICJ itself has recognised, that it is not endowed with the ultimate authority to interpret the Charter, see ICJ, Advisory Opinion of 20 July 1962 (Certain Expenses), p. 151, 168, ICJ Reports (1962). However, according to Article 92 UN Charter it is the principal judicial organ of the United Nations and the ICJ has been labelled even as the ‘World Court’ representing the international community in its entirety, cf. Abi-Saab 1996, pp. 6, 3–16 passim. 164 Cf. Brown 2012, paras 80 et seq., calling pronouncements of the ICJ in fact a subsidiary source of international law.

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exclusively (cp. Article 95 UN Charter)—the most important interpreter of the rights and duties of States and their mutual relationships—being still the very objects of PIL as inter-State-law of coordination and cooperation. The ICJ, thus, is in particular entrusted with deciding difficult legal questions. This leading role is also reflected by the composition of the Court, which is composed of fifteen independent judges having recognised competence in international law (Article 2 ICJ Statute).165 In contrast, the task for the ICC is finding a conclusion on the question of individual guilt, addressing questions of PIL only implicitly and as a precondition. Accordingly, the focus of the Rome Statute concerning the judges of the ICC is more on their competence in criminal law and procedure, and the relevant areas of PIL mentioned are humanitarian and human rights law (Article 36 [3] [b] [i] and [ii] Rome Statute).166 Furthermore, the chambers are composed of fewer judges than those of the ICJ, requiring at least a quorum of nine judges (Article 25 [3] ICJ Statute). Accordingly, the ICJ, due to its composition and competence as well as its leading role as international legal decision maker or advisor, seems to be a more appropriate court to deal with controversial questions of general PIL.167 The different roles of the courts are underlined by the fact that the ICJ is competent to consolidate uncertainties concerning the use of force and acts of aggression, whereas the ICC is limited by the threshold clause to operationalise PIL towards individuals and their criminal responsibility as far as it is uncontested. These differences should require the ICC to respect the jurisprudence of the ICJ on an inter-institutional level.168 Summarising, the jurisdiction of the ICC over the crime of aggression enables this criminal court to adjudicate questions of a highly political and difficult legal nature, answering of which should be the primary task of the UN organs as far as the UN Charter and general PIL is concerned. To respect this institutional balance and to avoid competing interpretations of the UN Charter and a fragmentation of PIL, the ICC is well advised to take the threshold clause of Article 8bis (1) Rome Statute seriously. It can be understood as an instrument of the Rome Statute to safeguard the sketched institutional balance between the ICC and the organs of the United Nations. Furthermore, it underlines that the UNSC remains the main custodian for international peace and that the ICC might play an important, though supplementary, judicial role.

165

The requirement to be ‘of recognized competence in international law’ is, by the wording of the norm, confined to juris consults (‘or’). In practice, the Court is composed of judges, practitioners and diplomats, most of which have proven their recognized competence by a firm legal schooling, see Aznar-Gómez 2012, paras 16–19. For an overview over the persons that have been elected so far and their background cf. ICJ 2013, p. 23. 166 According to Mackenzie 2013, p. 748 the statutes of courts with specialized subject-matter—as the ICC—tend to be more explicit in terms of specific experience required. 167 The line between clarifying what the law is and law-making is thin though, cf. Chan 2016, pp. 44 et seq. criticising the ICJ to establish customary law without reference to state practice or state consent. 168 Similar Schmalenbach 2010, p. 747.

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10.4 Conclusion The inclusion of the crime of aggression among the core crimes in the Rome Statute and its jurisdictional activation has been praised by many authors169 and labelled as a ‘rare window of opportunity’ of which use was made,170 a ‘milestone’171 and a ‘big step to advance international criminal law’.172 Others see the Kampala compromise as a victory of the powerful States173 or are generally opposed, holding that the crime of aggression—being a political crime founded on the use of force which, in contrast to the other international core crimes, might be justified—should not have been enshrined in the Rome Statute.174 In any case, it can be argued that ICL has leaped forward by reflecting its roots. Waging war can re-emerge as a ‘supreme crime’ that is no longer confined to a defeated enemy as already criticised by Chief Justice Robert H. Jackson, who in his opening statement before the IMT in Nuremberg demanded that ‘while this law is first applied against German aggressors, the law includes, and if it is to serve a useful purpose it must condemn aggression by any other nations, including those which sit here now in judgment’.175 Yet, it seems questionable whether his ideal of the equal enforcement of the prohibition of aggression is likely to materialise in the near future.176 First, as shown, the vague threshold requirement will hinder the ICC from deciding ‘grey area’-cases concerning the prohibition of the use of force and, thereby, from answering questions located between international law and legal politics. It might be a wise decision to keep the ICC out of such controversies, shielding it from allegations of judicial activism that might undermine the—already damaged—177 reputation and recognition of the Court.178 Conflicts are not precluded, though, as the ICC—unlike the ICJ—179 could, e.g., rule that a humanitarian intervention without authorisation by the UNSC constitutes a manifest violation of the UN Charter. Only 169

Cf. Ruys 2018, p. 915, speaking of a defining moment in the development of the international legal order. 170 Kreß 2017b, p. 15. 171 Schmalenbach 2010, p. 752. 172 Wenaweser 2010, p. 887. 173 Lavers 2013, pp. 499 passim. 174 Creegan 2012, pp. 81 et seq. 175 IMT Nuremberg, Judgement of 1 October 1946, (Prosecutor v. Goering et al.), in: Trial of the Major War Criminals before the International Military Tribunal, Volume I, Nürnberg, p. 154. 176 Brown 2014, p. 648 passim, holding that the definition of the crime is too indeterminate and that States are unlikely to accept the crime of aggression. 177 Cf. Boehme 2017, pp. 50–70 on the non-compliance of South-Africa with the ICC arrest warrant against al-Bashir as the result, i.a., of regional pressure; Kotecha 2018, pp. 939–962, providing for a rhetorical analysis of legalism focussed on the Office of the Prosecutor and addressing the use of a persuasive rhetoric as necessary to increase the legitimacy of the Court. 178 Similarly, Kreß 2017b, p. 14. 179 Yugoslavia and then Serbia and Montenegro filed applications instituting proceedings against several NATO States for alleged violations of their obligation not to use force. The ICJ was prevented

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political wisdom and judicial self-restraint could prevent such potential conflicts. However, if the ICC takes the threshold clause seriously, bearing in mind the many ‘grey areas’ concerning the prohibition of the use of force, it has to be established which acts of aggression aside from hegemonic or conquest war180 will justify the assumption of a crime of aggression. This restrictive approach, though, may bring the crime of aggression closer to the ‘supreme crime’ as addressed by the Military Tribunals after the Second World War. Second, and more generally, States having the military potency to wage war and a historical record of military interventions are either protected as permanent members of the UNSC or less likely to accept the ICC’s jurisdiction.181 Even for State parties to the Rome Statute, controversial questions concerning the jurisdiction of the ICC remain, i.e. if States that have not ratified the Kampala amendment additionally have to opt out under Article 15bis (4) Rome Statute to prevent the ICC from ruling on aggression.182 Third, the ICC is under severe political pressure. Politicians challenge the legitimacy of the Court calling it an instrument of Western hegemony with a focus particularly on the African continent.183 Some States even withdrew or still discuss a withdrawal from the Rome Statute,184 while other powerful States try to contravene the Court’s work through national legislation and bilateral agreements as well as by urging the UNSC to make use of its competence to defer investigations or prosecutions by the ICC concerning troops participating in UN mandated missions under Article 16 Rome Statute.185 However, irrespective of all challenges the very existence of the Court and the crime of aggression is an important development of modern PIL and commitment to the prohibition of the use of force which might become strengthened by individual responsibility for acts of aggression. In a recent judgment concerning former President of Sudan al-Bashir, the ICC has stated that the immunity of heads of State does not shield them from the jurisdiction of this international court or protect them from enforcing an arrest warrant and surrendering the accused person by another from initiating provisional measures or rendering a judgment on the merits due to a lack of jurisdiction in all cases (see the overview presented by the ICJ under https://www.icj-cij.org/en/cas e/110, accessed 1 March 2021). However, already in its orders of 1999 the Court expressed its scepticism on NATO’s unilateral action, e.g. ICJ, Order of 2 June 1999 (Yugoslavia v. Netherlands, Case Concerning Legality of Use of Force—Provisional Measures), p. 542 paras 17–19, 47–50, ICJ Reports (1999). 180 The term ‘war of aggression’ was proposed but finally abandoned for the price of the threshold clause, cf. Clark 2009, p. 1106. 181 Ruys 2018, p. 891. 182 On this topic concerning the relation between Article 15bis (4) Rome Statute towards Article 121 (5) Rome Statute and the restricting resolution ICC Resolution ICC-ASP/16/Res.5 of 14 December 2017, see Zimmermann 2018, pp. 20 et seq.; Schmalenbach 2010, pp. 750 et seq. 183 Ssenyonjo 2017, pp. 754 et seq. 184 Burundi left the ICC in 2017 and the Philippines in March 2019 (cf. ICC-ASP-20190318PR1443); Adama Barrow, the new president of Gambia, revoked his predecessor’s notification of withdrawal in February 2017; it is unclear whether South Africa will remain a State party after the High Court in Pretoria ruled the executive decision to withdraw to be unconstitutional in 2017 (Case No 83145/2016) and the government halted the exit process. 185 On the attempt of the United States to marginalise the ICC, see Bosco 2014, pp. 71–75, 178.

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State (‘horizontal effect’), even if the respective State is not a member of the Rome Statute.186 Considering the fall of al-Bashir and the ongoing transition of Sudan, it is not unthinkable that a future government will be ready to extradite him to the ICC. Accordingly, the activation of the ICC’s jurisdiction over the crime of aggression, at least, deprives the leaders of and in States of absolute certainty that their acts of aggression and manifest violations of the prohibition of the use of force under the UN Charter will remain unpunished.187 One can only hope that including the crime of aggression within the Rome Statute combined with the general rejection of impunity might tame violent aspirations that seem to have increasingly become en vogue over the last years.

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Gowlland-Debbas V (1994) The Relationship Between the International Court of Justice and the Security Council in the Light of the Lockerbie Case. American Journal of International Law 88:643–677 Greenwood C (1983) The Relationship between ius ad bellum and ius in bello. Review of International Studies 9:221–234 Gross L (1948) The Peace of Westphalia, 1648–1948. American Journal of International Law 20:20–41 Handeyside H (2007) The Lotus Principle in ICJ Jurisprudence: Was the Ship Ever Afloat? Michigan Journal of International Law 71:71–94 Heller KJ (2011) The Nuremberg Military Tribunals and the Origins of International Criminal Law. Oxford University Press, Oxford Hertogen A (2015) Letting Lotus Bloom. European Journal of International Law 26: 901–926 Hiéramente M (2018) Die Ermittlungen des ICC im Nahost-Konflikt. Vereinte Nationen 66:111–115 Hobe S, Fremuth ML (2011) No-Fly Zones – Eine Betrachtung der Flugverbotszone und des Flugbanns als Sanktionsmittel in der Wechselbezüglichkeit von Völkerrecht und Luftrecht am Beispiel Libyen. Zeitschrift für Luft- und Weltraumrecht 60:389–401 ICISS (2001) The Responsibility to Protect. http://responsibilitytoprotect.org/ICISS%20Report.pdf (accessed 1 March 2021) International Court of Justice (ICJ) (2013) Handbook, https://legal.un.org/avl/pdf/rs/other_resour ces/manuel_en.pdf (accessed 1 March 2021) ILC (2001) Draft articles on Responsibility of States for Internationally Wrongful Acts, with commentaries. In: Yearbook of the International Law Commission Vol. II part II, pp. 31–143 Kenny C, Butler S (2018) The Legality of ‘Intervention by Invitation’ in Situations of R2P Violations. NYU Journal of International Law and Politics 51:135–178 Kilovaty I (2015) Rethinking the Prohibition on The Use of Force in the Light of Economic Cyber Warfare: Towards a Broader Scope of Article 2(4) of the UN Charter. Journal of Law and Cyber Warfare 4:210–244 Kotecha B (2018) The Art of Rhetoric: Perceptions of the International Criminal Court and Legalism. Leiden Journal of International Law 31:939–962 Krasner S (2001) Sovereignty: Organized Hypocrisy. Princeton University Press, Princeton Kreß C (2017a) The State Conduct Element. In: Kreß C, Barriga S (eds) The Crime of Aggression: A Commentary. Cambridge University Press, Cambridge, pp 412–564 Kreß C (2017b) Introduction: The Crime of Aggression and the International Legal Order. In: Kreß C, Barriga S (eds) The Crime of Aggression: A Commentary. Cambridge University Press, Cambridge, pp 1–18 Kreß C (2018) On the Activation of ICC Jurisdiction over the Crime of Aggression. Journal of International Criminal Justice, 16:1–17 Kretzmer D (2013) The Inherent Right to Self-Defence and Proportionality in Jus Ad Bellum. European Journal of International Law 24:235–282 Krisch N (2014) The Decay of Consent: International Law in an Age of Global Public Goods. American Journal of International Law 108:1–40 Laird A (2012) Mali: A Legally Justifiable Intervention by France? New Zealand Yearbook of International Law 10:123–137 Lavers T (2013) The New Crime of Aggression: A Triumph for Powerful States. Journal of Conflict & Security Law 18:499–522 Lawrence F (1989) The Nuremberg Principles: A Defense for Political Protesters. Hastings Law Journal 40:397–436 Lowe V, Tzanakopoulos A (2011) Humanitarian Intervention. In: Wolfrum R (ed) Max Planck Encyclopedia of Public International Law. Oxford University Press (Online-Edition), May 2011, Oxford Mackenzie R (2013) The Selection of International Judges. In: Romano C P R, Alter K J, Shany Y (eds) The Oxford Handbook of International Adjudication. Oxford University Press, Oxford, pp 737–756

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Maris G L (1967) International Law and Guantanamo. Journal of Politics 29:261–286 Mégret F (2018) International Criminal Justice as a Peace Project. European Journal of International Law 29:835–858 Murphy S D (2004) Assessing the Legality of Invading Iraq. Georgetown Law Journal 92:73–257 Neuhold H (2015) The Law of International Conflict: Force, Intervention and Peaceful Dispute Settlement. Brill/Nijhoff, Leiden/Boston Nielsen E (2010) State Responsibility for Terrorist Groups. U.C. Davis Journal of International Law Policy 17:151–192 Nolte G (2010) Intervention by Invitation. In: Wolfrum R (ed) Max Planck Encyclopedia of Public International Law. Oxford University Press (Online-Edition), January 2010, Oxford Ohmae K (1995) The End of the Nation State – The Rise of Regional Economies. The Free Press, New York et al. OTP (2018) Report on Preliminary Examination Activities. https://www.icc-cpi.int/Pages/item. aspx?name=181205-rep-otp-PE (accessed 1 March 2021) Paulus A (2009) Second Thoughts on the Crime of Aggression. European Journal of International Law 20:1117–1128 Pella V (1925) La Criminalité Collective des États et le Droit Penal de L’Avenir. Imprimerie de l’État, Bucharest Peters A (2011) The Security Council’s Responsibility to Protect. International Organizations Law Review 8:1–40 Popple J (1989) The Right to Protection from Retroactive Criminal Law. Criminal Law Journal 13:251–262 Randelzhofer A, Dörr O (2012) Art. 2 (4). In: Simma B et al (eds) The Charter of the United Nations: A Commentary. Oxford University Press, Oxford, pp 200–234 Ruys T (2014) The Meaning of ‘Force’. American Journal of International Law 108:159–210 Ruys T (2018) Criminalizing Aggression: How the Future of the Law on the Use of Force Rests in the Hands of the ICC Criminalizing Aggression. European Journal of International Law 29:887–917 Ryngaert C, Buchanan H (2011) Member State responsibility for the acts of international organizations. Utrecht Law Review 7:131–146 Saul B (2008) Defining Terrorism in International Law. Oxford University Press, Oxford/New York Scharf M P (2019) Striking a Grotian Moment: How the Syrian Airstrikes Changed International Law Relating to Humanitarian Intervention. Chicago Journal of International Law 19:586–614 Schmalenbach K (2010) Das Verbrechen der Aggression vor dem Internationalen Strafgerichtshof: Ein politischer Erfolg mit rechtlichen Untiefen. Juristenzeitung 65:745–752 Schmitt M N (2017) Tallinn Manual 2.0 on the International Law Applicable to Cyber Operations. Cambridge University Press, Cambridge Schrijver N (2015) The Ban on the Use of Force in the UN Charter. In: Weller M (ed) The Oxford Handbook on the Use of Force in International Law. Oxford University Press, Oxford, pp 465–487 Schwindt C J (2000) Interpreting the United Nations Charter: From Treaty to World Constitution. University of California Davis Journal of International Law and Policy 6:193–215 Sellars K (2016) The First World War, Wilhelm II, and Article 227: The Origin of the Idea of ‘Aggression’ in International Criminal Law. In: Kress C, Barriga S (eds) The Crime of Aggression – A Commentary. Cambridge University Press, Cambridge, pp 21–48 Simma B (1999) NATO, the UN and the Use of Force: Legal Aspects. European Journal of International Law 10:1–22 Simpson G (2005) The war in Iraq and international law. Melbourne Journal of International Law 6:167–188 Ssenyonjo M (2017) African States Failed Withdrawal from the Rome Statute of the International Criminal Court: From Withdrawal Notifications to Constructive Engagement. International Criminal Law Review 17:749–802 Starski P (2015) Right to Self-Defense, Attribution and the Non-State Actor – Birth of the ‘Unable or Unwilling’ Standard? Zeitschrift für ausländisches öffentliches Recht und Völkerrecht 75:455– 501

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Tams C J (2009) The Use of Force against Terrorists. European Journal of International Law 20:359–397 Tancredi A (2014) Secession and Use of Force. In: Walter C, von Ungern-Sternberg A, Abushov K (eds) Self-Determination and Secession in International Law. Oxford University Press, Oxford, pp 68–94 Trahan J (2015) Defining the ‘grey area’ where humanitarian intervention may not be fully legal, but is not the crime of aggression. Journal on the Use of Force and International Law 2:42–80 Trapp K (2015) Can Non-State Actors Mount an Armed Attack? In: Weller M (ed) The Oxford Handbook on the Use of Force in International Law. Oxford University Press, Oxford, pp 679–696 Valentino B A (2011) The True Costs of Humanitarian Intervention – The Hard Truth About a Noble Notion. Foreign Affairs 90:60–73 von Clausewitz C (1832) On War, 1989 reprint edn., Howard M, Paret P (eds/translators). Princeton University Press, Princeton Waxmann M (2013) Regulating Resort to Force: Form and Substance of the UN Charter Regime. European Journal of International Law 24:151–189 Wenaweser C (2010) Reaching the Kampala Compromise on Aggression: The Chair’s Perspective. Leiden Journal of International Law 23:883–888 Williams R T (2011) Dangerous precedent: America’s Illegal War in Afghanistan. University of Pennsylvania Journal of International Law 33:563–614 Zimmermann A (2018) A Victory for International Rule of Law: Or: All’s Well That Ends Well. Journal of International Criminal Justice 16:19–30 Zimmermann A, Freiburg E (2016a) Article 8bis. In: Triffterer O, Ambos K (eds) The Rome Statute of the International Criminal Court: A Commentary, 3rd edn. C. H. Beck/Hart/Nomos, Munich/Portland, Oregon/Baden-Baden, pp 580–618 Zimmermann A, Freiburg E (2016b) Article 15bis. In: Triffterer O, Ambos K (eds) The Rome Statute of the International Criminal Court: A Commentary, 3rd edn. C. H. Beck/Hart/Nomos, Munich/Portland, Oregon/Baden-Baden, pp 741–764

Univ.-Prof. Dr. Michael Lysander Fremuth is Professor for Fundamental and Human Rights at the University of Vienna, Scientific Director of the university’s Human Rights Master Programme, as well as Scientific Director of the Ludwig Boltzmann Institute of Human Rights in Vienna (Austria).

Part V

Individualizing Guilt

Chapter 11

Individualizing Guilt at Nuremberg Annette Weinke

Contents 11.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.2 Debating Aggressive War Before Nuremberg . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.3 ‘If that is wrong, then we have been wrong in a good many things …’: Conceptualizing the Nazi/Axis Aggression in London and Nuremberg . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.4 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Abstract For several years, the historiography of 20th century human rights law, humanitarian law and international criminal law has been dominated by a strand of scholarship that draws attention to the political implications of international law and challenges the assumption of its impartiality. Recently, a new corpus of Anglophone writings has emerged that counters the critiques of liberal internationalism as forwarded by proponents of NAIL (New Approaches to International Law) and TWAIL (Third World Approaches to International Law). The principal merit of this new scholarship is to remind us that the first attempts to criminalize aggressive wars can be traced back to World War One, and that this progress was often the intellectual achievement of individual legal scholars. Nonetheless, it is historically misleading to suggest that there was a direct connection between the rights-based discourses of the interwar period and the International Military Tribunal (IMT). Some of the new legal histories have advanced a basically linear narrative here. However, this chapter argues that, by charging German defendants with ‘crimes of aggression’ on the basis of the ‘individual liability’ principle, ‘Nuremberg’ constituted not a continuation, but a break with the elaborate academic debates of the interwar period. Keywords Legal Advocacy · Great Power Politics · Conceptualization of Crimes against Peace · Individualizing Guilt · Nuremberg · Aggression

A. Weinke (B) Friedrich Schiller University, Institute for History, Fürstengraben 13, 07743 Jena, Germany e-mail: [email protected] © t.m.c. asser press and the authors 2022 S. Bock and E. Conze (eds.), Rethinking the Crime of Aggression, https://doi.org/10.1007/978-94-6265-467-9_11

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11.1 Introduction On the night of 18 September 1931, a group of young officers of the Japanese Imperial Army staged an explosion along the Japanese-controlled South Manchurian Railway. This event, also known as the ‘Mukden incident’, became the starting point of an invasion of China’s north-eastern province and its subsequent transformation into the Japanese puppet State ‘Manchukuo’. The Lytton Commission, set up by the League of Nations to investigate the conflict, concluded that Japan’s military operations could not be ‘regarded as measures of legitimate self-defense’.1 Though the report had cautiously avoided the term ‘aggression’, the Japanese government left the League in February 1933, never to return. Six and a half years later, SS troops staged a similar false flag operation in the small German-Polish border town of Gleiwitz. A group of men from the SS and military intelligence, dressed in Polish uniforms, seized the German radio station in Gleiwitz and broadcast a short anti-German message in Polish. They then killed a German farmer and several concentration camp inmates whom they presented as victims of Polish sabotage actions. In his famous Reichstag speech of 1 September 1939, Hitler started with the usual lament about the ‘Versailles Diktat’. He then justified Germany’s military action with alleged ‘Polish atrocities’, while also reassuring his commitment to ‘a peaceful coexistence’ between Germany and Poland.2 A few days later, Nazi Germany was at war with France, Britain, and several other countries. Recently, a new corpus of Anglophone scholarship has emerged that aims to excavate the presumed ‘forgotten’ or ‘suppressed’ legacies of twentieth century international law.3 The common objective of these new legal histories is to rehabilitate the protagonists and ideas of liberal legalism. The story they tell often takes the form of an inverted version of earlier ‘realist’ interpretations. Whereas adherents of classical Realism typically emphasized the frailties and instabilities of the Versailles order, this new literature insists that the ‘Twenty Years Crisis’,—to quote the title of a famous book by Edmund Hallet Carr4 —was in fact a period in which international law experienced a slow but steady growth in authority and prestige. Events like the ‘Mukden incident’ or the ‘Gleiwitz plot’ are traditionally seen as symbols of the League’s chronic weakness and its lack of enforcement mechanisms. However, this new literature frames such incidents as test cases of an emerging new legal world order that presumably came into being in 1919. In this vein, it is argued that 1

Hathaway and Shapiro 2017, p. 156. Reichstag Address by Adolf Hitler of 1 September 1939, available at http://avalon.law.yale.edu/ wwii/gp2.asp (accessed 1 March 2021). 3 Among Anglo-American legal scholars and historians, reactions on the book have been mixed; see Douglas 2018; Moyn 2018; Mazower M (16 December 2017) The Internationalists by Oona Hathaway and Scott Shapiro Review—The Plan to Outlaw War, The Guardian; Boot M (2017) When the Governments of the World Agreed to Banish War. Available at https://www.nytimes. com/2017/09/21/books/review/the-internationalists-oona-hathaway-scott-shapiro.html (accessed 1 March 2021); one critic points out that the book does not engage in historiographical discussions about key aspects of international relations: Strong 2018. 4 Carr 1939. 2

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‘Mukden’ triggered the famous American non-recognition doctrine,5 pronounced by US Secretary of State Henry Stimson in 1932, while ‘Gleiwitz’ is presented as proof that even a warmonger like Hitler could not completely ignore the League’s pacifist, rights-based discourse. A formidable and much-acclaimed example of this new trend in legal historiography is the book ‘The Internationalists’ by Oona Hathaway and Scott Shapiro. Over almost six hundred pages, the authors tell us their story of war and peace as a continuous evolution towards the eventual ‘outlawing of war’. They essentially recount the development of international humanitarian law as a gripping struggle between realists and idealists. Their argument is that the 1928 Kellogg-Briand Pact marks a watershed between an ‘Old World Order’, where ‘Might was Right’, and a ‘New World Order’, where aggressive wars became ‘illegal’.6 Such a favorable view stands in sharp contrast to an older tradition of literature which tended to dismiss the Paris Peace Pact as a worthless scrap of paper.7 Furthermore, recent ‘liberal’ arguments predetermine how the authors interpret the accomplishments of a group of transatlantic liberal international lawyers and their various legal reform projects. Of course, Hathaway and Shapiro are required to concede that two brief sentences in the Peace Pact probably did not constitute the abandonment of a centuries-old ‘Westphalian’ system of war and peace.8 They nevertheless claim that the activities of individual liberal jurists and legal think tanks set in motion a ‘tectonic shift’ that in 1945 culminated in the criminalization of aggressive war and in the individual liability of war-makers.9 According to this reading, ‘Kellogg-Briand’ was the place where ‘Westphalia’ was laid to rest, whereas ‘Nuremberg’ became the cradle of a new global legal order. In this chapter, I aim to challenge some interpretations advanced in these new legal histories, especially their emphasis on the contributions of non-state actors to the conceptualization of ‘crimes against peace’ at Nuremberg. The principal merit of this new scholarship is to remind us that the first attempts to criminalize aggressive wars can be traced back to World War One, and that this progress was often the intellectual achievement of individual legal scholars. Nonetheless, it is historically misleading to suggest that there was a direct connection between the rights-based discourses of the interwar period and the International Military Tribunal (IMT). To be sure, nonstate organizations and individual international lawyers from Europe and the United States were indeed involved in the preparation of the IMT’s legal and philosophical underpinnings. Nonetheless, they did not participate in a coherent project which was systematically fostered during the 1920s and 1930s, before it became consolidated in form of the London Charter and the IMT judgment. Contrary to the narrative advanced in some of the new historiographies on international humanitarian law, I argue here 5

Hathaway and Shapiro 2017, p. 330. Hathaway and Shapiro 2017, Chapter XVII. 7 The British historian Ian Kershaw describes the Pact as ‘singularly vacuous’, Kershaw 2015, p. 181. 8 The concept was coined by Gross 1948. 9 Hathaway and Shapiro 2017, Chapter XX. 6

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that by charging German defendants with ‘crimes of aggression’ on the basis of the ‘individual liability’ principle, ‘Nuremberg’ constituted not a continuation, but rather a break with the elaborated academic debates of the interwar period. In fact, the creators of the IMT did not simply proceed from the evolutionary and universalist course of the League’s reform projects. Instead, they used the contingencies of the transitory and fleeting post-World War Two moment in order to carve out their own parochial vision of a new legal world order. Moreover, they not only ‘hijacked’ some of the reformist ideas, as Binoy Kampmark rightfully claims;10 they also effectively reinterpreted them for their own political, legal, and historical purposes. In doing so, however, they failed to address any of the deeper structural and conceptual problems posited by the liberal legalism of the post-World War One period. In effect, they conceptualized ‘crimes against peace’ and ‘individual liability’ for acts of aggression not as universal law, but as exceptional ad hoc charges. In doing so, the victorious powers only sharpened the very same political tensions and inconsistencies that had already blocked the inception of a sustainable architecture of international criminal law in the interwar period.

11.2 Debating Aggressive War Before Nuremberg In 1919, Britain and France demanded an international tribunal for Germany’s dethroned Kaiser. The US administration rejected this demand. In accordance with his legal advisors, the American president explained to his European partners that, ‘until now’, responsibility for international offences had been a ‘collective concept’. To make ‘an act of this type an individual crime after it was committed’ would be ‘to give retroactive force to the principles we set down, contrary to all juridical tradition’.11 Wilson was seconded by Secretary of State Robert Lansing, who maintained that the only law to which the head of the State is responsible is ‘the law of his country, not the law of a foreign country or group of countries.’12 The position that state leaders had unrestricted authority in questions of war and peace, and that even the waging of an aggressive war could not be regarded as criminal under the law of nations, remained the firm conviction of many diplomats and foreign office legal advisers during the 1920s and 1930s.13 In fact, the end of the First World War only briefly created an intellectual atmosphere conducive to new legal concepts and ideas. These aimed at limiting the lawful 10

Kampmark 2018, p. 39. Quoted from Kampmark 2007, p. 529. 12 Quoted from Lewis 2014, p. 49. 13 In 1921, the proposal of the Belgium lawyer Baron Édouard Descamps for the creation of an international criminal court was rebutted by the American political scientist Jesse S. Reeves: ‘It is better … to proceed frankly under the supposed right of the victor against the conquered to punish according to the will of the victor, than to disguise such acts under the name of a juridical proceeding, where a court defines the crimes and prescribes appropriate penalties;’ quoted from Segesser 2010, p. 237. 11

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resort to war. But this short transatlantic moment of juridical experimentation soon evaporated. American political and legal establishments increasingly voiced grave concerns about European plans for an expansion of international humanitarian law, insisting instead on the traditional act-of-state doctrine.14 Article 16 of the League of Nations Covenant had stipulated the idea of an unlawful act of war against all member states.15 However, the European project of an international punishment regime for the prevention of aggressive wars rapidly lost momentum after 1920. On the one hand, some of the national governments that had initially promoted the idea at the Paris Peace Conference were no longer convinced of its political expediency. Their attempts to use the case of Imperial Germany for the modernization of international humanitarian law ended in the embarrassing ‘failure’ of the Leipzig trials.16 Moreover, conservative voices also raised the argument that, after the defeat of Prussian militarism, it was no longer in the Allies’ interest to insist on an alteration of the international system. The demand for retroactive punishment of Germany’s political and military elites derived partly from domestic calls for retribution.17 And yet the Allied victors hesitated to envision themselves as part of a future project that would drastically restrict the rights and obligations accruing to them under the laws and customs of war. Another impediment to this project was the ambiguous attitude of the League’s first Secretary General Eric Drummond. The British diplomat was highly skeptical of the punitive Allied policy, which he perceived as a potential threat for the League’s historic mission as a harbinger of peace and stability. Against this backdrop, he supported the Dutch position in the extradition crisis with Great Britain. Moreover, he rejected the idea to create a permanent international criminal court. Instead of backing the European position against American and Japanese objections, he pleaded for the establishment of a Permanent Court of Arbitration that was intended to replace the optional system created at The Hague conferences of 1899 and 1907.18 Clearly, Drummond’s favored formula for the stabilization of peace and multilateral security under the League’s umbrella comprised arbitration, not humanitarian or criminal law. Despite these setbacks, legal advocacy for the criminalization of aggressive war made some modest inroads during the interwar period. As Daniel Marc Segesser and Mark Lewis have convincingly shown, the main accomplishments in this field were made by a couple of individual jurists and non-state legal think tanks. Whether or not these forces really did give ‘birth’ to a ‘new justice’, as Lewis’ book title suggests, is debatable. However, they did provide a set of important ‘arguments, ideas, and plans’ that included a first provisional definition of aggressive war and a legal

14

Maguire 2010, p. 78. The Austrian–American legal scholar Erich Hula retrospectively claimed that the ‘war of sanctions’ in Article 16 of the League Covenant played the same role for the interwar revival of a punitive war idea as the Kellogg-Briand pact of 1928, Hula 1946, p. 414. 16 Hankel 2003. 17 Weinke 2019b. 18 Lewis 2014, p. 63. 15

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theory for punishing state officials.19 Coming from the margins of the international community of legal scholars, and more often from the eastern than western regions of Europe,20 these voices reflected the multi-faceted and heterogeneous character of the intellectual history of legal internationalism after World War One.21 For example, the young Romanian criminal law professor and diplomat-jurist Vespasian V. Pella belonged to a group of ‘criminological jurists’ who had founded the Association Internationale de Droit Pénal (AIDP) together with other colleagues from the anti-revisionist States Romania, Poland, Greece, and Yugoslavia.22 Relying on the insights of modern criminology, group psychology, and the theory of ‘social defense’, Pella aimed to overcome the popular view of wars as natural and moral forces. His criminological approach rested on a scientific and universal model that justified a limited reduction of state sovereignty with reference to the psychopathological dynamics in modern multi-ethnic nation-states.23 Against this backdrop, Pella saw it as an obligation of the international community to expand the laws of war into a law for the prevention of war.24 In his view, only supranational cooperation in the form of an international criminal court could contain the destructive and warmongering activities of certain activist groups who aimed to arouse chauvinist passions among national populations. Pella’s advocacy for the criminalization of aggressive wars and the consequent individualization of decision processes leading to war made him an important intellectual forerunner of a new model of universal jurisdiction.25 However, this legal universalism contrasted sharply with the parochialism of Pella’s political views. He advanced an extremely broad conception of crimes of aggression—indeed, he submitted one of the first drafts for a definition of this term.26 However, this definition reflected Pella’s deep-seated anti-Bolshevism. It also grew out of the prevalent perception among Romania’s political elites that the revisionism and irredentism of the country’s various ethnic minorities should be criminalized as indirect warlike acts of her aggressive neighbor States.27 It thus seemed that Pella 19

Ibid., p. 9. See Müller 2015. 21 Lewis points out that it did not fit into the dichotomic pattern of liberal idealists versus conservative realists, Lewis 2014, p. 3. 22 Müller 2015, p. 34. 23 On the other hand, his belief in criminal law’s rationality prevented him from acknowledging the inherent dangers of instrumentalization, manifest in David Kennedy’s coinage of ‘lawfare’. 24 Segesser 2010, pp. 242–61; Lewis 2014, pp. 95–110. 25 At least in his public utterances, Pella stressed the importance of universal rules, the principle of a division of powers, and the implementation of robust enforcement measures, Segesser 2010, p. 249. 26 Pella 1925, p. 337. Pella’s multi-faceted approach included the prosecution of states and individuals, including the sovereign heads of states, acts that disrupted international peace, violations of demilitarized zones and disarmament agreements, support for armed groups that worked against the internal security of another state, financial support for political parties in a foreign state, and the counterfeiting of another state’s currency. 27 Müller 2015, p. 33. 20

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had designed his proposal partly with the purpose of trumping the unloved principle of minority rights. Pella considered these to have been unjustly imposed on Romania and other Eastern European States by the former Entente powers in the League’s Council.28 Pella’s example tends to confirm the general observation made by Lewis and other scholars that the nascent, ostensibly progressive jurisprudence of international criminal law tended to conceal some illiberal content and motivations. With his initiative for a codification of aggressive wars, Pella intervened in a broader academic debate that had been triggered by the adoption of the Geneva Protocol in October 1924. Although the ‘Protocol for the Pacific Settlements of International Disputes’ called aggressive wars an ‘international crime’, it lacked a substantive definition of aggression.29 Because no consensus on this toxic and hotly contested issue could be established among the League’s members, the drafters of the protocol resorted to a minimalist procedural rule that equated aggression with negligence of the League’s arbitration mechanism.30 The Geneva Protocol was the most ambitious effort to ‘link security matters with methods for peaceful settlements of international conflicts’.31 Its basic objective was to implement a three-tiered system that would combine a compulsory method for pacific settlement, a furthering of international disarmament negotiations, and the introduction of effective sanctions mechanisms. Reformers within the community of international lawyers welcomed the Protocol as a decisive step towards a new international law. However, traditionalists like Philip Marshal Brown suspected that the League was about to claim for itself the legal capacities of a ‘superstate’.32 State Department legal officials also took a strongly oppositional stance. They rejected the Protocol because of its possible ramifications for the Monroe Doctrine and America’s new membership in the ‘transatlantic club of empire’.33 Against this backdrop, James W. Garner, a leading liberal internationalist and critic of interventionist American foreign policy, warned that the US could not afford to remain aloof forever while the rest of the world was moving to shape a new international legal order.34

28

Lewis 2014, p. 112. Lewis’s claim that the protocol included a definition of aggression, written by the Greek lawyer Nicolas Politis, is not corroborated by the document’s content, Lewis 2014, p. 110. This view is confirmed by Segesser’s findings that the issue of a tangible definition was not raised in the discussions, Segesser 2010, p. 248. 30 Article 10 of the Geneva Protocol stated: Every State which resorts to war in violation of the undertakings contained in the Covenant or in the present Protocol is an aggressor. Violation of the rules laid down for a demilitarized zone shall be held equivalent to resort to war. In the event of hostilities having broken out, any State shall be presumed to be an aggressor, unless a decision of the Council, which must be taken unanimously, shall otherwise declare. 31 Shinohara 2010. 32 Quoted from ibid., p. 73. 33 This new power status, manifest in the seizure of Puerto Rico and the Philippines, was rationalized by the Supreme Court, Coates 2016, p. 45. 34 Quoted from Shinohara 2010, p. 74. 29

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Evidently, then, an American predilection for proceduralism shaped the language of the Geneva Protocol. Paradoxically, it also became a catalyst for transnational dynamics and contingencies that would lead to the Kellogg-Briand Pact of 1928. In the first half of the 1920s, a group of ardent internationalists around the CanadianAmerican medievalist James T. Shotwell and the philosopher James Dewey founded the ‘Committee for the Outlawry of War’. The political leadership of this committee was in the hands of the Republican Senator William E. Borah of Idaho, a vehement adversary of the League. Shotwell, however, became the motor behind an initiative called the ‘American plan’.35 He first submitted his scheme to the League’s Member States, who adapted its system of financial sanctions for the Geneva protocol. The next step came in March 1927, when Shotwell wrote a letter to the French diplomat Arthur Fontaine. Shotwell had already worked closely with Fontaine at the Paris Peace Conference; he now persuaded Fontaine that the French government had to do something to mark the impending tenth anniversary of the American entry into World War One. This bold move earned Shotwell an invitation by the French foreign minister Aristide Briand, who then approached his American colleague Frank Kellogg with the idea of a peace pact. On 27 August 1928, the representatives of fifteen nations gathered at the Quai d’Orsay (the site of the French Foreign Ministry) to sign the historic document. The Pact renounced the ‘recourse to war’ as an ‘instrument of national policy’.36 Due to Kellogg’s well-known aversion to any kind of pacifism, coupled with ongoing political strife within the American ‘outlawry movement’, the Pact neither contained a definition of aggressive war nor any enforcement mechanism. Moreover, it refrained from the language of the Geneva protocol by avoiding the already established terminology of an ‘international crime’. Hatsue Shinohara has argued that, by using the ‘simple yet eloquent catchphrase of ‘outlawry of war’, the pact conveyed the idea to the American public that, unlike membership in the League, it did not entail any form of responsibility or obligations.37 Viewed from the perspective of the late 1920s and early 1930s, it must therefore have seemed that the Kellogg-Briand had not continued but had in fact ended the European reform project of a criminalization of wars.38 By deliberately circumventing the League and its elaborated system of gradual sanctions, Shotwell and his friends from the American outlawry movement had successfully outmaneuvered those European authorities who had drawn on their legal expertise in an attempt to foster this particular project.

35

Hathaway and Shapiro 2017, p. 117. Ibid., p. 128. 37 Quoted from Shinohara 2010, p. 75. 38 Kampmark argues that the Kellogg-Briand Pact marked the end of attempts to abolish war as an instrument of state policy; Kampmark 2018, p. 42; only a few European scholars like the German Hans Wehberg shared the ideas of the American ‘outlawry of war’ movement who wanted to abolish war as an institution; Shinohara 2010, p. 82. 36

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11.3 ‘If that is wrong, then we have been wrong in a good many things …’: Conceptualizing the Nazi/Axis Aggression in London and Nuremberg ‘Anatomy of the Nuremberg Trials’, Telford Taylor’s famous memoir, includes a brief passage in which the former American chief prosecutor drily describes how power hierarchies and the distribution of resources predetermined Nuremberg’s infrastructure and proceedings. Both the Americans and the British were aware that strong reservations existed with respect to their plan to deploy ‘crimes against peace’ and ‘conspiracy’ as the ‘supreme crime’ and raison d’être of the court. Consequently, they undercut their somewhat perplexed Soviet and French partners with an unexpected maneuver. In January 1946, they submitted a comprehensive account of each defendant’s individual guilt. By doing so, they took advantage of the fact that both the Soviets and the French, who had relied on procedural rules, had not yet been able to accomplish their parts of the charges one and two. The USSR’s chief prosecutor, General Roman Rudenko, criticized this practice as ‘premature’. But the Allies brusquely rejected his objection by arguing that the defendant’s individual guilt for ‘planning, preparing, and initiating’ an aggressive war had already been established.39 The vast Nuremberg literature has repeatedly emphasized that ‘crimes against peace’ (count 2) and the related charge ‘conspiracy’ (count 1) were largely Robert Jackson’s personal projects.40 Although the intellectual origins of this concept can hardly be attributed to one person alone, the American former Supreme Court Justice and chief prosecutor was by far the most influential promoter and, in Binoy Kampmark’s words, the most effective ‘salesperson’ of these highly contested charges.41 For Jackson, indicting the National Socialist leadership for having waged an aggressive war against the rest of the world was the decisive reason as well as the primary justification for staging the first international criminal court in history. Jackson saw militarism and expansionism as two interdependent traits of the Nazi movement. He also considered these characteristics to lie at the core of the catastrophe that had unfolded in German history in the first half of the 20th century.42 Moreover, Jackson believed that the US’ status as the world’s leading military and industrial power obligated it fulfill Woodrow Wilson’s grand historic mission. The aim had to be the establishment of a ‘Peace which shall have no end’, as he put it in a speech at the Justice Department in early 1945.43 As a gifted speaker and man of action, Jackson did not share the qualms of contemporary academic jurists who, like the international 39

Taylor 1993. Article 6(a) IMT Charter reads as follows: Crimes Against Peace: namely, planning, preparation, initiation or waging of a war of aggression, or a war in violation of international treaties, agreements or assurances, or participation in a common plan or conspiracy for the accomplishment of any of the foregoing. 41 Kampmark 2018, p. 48. 42 Weinke 2019a. 43 Quoted from Hathaway and Shapiro 2017, p. 262. 40

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law expert Philip Jessup, vehemently disputed the existence of a crime of aggression in international law.44 Jackson was the last US Supreme Court judge who did not hold a degree in law. That he harbored strong resentments against the scholarly community is evidenced by his private diary. ‘God should save us from professors!’ was one of his more harmless laments about his colleagues from legal academia.45 But unlike his longtime friend Roosevelt, Jackson realised that the American intervention in the war entailed some dramatic legal consequences that would outlast the end of the conflict. Not only was he convinced that American involvement on the side of the British had been politically wise; he also maintained that this had occurred in accordance with international law. The old ‘Westphalian’-principle that subjected neutral States to a duty of impartiality had, he believed, lost its substance. It was this insight that had brought Jackson close to Hersch Lauterpacht, the eminent British expert of international law. Although Lauterpacht showed no particular inclination for international criminal law, he belonged to the small circle of legal scholars who took the Paris Peace Pact of 1928 seriously. In 1935, in a revised edition of Lassa Oppenheim’s classical treatise ‘International Law’, Lauterpacht had pondered how the Kellogg-Briand Pact had changed the concept of neutrality. He concluded that the ‘outbreak of war is no longer an event concerning the belligerent alone’. On this basis, he argued that neutral nations like the United States, who were not League members but were signatories of the Pact, had a carte blanche to deploy economic or military sanctions against so called ‘guilty belligerents’.46 By retrospectively attributing a punitive character to the Pact, Lauterpacht took a first step towards the revival of a punitive war concept that was not tied to and not constrained by the institutional apparatus of the League’s dispute settlement mechanism.47 Indeed, after the German invasion of the Soviet Union, Lauterpacht went a step further. In a private memo, written in July 1942 for the ‘Cambridge Group’, he rejected the legal defense based on the defendant’s claim to have merely been following ‘superior orders’. He further reasoned that the Pact could be used to prosecute Axis leaders for waging an aggressive war. In this vein, he stated: The law of any international society worthy of that name must reject with reprobation the view that between nations there can be no aggression calling for punishment, and it must consider the responsibility for the premeditated violation of the General Treaty for the Renunciation of War as lying within the sphere of criminal law.48

44

Jonathan Bush points out that practically all American international lawyers had opposed William C. Chanler’s initial plan of introducing criminal liability for aggressive war; Bush 2002, p. 2359. 45 Quoted from Kampmark 2018, p. 49. 46 Quoted from Hathaway and Shapiro 2017, p. 239. 47 See Hula 1946, p. 414. 48 Quoted from Hathaway and Shapiro 2017, p. 249.

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By the end of the war, Lauterpacht seemed to have become more cautious about his own ideas.49 Jackson, however, endorsed them emphatically. There were four political reasons why Jackson welcomed the plan to prosecute Nazi leaders on the basis of the Kellogg-Briand Pact. First, the fact that Germany itself had signed the document in 1928 was an important precondition for legitimizing the envisaged trial project. Second, the Pact seemed to epitomize a central aspect of American legal idealism that for too long had been overshadowed by Lansing’s (increasingly unpopular) ‘realist’ stance of 1919.50 In Jackson’s view, it was a positive precedent of the past that could be used to buttress American aspirations for a global, moral leadership in the present and future. A third reason why Jackson found the Kellogg-Briand Pact politically expedient was that it seemed to justify Washington’s abandonment of neutrality, starting with the Land-Lease-Agreement of 1941. Jackson and other Democrats anticipated that a resurgence of isolationist sentiments could hamper Truman’s policy towards Germany. The Pact, however, could be effectively weaponized against this domestic opposition. A fourth and last point was that, because Kellogg-Briand explained the United States’ original entry into the war, it seemed only logical to employ it as a basis for future criminal prosecutions. André Gros, head of the French delegation at the London Conference, questioned Jackson on the existence of a crime of aggression in international law. In response, Jackson thundered: The thing that led us taking sides in this war is that we regarded German resort to war as illegal from its outset, as an illegitimate attack on international peace and order. (…) We want this group of (Allied) nations to stand up and say, as we have said to our people, as President Roosevelt said to the people (…) that launching a war of aggression is a crime and that no political or economic situation can justify it. If that is wrong, then we have been wrong on a good many things in the policy of the United States which helped the countries under attack before we entered the war.51

All of this points to the fact that the designated American chief prosecutor focused mainly on the political dimensions of the trial. However, a broader legal theory that could bolster the principle of individual accountability was conspicuously absent in his argumentation. It was indicative of their generally self-assertive attitude that the Americans apparently treated this as a matter of secondary concern. Kirsten Sellars even maintains that the U.S. team arrived in London without a ‘fully formed proposal for the incorporation of individual responsibility into the Charter’.52 In the last months of the war, several members of the Washington bureaucracy had worked hand in hand with international Jewish organizations in order to develop both 49

Hathaway and Shapiro point out that the decisive paragraph on the Peace Pact was excised from Lauterpacht’s memo when it was published in the 1944 issue of the British Yearbook of International Law, Hathaway and Shapiro 2017, p. 260. 50 Kampmark 2018, p. 49. 51 Quoted from Sellars 2013, p. 89. 52 Sellars observed that early drafts of the sections setting out the crimes under the Tribunal’s jurisdiction (later Article 6 IMT Statute) made no specific reference to individual responsibility, Sellars 2013, p. 86.

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a historical storyline as well as a provisional legal theory that included a conceptualization of individual guilt. Nazi perpetrators were compared to ‘Mafioso’ or ‘thugs’, thereby invoking popular narratives and conventional categories of (American) municipal law. More sophisticated theoretical approaches were forwarded by the United Nations War Crimes Commission, researchers of the New York and British sections of the World Jewish Congress, and by German social scientists in the OSS research department. With respect to the search for a juridical solution of the prosecution of Nazi leadership crimes, the OSS came up with an unconventional idea; to take the ‘leader principle’ (Führerprinzip) as developed by prominent NS legal theoreticians such as Ernst Rudolf Huber and Otto Koellreuter and turn it against the NS leadership.53 There was disagreement among these experts about whether the Kellogg-Briand Pact could serve as a point of departure for the planned indictment. Nevertheless, they all concurred on the point that culpability for the war did not lie with the Nazi party and the SS alone. Instead, ‘conspiracy’ would implicate party, state bureaucracy, Wehrmacht, and leading German industrialists. As Kim Christian Priemel has suggested, the charge of conspiracy—according to its creators—‘provided both the legal and the narrative instrument to tie everything together in one large criminal knot’.54 Despite all of these efforts to give the American and British legal strategy a stronger basis, however, the whole edifice almost collapsed due to Jackson’s ignorance of international (criminal) law. It was only in July that he received a decisive hint of how to place charges one and two on a more solid footing. Hans Kelsen, in his role as advisor to the Judge Advocate’s General Department, told Jackson that it should not be left to the judges to decide whether individuals would be held personally responsible for crimes of aggression. Thus the London Charter was complemented by a paragraph that obliged the Court to adjudicate on the principle of individual accountability. Kelsen conceded that such a move would radically refashion international law. But this was legitimate, he added, because no German defendant could rightfully claim to be surprised by this ex post facto jurisdiction.55

11.4 Conclusion In June 1945, US War Secretary Stimson applauded Robert Jackson for his tireless efforts in criminalizing aggressive wars. It was gratifying to see, Stimson wrote, ‘how the battle for which we fought in 1932 [the date of the non-recognition doctrine,

53

Weinke 2019b, p. 90. Conspiracy was supposed to become the ‘trump card for prosecuting (pre-war) crimes against German citizens which under the Charter’s nexus requirements could not be charged’; Priemel 2016, p. 111. 55 Hathaway and Shapiro 2017, p. 270. 54

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AW]’ was about to be won in ‘a fair way’.56 Representatives of US civil society took a similarly emphatic view by drawing a direct line from the earlier activities of the American Outlawry movement to Jackson’s strong-minded antiwar engagement in London and Nuremberg. Europeans in general might ‘have been skeptical’ at the criminalization of wars, exclaimed Miriam Stone from the Society for the Prevention of World War III. But that would certainly change when aggressors of war become aware that they would no longer be able ‘to get away with it’.57 Given this peculiar mixture of self-assertation and historic amnesia, it was understandable that the American attempt to hold leading officials of the Third Reich individually accountable for launching an aggressive was accompanied by exaggerated expectations. Jackson, Stimson and others were convinced that convicting Nazi leaders for crimes of aggression would serve to uproot the fundamental, historical causes of military aggression. This notion turned out to be premature at best. After the Second World War, the idea that one could simply use what Colonel Murray Bernays58 referred to as ‘surgical tools’ of international law in order to remove the ‘cancer’ of totalitarianism and racism from the body of civilization proved particularly suggestive. In retrospect, this idea clearly reflected a particular strand in American legal thinking that tended to veil a lack of complexity and structural concreteness behind grandstanding rhetoric. In the post-war context, the Kellogg-Briand Pact and Stimson’s non-recognition doctrine of 1932 were invoked as ultimate milestones on the way to Nuremberg, most famously by the U.S. chief prosecutor in his courtroom speech from 21 November 1945. In fact, however, it had been mainly American statesmen and legal experts who, after 1918, had resolutely defended the traditional act-of-state doctrine. Furthermore, it constituted a distortion of historical reality when Jackson indirectly credited the heterogeneous American Outlawry movement for being a motor behind international debates on the criminalization of war. This argument ignored the fact that it had been mainly European international lawyers associated with the League who had made the first steps towards an elaborated legal theory, a practical definition and a viable enforcement mechanism. As mentioned above, historians in the Anglophone world tend to see the aggressive war concept forwarded by the American and British prosecution at Nuremberg as the continuation of a project that had begun much earlier. To be sure, the semantics and ideas of scholars like Vespasian Pella, Nicolas Politis, and Quintiliano Saldano59 resonated in the language of the IMT Charter. But it is also important to stress the distinctions between these two projects. Unlike the legal imagination of the interwar period, ‘London’ and ‘Nuremberg’ did not provide a universally applicable concept of aggressive war. Nor did they aim at viable structural reforms that reflected contemporaneous demands for a greater pluralization and democratization of the international sphere. Instead the U.S. prosecution pushed a concept that was based both on

56

Quoted from Kampmark 2018, p. 50. Quoted from ibid. 58 Bernays was the inventor of the conspiracy charge, quoted from Kampmark 2018, p. 44. 59 Ibid., p. 46. 57

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the parochial ideas of the American Outlawry movement and a selective reading of violent acts that were usually lumped under the generic term ‘Axis Criminality’. As a result, ‘crimes against peace’ were conceived as an ad hoc law or ‘une loi de circonstance’. The international lawyer and former Kelsen student Erich Hula sought for an explanation as to why only the ‘most radical views’ propounded by several wings of the anti-traditionalist school were applied in the Allied postwar trials. In response, he pointed to the rift between theory and practice. Applying the ‘new principles’ at a moment when ‘states and their policy makers are still recognized by international law as their own and sole judges of their right to resort (…) to war’ amounted to nothing less than an anachronism.60 The application of the aggressive war concept at Nuremberg derived from the Anglo-American belief that victory over Nazi Germany and Imperial Japan represented a unique historical opportunity. This victory, the Allies believed, would enable the international community to create a ‘world state under world law’61 under Allied or American leadership. This would, à la longue, substitute for the technocratic approach of the League of Nations. But, as soon became clear, the legal revolution conducted at ‘Nuremberg’ would not only fail to revitalize the international debate on ‘crimes of aggression’—it would actually stymie that debate for more than half a century.

References Bush J (2002) ‘The Supreme … Crime’ and its Origins: The Lost Legislative History of the Crime of Aggressive War. Columbia Law Review 192:2324–2424 Carr E H (1939) The Twenty Years’ Crisis, 1919–1939: An Introduction to the Study of International Relations. Macmillan, London Coates B A (2016) Legalist Empire. International Law and American Foreign Relations in the Early Twentieth Century. Oxford University Press, Oxford Douglas L (2018) War No More. The Surprising Legacy of a Ninety-Year-Old Peace Pact. Harpers Magazine February:90–94 Gross L (1948) The Peace of Westphalia, 1648–1648. American Journal of International Law 42:20–41 Hankel G (2003) Die Leipziger Prozesse. Deutsche Kriegsverbrechen und ihre strafrechtliche Verfolgung nach dem Ersten Weltkrieg. Hamburger Edition, Hamburg Hathaway O, Shapiro S (2017) The Internationalists: How a Radical Plan to Outlaw War Remade the World. Simon & Schuster, New York Hula E (1946) The Revival of the Idea of Punitive War. Fordham University Quarterly XXI: 405–434 Kampmark B (2007) Sacred Sovereigns and Punishable War Crimes: The Ambivalence of the Wilson Administration towards a Trial of Kaiser Wilhelm II. Australian Journal of Politics and History 53:519–537 Kampmark B (2018) Punishing Wars of Aggression: Conceptualizing Nazi state Criminality and the US Policy behind Shaping the Crime against Peace, 1943–1945. War & Society 37:38–56 Kershaw I (2015) To Hell and Back: Europe, 1914–1949. Allen Lane, London 60

Quoted from Sellars 2013, p. 17. Hula criticized that Nuremberg was aimed ‘exclusively at a definite group of purposely selected men’, Hula 1946, p. 419.

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Lewis M (2014) The Birth of the New Justice. The Internationalization of Crime and Punishment, 1919–1950. Oxford University Press, Oxford Maguire P (2010) Law and War. An American Story. Columbia University Press, New York Moyn S (2018) American Peace in an Age of Endless War. Raritan 37:152–165 Müller D (2015) Zu den Anfängen des Völkerstrafrechts. Vespasian Pella und Raphael Lemkin. In: Müller D, Skordos A (eds) Leipziger Zugänge zur rechtlichen, politischen und kulturellen Verflechtungsgeschichte Osteuropas. Leipziger Universitätsverlag, Leipzig, pp 27–39 Pella V V (1925) La criminalité collective des états et le Droit Pénal de l’avenir. Imprimerie de l’Etat, Bucharest Priemel KC (2016) The Betrayal. The Nuremberg Trials and German Divergence. Oxford University Press, Oxford Segesser DM (2010) Recht statt Rache oder Rache durch Recht? Die Ahndung von Kriegsverbrechen in der internationalen wissenschaftlichen Debatte 1872–1945. Schöningh, Paderborn Sellars K (2013) Crimes Against Peace’ and International Law. Cambridge University Press, New York Shinohara H (2010) US International Lawyers in the Interwar Years. A Forgotten Crusade. Cambridge University Press, Cambridge Strong ET (2018) H-Net Review: Oona A. Hathaway, Scott J. Shapiro. The Internationalists: How a Radical Plan to Outlaw War Remade the World. http://www.h-net.org/reviews/showpdf.php? id=50645 (accessed 1 March 2021) Taylor T (1993) The Anatomy of the Nuremberg Trials: A Personal Memoir. Little, Brown & Co, Boston Weinke A (2019a) Die Nürnberger Prozesse. C.H. Beck, Munich Weinke A (2019b) Law, History, and Justice. Debating German State Crimes in the Long Twentieth Century. Berghahn Books, Oxford/New York

Prof. Dr. Annette Weinke is Co-Director of the Jena Center of Twentieth Century History and Adjunct Professor at the History Department of the Friedrich Schiller University (Jena, Germany).

Chapter 12

Aggression and Atrocity—The Interstate Element, Politics, and Individual Responsibility Tom Dannenbaum Contents 12.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12.2 Individual Responsibility and Interstate Wrongdoing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12.3 The Competence of Criminal Courts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12.4 States, Politics, and International Crimes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12.5 Form and Substance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12.6 Getting the Normativity of Aggression Right . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12.7 Politics and Ambiguity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12.8 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Abstract At the heart of the crime of aggression is one State’s breach of its public international law duties to another. Indeed, the criminal responsibility of an individual leader depends on this interstate violation. For many, this makes aggression uniquely challenging to the structure of international criminal law. The putative difficulties are twofold. First, it is not clear in what sense an individual can be responsible for an interstate wrong. Second, the competence of criminal courts to adjudicate a dispute between States is at the very least open to question. These problems are only exacerbated by what some have characterized as fatal ambiguities in the definition of the crime. Aggression is, on this common view, the odd crime out in international law. Such critiques misunderstand the crime and mischaracterize those with which it is contrasted. Aggression does entail an interstate violation and there are ambiguities at its margins, but so do a number of war crimes and crimes against humanity. Moreover, contrary to a common view, the interstate element of aggression does not reflect a deeper normative divergence from such crimes. The large-scale violation of fundamental human rights is as normatively central to the criminality of aggressive war as it is to that of genocide, war crimes or crimes against humanity. In short, the project of criminalizing aggression is the project of international criminal justice, and the problems of the crime of aggression are the problems of international criminal justice. Efforts to isolate aggression underpin both an excessive dismissiveness to T. Dannenbaum (B) The Fletcher School, Tufts University, 160 Packard Ave, Medford, MA 02155, USA e-mail: [email protected] © t.m.c. asser press and the authors 2022 S. Bock and E. Conze (eds.), Rethinking the Crime of Aggression, https://doi.org/10.1007/978-94-6265-467-9_12

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the jus ad bellum crime, and a complacency regarding the posture of international criminal law more broadly. Keywords Aggression · State Responsibility · International Criminal Law · Use of Force · International Humanitarian Law · Crimes Against Humanity · Indispensable Third Party

12.1 Introduction On its face, aggression is an unusual international crime. At its heart is a wrong inflicted by a State perpetrator on a State victim. Specifically, there must be an unlawful ‘use of armed force by a State’.1 And that use of force must violate the ‘sovereignty, territorial integrity or political independence of another State’, or must otherwise be ‘inconsistent with the Charter of the United Nations’, which itself regulates States’ uses of force only in their ‘international relations’.2 In the words of an International Law Commission (ILC) report, it is the State violation ‘in relation to another State’ that ‘gives rise to’, and is the ‘sine qua non’ for, individual criminality.3 Indeed, determining individual criminal responsibility for aggression requires evaluating comprehensively the underlying interstate dispute, including any applicable justifications on the part of the alleged aggressor State and thus any jus ad bellum violation on the part of its adversary.4 The central position of this interstate element is thought to distinguish aggression from the other core international crimes—genocide, crimes against humanity, and war crimes.5 It is the source of much of the controversy surrounding the criminalization of aggression, including among those who otherwise support the system of international criminal justice.6 1

Article 8bis (2) Rome Statute. Article 8bis (2) Rome Statute; Article 2 (4) UN Charter. 3 Article 16 Draft Code of Crimes Against the Peace and Security of Mankind, Yb ILC Vol. II, Part Two, commentary para 4. 4 Akande 2011, p. 17. The UN Charter prohibits the use of force unless the State is acting in individual or collective self-defense or pursuant to Security Council authorization, Articles 2 (4), 39, 42, 51, 53 UN Charter. On the zero-sum structure of self-defense, see Military Tribunal XI, Judgment of 11 April 1949 (United States v. von Weizsäcker et al.), 14 Trials of War Criminals Before the Nuremberg Military Tribunals Under Control Council Law No. 10 (1949), p. 329. Selfdefense rights do not obtain in response to Security Council authorized actions. International Law Association Use of Force Committee 2014, Sect. B.2; cf. also infra note 108. 5 Stahn 2010, p. 877; Iverson 2014, p. 96; Creegan 2012; Gomaa 2003. 6 A. Neier et al., ‘Regarding the Crime of Aggression’, Letter to Foreign Ministers, 10 May 2010, available at www.opensocietyfoundations.org/sites/default/files/icc-aggression-letter20100511.pdf (accessed 1 March 2021); Luban 1994, pp. 335–341; Koh and Buchwald 2015, p. 292; Creegan 2012; S. Sewall, ‘The ICC Crime of Aggression and the Changing International Security Landscape, Remarks at the Annual Meeting of the American Society of International Law’, 9 April 2015, available at https://2009-2017.state.gov/j/remarks/240579.htm (accessed 1 March 2021). 2

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This chapter counters that line of thought. Section 12.2 details skepticism of individual responsibility for interstate wrongdoing. Section 12.3 identifies objections to criminal courts’ competence to rule on interstate disputes, particularly in politically sensitive areas of law. Despite superficial appeal, these arguments fail to identify challenges singular to aggression. Section 12.4 contends that difficulties regarding individual responsibility for state wrongdoing permeate international criminal law. Section 12.5 argues that efforts to distinguish aggression as uniquely challenging to criminal judicial competence are unpersuasive on their own terms. Section 12.6 supplements these lines of argument, debunking the notion that aggression diverges from other international crimes on a deeper level—as a crime the moral focus of which is interstate wrongdoing, rather than wrongful human violence. Section 12.7 rebuts the claim that the definition of aggression is fatally ambiguous. The argument does not purport to resolve the questions around the normative credibility of international criminal justice. Rather, it rejects the notion that aggression raises special concerns in those respects. This alone is significant; the contrary view obscures both the political nature of genocide, war crimes, and crimes against humanity and the human rights atrocity at the heart of aggression. As such, it facilitates simultaneously an excessive comfort with the role of international criminal law in responding to the former, and an excessive dismissiveness with respect to the human stakes of the latter.

12.2 Individual Responsibility and Interstate Wrongdoing Skepticism regarding individual responsibility for interstate wrongdoing can be posed from two perspectives. First, in what sense can an individual be responsible for a state act? And, second, in what sense can an individual violate the rights of an external State? The first challenge is not simply derivative of aggression being a collective act.7 The issue is that aggression is a state act. This, Larry May argues, distinguishes it from mass atrocities, for which the challenge of individual responsibility is merely one of ‘aggregation’.8 Focusing on this aspect of the crime has some striking implications. Individuals, even many of them acting together, cannot wage aggressive war.9 Even a State’s commander-in-chief cannot initiate or perpetrate aggression in her individual capacity.10 For the act to qualify as aggression, both she and the collective that fights on her command must act with a particular form of political authority; they must 7

As the International Military Tribunal put it, ‘Hitler could not make aggressive war by himself.’ IMT Nuremberg, Judgment of 1 October 1946 (Prosecutor v. Göring et al.), in: Trial of the Major War Criminals Before the International Military Tribunal, Volume XXII, Nürnberg (1948), p. 468; cf. also infra notes 47–53 and accompanying text. 8 May 2008, p. 256. 9 Ibid. 10 Ibid., pp. 250–51, 257–59.

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act in their official capacities, instantiating in that moment their political community as a whole. This precludes conceiving of her command or their obedience as truly individual acts.11 Seen in this way, one might think there is something perverse about the structure of the crime. It requires characterizing individual contributions as state action in order to establish the predicate interstate violation, only to reverse that characterization in order to establish individual criminal liability.12 It requires understanding these individuals to be acting qua state actors, only to evaluate them qua individuals. Exacerbating the perversity, one might think, is the fact that the individual contributions are not in themselves intrinsically wrongful. Those below the leadership level engage in the very same conduct that they would perform in a lawful war.13 Some argue that this is why such actors are appropriately excluded from criminal liability for aggression.14 But the point extends to leaders. The wrongfulness vel non of their contributions is also determined at the interstate level. A given leader could issue precisely the same orders with full justification if the interstate situation were different. Indeed, for many, the difficulty is not just that the crime involves state action; the victim of the crime of aggression is also a State.15 Michael Walzer describes the law as rooted morally in a ‘domestic analogy’, pursuant to which aggression is an infringement upon the attacked State akin to the infringement of burglary on a human person.16 Under this ‘legalist paradigm’, States ‘possess rights more or less as individuals do’.17 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.18 If this characterization of the crime is correct, it provokes a second series of difficult questions. Do individuals have a duty to preserve the sovereign interests of a foreign State? Does that duty obtain even when the foreign State is in competition with their own State? From where would such a duty derive, and how would it fit within the framework of international criminal law? Absent compelling answers to 11

The point is typically made only with respect to obedience, Walzer 1977, pp. 28, 39, 304; Kahn 2002, p. 2; Kutz 2002; Kutz 2005, pp. 156, 173, 176. 12 Raising concerns along these lines, see Stone 1958, p. 141; Gomaa 2003, p. 65; May 2008, pp. 232, 256–259. 13 May 2008, pp. 229, 256, 339. 14 Ibid.; Solis 1999, p. 520; cf. also infra note 53. 15 Stahn 2010, pp. 877, 880; van Houtte et al. 2008; McDougall 2013, p. 293; McCarthy 2012, pp. 43–44; Schabas 2007, pp. 324–325; Sari 2014, pp. 467, 483; Creegan 2012, p. 62. See also Pobjie 2017, pp. 816–821 (under the current approach to victim status, the State would be the core victim). 16 Walzer 1977, p. 58. 17 Ibid., pp. 58, 61. See also Walzer 2007, p. 221. Offering a similar analogy, see Telford Taylor, Statement of the Prosecution of 30 August 1946 (Prosecutor v. Göring et al.), in: Trial of the Major War Criminals Before the International Military Tribunal, Volume XXII, Nürnberg (1948), p. 280. See also Kahn 2008, pp. 54–55. 18 Walzer 2007, p. 221.

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these questions, one might think that the project of criminalizing aggression suffers from a grave lack of conceptual clarity. Some seek to make sense of the notion of a State victim with reference to the State’s role in enabling self-determination.19 However, this does not provide a particularly compelling account of the crime as currently constituted.20 Some potentially criminal wars neither violate, nor aim to violate, self-determination in any deep way. In this category, consider retributive aerial bombardments with no designs on territory or regime change, or, alternatively, a State’s use of force against UN-authorized troops on its own territory.21 Conversely, some severe violations of self-determination (such as electoral hacking, or overwhelming economic coercion) are not international crimes.22 Even if self-determination could make sense of the crime we have, the questions would simply shift downstream. What are the grounds of an individual’s responsibility to another self-determining community, particularly (again) when it is in competition with her own? Ultimately, the interstate element seems to bedevil the crime of aggression on both sides. The state act element complicates individual responsibility. And the State victim element raises questions about the wrong for which the individual is responsible.

12.3 The Competence of Criminal Courts Related concerns arise regarding criminal courts’ competence in this domain. Ruling on aggression requires making a conclusive finding regarding the underlying interstate dispute.23 However, full state participation in crime of aggression proceedings is neither provided for nor appropriate. Domestic courts may have jurisdiction to rule on the rights and responsibilities of their own State, but they are generally thought to lack such competence with respect to foreign States. This principle of sovereign independence and equality is reflected in the doctrine par in parem imperium non habet.24 Implicating the rights and legal interests of at least two States, aggression cases might be thought to be straightforwardly and necessarily beyond the competence of domestic courts. Similarly, the indispensable third party doctrine might be thought to preclude international court

19

Walzer 1977, pp. 221, 230, 234; Walzer 2007, pp. 61, 90, 96; Kahn 2004, pp. 262–263. Walzer accepts that the existing legal regime would require some tweaks to properly reflect the imperatives of self-determination, Walzer 1977, pp. 101–108. 21 Infra notes 103–104, 108 and accompanying text. 22 Infra note 103 and accompanying text. 23 Supra note 4. 24 Van Schaack 2012. 20

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jurisdiction absent the consensual participation of any State whose legal interests ‘would form the very subject-matter of the decision’.25 In activating the aggression amendments, the Assembly of States Parties sought to limit ICC jurisdiction based on State referral or prosecutorial initiation to cases in which States on both sides have ratified the aggression amendments.26 Insofar as those States’ ratifications entail consent to the Court’s authority to adjudicate the underlying interstate dispute without their participation, this might be thought to have nullified the force of the indispensable third party concern.27 However, the issue cannot be dismissed so easily. First, the activation resolution did not itself modify the statutory text. It remains an open question whether the Court will read the amendments through the language of the resolution.28 Second, Security Council referred situations at the ICC do not come with such jurisdictional limits.29 To hold that such referrals themselves overcome the problem would require understanding States to have consented to ICC adjudication on this issue by having ratified the UN Charter, typically long before the ICC’s creation, and having remained in the UN system since.30 To the extent one holds that consent matters substantively, and not just formally, this is unlikely to be a satisfying line of reasoning. Consent aside, States cannot defend their rights and interests when impugned in an aggression case. The avenues for state participation in ICC proceedings are limited to specific items:31 challenging jurisdiction or admissibility,32 triggering the review of a prosecutorial decision not to investigate or prosecute in a situation the State referred,33 litigating issues of State assistance and cooperation,34 or acting as an amicus curiae.35 The State may also intervene when the disclosure of its national security evidence is at stake.36 Of these, only the amicus curiae path could enable substantive interventions in an aggression case. However, that option is provided at the discretion of the Court, applies only to issues dictated by the Court, comes with 25

ICJ, Judgement of 15 June 1954 (Italy v France et al., Case of the Monetary Gold Removed from Rome in 1943), 32, ICJ Reports (1954); Akande 2011, pp. 15–26; Akande and Tzanakopoulos 2017, p. 35. 26 ICC Resolution ICC-ASP/16/Res.5 of 14 December 2017, operative para 2. 27 Cf. Akande 2011, pp. 26–28. 28 The activation resolution noted diverging views and affirmed judicial independence. ICC Resolution ICC-ASP/16/Res.5 of 14 December 2017, preambular para 4, and operative para 3; N. Stürchler, ‘The Activation of the Crime of Aggression in Perspective’, 26 January 2018, available at https://www.ejiltalk.org/the-activation-of-the-crime-of-aggression-in-perspective/ (accessed 1 March 2021). 29 Article 15ter Rome Statute. 30 Arguing that Security Council referral is compatible with state consent, see Akande 2011, pp. 35– 38. 31 Williams 2016. 32 Article 19 Rome Statute. 33 Article 53 (1) (a) Rome Statute. 34 Articles 87 (7), 93 Rome Statute; Regulations 108–109 ICC Regulations. 35 Rule 103 ICC Rules of Procedure and Evidence. 36 Article 72 (4) Rome Statute.

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no guarantee of being taken into account, and is protected by no rights of appeal or response.37 This is not a problem that can be solved by amendment. Any move to provide States the opportunity comprehensively to resolve their underlying dispute could threaten the accused’s right to an expeditious trial, undermine her control over her defense strategy (which may be structured so as to concede the state violation), or contravene the principle of the equality of arms (as might occur if the adversary State contests her jus ad bellum justification, but her State eschews intervention following a regime change).38 In short, aggression proceedings at the ICC will necessarily implicate state rights and responsibilities, but States cannot be allowed to seek to defend those interests without undermining the criminal process. Even assuming consent to jurisdiction, the adjudication of States’ rights without the possibility of their direct protection might be thought to challenge the Court’s competence. Some go further, arguing that aggression ought to be addressed through political mechanisms and institutions, rather than legal ones.39 This view has historical roots. Prior to the development of the contemporary jus ad bellum, States’ sovereign equality underpinned their authority to wage war without legal check.40 The law has changed, but its scope and application remains highly politically sensitive. Arguably, this is reflected in the UN Charter’s allocation of primary responsibility for assessing and responding to aggression to the Security Council.41 Indeed, it has been suggested that the political disputes on the jus ad bellum are so deep as to render the derivative criminal provision void for vagueness.42 Overall, then, the interstate element of aggression is understood to underpin challenges both to the principle of individual responsibility for aggressive war and to the competence of criminal courts to rule on the issue. These concerns are misleading. First, they trade on a mistaken assumption that aggression is qualitatively distinct among international crimes in implicating politics and the rights and responsibilities of States.43 Second, they misidentify the normative 37

Williams 2016, pp. 248–49. See Articles 21 (3), 56 (1) (b), 64 (2), 64 (3) (a), 67, 68, 82 Rome Statute. The possibility of divergence between the accused and her State may be precisely what motivates state intervention in the first place. Williams 2016, p. 246. 39 S. Sewall, ‘The ICC Crime of Aggression and the Changing International Security Landscape, Remarks at the Annual Meeting of the American Society of International Law’, 9 April 2015, available at https://2009-2017.state.gov/j/remarks/240579.htm (accessed 1 March 2021); Koh and Buchwald 2015, pp. 258–263. On the challenge of inadequate judicial authority: Lauterpacht 1953, pp. 220–21; Blum 2010, p. 87; Taylor 1970, Chapter 5 and p. 184. 40 Kelsen 1945, p. 331; Hathaway and Shapiro 2017, Chapters 1–4; Neff 2005, pp. 225–39; Phillimore 1873, pp. 18–22. 41 Pellet 2015, p. 562. 42 Glennon 2010, p. 102. 43 This is not to say that some critics of aggression do not also criticize the ICC and the very project of international criminal justice. See, e.g., J. Bolton, ‘Protecting American Constitutionalism and 38

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core of aggression and thus obscure the degree to which aggression, like other crimes, also entails human atrocity.

12.4 States, Politics, and International Crimes Consider first the notion that the wrongfulness of individual contributions to aggression is derivative of the interstate wrong.44 Derivative wrongfulness itself is hardly unique in international criminal law. The collective nature of genocide, crimes against humanity, and war crimes45 has necessitated the elaboration and widespread application of doctrines pursuant to which individuals can be held criminally liable for actions that would be unproblematic in a different macro context—actions like guarding a detention camp, managing bureaucracy, passing on orders, and so on.46 The ICTY Appeals Chamber explained the need for such doctrines in its first full judgment: [Most international] crimes do not result from the criminal propensity of single individuals but constitute manifestations of collective criminality: the crimes are often carried out by groups of individuals acting in pursuance of a common criminal design. Although only some members of the group may physically perpetrate the criminal act (murder, extermination, wanton destruction of cities, towns or villages, etc.), the participation and contribution of the other members of the group is often vital in facilitating the commission of the offence in question. It follows that the moral gravity of such participation is often no less — or indeed no different — from that of those actually carrying out the acts in question.47

Building on a range of Nuremberg precedents, the Tribunal articulated a joint criminal enterprise doctrine pursuant to which: (1) an entire collective crime could be attributed to a willing and contributing participant,48 (2) the contribution of the accused need not have been necessary to the success of the collective crime,49 and (3) that contribution need not itself have entailed a crime or part thereof.50 Sovereignty from International Threats’, 10 September 2018, available at https://fedsoc.org/events/ national-security-advisor-john-r-bolton-address (accessed 1 March 2021). However, others seek to draw a distinction, see supra note 6. 44 See supra notes 13–14 and accompanying text. 45 War crimes can be perpetrated by lone actors, but the focus of international criminal justice tends to be on those ‘committed as part of a plan or policy or as part of a large-scale commission’, Article 8 (1) Rome Statute. 46 Danner and Martinez 2005; van Sliedregt 2007, p. 187. 47 ICTY, Judgment of 15 July 1999, IT-94-1-A (Prosecutor v. Tadi´ c), para 191. 48 Proceedings of a War Crimes Trial held at Lüneburg, Germany from 13–23 August 1946 (Trial of Gustav Alfred Jepsen et al.), Judgment of 24 August 1946, p. 241. 49 Proceedings of a War Crimes Trial held at Hamburg, Germany from 4–24 August 1948 (Trial of Feurstein et al.), Judgment of 24 August 1948, pp. 7–8. For later versions of the individual contribution threshold for liability via joint criminal enterprise at the ICTY, see ICTY, Judgement of 2 November 2001, IT-98-30/1-T (Prosecutor v Kvoˇcka et al.), para 309; ICTY, Judgement of 30 November 2005, IT-03-66-T (Prosecutor v Limaj et al.), paras 665–670. 50 ICTY, Judgement of 17 March 2009, IT-00-39-A (Prosecutor v. Krajišnik) paras 215, 695–696.

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Aiding and assisting provides another example. Arms sales to States can help the recipients to deter wrongful attacks and engage in lawful self-defense. However, those engaged in such transfers with awareness that the recipients will use the weaponry to perpetrate international crimes participate thereby in a derivatively criminal act.51 In short, derivative individual criminality is hardly unique to aggression. One might object here that the other international crimes involve at least some actors contributing acts that are inherently wrongful. However even if this were true,52 it is no response to the derivative criminality of others’ contributions. Given that control over the macro policy is required for even complicit criminal liability for aggression, the difficulty of justifying individual responsibility for that crime is, if anything, mitigated as compared to derivative responsibility for atrocity crimes.53 Focusing on aggression’s derivation from a State violation does not establish its distinctiveness. At the ICC and elsewhere, certain acts are war crimes only if the armed conflict to which they have a nexus is an international armed conflict (IAC).54 To determine whether a conflict between a State and a non-state actor supported by another State qualifies as an IAC, both the ICC and predecessor tribunals have asked whether the non-state actor’s conduct is attributable to the supporting State.55 Holding that such a relationship obtains means holding that the alleged war crimes at issue are (legally) acts of the State exercising overall control. Conflict type aside, a prohibited act, such as murder or rape, will not qualify as a war crime unless it has a sufficient nexus to an armed conflict. A factor in establishing such a nexus is whether the perpetrator was acting in an official capacity in inflicting

51

In 2013, the ICTY Appeals Chamber limited liability to contributions ‘specifically directed’ to support the crime. ICTY, Judgement of 28 February 2013, IT-04-81-A (Prosecutor v. Periši´c), paras 25–73. However, within a year it reversed course to include knowing contributions. ICTY, Judgement of 23 January 2014, IT-05-87-A (Prosecutor v. Nikola Šainovi´c et al.) paras 1617–1651. The ICC Statute limits aiding and assisting to contributions ‘for the purpose of facilitating the crime’, Article 25 (3) (c) Rome Statute. However, it also allows for liability when an outside actor provides significant support ‘in the knowledge’ of the recipient group’s intention to perpetrate crimes, Article 25 (3) (d) Rome Statute; ICC Pre-Trail Chamber I, Decision on the Confirmation of Chargesof 16 December 2011, No. ICC-01/04-01/10-465 (Prosecutor v. Callixte Mbarushimana), paras 276, 277, 288. 52 It is at least dubious in the case of population transfer crimes: Article 8 (2) (b) (viii) Rome Statute; ICC Elements of Crimes, pp. 6–7, 22. 53 On the ICC’s ‘direct or control’ standard: Article 8bis (1) Rome Statute. On the Nuremberg ‘shape or influence’ standard: Military Tribunal XII, Judgment of 27 October 1948 (United States of America v. von Leeb et al.), 11 Trials of War Criminals Before the Nuernberg Military Tribunals Under Control Council Law No. 10 (1950), pp. 462, 488; Military Tribunal VI, Judgment of 30 July 1948 (United States v. Krauch et al.), 8 Trials of War Criminals Before the Nuernberg Military Tribunals Under Control Council Law No. 10 (1949), pp. 1102, 1126. On the distinction: Heller 2007. 54 Article 8 Rome Statute. 55 ICTY, Judgment of 15 July 1999, IT-94-1-A (Prosecutor v. Tadi´ c), paras 98, 104; ICC Trial Chamber I, Judgment of 5 April 2012, No. 01/04-01/06-2842 (Prosecutor v. Thomas Lubanga Dyilo), para 54.

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the wrong.56 Under the law of State responsibility, holding that a State official perpetrated an act in her official capacity simply entails her State’s responsibility for that act, even if she acted ultra vires.57 As grave breaches of the Geneva Conventions and other serious violations of IHL, any war crimes attributable to a State entail an illegal act on the part of the latter.58 Moreover, often that violation entails the infliction of a legal wrong against another State. In the IAC context, the Geneva Conventions prohibit wrongs against civilian nationals of adversary States and members of those States’ armed forces.59 Violations of such ‘protected persons’ are legal wrongs by the perpetrator’s State against the victim’s State. Even when the category of potential victims is broader, establishing a belligerent nexus may involve finding that the violation was inflicted on an adversary national.60 This, too, would entail the perpetrator’s State violating its IHL obligations to the victim’s State. In addition to these general interstate elements of war crimes and grave breaches, certain war crimes include specific interstate violations. Most strikingly, establishing the ICC and Additional Protocol I war crime of transferring occupying power nationals into occupied territory requires holding that the transfer was performed ‘by the Occupying Power’ and may require determining territorial sovereignty to establish the predicate condition of a belligerent occupation.61 Similarly, establishing the war crime of destroying or seizing the enemy’s property requires establishing that the property was in fact the property of a hostile party.62 The phenomenon is not unique to war. To prove a crime against humanity at the ICC (or pursuant to the definition proposed in the ILC’s draft convention) requires 56

ICTY, Judgment of 12 June 2002, IT-96-23 & IT-96-23/1-A (Prosecutor v. Kunarac et al.), para 59; ICTR, Judgment of 2 September 1998, ICTR-96-4-T (Prosecutor v. Akayesu), para 640. 57 Articles 4, 7 Draft Articles on Responsibility of States for Internationally Wrongful Acts with Commentaries, 2001, Yb ILC, Vol. II, Part Two, p. 31. 58 Article 8 (2) (a), (b), (c), (e) Rome Statute; ICTY, Decision of 2 October 1995, IT-94-1-AR72 (Prosecutor v. Tadi´c), para 94. 59 Article 8 (2) (a) Rome Statute. On nationality and prisoner of war status: Dinstein 2016, pp. 55– 56. On nationality and protected person status for civilians: Article 4 Geneva Convention (IV) Relative to the Protection of Civilian Persons in Time of War. For a rare exception to the nationality rule: ICTY, Judgment of 15 July 1999, IT-94-1-A (Prosecutor v. Tadi´c), paras 163–17. 60 On the significance of the nexus requirement in the absence of a protected person element, see ICC Appeals Chamber, Judgment on the appeal of Mr. Ntaganda against the ‘Second decision on the Defence’s challenge to the jurisdiction of the Court in respect of Counts 6 and 9’ of 15 June 2017, No. ICC-01/04-02/06-1962 (Prosecutor v. Bosco Ntaganda), paras 63, 67. On the nexus factors: supra note 56. 61 On the crime, see Article 8 (2) (b) (viii) Rome Statute; ICC Elements of Crimes, p. 22. On the relationship to sovereignty, see Dinstein 2009, pp. 33–34, 49, 51–52. On the threshold criteria, see Article 2 Geneva Convention (IV) relative to the Protection of Civilian Persons in Time of War; Article 42 Regulations Annexed to The Hague Convention (IV) respecting the Laws and Customs of War on Land. This alleged violation is, of course, a key issue in the ICC investigation in Palestine. ICC Office of the Prosecutor, Prosecution Request of 22 January 2020 Pursuant to Article 19 (3) for a Ruling on the Court’s Territorial Jurisdiction in Palestine (Situation in the State of Palestine) para 95. 62 Article 8 (2) (b) (xiii) Rome Statute; ICC Elements of Crimes, p. 25.

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establishing a ‘state or organizational policy’ to attack a civilian population.63 This renders criminal liability potentially contingent on an underlying state policy to violate international law.64 The specific crime of apartheid further requires proof of an ‘institutionalized regime of systematic oppression and domination’.65 The state policy element of crimes against humanity does not simply have the collateral consequence of attribution to the State. It can be understood as normatively central to the category. David Luban contends that it is precisely because they reflect ‘politics gone cancerous’ that crimes against humanity—unlike equivalent individual violations—are worthy of international scrutiny and criminal punishment.66 On this account, the fact of sovereign action and the relatedly political nature of the acts neither absolve individuals of criminal culpability, nor preclude the viability of criminal courts as the mechanisms of response. Quite the opposite, they counteract the ordinary reasons to allow States a measure of discretion in responding to internal crimes, thus justifying the authority of global and foreign criminal courts.67 A similar argument can be invoked with respect to the public official element of torture in the Convention Against Torture.68 State involvement may also be central to the mode of liability in any particular case. Consider two examples. Article 25 (3) (a) Rome Statute provides that an individual can be held individually criminally liable as a principal perpetrator when he or she acts ‘through’ another person. Omar al-Bashir’s arrest warrant is premised on the determination that he acted through the ‘“apparatus” of the State of Sudan’ in perpetrating crimes in Darfur.69 Similarly, the ICTR held that a joint criminal enterprise could be established with reference to a nationwide common criminal plan, organized through the government.70 The common thread across these examples is that aggression is far from alone among international crimes in implicating state responsibility and international politics. In a number of contexts, issuing a conviction for an atrocity crime would require ruling in a way that leaves no room for any legal conclusion other than that one State 63

Article 7 (2) (a) Rome Statute; Report of the ICL, Sixty-Ninth Session, 1 May–2 June and 3 July–4 August 2017, UN. Doc A/72/10, p. 11, Draft Article 3 (2) (a). 64 Just as war crimes law reflects underlying IHL standards applicable to States, crimes against humanity entail violations of human rights law. Pérez-León Acevedo 2017. 65 Article 7 (2) (h) Rome Statute. 66 Luban 2004, pp. 116–120. 67 From this perspective, the alternative ‘organizational policy’ should be understood in a political way, Luban 2004, p. 117; ICC Pre-Trial Chamber II, Decision of 23 January 2012 on the Confirmation of Charges, No. ICC-01/09-01/11-373 (Prosecutor v. Francis Yirimi Muthaura, Uhuru Muigai Kenyatta and Mohammed Hussein Ali), Dissenting Opinion by Judge Hans-Peter Kaul, para 7. 68 Article 1 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment; Cassese et al. 2013, p. 133. 69 ICC Pre-Trial Chamber I, Decision of 4 March 2009 on the Prosecution’s Application for a Warrant of Arrest against Omar Hassan Ahmad Al Bashir, No. ICC-02/05-01/09-3 (Prosecutor v. Omar Hassan Ahmad Al-Bashir, PTC I), paras 209, 216. See also ibid., paras 216–223. 70 ICTR, Appeals Chamber Decision of 22 October 2004, ICTR-98-44-AR72.4 (Prosecutor v. Andr´ e Rwamakuba), para 25.

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violated its obligations under international law, either erga omnes, or vis-à-vis another State in particular. Nor does the UN Charter’s specific allocation of responsibility to the Security Council to assess and respond to aggression distinguish the crime as uniquely political.71 On the contrary, pursuant to the firmly established interpretation that atrocity crimes constitute ‘threats to international peace and security’, they are subject to Security Council scrutiny on the same basis.72 The Council’s authority to create international tribunals and to refer situations to the ICC rests on precisely this interpretation.73 The Responsibility to Protect principle takes it a step further, requiring the Council to respond to atrocity with appropriate action.74 This interpretation of the Charter has never been understood to entail that the Council’s role in responding to atrocity is exclusive. Nor has it been taken to indicate that the underlying wrongs are so inherently political as to preclude the competence of criminal courts in this realm. Quite the opposite, the two dimensions have been mutually reinforcing.75 What, then, makes aggression special? Why does it provoke a uniquely powerful response with respect to state action and politics? Two answers are typically offered. The first emphasizes the form of the interstate holding in an aggression proceeding. The second focuses on the degree to which the interstate element is normatively central to the criminal wrongfulness of aggression, but normatively tangential to the criminal wrongfulness of atrocity crimes. Consider these in turn.

12.5 Form and Substance Akande and Tzanakopoulos assert that aggression is qualitatively distinct, because it alone requires the Court to determine explicitly that a State violated its international legal obligations (under the U.N. Charter).76 Their focus on formal expression derives in part from the indispensable third party principle.77 The doctrine precludes those courts to which it applies from hearing a case in which the legal rights or 71

See supra note 41. An important landmark was the imposition of sanctions against apartheid South Africa, UNSC Resolution 418 (1977) of 4 November 1977. 73 Responding to the original challenge on this point: ICTY, Decision of 2 October 1995, IT-94-1AR72 (Prosecutor v. Tadi´c), paras 37–47. 74 UNGA Resolution 60/1 of 16 September 2005, paras 138–39; UN Doc A/63/677 of 12 January 2009); International Commission on Intervention and State Sovereignty (2001), The Responsibility to Protect, paras 6.13–6.28, available at http://responsibilitytoprotect.org/ICISS%20Report. pdf (accessed 1 March 2021); Peters 2011. 75 This has not been without criticism. Critiquing the focus of the Responsibility to Protect on crimes: Hannum 2009, p. 140. Critiquing the Security Council’s role in international criminal law: Dannenbaum 2020. 76 Akande and Tzanakopoulos 2017, p. 34. 77 Ibid., p. 35. See also supra note 25 and accompanying text. 72

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responsibilities of a non-consenting State would be the very ‘subject matter’ of the dispute, such that its disposition would entail necessarily an explicit ruling on those rights or responsibilities.78 The doctrine does not block courts from proceeding when the case would require only an implicit determination of the non-consenting State’s rights or responsibilities.79 From this premise, the argument for aggression’s peculiarity proceeds as follows. Convictions for the war crimes and crimes against humanity discussed above merely imply state (or interstate) violations. The ICC can convict an individual for a crime against humanity orchestrated via state policy, without stating explicitly that the State violated its obligations. An aggression conviction, on the other hand, depends on a prior finding that one State used illegal force against another.80 Assuming the subjectmatter-of-dispute test carries legal or normative weight in realm of international criminal justice, this would seem to be a distinction of significance. It might be thought to impugn the competence of criminal courts to rule on aggression cases.81 Several points can be offered in response. For one thing, aggression is not in fact the only international crime in which one State’s alleged illegal action is a central subject matter of dispute. Convicting an individual of transferring occupying power nationals into occupied territory (a) requires holding that the transfer was performed ‘by the occupying power’ (a State),82 (b) requires holding that the transfer was into foreign territory (which would entail taking a position on the scope of one or both States’ territory—a matter that can also arise in the context of preliminary jurisdictional determinations, as was potentially at issue regarding the ICC investigation in Palestine),83 and (c) is derivative of a rule of humanitarian law applicable to States 78

ICJ, Judgement of 15 June 1954 (Italy v France et al., Case of the Monetary Gold Removed From Rome in 1943—Preliminary Question), p. 32, ICJ Reports (1954). 79 Ibid. 80 Article 8bis (2) Rome Statute; Kreß 2017. 81 To be clear, for Akande, criminal courts are competent in this realm as long as the implicated States have all consented to their jurisdiction (regardless of whether they can participate in the proceedings), supra note 27. 82 Article 8 (2) (b) (viii) Rome Statute. 83 See supra note 4. Establishing the occupier’s lack of sovereignty may be sufficient, even if the sovereignty of another specific State is not established. ICJ, Advisory Opinion of 9 July 2004 (Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory), paras 91–101, ICJ Reports (2004). On the jurisdictional question regarding the ICC investigation in Palestine, see ICC Pre-Trial Chamber I, Order of 28 January 2020 Setting the Procedure and the Schedule for the Submission of Observations, ICC-01/18-14 (Situation in the State of Palestine) and associated submissions. In its subsequent decision advising the Prosecutor as to the scope of the Court’s jurisdiction in the context of Palestine, the Pre-Trial Chamber deferred to the approach taken by the U.N. General Assembly in according Palestine non-member observer State status and relied on the work of the ICJ, General Assembly, and U.N. Security Council on Palestinian self-determination and its implications for Palestine’s territorial scope (ICC Pre-Trial Chamber I, Decision of 5 February 2021 on the ‘Prosecution request pursuant to article 19(3) for a ruling on the Court’s territorial jurisdiction in Palestine,’ ICC-01/18-143, paras 116–118, 121–123). This approach allowed the Chamber to insist that it was “neither adjudicating a border dispute under international law nor prejudging the question of any future borders. Ibid. paras 113, 130. See also ibid., para. 60. Ultimately, however, the issue will need to be addressed on the merits.

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in their relations with one another.84 It is hard to maintain that the interstate dispute in such an instance is not a central subject matter of the criminal case. Of course, one might hold that crime of transferring occupying power nationals is itself anomalous and problematic from the indispensable-third-party perspective along with aggression. Alternatively, one might insist that the features above still fall short of the threshold, because the Court could convict without articulating the magic words ‘State A violated international law obligation y to State B’. However, the latter response spotlights a deeper problem—the inaptness of the subject-matter-of-dispute test in this realm. The test may anyway be moot at the ICC in light of the activation agreement seeking to limit the Court’s aggression jurisdiction to Security Council referred situations or conflicts between States that have both ratified the aggression amendments.85 But more fundamentally, the test is both legally out of context and lacking in normative force in the context of international criminal justice.86 It hinges almost entirely on the distinction between: (i) an explicit judicial statement that ‘State A violated international law in its use of force against State B’, and (ii) a judgment leaving no room for any factual or legal interpretation other than precisely that. Given the formalism of this distinction, it is worth noting that the explicit expression of a criminal court regarding state responsibility would have no formal weight outside of the criminal case at hand, and would have no direct, binding effect on the impugned State.87 Moreover, whereas the direct judicial disposition of an interstate dispute to which a third State is not party could require or authorize the litigant States to act in ways that would impair the absent State’s capacity to protect those of its interests that were the subject matter of dispute, this is not true of a criminal proceeding.88 The only binding consequences of an ICC aggression judgment for any interested State would be those related to the criminal liability of one or more of its officials and the related duties bearing on States Parties to enable and enforce the system of criminal justice in its application to those individuals. These are, of course, matters of 84

Article 49 Geneva Convention (IV) Relative to the Protection of Civilian Persons in Time of War. See supra notes 26–30 and accompanying text. 86 Providing a case law-based argument for the applicability of the test in international criminal courts, see Akande 2011, pp. 25–26. 87 Article 25 (4) Rome Statute; ICC Office of the Prosecutor, Response of 30 April 2020 to the Observations of Amici Curiae, Legal Representatives of Victims, and States, ICC-01/18-131 (Situation in the State of Palestine), paras 33, 37. 88 The dispute that prompted the seminal articulation of the indispensable third party doctrine involved the question of whether the UK or Italy could properly claim and take Albanian monetary gold that had been seized by Nazi Germany on the grounds that Albania—not a party to the case— had outstanding debts to each. ICJ, Judgement of 15 June 1954 (Italy v France et al., Case of the Monetary Gold Removed From Rome in 1943—Preliminary Question), p. 32, ICJ Reports (1954). Of course, not all ICJ cases function in that way. See Akande 2011, pp. 17–25. See also ICC Office of the Prosecutor, Response of 30 April 2020 to the Observations of Amici Curiae, Legal Representatives of Victims, and States, ICC-01/18-131 (Situation in the State of Palestine), paras 33–36. 85

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state interest, but they arise in any prosecution of an official for official acts, regardless of whether or not state responsibility is articulated explicitly in the criminal judgment. An interstate determination by a criminal court would also carry less precedential weight than that of a court with interstate jurisdiction. The latter would pose a greater obstacle to the absent State’s probability of clearing its name before that court, where the imperative to maintain consistency in its jurisprudence would be weighty, even in the absence of a stare decisis doctrine. Since the ICC would not be the court in which such vindication might be pursued, that particular imperative would not be present. In response, one might insist with Akande that an explicit interstate holding on the part of the ICC would nonetheless carry the unique ‘moral weight’ of a decision by a ‘dispassionate and authoritative’ judicial body.89 As such, it may be expected to create an ‘uphill battle’ for the impugned State to clear its name in any other forum (legal or otherwise).90 However, this line of argument emphasizes not the formal legal significance of the ruling, but its likely practical impact. This shift from form to substance calls into question whether the formal distinction at the heart of the subject-matter-of-dispute test can bear the weight of the claims attached to it. Specifically, it is not at all obvious that such practical and political effects are likely to be systematically and meaningfully greater when the Court is explicit in reaching a finding on state responsibility, as compared to when it rules in a way that ‘merely’ (though necessarily) entails such responsibility. Consider in this respect the prospective implications for moral and political international discourse in the event of ICC findings that British officials committed war crimes in Iraq, that Sudanese officials orchestrated genocide through the state apparatus, that Israeli settlements in the West Bank are illegal, or that Russian or Georgian actors perpetrated war crimes in the 2008 war. It is hard to believe that the moral or political significance of such judgments would be meaningfully greater were the Court’s position on state responsibility to be explicit, rather than necessarily entailed. Of course, one might argue that the ICC’s lack of formal authority to dispose of interstate disputes simply highlights a deeper competence problem—namely, that criminal courts should not be ruling on issues implicating state responsibility at all, precisely because they are not competent to dispose finally of such questions. Acting in that realm, they exacerbate the problems of fragmentation, undermine the coherence of the overall system, and lay the groundwork for a possible confrontation with other supranational institutions. Whatever one makes of this argument, it is hardly limited to aggression. The risk arises in all of the scenarios discussed above, as exemplified most prominently by the disagreement between the ICJ and the ICTY over the question of state attribution in the Bosnian war and the genocide at Srebrenica.91 89

Akande 2011, p. 26. Ibid. 91 ICTY, Judgment of 15 July 1999, IT-94-1-A (Prosecutor v. Tadi´ c), paras 115–145; ibid. (Shahabuddeen separate opinion) paras 1–27; ICJ, Judgement of 26 February 2007 (Bosnia and 90

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The natural solution to that danger is a more robust shield against criminal jurisdiction in contexts implicating a non-consenting State. It is notable in this regard that the indispensable third party rule shares normative roots with the doctrine of official immunity.92 And yet, whereas the former rule hinges on formal expression, official immunity rules ordinarily preclude domestic court jurisdiction over claims implicating a foreign State, whether or not the latter’s responsibility is the subject of the litigation. Were it applicable, the latter test would be a more effective response to the competence concerns detailed above.93 It would, however, also preclude international or foreign prosecution in any of the identified state atrocity scenarios. Thus far, this outcome has been forestalled by a claimed customary exception to official (functional) immunity for international crimes.94 For the moment, this exception may be considered inapplicable to aggression, at least in domestic courts, because it is not recognized in customary international law as a crime of universal jurisdiction.95 However, the validity of this customary position is both disputed, and subject to change.96 The question is whether there is a deeper, principled basis for drawing a distinction between aggression and other international crimes.

12.6 Getting the Normativity of Aggression Right Here arises an alternative theory of aggression’s uniqueness—the normative centrality of the interstate violation to the criminal wrongfulness of the act. It is true, on this view, that an official interrogator’s torture of a prisoner of war derives legally from an interstate IHL violation.97 Equally, the state policy element of a system of widespread or systematic violence is plausibly essential to triggering international scrutiny and accountability. And yet most would acknowledge that these state responsibility aspects are normatively tangential to the criminal wrongfulness of the Herzegovina v Serbia and Montenegro, Case concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide), paras 402–407, ICJ Reports (2007). 92 Akande 2011, p. 13. 93 On the debated applicability of official immunities to international crimes, see Symposium on the Present and Future of Foreign Official Immunity (2011) American Journal of International Law Unbound 112. 94 Akande 2011, pp. 34–35; International Law Commission (2017), Report on the work of the sixty-ninth session, UN Doc. A/72/10, Chapter VII: Draft Articles on Immunity of State Officials from Foreign Criminal Jurisdiction, p. 176, Article 7. Debating the exception, see Symposium on the Present and Future of Foreign Official Immunity (2018) American Journal of International Law Unbound 112. 95 Akande 2011, pp. 34–35; International Law Commission (2017), Report on the work of the sixty-ninth session, UN Doc. A/72/10, Chapter VII: Draft Articles on Immunity of State Officials from Foreign Criminal Jurisdiction, p. 172, para 122; ibid., p. 176, Article 7; International Law Commission (2018), Report on the work of the seventieth session, UN Doc. A/73/10, Annex A: Universal criminal Jurisdiction, p. 307 para 3. 96 Scharf 2012. 97 Article 8 (2) (a) (ii) Rome Statute.

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act. What makes the torture of a prisoner of war, or the infliction of killing, sexual violence, or apartheid criminally wrongful, on this view is the human violations at their core. Aggression, it might be thought, is different. There, the interstate violation is not merely jurisdictional; it is the normative crux of the crime. The criminality of aggression, on this view, is rooted in its violation of the sovereignty, political independence, or territorial integrity of the attacked State, or perhaps the self-determination of its people. This view of the crime is widely shared.98 It is, however, mistaken. Aggressive war is criminally wrongful not because it violates States’ rights but, rather, because it entails killing and inflicting violence on human beings in a context that does not warrant the infliction of such profound human harms.99 To be clear, the interstate element of the crime is important. It specifies a form of legally unjustified killing that is otherwise anomalously non-criminal at both the international and national levels: the killing of combatants and proportionate collateral civilians through a manifestly illegal use of international force.100 Moreover, it is necessary to regulate that form of killing separately, because the thresholds for the justification of interstate war are distinct from those justifying the application of human violence in other contexts, due in part to the enduring significance of self-help in the international order. Fundamentally, however, the criminal wrong is the human violence, not the interstate breach.101 This is not a moral claim untethered to the law we have. Rather, it is the most compelling account of the crime of aggression as currently codified. Consider in this respect the contours of the crime, its place in the law, and its place in history. States’ rights cannot make sense of the crime of aggression. Banning the use of non-defensive force and criminalizing aggression granted States legal protection from the harm of armed attack, but also restricted States’ sovereign authority to use force to vindicate any of their other rights.102 One might argue that that exchange could be explained with reference to the greater significance to the sovereignty of the former. But even when evaluated exclusively with reference to the sovereign rights at the crux of today’s jus ad bellum—political independence and territorial integrity— aggression is not exceptionally egregious. A leader that manipulates foreign election results or holds onto foreign territory not taken through illegal force thereby infringes political independence or territorial integrity more severely than is even intended (let alone achieved) by potentially criminal uses of force like illegal aerial 98

Kahn 2008, pp. 54–55; Luban 1994, pp. 335–341; Walzer 1977, pp. 58–61; Solera 2007, pp. 427; Creegan 2012, p. 62; Stahn 2010, p. 877; Pobjie 2017, pp. 816–17, 821–22, 825–26; A. Neier et al., ‘Regarding the Crime of Aggression’, Letter to Foreign Ministers, 10 May 2010, available at www.opensocietyfoundations.org/sites/default/files/icc-aggression-letter-20100511.pdf (accessed 1 March 2021). 99 I develop the argument that follows in greater depth in Dannenbaum 2017. 100 See note 111 and accompanying text, below. 101 Taking loosely related positions, see Mégret 2017; Ohlin 2017. 102 Hathaway and Shapiro 2017, Chapters 1–4; Neff 2005, pp. 225–239.

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bombardments that do not seek regime change or territorial expansion.103 And, yet, the former, lacking ‘armed force’, are plainly not international crimes, whereas the latter are, or at least can be.104 What distinguishes aggression from any other sovereignty violation—what makes it uniquely criminal among violations such as those identified above—is that it alone involves legally unjustified killing and human violence, or at least its immediate threat.105 This follows from recognizing that a criminal aggression is a manifestly illegal international use of armed force—a characteristic that both minimizes the significance of sovereignty, and elevates the significance of human violence and killing.106 It minimizes the importance of sovereignty, because even uses of armed force that do not violate the sovereignty, territorial integrity or political independence of another State can qualify as criminally aggressive if they are ‘otherwise inconsistent with’ the UN Charter.107 The most obvious example of such a use of force would be a military campaign against a UN-authorized force on a State’s own territory.108 It elevates the significance of human violence, because inherent in ‘armed force’ is the immediate threat, and typically infliction, of violence and killing. Since the crime of aggression includes only the gravest cases of armed force, a strong argument can be made that this threat must be consummated in actual human violence in order for the aggression to be criminal.109 Notably in this respect, Nazi Germany’s relatively bloodless invasions of Austria and Bohemia and Moravia were not prosecuted at the International Military Tribunal, which distinguished them explicitly from the wars of aggression that were criminal under its Charter.110

103

On electoral manipulation not rising to a use of armed force, see, e.g., UNGA Resolution 52/119 of 23 February 1998; UNGA Resolution 36/103 of 9 December 1981; UNGA Resolution 2625 (XXV) of 24 October 1970; Egan 2017, pp. 174–75. On holding foreign territory not taken through an illegal aggression, consider ICJ, Judgement of 10 October 2002 (Cameroon v. Nigeria, Equatorial Guinea Intervening, Case Concerning the Land and Maritime Boundary between Cameroon and Nigeria), p. 303, ICJ Reports (2002); Eritrea-Ethiopia Claims Commission, Partial Award: Jus ad Bellum–Ethiopia’s Claims 1–8, 19 December, 2005, reprinted in (2005) 16 UNRIAA 457, at 464–467. 104 See Article 8bis (2) (b) and (d) Rome Statute. A proposal to limit criminal aggression to uses of force seeking to take territory or overthrow a government was rejected, Proposal Submitted by Germany: UN Doc. PCNICC/1999/DP.13 of 30 July 1999. 105 On sovereignty violations other than the use of force, see ICJ, Judgment of 27 June 1986 (Nicaragua v. United States of America, Case Concerning Military and Paramilitary Activities in and against Nicaragua), paras 202–212, ICJ Reports (1986). 106 ICC Elements of Crimes, p. 43 (elements 3–6). 107 Ibid. (element 3) (emphasis added); Article 8bis (2) Rome Statute (emphasis added). 108 Dannenbaum 2017, pp. 1275–1278; Institut de Droit International 1971, para 7. 109 Article 8bis (1) Rome Statute; ICC Resolution RC/Res.6 of 11 June 2010, Annex III, paras 6–7. 110 IMT Nuremberg, Judgment of 1 October 1946 (Prosecutor v. Göring et al.), in: Trial of the Major War Criminals Before the International Military Tribunal, Volume XXII, Nürnberg (1948), p. 427; Article 6 (a) Charter of the International Military Tribunal. See also UNGA Resolution 3314 (XXIX) of 14 December 1974, para 5(2).

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Human violence is not only significant in distinguishing aggression from noncriminal sovereignty violations. Equally important is the fact that if aggression were not a crime, the non-criminality of killing combatants and ‘proportionate’ civilians in an illegal war would be anomalous among other forms of legally unjustified intentional killing. With the exception of the killing of soldiers and collateral civilians in an illegal war, there is no form of legally unjustified, intentional killing or infliction of human violence that does not qualify as a crime against humanity, a war crime, or simply domestic murder or battery.111 In other words, whereas aggression is uniquely criminal among sovereignty violations, despite not being the most severe form of sovereignty violation, it would be anomalous among legally unjustified forms of killing if it were not criminal. Understanding the crime in this way also debunks the claim, explored above, that aggression is the only crime for which each constituent act would be entirely permissible were it not for the macro interstate wrong.112 On the contrary, were a collection of individuals, or an organized non-state group, to perpetrate precisely the kind of violent attack that would qualify as aggression if perpetrated by a State, they would commit a range of crimes (including the domestic crime of murder) without the shields of official immunity or privileged belligerency.113 In other words, the interstate element does not make aggression criminal. Rather, it is the fact of state action that shields the non-leaders from criminal liability, and that limits the leaders’ criminal liability to only those cases most clearly lacking legal justification under the UN Charter. None of this is to say that the interstate element is irrelevant. Just as the ‘state or organizational policy’ element of crimes against humanity is significant in underpinning international jurisdiction, the interstate element of aggression is important because a combination of practical imperatives requires the scope of responsibility for wrongful killing of this kind be more narrowly defined and allocated than is ordinarily the case for wrongful human violence. Among those imperatives is that of enabling the functioning of state militaries, which would plausibly be undermined considerably by a jus ad bellum crime of murder applicable to footsoldiers.114 Recognizing this is wholly compatible with recognizing that aggression’s criminality inheres in the wrong to human beings. In addition to making better sense of the contours of the crime, reframing aggression as filling a gap in the criminal law protection of the human right to life makes sense of aggression’s position alongside genocide, crimes against humanity, and 111

Thus, Mégret suggests that the criminalization of aggression overcomes the ‘humanitarian laundering’ of the jus in bello, rediscovering ‘hidden deaths’ little different from ‘murder’. Mégret 2017, pp. 1420–1423. For Ohlin, aggression resolves what would otherwise be an ‘intolerable’ and ‘absurd’ paradox. Ohlin 2017, pp. 1455, 1458, 1462. 112 See supra notes 13–14 and accompanying text. 113 This was well understood by Nuremberg prosecutors. Meltzer 1947, pp. 460–61; Weigend 2012, 50; Closing Statement at the Nuremberg Trials (26 July, 1946) by Hartley Shawcross, Chief Prosecutor for Great Britain (Prosecutor v. Göring et al.), in: Trial of the Major War Criminals Before the International Military Tribunal, Volume XIX, Nürnberg (1948), p. 458. 114 Dannenbaum 2018, pp. 222–226, 235–243.

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war crimes.115 The international criminal law regime is often thought to be at the heart of international law’s ‘humanization’.116 Were the interstate element of aggression normatively central to the crime, rather than merely jurisdictionally significant, aggression would stand in this category as the inexplicably odd crime out—a crime against sovereignty amidst crimes against humanity.117 In contrast, the unjustified killing account makes sense of aggression’s role in that project.118 Contrary to claims that ‘individuals have never been considered victims’ of aggression, conceptualizing the crime in this way is not ahistorical.119 In fact, the public reasons given in the campaign to restrict jus ad bellum rights in the early 20th century focused precisely on the infliction of death without justification, recognizing that the proposed reform was, at the time, thought to limit States’ rights rather than provide for their most essential protection.120 Moreover, the Nuremberg prosecutors argued that the Kellogg-Briand ban on war entailed the criminality of aggression because it meant that there was ‘nothing to justify the killing’, which was therefore equivalent to ‘murder’.121 The judges in Tokyo affirmed that an illegal war by definition ‘involves unlawful killings […] at all places in the theatre of war and at all times throughout the period of the war.’122 Although not explicit on this point, the International Military Tribunal at Nuremberg described aggression as an ‘accumulated evil’, gesturing at the normative centrality of the constituent micro harms, and not simply the macro sovereignty violation.123 The point here is not to obscure the interstate element and political significance of aggression. As discussed above, equivalent issues permeate a number of

115

See Human Rights Committee, UN Doc. CCPR/C/GC/36 of 30 October 2018, para 70; Mégret 2017, pp. 1428, 1440, 1444; Schabas 2017, p. 360. On criminal sanctions as part of protecting the human right to life, see ECtHR, Judgement of 28 October 1998, Application no. 87/1997/871/1083 (Osman v. UK), para 115; Human Rights Committee, General Comment 31, UN Doc. CCPR/C/21/Rev.1/Add.13 of 29 March 2004, para 8. 116 On humanization, and international criminal law’s place in it, see Meron 2006; Teitel 2011; Cassese et al. 2013, pp. 5–6; Pobjie 2017, p. 820; Schabas 2017, pp. 357, 366. 117 Luban 1994, pp. 335–337, 341; see also Pobjie 2017, pp. 825–826. 118 Also seeking to reconcile the criminalization of aggression and human rights, but via the right to peace, see Schabas 2017, p. 366. 119 Pobjie 2017, p. 822. To recognize that human victims have a long-standing significance here is not to deny the complexity of the history on this issue. Compare Mégret 2017, pp. 1414–1419. 120 See, e.g., Levinson 1921, pp. 12, 14–16, 18, 21–22. On Levinson’s importance, see Hathaway and Shapiro 2017, Chapter 5. 121 Closing Statement at the Nuremberg Trials (26 July, 1946) by Hartley Shawcross, Chief Prosecutor for Great Britain (Prosecutor v. Göring et al.), in: Trial of the Major War Criminals Before the International Military Tribunal, Volume XIX, Nürnberg (1948), p. 458. See also IMTFE Tokyo, Judgment of 4 November 1948 (Prosecutor v. Araki et al.), in: J Pritchard and S Zaide (eds), The Tokyo War Crimes Trial (1981), Volume 22, p. 48452. 122 IMTFE Tokyo, Judgment of 4 November 1948 (Prosecutor v. Araki et al.), in: J Pritchard and S Zaide (eds), The Tokyo War Crimes Trial (1981), Volume 22, pp. 48452–48453, 49576. 123 IMT Nuremberg, Judgment of 1 October 1946 (Prosecutor v. Göring et al.), in: Trial of the Major War Criminals Before the International Military Tribunal, Volume XXII, Nürnberg (1948), p. 427.

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atrocity crimes. The point is that aggression is akin to atrocity crimes in implicating fundamental human rights. Recognizing this human core mitigates significantly the conceptual difficulty of holding individuals responsible for the crime. On this account, the individual is held responsible not for an interstate wrong, but for inflicting mass violence via the state apparatus, much as is the case in the prosecution of leaders for any other form of state-orchestrated atrocity.

12.7 Politics and Ambiguity At this point, those insisting on aggression’s distinctiveness might point instead to the crime’s purported vagueness as the feature that renders it uniquely troubling, particularly in a situation of dispute between equal sovereigns. Indeed, the ambiguity regarding what counts as aggression has been argued to be so great as to render the crime void for its failure to comport with the basic requirements of legality.124 There is no doubt that the provision agreed at Kampala could have been more clearly drafted. There are numerous unsettled questions regarding the substantive scope of the crime. How do gravity, scale, and character interact with one another and with the ‘manifest’ threshold in Article 8bis (1) Rome Statute? Is the list of acts of aggression in Article 8bis (2) Rome Statute open or closed? How are debates as to the underlying jus ad bellum to be resolved? This is not to mention the debates regarding the scope of the ICC’s jurisdiction, which prompted the last-minute clarification effort at activation. Of course, criminal provisions always have some degree of ambiguity at the margins. Ordinarily, this is addressed through iteration and refinement across cases.125 The grey areas at the margins of aggression may be broader than are those in most ordinary domestic crimes. However, broad areas of ambiguity at the margins of international criminal law are relatively common.126 Perhaps the most obvious of these is the category of ‘other inhumane acts’ in the context of crimes against humanity. The Rome Statute specifies only that such acts are to be ‘of a similar character’ to other crimes against humanity and to involve ‘intentionally causing great suffering, or serious injury to body or to mental or physical health’.127 The Elements of Crimes add little clarification.128 Although this residual category of crimes against humanity has been criticized by some on legality grounds, it has also provided the legal hook for important and celebrated developments, such as the criminalization of

124

Glennon 2010. ECtHR, Judgement of 22 November 1995, Application no. 20166/92 (SW v. the UK) (Judgment), paras 35–36. 126 Cassese et al. 2013, p. 28. 127 Article 7 (1) (k) Rome Statute. 128 ICC Elements of Crimes, p. 12. 125

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forced marriage.129 Indeed, its open-endedness reflects a deliberate effort to ensure wrongful treatment does not fall through the cracks.130 In the war crimes category, the crime of disproportionate attacks is notoriously ambiguous. Criminal attacks are those expected to ‘cause incidental loss of life or injury to civilians or damage to civilian objects or widespread, long-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated’.131 The difficulty of evaluating these incommensurable values against one another is a perennial challenge in international humanitarian law. Uncertainty regarding the effects of an operation at the time of decision, the fact that the advantage may be contingent on related operations, and the possibility of reverberating long-term effects on civilians all complicate matters further. The notion that aggression is less clear than either of these criminal categories is difficult to sustain. After all, the basic framework of the jus ad bellum—a foundational prohibition on the use of international force, with self-defense and Security Council authorization exceptions, and a debate regarding the legal viability of unauthorized humanitarian intervention—is well established. The difficulties arise with respect to the margins of the exceptions (most prominently, preemptive self-defense, defense against non-state actors, and implied Security Council authorization) and the status of humanitarian intervention. The residual category of crimes against humanity has no such structure, and the crime of disproportionate attacks introduces a requirement of judgment (through the element of ‘excessiveness’) that is unparalleled in the crime of aggression. One response here would be to insist that all three (and possibly a number of other international crimes) are void for vagueness.132 However, there is a method for addressing such ambiguity. An attack must be ‘clearly’ disproportionate in order to underpin criminal liability. Similarly, an illegal use of force must be a ‘manifest’ violation of the UN Charter in order to qualify as a criminal aggression. In short, the ambiguity redounds to the benefit of the accused. Michael Glennon argues that this putative solution is nothing of the sort. In his view, it simply displaces the vagueness of what constitutes a violation to the ambiguity of what constitutes a manifest violation—purporting (by way of analogy to the deliberately absurd suggestion attributed to Yogi Berra) to solve the problem of ‘close plays at first base […] by moving first base back one step.’133 This, however, obscures an important distinction. The use of ‘clearly’ or ‘manifestly’ in such contexts should be seen not simply as shifting the point at which ambiguity arises, but rather as a codified use of a ‘decision rule’, addressed to a 129

SCSL, Judgment of 22 February 2008, SCSL-2004-16-A (Prosecutor v. Brima, Kamara, and Kanu), paras 182–203. 130 ICTY, Judgement of 14 January 2000, IT-95-16-T (Prosecutor v Kupreˇski´ c et al.), para 563, quoting Jean. S. Pictet (1960), 3 Commentary on the Geneva Conventions of 12 August 1949, p. 39. 131 Article 8 (2) (b) (iv) Rome Statute. 132 Cf. supra note 43. 133 Glennon 2010, p. 101. See also Milanovic 2012, p. 170; Koh and Buchwald 2015.

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criminal court in the latter’s application of a stronger ‘conduct rule’, addressed to those engage in the regulated behavior.134 The conduct rule in the context of aggression is not ‘do not wage manifestly illegal war’; rather, it is ‘do not wage illegal war’. The decision rule is ‘do not prosecute or convict individuals for waging illegal war, unless the illegality is clear’. Leaders who wage war make deliberate decisions involving the mobilization of the state apparatus. They do so with access to expert legal advice, internal or external. The structure above is sufficient to identify when they are or are not risking criminal accountability.135 Indeed, uncertainty in this realm is far less likely to underpin arbitrary punishment than is the narrower uncertainty at the margins of almost any domestic or even international crime applicable to individuals acting in the moment, without prior knowledge or access to contemporaneous legal advice regarding the precise contours of the applicable prohibitions, justifications, and excuses. Two related lines of response are available to the advocate of aggression’s distinctiveness at this point. First, one might worry that if leaders were to internalize a conduct rule precluding any illegal war (and not only manifestly illegal wars), this would chill ‘good’ wars. Second, one might think that even some clearly illegal (and thus criminal) wars may nonetheless be morally justified. The most commonly invoked example on both fronts is that of unauthorized humanitarian intervention.136 The concern that existing uncertainty will chill humanitarian intervention trades on a highly contestable set of empirical presumptions. The first such presumption is that humanitarian interventions are generally successful and worthwhile on their own terms. One of the strongest moral reasons for the enduring illegality of humanitarian intervention is the empirical judgment that legalizing humanitarian intervention would encourage both pretextual wars and genuine humanitarian interventions that prove to be disproportionate or counterproductive in their effects.137 If that is right, chilling humanitarian intervention would not be obviously detrimental. But assume that the provision would chill some genuinely morally imperative humanitarian interventions. For the sake of argument, the 1999 NATO action in response to events in Kosovo can be used as an example. The critique still depends on the highly questionable presumption that the damage of deterring such actions (itself doubtful given that even genuine humanitarian interventions are liable to go wrong) would outweigh the benefit of chilling other forms of illegal or dubious war, such as the 2003 invasion of Iraq. 134

Cf. Dan-Cohen 1984. A key factor here is foreseeability. ECtHR, Judgement of 22 November 1995, Application no. 20166/92 (SW v. UK), para 35; ECtHR, Judgement of 28 March 2000, Application no. 28358/95 (Baranowski v. Poland), para 55. 136 Koh and Buchwald 2015, p. 273; S. Sewall, ‘The ICC Crime of Aggression and the Changing International Security Landscape, Remarks at the Annual Meeting of the American Society of International Law’, 9 April, 2015, available at https://2009-2017.state.gov/j/remarks/240579.htm (accessed 1 March 2021); Van Schaack 2011; Murphy 2009. 137 Dannenbaum 2017, pp. 1298–1301. See also S. Moyn, ‘Spectacular Wrongs: Gary Bass’s “Freedom’s Battle”’, The Nation, 24 September 2008, available at https://www.thenation.com/ article/spectacular-wrongs-gary-basss-freedoms-battle/ (accessed 1 March 2021). 135

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Related to the issue of deterring good action is the notion that the moral status of at least some clearly criminal aggressions is likely to be contested. However, here again, the crime is not unique. Alleged and convicted war criminals from the Balkan wars of the 1990s were often considered war heroes in their home States; the transfer of Israeli nationals into settlements in the West Bank is considered to be morally righteous on the part of settlers and their political allies; the use of torture in the interrogation of terrorists remains politically popular and has received the normative support of some academics.138 And yet, in all such cases, international criminal law takes a stand. A system of international criminal justice that refrained completely from addressing the question of aggression on such grounds, while insisting simultaneously that war crimes and crimes against humanity are devoid of political or moral contestation might fairly be critiqued as taking some political interests more seriously than others. Given the relatively greater utility of aggressive war to powerful States (particularly when they are able to whitewash such actions with heightened IHL compliance), such a critique would not be without implications for the legitimacy of the project of international criminal justice as a whole.

12.8 Conclusion Ultimately, concerns about the interstate element of aggression tend to rest on both a complacency about the relationship between international criminal justice, politics, and collective action in traditional atrocity crimes, and a failure to acknowledge (or at least a timidity with respect to confronting) the human wrongs of aggression. This confuses our debates about the role and place of the crime of aggression in international criminal law and contributes collaterally to a broader unwillingness to confront the political aspects of the broader project of international criminal justice.

References Akande D (2011) Prosecuting Aggression: The Consent Problem and the Role of the Security Council. https://ssrn.com/abstract=1762806 (accessed 1 March 2021) Akande D, Tzanakopoulos A (2017) The Crime of Aggression in the ICC and State Responsibility. Harvard International Law Journal Online 58:33–36 Blum G (2010) The Dispensable Lives of Soldiers. Journal of Legal Analysis 2:69–124 138

Most Serbs Support General Accused Of War Crimes, Radio Free Europe, Radio Liberty, 16 March 2011, available at https://www.rferl.org/a/poll_says_most_serbs_support_general_accu sed_of_war_crimes/24176617.html; War Criminal in The Hague but Still a War Hero in Croatia, Euronews. 1 December 2017, available at https://www.euronews.com/2017/12/01/war-criminal-inthe-hague-but-still-a-war-hero-in-croatia (accessed 1 March 2021); Milanovic 2016; International Committee of the Red Cross 2016, p. 10; Moore 1989, pp. 323–324. For a range of positions on torture: Levinson 2004.

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Cassese A et al. (2013) International Criminal Law, 3rd edn. Oxford University Press, Oxford Creegan E (2012) Justified Uses of Force and the Crime of Aggression. Journal of International Criminal Justice 10:59–82 Dan-Cohen M (1984) Decision Rules and Conduct Rules. Harvard Law Review 97:625–677 Dannenbaum T (2017) Why Have We Criminalized Aggressive War? Yale Law Journal 126:1242– 1318 Dannenbaum T (2018) The Crime of Aggression, Humanity, and the Soldier. Cambridge University Press, Cambridge Dannenbaum T (2020) Legitimacy in War and Punishment. In: Heller K J et al (eds) The Oxford Handbook of International Criminal Law. Oxford University Press, Oxford, pp. 129–153 Danner A, Martinez J (2005) Guilty Associations. California Law Review 93:75–170 Dinstein Y (2009) The International Law of Belligerent Occupation. Cambridge University Press, Cambridge Dinstein Y (2016) The Conduct of Hostilities under the Law of International Armed Conflict, 3rd edn. Cambridge University Press, Cambridge Egan B (2017) International Law and Stability in Cyberspace. Berkeley Journal of International Law 35:169–180 Glennon M (2010) The Blank Prose Crime of Aggression. Yale Journal of International Law 35:71– 114 Gomaa M (2003) The Definition of the Crime of Aggression and the ICC Jurisdiction over that Crime. In: Politi M, Nesi G (eds) The International Criminal Court and the Crime of Aggression. Routledge, London, pp 58–81 Hannum H (2009) The Responsibility to Protect: Paradigm or Pastiche? Northern Ireland Legal Quarterly 60:135–145 Hathaway O, Shapiro S (2017) The Internationalists. Simon and Schuster, New York Heller K J (2007) Retreat from Nuremberg. European Journal of International Law 18:477–497 Institut de Droit International (1971) Conditions of Application of Humanitarian Rules of Armed Conflict to Hostilities in Which United Nations Forces May Be Engaged. https://www.idi-iil.org/ app/uploads/2017/06/1971_zag_03_en.pdf (accessed 1 March 2021) International Law Association Use of Force Committee (2014) Report on Aggression and the Use of Force International Committee of the Red Cross (2016) People on War 2016: Perspectives from 16 Countries. https://www.icrc.org/en/document/people-on-war Iverson J (2014) Contrasting the Normative and Historical Foundations of Transitional Justice and Jus Post Bellum. In: Stahn C et al. (eds) Jus Post Bellum: Mapping the Normative Foundations. Oxford University Press, Oxford, pp 80–101 Kahn P (2002) The Paradox of Riskless Warfare. Philosophy and Public Policy 22:2–8 Kahn P (2004) The Question of Sovereignty. Stanford Journal of International Law 40:259–282 Kahn P (2008) Sacred Violence. University of Michigan Press, Ann Arbor Kelsen H (1945) General Theory of Law and State (transl. Wedberg A). Harvard University Press, Cambridge Koh H, Buchwald T (2015) The Crime of Aggression: The United States Perspective. American Journal of International Law 109:257–295 Kreß C (2017) The State Conduct Element. In: Kreß C, Barriga S (eds) The Crime of Aggression: A Commentary. Cambridge University Press, Cambridge, pp 412–564 Kutz C (2002) The Collective Work of Citizenship. Legal Theory 8:471–494 Kutz C (2005) The Difference Uniforms Make. Philosophy and Public Affairs 33:148–180 Lauterpacht H (1953) The Limits of the Operation of the Law of War. British Yearbook of International Law 30:206–243 Levinson S (1921) Outlawry of War. American Committee for the Outlawry of War, Chicago Levinson S (ed) (2004) Torture: A Collection. Oxford University Press, New York Luban D (1994) Legal Modernism. University of Michigan Press, Ann Arbor

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Luban D (2004) A Theory of Crimes Against Humanity. Yale Journal of International Law 29:85– 167 May L (2008) Aggression and Crimes Against Peace. Cambridge University Press, Cambridge McCarthy C (2012) Reparations and Victim Support in the International Criminal Court. Cambridge University Press, Cambridge McDougall C (2013) The Crime of Aggression under the Rome Statute of the International Criminal Court. Cambridge University Press, Cambridge Mégret F (2017) What Is the Specific Evil of Aggression? In: Kreß C, Barriga S (eds) The Crime of Aggression: A Commentary. Cambridge University Press, Cambridge, pp 1398–1453 Meltzer B (1947) A Note on Some Aspects of the Nuremberg Debate. University of Chicago Law Review 14:455–469 Meron T (2006) The Humanization of International Law. Martinus Nijhoff, Leiden Milanovic M (2012) Aggression and Legality. Journal of International Criminal Justice 10:165–187 Milanovic M (2016) The Impact of the ICTY on the Former Yugoslavia: An Anticipatory PostMortem. American Journal of International Law 110: 233–259 Moore M (1989) Torture and the Balance of Evils. Israel Law Review 23:280–344 Murphy S D (2009) Criminalizing Humanitarian Intervention. Case Western Reserve Journal of International Law 41:341–377 Neff S (2005) War and the Law of Nations. Cambridge University Press, Cambridge Ohlin J (2017) The Crime of Bootstrapping. In: Kreß C, Barriga S (eds) The Crime of Aggression: A Commentary. Cambridge University Press, Cambridge, pp 1454–1479 Pellet A (2015) A Response to Koh and Buchwald’s Article: Don Quixote and Sancho Panza Tilt at Windmills. American Journal of International Law 109:557–569 Pérez-León Acevedo J P (2017) The Close Relationship Between Serious Human Rights Violations and Crimes Against Humanity. Anuario Mexicano de Derecho Internacional 17:145–186 Peters A (2011) The Security Council’s Responsibility to Protect. International Organisations Law Review 8:15–54 Phillimore R (1873) Commentaries upon International Law, 2nd edn. Butterworths, London Pobjie E (2017) Victims of the Crime of Aggression. In: Kreß C, Barriga S (eds) The Crime of Aggression: A Commentary. Cambridge University Press, Cambridge, pp 816–860 Sari A (2014) The Status of Foreign Armed Forces Deployed in Post-Conflict Environments. In: Stahn C et al (eds) Jus Post Bellum: Mapping the Normative Foundations. Oxford University Press, Oxford, pp 467–501 Schabas W (2007) An Introduction to the International Criminal Court, 3rd edn. Cambridge University Press, Cambridge Schabas W (2017) Aggression and International Human Rights Law. In: Kreß C, Barriga S (eds) The Crime of Aggression: A Commentary. Cambridge University Press, Cambridge, pp 351–372 Scharf M (2012) Universal Jurisdiction and the Crime of Aggression. Harvard International Law Journal 53:357–389 Solera O (2007) Defining the Crime of Aggression. Cameron May, London Solis G (1999) Obedience of Orders and the Law of War. American University International Law Review 15:481–526 Stahn C (2010) The ‘end’, the ‘beginning of the end’ or the ‘end of the beginning’? Leiden Journal of International Law 23:875–882 Stone J (1958) Aggression and World Order. University of California Press, Berkeley Taylor T (1970) Nuremberg and Vietnam. Quadrangle, Chicago Teitel R (2011) Humanity’s Law. Oxford University Press, Oxford Van Houtte H et al (2008) Post-War Restoration of Property Rights under International Law. Cambridge University Press, Cambridge Van Schaack B (2011) The Crime of Aggression and Humanitarian Intervention on Behalf of Women. International Criminal Law Review 11:477–493 Van Schaack B (2012) Par in Parem Imperium Non Habet. Journal of International Criminal Justice 10:133–164

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Van Sliedregt E (2007) Joint Criminal Enterprise as a Pathway to Convicting Individuals for Genocide. Journal of International Criminal Justice 5:184–207 Walzer M (1977) Just and Unjust Wars. Basic Books, New York Walzer M (2007) The Moral Standing of States. In: Miller D (ed) Thinking Politically: Essays in Political Theory. Yale University Press, New Haven, pp 219–229 Weigend T (2012) In General a Principle of Justice. Journal of International Criminal Justice 10:41–58 Williams S (2016) Aggression, Affected States, and a Right to Participate. American Journal of International Law Unbound 109:246–251

Tom Dannenbaum, Ph.D. is Assistant Professor of International Law at the Fletcher School of Law & Diplomacy (Medford, United States of America).

Part VI

Prosecuting Aggression

Chapter 13

Prosecuting the Crime of Aggression: The Role of the UN Security Council Niels Blokker

Contents 13.1 Introduction: The Security Council is a Political Organ with Unprecedented Powers, but not legibus solutus . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13.2 The travaux préparatoires of the Kampala Amendments on the Crime of Aggression . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13.3 The Kampala Crime of Aggression Amendments and the Role of the Security Council . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13.3.1 Article 15bis Rome Statute . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13.3.2 Article 15ter Rome Statute . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13.4 The Kampala Amendments on the Crime of Aggression: Review by the ICC of Aggression Determinations by the Security Council . . . . . . . . . . . . . . . . . . . . . . . . . . . 13.5 The Determination of Acts of Aggression: Past Practice of the Security Council . . . . . . 13.6 The Crime of Aggression Amendments: Implications for the Security Council . . . . . . . 13.7 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Abstract This chapter discusses the role of the UN Security Council in relation to the exercise of jurisdiction by the International Criminal Court over the crime of aggression. It will first demonstrate that while the Security Council is a political organ, it is not legibus solutus (unbound by law). Subsequently, it will discuss the travaux préparatoires and the substance of the Kampala Amendments on the crime of aggression, more specifically the role given to the Security Council in these amendments. In addition, it will examine whether the ICC may review future aggression determinations by the Security Council. Finally, it will briefly analyse the history of aggression determinations by the Security Council, and how the Kampala Amendments may affect such determinations in the future. Keywords Act of Aggression · Crime of Aggression · International Criminal Court · Judicial Review · Security Council

N. Blokker (B) Leiden Law School, University of Leiden, Kamerlingh Onnes Building, Steenschuur 25, 2311 ES Leiden, The Netherlands e-mail: [email protected] © t.m.c. asser press and the authors 2022 S. Bock and E. Conze (eds.), Rethinking the Crime of Aggression, https://doi.org/10.1007/978-94-6265-467-9_13

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13.1 Introduction: The Security Council is a Political Organ with Unprecedented Powers, but not legibus solutus This brief chapter discusses the role of the UN Security Council in relation to the exercise of jurisdiction by the International Criminal Court (ICC or Court) over the crime of aggression. The exercise of jurisdiction by the ICC over this crime immediately raises questions about the relationship between law and politics, more than in the case of the other three crimes for which the Court has jurisdiction. This introduction will demonstrate that while the Security Council is a political organ, it is not legibus solutus (unbound by law). Subsequently, Sects. 13.2 and 13.3 will respectively discuss the travaux préparatoires and the substance of the Kampala Amendments on the crime of aggression, more specifically the role given to the Security Council in these amendments. Section 13.4 will examine whether the ICC may review future aggression determinations by the Security Council. Sections 13.5 and 13.6 will briefly analyse aggression determinations by the Security Council in the past and how the Kampala Amendments may affect such determinations in the future. In the context of the establishment of the UN ‘to save succeeding generations from the scourge of war’,1 the Security Council was created as a political organ having an essential task and unprecedented powers. In particular, the Security Council has ‘primary responsibility for the maintenance of international peace and security’, the power to ‘determine the existence of any threat to the peace, breach of the peace, or act of aggression […]’ and adopt enforcement measures, and the power to adopt binding decisions that may even contain obligations that prevail over treaty obligations of States.2 Given existing (super) power rivalries, the Council has often been unable to forge the necessary agreement, both in the Cold War era and at present. At the same time, practice has also shown the far-reaching implications of Security Council decisions, in cases in which it proved possible to overcome such rivalries. Often ineffective, sometimes effective, it cannot be questioned that the Security Council is the domain of high politics, power politics and super-power-politics. However, it can also not be questioned that the Security Council is the product of international law. The UN Charter created the Council and attributes extensive powers to it. Neither can it be questioned that the Security Council, in discharging its duties, is obliged by the Charter to ‘act in accordance with the Purposes and Principles of the United Nations’.3 Moreover, as the International Court of Justice observed in its first Advisory Opinion: ‘[t]he political character of an organ cannot release it from the observance of the treaty provisions established by the Charter when

1

First sentence of the Preamble of the UN Charter. Articles 24 (1), 25 and 103 UN Charter. 3 Article 24 (2) UN Charter. 2

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they constitute limitations on its powers or criteria for its judgment’.4 The Security Council is therefore not legibus solutus, unbound by law.5 As its first President, the Australian Minister of Navy Makin, stated when the Council met for the first time, on 17 January 1946 in London: ‘[o]ur work must be based on the Charter. We are not permitted to go beyond it […]’.6 It was therefore clear from the outset that the Council does not operate in a lawless limbo. More recently, this has also been confirmed in more general terms by the UN General Assembly: ‘[w]e reaffirm our solemn commitment to the purposes and principles of the Charter of the United Nations, international law and justice, and to an international order based on the rule of law, which are indispensable foundations for a more peaceful, prosperous and just world’. […] ‘the rule of law applies to international organizations, including the United Nations and its principal organs’.7 Against the background of this general political and legal playing field of the Security Council, the remainder of this chapter will focus more specifically on the role of the Security Council with respect to the exercise of jurisdiction by the ICC over the crime of aggression.

13.2 The travaux préparatoires of the Kampala Amendments on the Crime of Aggression For many years, until the very end of the crime of aggression negotiations, there were two fundamentally different points of view regarding the role of the Security Council during the crime of aggression negotiations: the point of view of the Council’s five permanent members and the position taken by almost all the other participants. Of the five permanent members, only France and the United Kingdom are parties to the Rome Statute, entitled to vote in the 2010 ICC Review Conference in Kampala. However, the Special Working Group on the Crime of Aggression of the ICC’s Assembly of States Parties (preparing the crime of aggression work of the 2010 Review Conference) was not only composed of States parties to the Rome Statute, but was ‘open on an equal footing to all States Members of the United Nations or members of specialized agencies or of the International Atomic Energy Agency’.8 China, the Russian Federation and the United States were therefore entitled to participate in the

4

Article 4 UN Charter (Admission of a State to the United Nations); ICJ, Advisory Opinion of 28 May 1948 (Conditions of Admission of a State to Membership in the United Nations), p. 57, para 64, ICJ Reports (1948). 5 See further Higgins 1970; Ratner 2004; Crawford 2013, pp. 296–321. 6 Security Council Official Records No. 1, at 5. Makin’s statement continued as follows: ‘[…] but we shall not fail to exercise to the full the very great powers which have been given to this Council’. 7 UNGA Resolution 67/1 of 30 November 2012, para 1. 8 ICC Resolution ICC-ASP/1/Res.1 of 9 September 2020.

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same way as States Parties to the Rome Statute. In practice, the US only started to participate actively in the Special Working Group during the last stages of its work.9 According to the five permanent members, the ICC should only exercise jurisdiction over the crime of aggression in a particular case after the Security Council has determined that the country concerned has committed an act of aggression. The main legal argument used by the five permanent members was that it is for the Security Council to determine ‘the existence of any threat to the peace, breach of the peace, or act of aggression’.10 This legal argument was supported by the draft Statute for an International Criminal Court, prepared in 1994 by the UN’s International Law Commission (ILC). This draft was clear about the role of the Security Council in relation to the crime of aggression. Article 23 (2) provided that ‘[a] complaint of or directly related to an act of aggression may not be brought under this Statute unless the Security Council has first determined that a State has committed the act of aggression which is the subject of the complaint’.11 According to the ILC commentary, the difficulties of definition and application, combined with the Council’s special responsibilities under Chapter VII of the Charter, mean that special provision should be made to ensure that prosecutions are brought for aggression only if the Council first determines that the State in question has committed aggression in circumstances involving the crime of aggression which is the subject of the charge.12

However, almost all other States than the five permanent members had another view: the view that it is not exclusively for the Security Council to determine whether or not there has been an act of aggression. They referred to alternative organs or organizations to make such a determination: the UN General Assembly, the ICJ and the ICC itself. Much of the negotiation time was devoted discussing these different options. It was not considered whether the ICC’s Assembly of States Parties could or should play a role here. Above all, it was clear that the point of view of the five permanent members was unacceptable for a very large majority, both for political and for legal reasons. They considered that agreeing to the position of the five permanent members would make it almost impossible for the ICC to exercise jurisdiction over the crime of aggression, since in practice the Security Council hardly ever makes an act of aggression determination. In addition, agreeing to the position of the five permanent members would mean a lack of ‘equality before the law’. It would mean that some aggressors could not be prosecuted before the ICC for having committed a crime of aggression simply because they are leaders of one of the five permanent members (or one of their friends). The need for ‘equality before the law’ was already emphasized by Robert Jackson, the US Chief Prosecutor at Nuremberg, in his opening statement before the International Military Tribunal, on 21 November 1945.13 9

See Koh and Buchwald 2017. Article 39 UN Charter (emphasis added). 11 Article 23 (2) Draft Statute, Yb ILC 1994, Vol. II, Part Two, pp. 43–45. 12 Ibid., Article 39 (commentary to Article 20 Draft Statute). 13 ‘[…] the ultimate step in avoiding periodic wars, which are inevitable in a system of international lawlessness, is to make statesmen responsible to law. And let me make clear that while this law is first applied against German aggressors, the law includes, and if it is to serve a useful purpose it 10

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These two opposite points of view did not come closer together during the 2002– 2009 negotiations in the Special Working Group on the Crime of Aggression. While the Special Working Group arrived at a consensus definition of the crime of aggression, no agreement was reached on the role of the Security Council in relation to the exercise of jurisdiction by the Court over this crime before the opening of the Review Conference in 2010 in Kampala. It is mainly for that reason that no one involved in the negotiations expected that in the Kampala Review Conference a full agreement could be reached on the crime of aggression. Nevertheless, this is what happened. As will be discussed in the next section, at the end of the Review Conference it was agreed that a Security Council determination that an act of aggression had been committed by a State is not a conditio sine qua non for the exercise of jurisdiction over the crime of aggression by the ICC. As mentioned above, of the five permanent members only France and the UK could participate in the voting, at the final moment of decision-making in the early hours of Saturday 12 June 2010, and they did not block the consensus.14

13.3 The Kampala Crime of Aggression Amendments and the Role of the Security Council One of the keys to the solution in Kampala was found in Article 13 Rome Statute, distinguishing between three ways to trigger the exercise of jurisdiction by the ICC. New Article 15bis deals with State referrals and proprio motu exercise of jurisdiction (Article 13 [a] and [c] Rome Statute); new Article 15ter deals with Security Council referrals (Article 13 [b] Rome Statute). These two new provisions will now be analysed further from the perspective of the role of the Security Council.15 Against the background of the preceding negotiations, the crux of Article 15bis Rome Statute may be found in para. 8, reflecting the final Kampala conclusion that the ICC does not exclusively have jurisdiction over the crime of aggression in cases in which the Security Council has determined that there has been an act of aggression. The price paid for not following the point of view of the five permanent members is essentially laid down in other parts of Article 15bis Rome Statute: paras 2 and 3 (requiring ratification by 30 States and an activation decision taken after 1 January 2017), para. 4 (possibility for State parties to opt out by declaring that they do not accept the crime of aggression jurisdiction by the ICC) and para. 5 (no exercise of crime of aggression jurisdiction by the Court in respect of non-State parties to the Statute, when committed by their nationals or on their territory). No matter whether must condemn aggression by any other nations, including those which sit here now in judgment’. IMT Nuremberg, Judgement of 1 October 1946, (Prosecutor v. Goering et al.), in: Trial of the Major War Criminals before the International Military Tribunal, Volume II, Nürnberg, p. 154. 14 See Blokker and Kreß 2010. 15 See in more detail the analysis by Barriga and Blokker 2017a, b, and by Blokker and Barriga 2017.

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one concludes or not that this final Kampala outcome represents a Pyrrhic victory for the large majority of the negotiators, it was an important breakthrough that only took place during the final stages of the negotiations, at the Review Conference in Kampala.

13.3.1 Article 15bis Rome Statute Article 15bis (6) Rome Statute provides that the Prosecutor, when (s)he concludes that there is a reasonable basis to proceed with a crime of aggression investigation, must first ‘ascertain whether the Security Council has made a determination of an act of aggression by the State concerned’. If this is the case, (s)he may proceed. The most difficult question was of course what should happen if the Security Council has not made such a determination. As is clear from para 8, this is not the end of the matter. First of all, the Prosecutor must wait six months, giving the opportunity to the Security Council to make a crime of aggression determination. If this does not happen, the Prosecutor may only proceed with the relevant crime of aggression investigation if this is authorized by the Pre-Trial Division, and if there is no deferral by the Security Council (Article 16 Rome Statute). What is therefore essential is that the door towards crime of aggression prosecution is not by definition closed if the Security Council has not determined that an act of aggression has been committed by the State concerned. The Prosecutor may open it, with the permission of the Pre-Trial Division. If the Prosecutor finds, and the PreTrial Division agrees, that there ‘is a reasonable basis to proceed with an investigation in respect of a crime of aggression’ (paras 6 and 8), this implies that the Prosecutor and the Pre-Trial Division must also be convinced that there is a reasonable basis for concluding that an act of aggression has been committed by the State concerned (even though the Security Council has not made a determination to that effect). The door towards crime of aggression prosecutions may therefore be opened by two guards. The first and main one is the Security Council, a political organ. The other one is the Prosecutor (with permission of the Pre-Trial Division); this is a judicial guard. Not necessary to say, the two guards are different personalities. The Security Council is a political organ and will decide for its own political reasons what is, and what is not an act of aggression. The other guard is a judicial organ, deciding for her or his own judicial reasons what is, and what is not an act of aggression. The Security Council, as a political organ, certainly may not be willing to decide that a State has committed aggression in a particular case, for whatever political reasons, related or unrelated to that particular case. However, it might certainly also be difficult or impossible for a criminal court to accept that clear-cut, obvious cases of aggression cannot be prosecuted only because this is blocked by a political organ. In national legal orders, this would no doubt raise questions about due process and the independence of the judiciary. To what extent do the same rule of law principles apply at the international level, in the international legal order? Seen in this context, it is telling and hopeful that para 3 of the activation decision of December 2017,

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reaffirming ‘the judicial independence of the judges of the Court’ has survived a lastminute attack when France—supported by the UK—proposed to move this phrase to the preambular paragraphs of the resolution, and this proposal was rejected.16 The decision of the Prosecutor and the authorization by the Pre-Trial Division to proceed with a crime of aggression investigation in the absence of an aggression determination by the Security Council, are exceptional and weighty decisions that may have far-reaching implications. They normally would require the political backing of the Security Council. Since these are such weighty decisions, it might help if, in the absence of Security Council support, there would be some alternative backing for the Prosecutor and the Pre-Trial Division, even though this is legally not required.17 For example, the UN General Assembly or the Assembly of States Parties could provide political support by adopting a resolution determining that the relevant State has committed an act of aggression. Finally, it cannot be excluded, even though this has never happened so far, that the ICJ would find that a State has committed aggression, either in contentious or in advisory procedures, and thereby would provide judicial backing.18

13.3.2 Article 15ter Rome Statute This provision is much simpler than Article 15bis Rome Statute. Its five paragraphs are the same as five paragraphs (paras 1, 2, 3, 9 and 10) of Article 15bis. The main reason why it does not include the other five paragraphs of Article 15bis is that a referral implies that the Security Council has already pronounced itself on the particular situation by referring it to the ICC. In Kampala, it was not considered necessary to require, in addition, that the Security Council should also specifically determine that an act of aggression had been committed. Article 15ter therefore basically entails that a Security Council referral will now—since 17 July 2018—also cover the crime of aggression, not only the other three ICC crimes.

13.4 The Kampala Amendments on the Crime of Aggression: Review by the ICC of Aggression Determinations by the Security Council In case the Security Council has made a determination that a State has committed an act of aggression in the context of a case of aggression before the ICC, the question may arise whether the Court could review such a determination, either at the request of the accused or on its own motion. For criminal lawyers it may seem obvious 16

See Kreß 2018, p. 12. On the role of the Pre-Trial Division, see Chaitidou et al. 2017. 18 Akande and Tzanakopoulos 2017, p. 215. 17

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that the Court needs such a review power. However, international lawyers know that reviewing Security Council decisions is a delicate issue.19 Far-reaching powers were attributed to the Security Council in 1945, for good reasons. This in itself could justify conferring a parallel power to the ICJ to review Security Council decisions: the existence of checks and balances could make it easier to accept extensive Security Council powers. However, such a broad judicial review power was rejected, essentially because it was agreed that the Security Council needed broad and far-reaching powers to be able to take the decisions necessary for international peace and security swiftly, and should not be hindered by the (risk of) time-consuming judicial scrutinizing. Nevertheless, even though judicial review of Security Council decisions is a delicate issue, there are at least two convincing reasons why it is necessary that the ICC must have the competence to review aggression determinations by the Council. First of all, this is necessary because the ICC must be able to exercise its functions in full independence. It may not be bound, in part or in whole, by decisions taken by others. If it would not be able to fully review aggression determinations by the Security Council, it would not be able to fully assess itself whether the accused has committed a crime of aggression; rather, this would partly be pre-determined by the Security Council. Secondly, this is necessary because of the presumption of innocence (Article 66 Rome Statute) and the rights of the accused (Article 67 Rome Statute). If the Court would not be entitled to review aggression determinations by the Security Council, this would place such determinations ‘above the law’, making a mockery of the presumption of innocence and the rights of the accused. These two reasons explain why a provision was included both in Article 15bis and in Article 15ter Rome Statute, explicitly safeguarding the power of the Court to fully review aggression determinations by Security Council. The text of these two provisions is the same. Those who study the ICC Statute for the first time, might easily overlook these two provisions, since the power to review aggression determinations is mentioned there in a rather concealed way, in passing, and is couched in rather technical and innocent wording: ‘[a] determination of an act of aggression by an organ outside the Court shall be without prejudice to the Court’s own findings under this Statute’. It is clear that the drafters have done their utmost to avoid being explicit about the heavily charged issue of judicial review of SC decisions. Nevertheless, no matter how concealed this text is, it is doing exactly what it needs to do. ‘An organ outside the Court’ is almost synonymous to the Security Council. And ‘the Court’s own findings’ includes the Court’s judgment whether the Security Council was correct in finding that the relevant State had committed an act of aggression. Therefore, this provision in fact could read almost as follows: ‘the Court shall have jurisdiction to review the determination by the Security Council that the State concerned has committed an act of aggression’.

19

See for example Alvarez 1996.

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13.5 The Determination of Acts of Aggression: Past Practice of the Security Council Having discussed the role of the Security Council in the Kampala Amendments this chapter will now briefly assess how these amendments might work in practice. Two issues will be discussed. First of all, this section will briefly look at the past practice of the Security Council with regard to aggression determinations. Secondly, Sect. 13.6 will try to see what implications the Kampala Amendments may have for the future functioning of the Security Council. But first of all it is necessary to emphasize that this assessment of the future application of Articles 15bis and ter Rome Statute is not an exercise in futility. While it may perhaps seem unlikely that the crime of aggression jurisdiction of the Court will be triggered any time soon, it can also not be excluded that a future course of events may make this imperative. It would not be for the first time in the life of the Court that something unexpected would materialize. The ICC was created in 1998 against all odds. The Statute entered into force within four years—much earlier than the most optimistic expectations. Not many expected that the Security Council would refer a situation to the Court less than three years after the entry into force of the Statute. No one expected that the Kampala Review conference would reach a consensus agreement on the crime of aggression. So, although at present it certainly does not seem likely that the aggression jurisdiction of the Court will soon be used, it cannot at all be excluded. It is therefore useful to briefly explore the past practice of the Security Council with regard to aggression determinations, and to consider the possible implications of the Kampala Amendments for the future functioning of the Council. Two main observations can be made about past Security Council determinations of acts of aggression. First of all, the Council has not often made such a determination, and when it did so, this was usually not in the most extreme cases (e.g.: acts committed by mercenaries against Benin,20 acts committed by Iraq against diplomatic premises and personnel in Kuwait21 ). While in international law aggression is associated with the most severe uses of force, the most serious breaches of the peace, and ‘the supreme international crime’, in the rhetoric of politics the term aggression often has a different connotation and is not only reserved for the most extreme cases (such as the Nazi aggression). Examples are the references by the US to the missile launches by North Korea as ‘aggression’ and the references by NATO to Russia’s ‘aggressive acts’ in East Ukraine.22 Secondly, the Council has not made aggression determinations in cases that seemed to be outright and pure aggression. An example is the 1990 invasion of Kuwait by Iraq. In Resolution 660 of 2 August 1990, the Security Council determined that this was a breach of the peace. It did not refer to this invasion as an act of aggression. 20

UNSC Resolution 405 (1977) of 14 April 1977. UNSC Resolution 667 (1990) of 16 September 1990. 22 UN Doc. S/PV.7958 of 2 June 2017, p. 3; NATO, The Wales Declaration of 5 September 2014, para 2. 21

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This past practice raises a number of questions. For example, if the Security Council refers to ‘aggressive acts’,23 ‘armed invasions’,24 ‘occupation’25 etc., does this fulfil the condition of paras 6–7 of Article 15bis Rome Statute? On these matters of interpretation, first of all the Prosecutor has to decide whether such cases are to be considered as a determination by the Security Council that an act of aggression has occurred. If so, (s)he may proceed (Article 15bis [7] Rome Statute). If (s)he does not consider cases such as these ‘aggression determinations’ by the Security Council, but nevertheless concludes that there is a reasonable basis to proceed with an investigation in respect of a crime of aggression, (s)he may only proceed if the Pre-Trial Division has given an authorization on the basis of Article 15bis [8] Rome Statute. A study by the UN Secretariat concluded that, since 1945, the Security Council has in five situations qualified certain acts as ‘aggressive acts’, ‘acts of aggression’, or ‘aggression’: 1. 2. 3. 4. 5.

acts committed by Southern Rhodesia against other countries, including Angola, Botswana, Mozambique and Zambia;26 acts committed by South Africa against other countries in southern Africa;27 acts committed by mercenaries against Benin;28 acts committed by Israel against Tunisia;29 acts committed by Iraq against diplomatic premises and personnel in Kuwait.30,31

Although the conclusion is therefore not justified that the Security Council has never determined particular acts as acts of aggression, it is true that the Council has been reluctant to do so. Since 1945, military force has been used in a number of situations in such a way that the Security Council could easily have found that aggression was committed, even if a very strict definition would have been used. It is perhaps noteworthy that the five situations mentioned above almost all date from the period before 1990, when the Council was frequently prevented from acting as a result of the absence of agreement amongst its permanent members. Since 1990, the Council has become much more active, but it almost never decided that aggression 23

E.g. UNSC Resolution 667 (1990) of 16 September 1990. E.g. UNSC Resolution 445 (1979) of 8 March 1979. 25 E.g. UNSC Resolution 567 (1985) of 20 June 1985. 26 UNSC Resolution 326 (1973) of 2 February 1973 and subsequent resolutions, 1973–1979. 27 UNSC Resolution 387 (1976) of 31 March 1976 and subsequent resolutions, 1976–1987. 28 UNSC Resolution 405 (1977) of 14 April 1977. 29 UNSC Resolution 573 (1985) of 4 October 1985; UNSC Resolution 611 (1988) of 15 April 1988. 30 UNSC Resolution 667 (1990) of 16 September 1990. 31 Historical Review of Developments relating to Aggression (2003), UN Publication, available https://legal.un.org/cod/books/HistoricalReview-Aggression.pdf (accessed 1 March 2021), pp. 225–236. This study correctly notes that, following the invasion of Kuwait by Iraq on 2 August 1990, the Security Council did not qualify this invasion as an act of aggression, but as a ‘breach of the peace’ (UNSC Resolution 660 [1990] of 2 August 1990). See also Strapatsas 2017. 24

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had been committed, even in cases where the facts would have warranted such a decision (e.g. the 1990 invasion of Kuwait by Iraq).

13.6 The Crime of Aggression Amendments: Implications for the Security Council The only thing that is certain about the future is that it is uncertain. At the same time, a few observations may be made, in particular with regard to the competence of the ICC to review determinations by the Security Council that a State has committed an act of aggression. It is true that the effect of any ICC review of such a determination is limited since it is done only for ICC purposes. The ICC cannot declare the act concerned to be void. At most, the review could result in a judgment by the Court that the accused did not commit a crime of aggression because there has not been an act of aggression by the State concerned. However, such a review by the ICC may have wider implications. If the Court would disagree with the Security Council and would conclude that there has not been an act of aggression, the decision of the Council is affected by such an authoritative external judicial review, even though strictly seen the Court’s findings exclusively concern the crime of aggression case it is dealing with. The decision of the Council is affected because the Court has produced an air of wrongfulness surrounding the decision. This may have practical implications such as the following: • In case the Security Council considers taking further enforcement measures, the opponents of such measures will be in a stronger position because the underlying rationale is questioned. • If the Council not only has determined that an act of aggression has been committed, but also has taken measures such as economic and financial sanctions, the legal basis for such measures will be affected by a finding of the ICC that there has not been an act of aggression. National or regional courts dealing with cases involving these sanctions may start questioning their legal basis. How could they ignore a finding by a fellow court that the Security Council has wrongly decided that an act of aggression has been committed? • For these and other reasons, the Security Council might become even more reluctant in the future than it is already now to qualify a particular situation as an act of aggression. The Council could simply determine in a particular case that there is a ‘breach of the peace’ or a ‘threat to the peace’, and subsequently adopt exactly the same enforcement measures as it would have adopted in the case of an aggression determination.32 Therefore, also for the Security Council, even for the Security Council, it is true post-Kampala what Bob Dylan sang in the 1960s: ‘the times they are a’changin”. If at 32

See Strapatsas 2017, p. 180 (with examples in footnote 18).

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all, the Council would now determine that an act of aggression has been committed, that it must take into account that the ICC might in future scrutinize this decision, which in turn might impact on the further work of the Council.

13.7 Conclusion With respect to the prosecution of the crime of aggression, the ICC and the Security Council each play their own role. What is true for the relationship between the Court and the United Nations in general, is also true more specifically here, with regard to the ‘crime of aggression relationship’ between the Court and the Security Council. Ultimately, the two share the same ideals, purposes and principles. The two need to respect and take into account each other’s roles and operate as much as possible in harmony.33

References Akande D, Tzanakopoulos A (2017) The International Court of Justice and the Concept of Aggression. In: Kreß C, Barriga S (eds) The Crime of Aggression: A Commentary. Cambridge University Press, Cambridge, pp 214–232 Alvarez J E (1996) Judging the Security Council. American Journal of International Law 90:1–39 Barriga S, Blokker N (2017a) Entry into Force and Conditions for the Exercise of Jurisdiction: Cross-Cutting Issues. In: Kreß C, Barriga S (eds) The Crime of Aggression: A Commentary. Cambridge University Press, Cambridge, pp 621–645 Barriga S, Blokker N (2017b) Conditions for the Exercise of Jurisdiction Based on State Referrals and Proprio Motu Investigations. In: Kreß C, Barriga S (eds) The Crime of Aggression: A Commentary. Cambridge University Press, Cambridge, pp 652–674 Blokker N, Barriga S (2017) Conditions for the Exercise of Jurisdiction Based on Security Council Referrals. In: Kreß C, Barriga S (eds) The Crime of Aggression: A Commentary. Cambridge University Press, Cambridge, pp 646–651 Blokker N, Kreß C (2010) A Consensus Agreement on the Crime of Aggression: Impressions from Kampala. Leiden Journal of International Law 23:889–895 Chaitidou E, Eckelmans F, Roche B (2017) The Judicial Function of the Pre-Trial Division. In: Kreß C, Barriga S (eds) The Crime of Aggression: A Commentary. Cambridge University Press, Cambridge, pp 752–815 Crawford J (2013) Chance, Order, Change: The Course of International Law, General Course on Public International Law. Recueil des Cours 365:1–389 Higgins R (1970) The Place of International Law in the Settlement of Disputes by the Security Council. American Journal of International Law 64:1–18 Koh H H, Buchwald T F (2017) United States. In: Kreß C, Barriga S (eds) The Crime of Aggression: A Commentary. Cambridge University Press, Cambridge, pp 1290–1299 Kreß C (2018) On the Activation of ICC Jurisdiction over the Crime of Aggression. Journal of International Criminal Justice 16:1–17

33

See further Barriga and Blokker 2017a, b, pp. 638–640; Strapatsas 2017, p. 204.

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Ratner S R (2004) The Security Council and International Law. In: Malone D M (ed) The UN Security Council: From Cold War to the 21st Century. Lynne Rienne Publishers, Boulder, pp 591–605. Strapatsas N (2017) The Practice of the Security Council Regarding the Concept of Aggression. In: Kreß C, Barriga S (eds) The Crime of Aggression: A Commentary. Cambridge University Press, Cambridge, pp 178–213

Niels Blokker is Professor in International Institutional Law (Schermers Chair) at the Grotius Centre for International Legal Studies at Leiden University (Leiden, the Netherlands).

Chapter 14

Key Risks and Difficulties of Aggression Trials Patrycja Grzebyk

Contents 14.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14.2 Key Risks: Adverse Impact on Peace, Justice and Reconciliation . . . . . . . . . . . . . . . . . . . 14.2.1 Peace . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14.2.2 The International Criminal Justice System . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14.2.3 Reconciliation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14.3 Key Difficulties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14.3.1 Immunities and Surrender . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14.3.2 Guarantees of Fair Trial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14.4 Conclusions—Whether Prosecution of Crime of Aggression is in the Interest of Justice? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Abstract This chapter presents the main risks and difficulties of prosecuting the crime of aggression. It argues that aggression trials can negatively impact peace, the international criminal justice system (particularly the International Criminal Court) and the reconciliation process. This chapter further stresses that prosecution of aggression may endanger the Security Council’s efforts to maintain peace and security because it places considerable pressure on the Council to classify certain situations as acts of aggression. This is despite the fact that the principle of independence of courts means that they must be able to challenge any decision of the Council to this effect. Moreover, the current scope of criminalization of aggression is problematic. On the one hand, it excludes intrastate use of force, i.e. the main source of threats to peace. And yet, on the other hand, it may serve to discourage interventions undertaken for humanitarian reasons or, conversely, to encourage military operations with doubtful legal justification. Trials of aggression may undermine the International Criminal Court’s credibility if the Court is forced to shift its resources towards aggression cases due to political pressures. The limitation of aggression charges to those in leadership positions also misrepresents the guilt of the whole population of aggressor State(s) and prevents full reconciliation between victim and P. Grzebyk (B) Faculty of Political Science and International Studies, University of Warsaw, ul. Krakowskie Przedmie´scie 26/28, Gmach Audytoryjny WNPiSM, 00-927 Warsaw, Poland e-mail: [email protected] © t.m.c. asser press and the authors 2022 S. Bock and E. Conze (eds.), Rethinking the Crime of Aggression, https://doi.org/10.1007/978-94-6265-467-9_14

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aggressor States’ populations. This chapter further emphasizes that prosecution of aggressors is inherently linked to the problem of recognition of immunities and privileges of high officials, which can prevent the surrender of such officials to the international court or their extradition to third-party States. There is also a strong risk of violation of basic human rights, as access to evidence is limited due to security reasons. Taking into account all risks and challenges, the prosecution of the crime of aggression could be against the interest of justice. Keywords Aggression · Crime of Aggression · Security Council · Reconciliation

14.1 Introduction The courts of a considerable number of States currently allow for the prosecution of aggression.1 Since 17 July 2018, this has also been possible before the International Criminal Court.2 However, the decision to initiate proceedings concerning the crime of aggression entails certain risks and difficulties which should be taken into account by any prosecutor considering this step.3 Prosecution of aggression can negatively impact peace, the international criminal justice system, and the reconciliation process between the populations of aggressor and victim States. Furthermore, trials of aggression are inherently riddled with procedural difficulties. To be sure, these difficulties may also surface during proceedings concerning other core crimes. Prosecution of the crime of aggression, however, always touches on sensitive issues such as immunity and surrender of perpetrators, access to crucial evidence, and respect for the fundamental rights of accused persons. Furthermore, the jurisdiction of the International Criminal Court with respect to the crime of aggression is severely limited in comparison to other crimes. This will severely impact the chances of successfully prosecuting aggressors.

1

Coracini 2009, pp. 725 et seq. On the problems related with domestic prosecution of crime of aggression, see also Jurdi 2013, pp. 1 et seq. 2 On 14 December 2017, the Assembly of State Parties to the Rome Statute decided on the activation of the jurisdiction of the Court over the crime of aggression, ICC Resolution ICC-ASP/16/Res.5 of 14 December 2017. The definition of aggression was adopted seven years earlier, during the Kampala Review Conference, ICC Resolution RC/Res.6 of 11 June 2010. 3 See more on risks and difficulties related with prosecution of aggression in historic perspective in Grzebyk 2013, pp. 215 et seq.

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14.2 Key Risks: Adverse Impact on Peace, Justice and Reconciliation 14.2.1 Peace International criminal law is designed to protect and enforce the values which the international community considers crucial. Peace is most definitely one of these values.4 Criminalisation of aggression is presented as a tool to prevent acts of aggression,5 and thus as a means of achieving peace,6 given the clear connection between peace and justice.7 The logic of this position is as follows: prosecution of aggression reinforces the condemnation of instances of use of force in breach of the UN Charter. Rational States and their leaders will thus be more cautious in commencing hostilities.8 These arguments neglect the fact that no State in the world argues that aggression is lawful. Each time aggression occurs, the aggressor is convinced of the legal legitimacy of their military operation. Moreover, the preventive effect of criminalization of aggression would be achieved only if all cases of use of armed force in breach of the UN Charter were eliminated. According to the Rome Statute, however, criminalization of aggression covers only ‘manifest’ violations of the UN Charter (Article 8bis Rome Statute). Establishing which situations qualify as ‘manifest’ is far from easy. Consequently, there may be a reluctance to investigate certain situations as aggression due to the lack of clarity on the unlawfulness of certain uses of force. This, in turn, may encourage other States to undertake similar doubtful military operations.9 At the same time, the prosecution of the crime of aggression may plausibly result in a decrease in the number of interventions with legally questionable bases.10 However, this decrease in military operations does not automatically translate into an increase in peace and security. In the absence of a relevant decision of the Security Council (SC), States may well abstain from undertaking military interventions in support of human rights.11 They may also be afraid to act in self-defence because the limits of this right are somewhat vague. Indeed, attempts to exercise it may be qualified as aggressive actions, as became clear during the 2014 Ukrainian-Russian conflict in 4

Tallgren 2002, p. 585; Nsereko 2003, p. 265. Zolo 2004, p. 727; O’Donovan 2007, p. 509; Nyiri 1989, p. 39, Taylor 1970, p. 75, Dawson 2000, p. 431; Beigbeder 1999, p. 193, Müller-Schieke 2001, p. 414, Kress 2006, p. 38. 6 Cyprian and Sawicki 1948, p. 12. 7 See Message of His Holiness Pope Paul VI for the Celebration of the Day of Peace, 1 January 1972: ‘If you want Peace, work for Justice’, available at http://www.vatican.va/holy_father/paul_vi/ messages/peace/documents/hf_p-vi_mes_19711208_v-world-day-for-peace_en.html (accessed 1 March 2021). See also Bassiouni 2003, p. 680. 8 May 2008, p. 19; Dinstein 2005, p. 117. 9 See more in Ruys 2018, pp. 889 et seq. 10 O’Donovan 2007, p. 527. 11 Van de Kieft 2002, p. 2341; Sheffer 2017, p. 85. 5

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Crimea.12 States may have doubts over whether to use force in response to military action out of concern that they might be considered the initial aggressor. All of these factors point to the danger that the worst-case scenario may become reality: the definition of the crime of aggression may become a trap for States forced to act in self-defence, while at the same time providing clear signposts for the aggressor.13 To be sure, the deterrent effect on the interstate use of force could materialize if prosecution of aggression became the standard procedure, rather than merely an exceptional measure applied to the weakest players. However, a specific requirement applies to the crime of aggression; that both States—victim and aggressor—must be parties to the amendments on aggression (except in case of a Security Council referral).14 This makes the rules governing jurisdiction completely different from those applied to genocide, crimes against humanity and war crimes. In such cases, the prerequisites for proceedings are either that the place of commission is a State Party (or State which accepted ICC’s jurisdiction—Article 12 [3]) territory or a State Party (or State which accepted the Court’s jurisdiction) citizenship of a perpetrator. In consequence, the possibility of prosecution of aggression before the ICC based on State referral or proprio motu investigation is practically non-existent, taking into account that up to July 2021 only 41 States ratified amendments on the crime of aggression.15 Moreover, the definition of the crime of aggression in Article 8bis Rome Statute is based on the definition of aggression included in Resolution 3314 of the General Assembly of 1974. According to this resolution, aggression can be committed only by State(s) against (an)other State(s). In consequence, attacks carried out by nonstate armed groups are not covered by the ICC’s jurisdiction (one example being the attack on the World Trade Centre in 2001, unless this is assigned to Afghanistan).16 This implies that the prosecution of aggression currently offers no defense against the most common sources of the disruption of peace (i.e. internal armed conflicts and terrorist attacks on behalf of non-state actors). In consequence, the criminalization of aggression as enshrined in the Rome Statute cannot serve as an effective tool for achieving peace. The prosecution of aggression thus offers almost no possibility of eradicating the main sources of today’s breaches of peace. Moreover, it can actually constitute a threat to permanent peace and security. This is due to the complexities of the relationship between the ICC and the UN Security Council. Within the United Nations Organization, the Security Council has the primary responsibility for the maintenance of peace and security (Article 24 UN Charter). 12

Tancredi 2014, pp. 10 et seq. Argument used by Austen Chamberlain during his speech in the House of Commons on 24 November 1927. See Diamandesco 1935, pp. 46–47. 14 See ICC Resolution ICC-ASP/16/Res.5 of 14 December 2017, para 2 which introduced restrictive interpretation of Article 15bis (4) Rome Statute, more in Zimmermann 2018, p. 19. 15 https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=XVIII-10-b&cha pter=18&clang=_en (accessed 1 March 2021). 16 See also Sheffer 2017, pp. 83–84. 13

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In order to achieve this aim, the SC avoids either classifying any given situation as aggression or assigning the label ‘aggressor’ to any State. The use of less stigmatic terms (violation or breach of the peace) still allows the SC to use all measures stipulated in Chapter VII of the UN Charter. At the same time, this milder language facilitates negotiations with all parties to an armed conflict because none of them has already been stigmatised with an official condemnation.17 The same persons who may potentially face criminal responsibility for the crime of aggression (because they make the decisions on the deployment of armed force) negotiate the peace conditions. It is thus far from easy to disregard the argument that prosecuting high state officials makes conflicts last longer than they otherwise would have.18 Article 15bis and ter Rome Statute provide: Where the Prosecutor concludes that there is a reasonable basis to proceed with an investigation in respect of a crime of aggression, he or she shall first ascertain whether the Security Council has made a determination of an act of aggression committed by the State concerned.

The negotiators of the amendments wanted to secure freedom of decision for the Security Council. As a result, the Security Council can decide to completely refrain from qualifying a situation as an act of aggression. At the same time, the negotiators wanted to guarantee the independence of the Court. To this end, determination of an act of aggression by the Security Council (or of any other organ outside the Court) ‘shall be without prejudice to the Court’s own findings under this Statute’ (Articles 15bis [9], 15ter [4] Rome Statute). Where the SC chooses not to apply the label of aggression within six months after the date of notification, ‘the Prosecutor may proceed with the investigation in respect of a crime of aggression, provided that the Pre-Trial Division has authorized the commencement of the investigation in respect of a crime of aggression’ (Article 15bis [8] Rome Statute). In consequence, the Court does tend to respect the SC’s power to qualify a situation as aggression. That said, the Court is encouraged to ignore the SC’s decision on (non)determination. It should also be stressed that the determination of the situation as aggression by the SC on the request of the Prosecutor triggers an investigation but does not automatically lead to the classification of the situation as aggression by the ICC. An absence of determination or a determination of the situation as non-aggression results only in the obligation to achieve authorization from the Pre-Trial Division. The reasoning behind this process is understandable: it safeguards the independence of a judicial organ (the ICC) from a political body (the SC). After all, the objectives of the SC differ from those of the ICC.19 However, given the dictum 17

Schuster 2003, p. 41. See also Mégret 2018, p. 851, where the author argues that ‘Louise Arbour conveniently kept the indictment against Slobodan Miloševi´c secret in ways that greatly facilitated the Dayton peace process’. 18 Once a State is declared to be the aggressor, it has a motivation to fight until the end, Hankey 1950, p. 55; Meltzer 1996, p. 904; Müller-Schieke 2001, p. 421; Schabas 2004b, p. 715; Brackman 1987, p. 35. It is worth remembering that the provisions assigning responsibility for World War I to emperor Wilhelm II were referred to as ‘shame paragraphs’, and nearly ended the ceasefire; Willis 1976, p. 210. 19 Tallgren 2002, p. 593; Hankey 1950, p. 26.

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which can be derived from the UN Charter (Preamble and Article 1) that peace should always prevail over justice, this process necessarily invites certain questions. If peace is indeed more important, then the standing of the Security Council should never be undermined. In fulfilling its mission, the Security Council may either rely on international criminal jurisdiction or consider it redundant or even detrimental. In the latter case, the SC should not compete with any court in the field of peace and security. When the SC’s determination of the situation as aggression is challenged in the Court (while dealing with individual criminal responsibility and not with state responsibility), the credibility of the SC is inevitably eroded. In theory, the SC can always use its rights under Article 16 Rome Statute to suspend the proceedings of the Court in a given case for a period of 12 months (and this measure can be renewed perpetually). Yet doing so is generally met with a negative response from the public. Moreover, such a course of action could also serve to undermine the authority of the Council, but in a different manner. Another safety valve introduced to the Rome Statute is the limitation of the ICC’s jurisdiction to ‘manifest’ cases of aggression. Nevertheless, differences of opinion between the Security Council and the International Criminal Court are thus unlikely, but unfortunately not impossible.

14.2.2 The International Criminal Justice System The possible impact of trials of aggression on the credibility of the Security Council has already been discussed in this chapter. And yet this does not represent the only risk. Such trials can also undermine the credibility of the ICC and the whole international criminal justice system. Serious doubts are raised by the involvement of a political body such as the Security Council in proceedings concerning the crime of aggression according to Articles 15bis and ter Rome Statute. The regulations of the UN Charter that form the basis of the SC’s operations pertain to aggression as a wrongful act committed by a State. They do not relate to the liability of individuals; this is a matter for the International Criminal Court.20 The Security Council is not a court; it is not permitted to examine witnesses, or to listen to the explanations of those potentially charged with crimes in order to properly classify the situation.21 The Council’s decisions stem from political premises; they are thus political, not judicial, in nature.22 In contrast to a court, the Security Council cannot be impartial. And yet impartiality should be expected from a body that has such a significant impact on court proceedings.23 20

Ferencz 2000, p. 60; Boeving 2005, p. 578; Fernández de Gurmendi 2002, p. 602; Escarameia 2004, p. 139; Lacanilao 2004, p. 110. 21 Stein 2005, pp. 5, 9; Nsereko 2003, p. 285; Dinstein 2005, p. 214; Solera 2007, p. 55; see also ICC Report ICC-ASP/4/32 of 13–15 June 2005, para 68. 22 Pompe 1953, p. 86; Dawson 2000, p. 440; Nsereko 2003, p. 278. 23 Lacanilao 2004, p. 108.

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The SC’s involvement thus constitutes a clear argument against the ICC. It may facilitate the presentation of the Court as little more than a tool in the hands of the great powers. This is especially so when we consider that citizens of most of the great powers cannot be prosecuted for the crime of aggression due to lack of jurisdiction (on one side Russia, China, the US did not ratify the Rome Statute, on the other France and UK—States Parties to the Rome Statute- have not ratified amendments on aggression yet), or due to possible use of their veto (even though it should be noted here that a non-determination of the situation as aggression does not prevent prosecution of the aggressor).24 The Rome Statute places States and citizens in unequal positions in the eyes of the law, which is in direct contradiction to fundamental principles of criminal law.25 This can only lend succour to intimations that the court is merely serving ‘victors’ justice’, a sort of political revenge.26 Furthermore, granting the SC the power to determine aggression without excluding the interested State(s) from the vote contradicts yet another principle of criminal law, namely that nobody should be a judge in their own case. Clearly, then, the crime of aggression is loaded with double standards.27 The sense of unfairness resulting from the unequal treatment of perpetrators of aggression definitely has the potential to undermine efforts to construct a consistent international justice system.28 It could be argued that the political nature of the crime of aggression does not necessarily implicate political prosecution.29 Judges are not necessarily persuaded by purely political arguments.30 With respect to trials for aggression, however, the impression will inevitably persist that these are political trials.31 In each and every case, the ICC will be under pressure to closely monitor each decision of the SC. For obvious reasons (i.e. lack of adequate resources), the ICC must be extremely selective in the choice of the situations it examines. The crime of aggression is

24

O’Donovan 2007, p. 516. Kress 2006, p. 38; Trahan 2002, p. 460. 26 Cyprian and Sawicki 1967, p. 25; Röling and Cassese 1993, p. 87; Hankey 1950, p. IX; Minear 1971, passim; Boister and Cryer 2008, p. 310. Until this day, the International Military Tribunal and the International Military Tribunal for the Far East are perceived as victors’ courts. Jackson tried to argue against these charges, explaining that the Nazis stood before the Tribunal ‘not because they lost the war, but because they started it’, IMT Nuremberg, Judgement of 1 October 1946 (Prosecutor v. Goering et al.), in: Trial of the Major War Criminals before the International Military Tribunal, Volume II, Nürnberg, p. 152. 27 Hankey 1950, p. 60. 28 Lacanilao 2004, p. 112. 29 Hogan-Doran and van Ginkel 1996, p. 347. 30 Ferencz 2000, p. 60. 31 Pompe 1953, p. 246. See also de Hoon 2018, p. 920 where the author claims that ‘the Court will be trapped in a “Catch-22” when it decides to prosecute state leaders for aggression.’ Each decision of the Court concerning the crime of aggression will be criticized for political reasons, as it is impossible to distinguish a crime of aggression from political debates related with an aggression as such. 25

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considered the ‘supreme crime’,32 fons et origo of other crimes.33 This is indicative of its elevated position in the hierarchy of crimes. The prosecutor of the ICC will thus be under pressure to start a preliminary examination in all possible cases of aggression. This is because the Court’s credibility may well be measured by the likelihood of its investigation of specific cases of aggression.34 This implies a risk of inaction in cases of other crimes, such as war crimes, crimes against humanity, and genocide. This tendency was all too apparent in trials that occurred before the International Military Tribunal and the International Military Tribunal for the Far East. In these instances, both prosecutors and judges focused their energy on demonstrating aggression, moving war crimes and crimes against humanity to a position of secondary importance.35 Unfortunately, investigating war crimes alongside the crime of aggression in a particular situation inevitably serves to centre the debate on the rationale behind the military operations, rather than on the human victims of the use of armed force.36 When aggression cannot be proven and nobody is prosecuted for its perpetration, then all convictions of defendants charged with war crimes related to the alleged aggression would be treated with suspicion.37 If there was no aggression, then war crimes fade in significance, and their appalling character is diminished. The distinction between ius ad bellum and ius in bello is still a concept that barely resonates with public opinion. The violation of both principles must be linked in public discourse; otherwise, public trust in such proceedings can be fatally undermined. Currently, international criminal law focuses on the rights of individual victims, and it adopts their perspective.38 However, this approach is difficult to implement with respect to aggression. After all, this is a crime that targets a State rather than specific individuals.39 Indeed, in cases of aggression and its devastating results for parties to the armed conflict, members of the population of the State that was attacked and the population of the aggressor State could conceivably claim victimhood. It might be that the latter were forced into participation in an armed conflict. Consequently, possible civilian claims against the defendants before the ICC can be raised by different groups and result in difficulties in applying a consistent approach to victims’ rights.40 32

IMT Nuremberg, Judgement of 1 October 1946 (Prosecutor v. Goering et al.), in: Trial of the Major War Criminals before the International Military Tribunal, Volume I, Nürnberg 1947, p. 186. 33 Calvocoressi 1947, p. 42. 34 Abtahi 2005, p. 642; Springrose 1999, pp. 152–153; Kress 2006, p. 38. 35 Trahan 2002, p. 442; Marrus 2006, p. 1652. 36 See RC/5 of 10 June 2010, para 5. 37 Paulus 2010, p. 1127. 38 Boeving 2005, p. 583. 39 See more on the complexity of victim participation and reparations in the case of prosecution of aggression before the ICC in Dannenbaum 2018, p. 876. 40 Stahn stresses that the inclusion of the crime of aggression in the Rome Statute means the introduction of ‘a surrogate forum for interstate reparation through criminal proceeding before the ICC’. Stahn 2010, p. 881: cf. also Rosenfeld 2012, pp. 249 et seq.

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The International Criminal Court strives for global jurisdiction. However, the recent conflict between the ICC and the African Union shows that the current number of 123 parties may just as well decrease as increase.41 Those States which are not willing to sign or ratify the statute of the International Criminal Court references the Court’s jurisdiction over the crime of aggression as one of the main reasons for their reluctance.42 The problem here is clear; those States that consider the prosecution of aggression as a key task for the ICC may well turn their backs on the Court if it undertakes an investigation into a case of aggression which, in their opinion, constituted a legitimate use of force. They may take a similar step if the Court fails to investigate a case of alleged aggression that, again in their opinion, is a manifest violation of the UN Charter. Consequently, each instance of proceedings in matters related to aggression will inevitably run the risk of being rescinded by those States that are now parties to the statute of the International Criminal Court. Such instances might also serve to deter those who are contemplating becoming a party to the statute. It is important to remember that criticism directed against the Nuremberg and Tokyo trials focused mainly on those proceedings which related to crimes against peace.43 Finally, the likelihood of attacks against the International Criminal Court is higher than in cases of other international crimes. This is because, by definition, proceedings concerning the crime of aggression are launched against top state officials. One example is the case against Sudan’s president Omar Al Bashir, who was charged with numerous crimes against humanity, war crimes and genocide. The opening of the investigation against him caused an uproar among African States, with some of them threatening to withdraw their support for the Court.44

14.2.3 Reconciliation One of the objectives of punishment is to assign responsibility to specific individuals and, in doing so, to absolve the rest of society from that responsibility.45 In the case of aggression, the perfect solution would be to identify a group of individuals who 41

In accordance with Article 127 (1) Rome Statute, the Governments of South Africa (October 2016), Burundi (October 2016), and Gambia (November 2016) notified the Secretary-General of their decision to withdraw from the Rome Statute of the International Criminal Court. Afterwards South Africa and Gambia decided to revoke their notifications of withdrawal, but Burundi’s withdrawal excluded this State from the State Parties in October 2017. In March 2018, the Philippines decided to withdraw from the Statute. 42 See e.g. Van de Kieft 2002, pp. 2336–2337; Ailslieger 1999, p. 84; Springrose 1999, p. 152; Schabas 2004b, pp. 717–718; Peirce 2001, p. 282; Kherad 2005, p. 346; Murphy 2002, p. 43; Jianping and Zhixiang 2005, pp. 608, 611. 43 Wald 2006, p. 327. 44 See press conference of SGWCA of 13 February 2009, available at http://www.icc-cpi.int/NR/ rdonlyres/9FCD3A51-6568-41DF-819F-5075C3857523/0/UNDOCPressConferenceonSWGCA ENG.pdf (accessed 1 March 2021). 45 In his opening statement, Jackson clearly stated that the responsibility should be assigned to individuals so as not to incriminate the whole German people, IMT Nuremberg, Judgement of

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were responsible for aggressive actions, and thus release others from responsibility. The process is intended to encourage reconciliation between the nations engaged in the conflict, and to help determine historical truth.46 The definition of the crime of aggression adopted in the Rome Statute clearly stresses the role of leadership in such crimes. It states that responsibility is borne by a person in a position ‘effectively to exercise control over or to direct the political or military action of a State’ (Article 8bis Rome Statute). Therefore, only a limited number of persons can be prosecuted for the crime of aggression.47 This results in guilty leaders and an innocent nation.48 However, if waging a war of aggression can be compared to a concert played by the whole orchestra, then punishing the conductor alone does not seem to be a just solution.49 Politicians engage in the crime of aggression on behalf of a larger group that they represent. If they had emerged victorious, the entire nation would have reaped the benefits. They should not stand alone when they are defeated.50 Finding a few scapegoats offers no scope for reconciling two (or more) nations, because it fails to reveal the truth about the collective effort behind the aggression, and the sort of criminal enterprise which it in effect comprises. One of the potential benefits of trials investigating international crimes is that they may help to reveal and determine the truth. The problem is that the truth tends to be the first victim of a war.51 Every aggression trial quickly becomes a battle for historical truth.52 With war crimes, this is a relatively simple matter; it is determined that, for example, somebody knowingly attacked a protected person during an armed conflict and thus committed a war crime. The criminality of aggression, however, is contingent on a number of political circumstances. Such circumstances often cannot be subjected to full scrutiny due to sensitive matters of state security.53 In order to issue a just and truthful decision on who is responsible for the crime of aggression, it would be necessary to inspect state archives. The likelihood that essential documents will only be revealed years after the relevant events is also much greater in aggression cases than, for instance, in those concerning war crimes.54 For example, the International Military Tribunal ruled that Germany had no right to invoke self-defence as a justification for the aggression 1 October 1946 (Prosecutor v. Goering et al.), in: Trial of the Major War Criminals before the International Military Tribunal, Volume II, Nürnberg, p. 102. 46 Bassiouni 2003, p. 724; Harroff-Travel 2003, p. 484, Sassòli and Bouvier 2003, p. 304; Antonopoulos 2001, p. 62. 47 Nerlich 2017, p. 45. 48 Pompe 1953, p. 292. 49 Fletcher 2002, p. 164. 50 Zwoli´ nski notes that particularly in democracies, the entire society is responsible for war, because it is the society that determines the prevailing ethics. Zwoli´nski 2003, p. 145. 51 Best 1994, p. 382. 52 Minear 1971, passim. 53 O’Donovan 2007, p. 508. 54 Clark 2002, p. 886.

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against Norway. Years after the trial, however, documents came to light that offered evidence of British preparations to occupy Norwegian territory.55 Another example is the Israeli attack on Iraqi nuclear facilities. The attack was universally condemned until Iraq used armed force against Kuwait and Iran. It was then discovered that Iraq in fact possessed a nuclear weapon program, at which point the perception changed dramatically.56 Even if leaders are singled out for punishment, the stigma of a charge of aggression inevitably attaches itself to the entire nation. It engenders resentment and a sense of being wronged among those it is applied to, and it may lead to tensions on national or ethnic grounds. The problem of aggression tends to culminate in heated debates which engage entire societies. The most minuscule details of shared history are analysed; not only the use of force, but also all real and perceived mutual offences are invoked. It thus seems unlikely that an aggression trial will foster unity between nations or contribute to the restoration of peace.57

14.3 Key Difficulties 14.3.1 Immunities and Surrender To some degree, certain procedural problems have been overcome in recent years. The ICC has gained (extremely limited) jurisdiction over the crime of aggression, while laws concerning prosecution of aggression were introduced in many States. Therefore, the issue of the lack of jurisdiction and of the threat of violation of nullum crimen sine lege have been minimized. However, almost every case of proceedings regarding aggression would still involve accusations against higher officials of another State. This is because, as already mentioned, a crime of aggression can only be committed by persons in a position to impact on the policy of a given State. In effect, this encompasses a small group of heads of the State, heads of governments, government officials and senior military personnel.58 Such individuals are usually able to shield themselves from prosecution with their immunities and privileges.59 In contemporary international law, it is generally agreed that immunities and privileges cannot protect anyone against criminal prosecution for international crimes including crime of aggression60 (where power is greatest, responsibility cannot be 55

Hankey 1950, pp. 63 et seq.; Czapli´nski 1993, p. 55. Antonopoulos 2001, p. 42. 57 Van Schaack 2012, p. 150. 58 Meron 2001, p. 3. 59 See ILC UN Doc. A/CN.4/601 of 29 May 2008, pp. 13 et seq. 60 Commission on the Responsibility of the Authors of the War and on Enforcement of Penalties (1920), Report Presented to the Preliminary Peace Conference, 29 March 1919, AJIL 14, p. 116; Article 6 IMT Charter; Article 3 Code of Crimes against Peace and Security of Humankind; Article 56

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minimal).61 This is confirmed by a range of historical examples, including the judgment of the International Military Tribunal against Karl Donitz, the judgment of the Special Court of Sierra Leone in the case of Charles Taylor, the issue of a warrant of arrest by the ICC against Omar Hassan Ahmad Al-Bashir, proceedings before the International Criminal Tribunal for the former Yugoslavia against Slobodan Miloševi´c and before the ICC against Uhuru Kenyatta. However, privileges and immunities are only irrelevant before international tribunals. National courts must continue to respect the immunity of foreign officials, even in cases where international crimes have been committed.62 The International Court of Justice (ICJ) has reiterated the fact that, in international law, certain holders of high-ranking offices, such as heads of State, heads of government and ministers of foreign affairs, enjoy immunity from jurisdiction in other States, both civil and criminal.63 The ICJ’s approach may seem outdated. In the context of the prosecution of crime of aggression, however, it remains well-balanced. In such cases, there is a real risk that States might make mutual accusations of illegal armed action, and attempt to bring to justice top-ranking state representatives. Respecting the functional immunity of top-ranking officials would be conducive to avoiding such mutual accusations and the politically motivated criminal trials that might result from them.64 The fact that the ICC is obliged to ignore immunities and privileges does not mean that it can easily put on trial high officials of different States. The person must be surrendered to the Court. However, the Rome Statute stresses that the Court may not proceed with a request for surrender or assistance if the relevant State is required to act contrary to its obligations under international law with respect to the State or the diplomatic immunity of a person or property of a third State. In order to circumvent these conditions, the Court must first obtain the cooperation of the third State for the waiver of immunity (Article 98 Rome Statute).65 That proceedings against incumbent state powers are consequently almost destined to fail is amply illustrated by the Al Bashir case.66 The African Union made strenuous efforts to shield both Al Bashir and the Kenyan President Uhuru Kenyatta against proceedings in the Court (including attempts to adopt a resolution by the Security Council based on Article 16 Rome Statute). 7 Code of Crimes against Peace and Security of Humankind; Article 7 (2) ICTY Statute; Article 6 (2) ICTR Statute; Article 27 (1) ICC Statute. Furthermore, under the Rules of Procedure and Evidence of the International Criminal Court (RPE), ‘abuse of power or official capacity’ is an aggravating circumstance which the Court must take into account (Rule 145 [2] [b] RPE). 61 Report to the President from Justice Robert H. Jackson (1945), Chief of Counsel for the United States in the Prosecution of Axis War Criminals, 7 June 1945, AJIL 39, Supplement Official Documents, p. 182; Glueck 1944, pp. 123–124. 62 See ICJ, Judgment of 14 February 2002 (Democratic Republic of the Congo v. Belgium, Case Concerning the Arrest Warrant of 11 April 2000), p. 3, ICJ Reports (2002). 63 Ibid., para 51. 64 Paulus 2004, p. 19. 65 Akande 2003, p. 641; Schabas 2004a, p. 81. 66 See UN Doc. S/2013/624 of 21 October 2013.

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In the realm of national proceedings, too, certain rules of extradition could prevent cooperation between States. Firstly, extradition is only possible if a given act is punishable both under the laws of the requesting and of the requested State (the principle of double criminality).67 This condition is likely to be difficult to satisfy, considering that criminal codes usually punish only aggression against the State of origin of the code. Secondly, States may attempt to protect specific individuals from extradition by classifying the acts they are charged with as political in nature.68 With regard to the crime of aggression, it is very easy to argue in favour of such classification, as aggression is by definition directed against a State’s sovereignty and political organisation.69 However, it must be noted that the principle of not granting extradition of political offenders is closely tied to the institution of asylum, i.e. the very opposite of extradition. In this context, it is important to point out that certain international documents note the denial of the perpetrator of the crime against peace’s right to claim asylum70 or to be granted the status of a refugee.71 Thirdly, most States do not allow the extradition of their own citizens.72 This can be at odds with the customary principle aut dedere aut iudicare, under which a State should either surrender criminals or put them on trial. However, the International Law Commission had its doubts about whether this principle can be applied to the crime of aggression. Under the 1996 draft of the Code of Crimes Against Peace and Security of Mankind, the principle of aut dedere aut iudicare does not apply to the crime of aggression.73 Moreover, reports of the Special Rapporteur of the International Law Commission include very few remarks on the crime of aggression.74 The General Assembly resolutions that reinforce the obligation to cooperate in matters of extradition and bringing criminals to justice refer exclusively to war crimes and crimes against humanity.75 The issue of aggression is not mentioned.

67

Article 2 (1) European Convention on Extradition; Article 3 (e) Inter-American Convention on Extradition. 68 See Article 3 European Convention on Extradition; Article 4 Inter-American Convention on Extradition. 69 Wierzbicki 1982, p. 113. 70 See Article 1 (2) Declaration on Territorial Asylum adopted by UNGA Resolution 2312 (XXII) of 14 December 1967. 71 See Article 1 (F) Convention relating to the Status of Refugees. 72 Wierzbicki 1982, p. 110. See e.g. Article 6 European Convention on Extradition; Article 7 InterAmerican Convention on Extradition. 73 See Article 9 Code of Crimes Against Peace and Security of Mankind; UN Doc. A/CN.4/571 of 7 June 2006, para 51. 74 See e.g. Report of the ICL, Sixty-fourth Session, 7 May-1 June and 2 July-3 August 2012, UN Doc. A/67/10, para 206. 75 See e.g. UNGA Resolutions 2840 (XXIV) of 18 December 1971 and 3074 (XXVIII) of 3 December 1973.

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14.3.2 Guarantees of Fair Trial In order to assess all circumstances of the use of force as well as an individual’s role in planning this use of force, full access to documentation and core witnesses must be secured.76 However, States cannot be expected to reveal their confidential and secret documents. Yet most documents relevant to cases of aggression are bound to have precisely this designation, given that they pertain to key issues of national defence, sovereignty and territorial integrity.77 Moreover, the Rome Statute recognizes a right of a State Party to deny a request for assistance, in whole or in part, only if the request concerns the production of any documents or disclosure of evidence which relates to its national security (Article 93 [4] Rome Statute). This provision means that, in proceedings concerning aggression, effective cooperation is practically impossible. It is thus equally unlikely that the prosecution will be able to prove guilt beyond reasonable doubt, or that the accused will be able to prove their innocence. With regard to witnesses, the defendants often wish to bring top politicians to the stand. Such figures frequently hide behind their immunities to avoid being examined. Similarly, courts are likely to reject motions to examine e.g. a president or a prime minister in order to prevent the trial from becoming too politicised.78 The problem rests on the fact that aggression trials are inherently political. But this does not change the fact that fundamental procedural guarantees listed in the International Covenant on Civil and Political Rights of 1966 (Article 14) and included in the Rome Statute cannot be fully respected.79 One of the basic principles of fair trial is respect for the principle nullum crimen sine lege. In interpreting this principle, the particular nature of international law should be taken into account,80 because its regulations are not very specific.81 The objective of international law is to express certain general principles of law and justice as they are accepted by the international community, rather than to observe strictly legal notions.82 The principle of nullum crimen sine lege should therefore be 76

The States emphasised that in the case of the crime of aggression Articles 57 (3), 72, 93 (4), and 99 (5) Rome Statute apply. Doubts were only expressed as to the applicability of Article 73 Rome Statute with regard to the protection of documents bearing the seal indicating state secrets of the aggressor State. ICC-ASP/4/32 of 10 June 2010, paras 54–55. 77 See e.g. analysis of the law of the Netherlands in Bakkenes 2011, pp. 49 et seq. and cited there. See also ECtHR, Judgement of 15 June 2006, Applications nos. 73562/01, 73565/01, 73712/01, 73744/01, 73972/01 and 73973/01 (Sirbu and others v. Moldova), para 18; ECtHR, Judgement of 26 March 1987, Application no. 9248/81 (Leander v. Sweden), para 74. 78 For example, the defence counsels in the Tokyo trial complained that many of their motions for evidence were rejected. See Defense Appeal to General MacArthur, 21 November 1948, reprinted in Minear 1971, pp. 204 ff.; see also Röling and Rüter 1977, p. 494. 79 The rights guaranteed to defendants include e.g. the right to remain silent, protection against the burden of evidence being shifted onto the defendant, and guarantee of certain rights during the investigation, i.e. before the trial actual begins, Articles 55, 66, 67 Rome Statute. 80 Weiss 1982, p. 183; Pella 1964, p. 83; Glueck 1966, p. 92. 81 Appleman 1954, p. 48. 82 Leibman 1994, p. 715.

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considered in terms of its procedural applications, and understood as an ideal rather than as immediately achievable (although efforts should be made to observe it).83 The International Covenant on Civil and Political Rights also incorporates the principle of nullum crimen sine lege. This covenant stipulates that its application may not prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was considered criminal according to the general principles of law recognized by the community of nations.84 In the case of the crime of aggression, references to customary or natural law definitely do not suffice.85 Such norms lack the precision required by criminal law. Despite the ruling of the International Military Tribunal that each State has the right to self-defence, the problem of differentiating between aggression and self-defence persists. It is the State that determines whether self-defence was adequately exercised in a specific case.86 The definition of the crime of aggression adopted in 2010 during the Review Conference in Kampala also fails to solve the problem of potential violations of nullum crimen sine lege. It provides for the punishability of acts of aggression, understood as the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in another manner in violation of the UN Charter. However, the regulations of the Charter are notoriously imprecise and are often interpreted with contradictory consequences. Hence the ruling that only an act of aggression constituting a ‘manifest’ violation of the UN Charter can give rise to responsibility. This points to another problem: how manifest must the violation of the Charter be in order to trigger an individual’s responsibility? It appears that, in line with the in dubio pro reo principle, only in truly blatant cases of aggression will the perpetrators be charged. Under such circumstances, the notable imprecision in the definition of the crime will be less evident. However, the ICC might possibly consider violations such as cyber aggression, espionage, terrorism, or other breaches of state sovereignty as variants of the crime of aggression. When it comes to guaranteeing a fair trial, national courts will inevitably encounter the same problems as the ICC. The former, however, will be confronted by the additional problem that the independence and impartiality of a victim State’s court can always be challenged. The impartiality (i.e. the absence of bias on the part of the judge towards the defendant) rests on a subjective test (with respect to the judge’s

83

Woetzel 1960, p. 112. Article 15 (2) International Covenant on Civil and Political Rights; also Article 7 (2) European Convention for the Protection of Human Rights and Fundamental Freedoms. 85 Woetzel 1960, p. 169. 86 IMT Nuremberg, Judgement of 1 October 1946 (Prosecutor v. Goering et al.), in: Trial of the Major War Criminals before the International Military Tribunal, Volume I, Nürnberg, p. 208 (‘But whether action taken under the claim of self-defense was in fact aggressive or defensive must ultimately be subject to investigation and adjudication if inter- national law is ever to be enforced.’). 84

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own beliefs and opinions) as well as an objective test (the guarantees on the part of the judge that rule out judicial bias).87 It is obvious that any link with a victim of a crime should be a reason to exclude a judge from the bench. However, in the case of the crime of aggression, all citizens of the attacked State can be treated as victims of aggression. This implies that every national judge originally from the State that was attacked may be presumed to be biased. If the judges fail to live up to the impartiality requirement, the principle of fair trial is effectively obviated. Moreover, the judges should be qualified to carry out proceedings. In cases relating to the crime of aggression, judges should be well versed not only in criminal law, but also in international law. On the level of the ICC, there is an obvious difficulty in filling the benches with individuals qualified in both criminal law and international law (Article 36 Rome Statute). In the case of national courts, finding judges well-suited to the task presents an even more daunting challenge. The Rome Statute stipulates that ‘[t]he crimes within the jurisdiction of the Court shall not be subject to any statute of limitations’ (Article 29). However, before the national courts, statutes of limitations may nonetheless apply. The Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity of 1968 and the European Convention on the Non-Applicability of Statutory Limitation to Crimes against Humanity and War Crimes of 1974 are not applicable to the crime of aggression. Moreover, the application of amnesty laws to those guilty of the crime of aggression is possible. Amnesties are usually declared in the final phases of a conflict or in its immediate aftermath. This is done in order to encourage disarmament and help restore peace. Often, it is the price paid for the surrender of the representatives of the old regime. It is not certain that international courts would ignore national amnesty laws (as they did in cases of war crimes). However, the Rome Statute allows for amnesty to be considered a factor that precludes prosecution in a given case. Article 31 (3) Rome Statute stipulates: ‘At trial, the Court may consider a ground for excluding criminal responsibility other than those referred to in paragraph 1 where such a ground is derived from applicable law […].’

14.4 Conclusions—Whether Prosecution of Crime of Aggression is in the Interest of Justice? Proceedings with regard to the crime of aggression always entail risks and difficulties. At the very minimum, a discussion over whether costs do not exceed benefits when it comes to the prosecution of aggressors seems necessary. In order to work

87

See ECtHR, Judgement of 1 October 1982, Application no. 8692/79 (Piersack v. Belgium), para 30; ECtHR, Judgement of 24 May 1989, Application no. 10486/83, (Hauschildt v. Denmark) para 46.

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effectively, the ICC must cooperate with States and various international organizations, especially the UN. It is in the interest of the entire international community to broaden the territorial jurisdiction of the ICC, even though this currently seems a challenging prospect, given the withdrawals of Burundi and the Philippines. Controversies around proceedings hamper the position of the Court. In the case of the crime of aggression, however, such controversies are inevitable. Penalization of aggression opens a debate about the conflict of values between peace and justice. Whether criminalization of aggression helps to achieve permanent peace or whether it tends to have the opposite effect is a difficult question to answer. It appears that, at the minimum, it may slow the pace towards peace. No satisfactory solution has thus far been found to the problems of cooperation between the SC and the International Criminal Court (as well as national courts). Ultimately, the SC is a political body; it is not obliged to apply any principles of criminal law. But its decisions and rulings can be challenged by an impartial court. On the one hand, the involvement of a biased, political, non-democratic body in criminal proceedings is legally guaranteed, and this undermines any proceedings concerning aggression. On the other hand, impartiality of the court is guaranteed by the explicit permission to reject the SC’s decision on classification of the situation, even though this erodes the credibility of the Council. Aggression always provokes much discussion and controversy. The Office of Prosecutor will be under great pressure to investigate every possible situation of aggression. Consequently, resources which could be used for prosecution of other crimes will be extremely limited. Prosecution of aggression is always linked with the question of immunity and privileges, as well as the related possible denials of surrender/extradition of the accused. In addition, it is impossible to satisfy all fair trial guarantees, as defendants will not be able to gain access to all documentation which could prove their innocence. In national courts, statutes of limitations may apply (as international covenants recognized such a possibility). So too may amnesties, which the ICC can also take into account. The risks and difficulties discussed here should be a warning for prosecutors before they even consider launching a case concerning the crime of aggression. In case of the ICC, the prosecutor—having in mind all the mentioned above threats and challenges—must always consider whether ‘A prosecution is not in the interests of justice, taking into account all the circumstances […]’ (Article 53 Rome Statute). The international community spent decades working towards the establishment of the International Criminal Court. Such proceedings potentially have the power to destroy it.

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Peirce R (2001) Which of the Preparatory Commission’s Latest Proposals for the Definition of the Crime of Aggression and the Exercise of Jurisdiction Should be Adopted into the Rome Statute of the International Criminal Court? Brigham Young University Journal of Public Law 15:281–299 Pella V (1964) La guerre-crime et les criminels de guerre. Réflexions sur la justice pénale internationale. Ce qu’elle est et ce qu’elle devrait être. Histoire et Société d’Aujourd’hui, Neuchâtel Pompe C (1953) Aggressive War. An International Crime. Martinus Nijhoff, The Hague Röling B, Cassese A (1993) The Tokyo Trial and Beyond. Reflections of a Peacemonger. Polity Press, Cambridge Röling B, Rüter C (1977) The Tokyo Judgment, The International Military Tribunal for the Far East (I.M.T.F.E.) 29 April 1946–12 November 1948. APA-University Press, Amsterdam Rosenfeld F (2012) Individual Civil Responsibility for the Crime of Aggression. Journal of International Criminal Justice 10:249–265 Ruys T (2018) Criminalizing Aggression. How the Future of the Law on the Use of Force Rests in the Hands of the ICC. European Journal of International Law 2:887–917 Sassòli M, Bouvier A (2003) Un droit dans la guerre? Comité international de la Croix Rouge, Geneva Schabas W (2004a) An Introduction to the International Criminal Court. Cambridge University Press, Cambridge Schabas W (2004b) United States Hostility to the International Criminal Court. It’s All about the Security Council. European Journal of International Law 15: 701–720 Schuster M (2003) The Rome Statute and the Crime of Aggression. A Gordian Knot in Search of a Sword. Criminal Law Forum 14:1–57 Sheffer D (2017) The Missing Pieces in Article 8 bis (Aggression) of the Rome Statute. Harvard International Law Journal 58:83–86 Solera O (2007) International Covenant on Civil and Political Rights Defining the Crime of Aggression. Cameron May, London Springrose L (1999) Aggression as a Core Crime in the Rome Statute Establishing an International Criminal Court. St Louis-Warsaw Transatlantic Law Journal 99:151–175 Stahn C (2010) ‘The ‘End’, the ‘Beginning of the End’ or the ‘End of the Beginning’? Introducing Debated and Voices on the Definition of ‘Aggression’. Leiden Journal of International Law 23:875–882 Stein M (2005) The Security Council, the International Criminal Court, and the Crime of Aggression. How Exclusive is the Security Council’s Power to Determine Aggression? Indiana International and Comparative Law Review 16:1–36 Tancredi A (2014) The Russian annexation of the Crimea: questions relating to the use of force. Questions of International Law I: 5–34 Tallgren I (2002) The Sensibility and Sense of International Criminal Law. European Journal of International Law 13:561–595 Taylor T (1970) Nuremberg and Vietnam. Quadrangle Books, Chicago Trahan J (2002) Defining ‘Aggression’. Why the Preparatory Commission for the International Criminal Court Has Faced such a Conundrum. Los Angeles International and Comparative Law Review 24:439–474 Van de Kieft M (2002) Uncertain Risk. The United States Military and the International Criminal Court. Cardozo Law Review 22:2325–2368 Van Schaack B (2012) Par in Parem Imperium Non Habet. Complementarity and the Crime of Aggression. Journal of International Criminal Justice 10:133–164 Wald P (2006) International Criminal Courts. A Stormy Adolescence. Virginia Journal of International Law 46:319–346 Weiss F (1982) Time Limits for the Prosecution of Crimes Against International Law. British Yearbook of International Law 53:163–195 Wierzbicki B (1982) O azylach i ekstradycji przest˛epców. Wydawnictwo Prawnicze, Warsaw

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Willis J (1976) Prologue to Nuremberg. The Punishment of War Criminals of the First World War. Duke University, Xerox University Microfilms Woetzel R (1960) The Nuremberg Trials in International Law. Stevens & Sons Limited, London Zimmermann A (2018) A Victory for International Rule of Law? Or: All’s Well that Ends Well? The 2017 ASP Decision to Amend the Kampala Amendment on the Crime of Aggression. Journal of International Criminal Justice 16:19–29 Zolo D (2004) Peace through Criminal Law. Journal of International Criminal Justice 2:727–734 Zwoli´nski A (2003) Wojna. Wybrane zagadnienia. Wydawnictwo WAM, Krakow

Patrycja Grzebyk is Assistant Professor of International Criminal Law, Human Rights Law and related topics at the Institute of International Relations of the Faculty of Political Science and International Studies at the University of Warsaw (Warsaw, Poland).

Appendix A

United Nations General Assembly Resolution 3314 (XXIX) of 14 December 1974

The General Assembly, Having considered the report of the Special Committee on the Question of Defining Aggression, established pursuant to its resolution 2330(XXII) of 18 December 1967, covering the work of its seventh session held from 11 March to 12 April 1974, including the draft Definition of Aggression adopted by the Special Committee by consensus and recommended for adoption by the General Assembly, Deeply, convinced that the adoption of the Definition of Aggression would contribute to the strengthening of international peace and security, 1. 2.

3.

4.

Approves the Definition of Aggression, the text of which is annexed to the present resolution; Expresses its appreciation to the Special Committee on the Question of Defining Aggression for its work which resulted in the elaboration of the Definition of Aggression; Calls upon all States to refrain from all acts of aggression and other uses of force contrary to the Charter of the United Nations and the Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States in accordance with the Charter of the United Nations; Calls the attention of the Security Council to the Definition of Aggression, as set out below, and recommends that it should, as appropriate, take account of that Definition as guidance in determination, in accordance with the Charter, the existence of an act of aggression.

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2319th plenary meeting 14 December 1974 Annex—Definition of Aggression

The General Assembly, Basing itself on the fact that one of the fundamental purposes of the United Nations is to maintain international peace and security and to take effective collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace, Recalling that the Security Council, in accordance with Article 39 of the Charter of the United Nations, shall determine the existence of any threat to the peace, breach of the peace or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security, Recalling also the duty of States under the Charter to settle their international disputes by peaceful means in order not to endanger international peace, security and justice, Bearing in mind that nothing in this Definition shall be interpreted as in any way affecting the scope of the provisions of the Charter with respect to the functions and powers of the organs of the United Nations, Considering also that, since aggression is the most serious and dangerous form of the illegal use of force, being fraught, in the conditions created by the existence of all types of weapons of mass destruction, with the possible threat of a world conflict and all its catastrophic consequences, aggression should be defined at the present stage, Reaffirming the duty of States not to use armed force to deprive peoples of their right to self-determination, freedom and independence, or to disrupt territorial Integrity, Reaffirming also that the territory of a State shall not be violated by being the object, even temporarily, of military occupation or of other measures of force taken by another State in contravention of the Charter, and that it shall not be the object of acquisition by another State resulting from such measures or the threat thereof, Reaffirming also the provisions of the Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States in accordance with the Charter of the United Nations, Convinced that the adoption of a definition of aggression ought to have the effect of deterring a potential aggressor, would simplify the determination of acts of aggression and the implementation of measures to suppress them and would also facilitate the protection of the rights and lawful interests of, and the rendering of assistance to, the victim,

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Believing that, although the question whether an act of aggression has been committed must be considered in the light of all the circumstances of each particular case, it is nevertheless desirable to formulate basic principles as guidance for such determination, Adopts the following Definition of Aggression: Article 1 Aggression is the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations, as set out in this Definition. Explanatory note: In this Definition the term ‘State’: (a) (b)

Is used without prejudice to questions of recognition or to whether a State is a member of the United Nations; Includes the concept of a ‘group of States’ where appropriate.

Article 2 The First use of armed force by a State in contravention of the Charter shall constitute prima facie evidence of an act of aggression although the Security Council may, in conformity with the Charter, conclude that a determination that an act of aggression has been committed would not be justified in the light of other relevant circumstances, including the fact that the acts concerned or their consequences are not of sufficient gravity. Article 3 Any of the following acts, regardless of a declaration of war, shall, subject to and in accordance with the provisions of Article 2, qualify as an act of aggression: (a)

(b) (c) (d)

The invasion or attack by the armed forces of a State of the territory of another State, or any military occupation, however temporary, resulting from such invasion or attack, or any annexation by the use of force of the territory of another State or part thereof, Bombardment by the armed forces of a State against the territory of another State or the use of any weapons by a State against the territory of another State; The blockade of the ports or coasts of a State by the armed forces of another State; An attack by the armed forces of a State on the land, sea or air forces, or marine and air fleets of another State;

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(e)

The use of armed forces of one State which are within the territory of another State with the agreement of the receiving State, in contravention of the conditions provided for in the agreement or any extension of their presence in such territory beyond the termination of the agreement; The action of a State in allowing its temtory, which it has placed at the disposal of another State, to be used by that other State for perpetrating an act of aggression against a third State; The sending by or on behalf of a State of armed bands, groups, irregulars or mercenaries, which carry out acts of armed force against another State of such gravity as to amount to the acts listed above, or its substantial involvement therein.

(f)

(g)

Article 4 The acts enumerated above are not exhaustive and the Security Council may determine that other acts constitute aggression under the provisions of the Charter. Article 5 1.

No consideration of whatever nature, whether political, economic, military or otherwise, may serve as a justification for aggression.

2.

A war of aggression is a crime against international peace. Aggression gives rise to international responsibility.

3.

No territorial acquisition or special advantage resulting from aggression is or shall be recognized as lawful.

Article 6 Nothing in this Definition shall be construed as in any way enlarging or diminishing the scope of the Charter, including its provisions concerning cases in which the use of force is lawful. Article 7 Nothing in this Definition, and in particular Article 3, could in any way prejudice the right to self-determination, freedom and independence, as derived from the Charter, of peoples forcibly deprived of that right and referred to in the Declaration on Principles of International Law concerning Friendly Relations and Cooperation among

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States in accordance with the Charter of the United Nations, particularly peoples under colonial and racist regimes or other forms of alien domination: nor the right of these peoples to struggle to that end and to seek and receive support, in accordance with the principles of the Charter and in conformity with the above-mentioned Declaration. Article 8 In their interpretation and application the above provisions are interrelated and each provision should be construed in the context of the other provisions.

Appendix B

ICC Resolution RC/Res.6 of 1 June 2010—Crime of Aggression

The Review Conference, Recalling para 1 of Article 12 of the Rome Statute, Recalling para 2 of Article 5 of the Rome Statute, Recalling also para 7 of resolution F, adopted by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court on 17 July 1998, Recalling further resolution ICC-ASP/1/Res.1 on the continuity of work in respect of the crime of aggression, and expressing its appreciation to the Special Working Group on the Crime of Aggression for having elaborated proposals on a provision on the crime of aggression, Taking note of resolution ICC-ASP/8/Res.6, by which the Assembly of States Parties forwarded proposals on a provision on the crime of aggression to the Review Conference for its consideration, Resolved to activate the Court’s jurisdiction over the crime of aggression as early as possible, 1.

2. 3. 4.

Decides to adopt, in accordance with Article 5, para 2, of the Rome Statute of the International Criminal Court (hereinafter: “the Statute”) the amendments to the Statute contained in annex I of the present resolution, which are subject to ratification or acceptance and shall enter into force in accordance with Article 121, para 5; and notes that any State Party may lodge a declaration referred to in Article 15bis prior to ratification or acceptance; Also decides to adopt the amendments to the Elements of Crimes contained in annex II of the present resolution; Also decides to adopt the understandings regarding the interpretation of the abovementioned amendments contained in annex III of the present resolution; Further decides to review the amendments on the crime of aggression seven years after the beginning of the Court’s exercise of jurisdiction;

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Calls upon all States Parties to ratify or accept the amendments contained in annex I.

Annex I—Amendments to the Rome Statute of the International Criminal Court on the crime of aggression 1.

Article 5, para 2, of the Statute is deleted.

2.

The following text is inserted after Article 8 of the Statute: Article 8 bis Crime of aggression 1.

For the purpose of this Statute, “crime of aggression” means the planning, preparation, initiation or execution, by a person in a position effectively to exercise control over or to direct the political or military action of a State, of an act of aggression which, by its character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations.

2.

For the purpose of para 1, “act of aggression” means the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations. Any of the following acts, regardless of a declaration of war, shall, in accordance with United Nations General Assembly resolution 3314 (XXIX) of 14 December 1974, qualify as an act of aggression: (a)

The invasion or attack by the armed forces of a State of the territory of another State, or any military occupation, however temporary, resulting from such invasion or attack, or any annexation by the use of force of the territory of another State or part thereof;

(b)

Bombardment by the armed forces of a State against the territory of another State or the use of any weapons by a State against the territory of another State;

(c)

The blockade of the ports or coasts of a State by the armed forces of another State;

(d)

An attack by the armed forces of a State on the land, sea or air forces, or marine and air fleets of another State;

(e)

The use of armed forces of one State which are within the territory of another State with the agreement of the receiving State, in contravention of the conditions provided for in the agreement or any extension of their presence in such territory beyond the termination of the agreement;

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(f)

The action of a State in allowing its territory, which it has placed at the disposal of another State, to be used by that other State for perpetrating an act of aggression against a third State;

(g)

The sending by or on behalf of a State of armed bands, groups, irregulars or mercenaries, which carry out acts of armed force against another State of such gravity as to amount to the acts listed above, or its substantial involvement therein.

The following text is inserted after Article 15 of the Statute: Article 15bis Exercise of jurisdiction over the crime of aggression (State referral, proprio motu) 1.

The Court may exercise jurisdiction over the crime of aggression in accordance with Article 13, paras (a) and (c), subject to the provisions of this article.

2.

The Court may exercise jurisdiction only with respect to crimes of aggression committed one year after the ratification or acceptance of the amendments by thirty States Parties.

3.

The Court shall exercise jurisdiction over the crime of aggression in accordance with this article, subject to a decision to be taken after 1 January 2017 by the same majority of States Parties as is required for the adoption of an amendment to the Statute.

4.

The Court may, in accordance with Article 12, exercise jurisdiction over a crime of aggression, arising from an act of aggression committed by a State Party, unless that State Party has previously declared that it does not accept such jurisdiction by lodging a declaration with the Registrar. The withdrawal of such a declaration may be effected at any time and shall be considered by the State Party within three years.

5.

In respect of a State that is not a party to this Statute, the Court shall not exercise its jurisdiction over the crime of aggression when committed by that State’s nationals or on its territory.

6.

Where the Prosecutor concludes that there is a reasonable basis to proceed with an investigation in respect of a crime of aggression, he or she shall first ascertain whether the Security Council has made a determination of an act of aggression committed by the State concerned. The Prosecutor shall notify the Secretary-General of the United Nations of the situation before the Court, including any relevant information and documents.

7.

Where the Security Council has made such a determination, the Prosecutor may proceed with the investigation in respect of a crime of aggression.

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8.

Where no such determination is made within six months after the date of notification, the Prosecutor may proceed with the investigation in respect of a crime of aggression, provided that the Pre-Trial Division has authorized the commencement of the investigation in respect of a crime of aggression in accordance with the procedure contained in Article 15, and the Security Council has not decided otherwise in accordance with Article 16.

9.

A determination of an act of aggression by an organ outside the Court shall be without prejudice to the Court’s own findings under this Statute.

10.

This article is without prejudice to the provisions relating to the exercise of jurisdiction with respect to other crimes referred to in Article 5.

The following text is inserted after Article 15bis of the Statute: Article 15ter Exercise of jurisdiction over the crime of aggression (Security Council referral)

5.

1.

The Court may exercise jurisdiction over the crime of aggression in accordance with Article 13, para (b), subject to the provisions of this article.

2.

The Court may exercise jurisdiction only with respect to crimes of aggression committed one year after the ratification or acceptance of the amendments by thirty States Parties.

3.

The Court shall exercise jurisdiction over the crime of aggression in accordance with this article, subject to a decision to be taken after 1 January 2017 by the same majority of States Parties as is required for the adoption of an amendment to the Statute.

4.

A determination of an act of aggression by an organ outside the Court shall be without prejudice to the Court’s own findings under this Statute.

5.

This article is without prejudice to the provisions relating to the exercise of jurisdiction with respect to other crimes referred to in Article 5.

The following text is inserted after Article 25, para 3, of the Statute: 3 bis. In respect of the crime of aggression, the provisions of this article shall apply only to persons in a position effectively to exercise control over or to direct the political or military action of a State.

6.

The first sentence of Article 9, para 1, of the Statute is replaced by the following sentence: 1.

Elements of Crimes shall assist the Court in the interpretation and application of Articles 6, 7, 8 and 8 bis.

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301

The chapeau of Article 20, para 3, of the Statute is replaced by the following paragraph; the rest of the paragraph remains unchanged: 3.

No person who has been tried by another court for conduct also proscribed under Articles 6, 7, 8 or 8 bis shall be tried by the Court with respect to the same conduct unless the proceedings in the other court:

Appendix C

ICC Resolution ICC-ASP/16/Res.5 of 14 December 2017: Activation of the Jurisdiction of the Court over the Crime of Aggression

The Assembly of States Parties, Recognizing the historic significance of the consensual decision at the Kampala Review Conference to adopt the amendments to the Rome Statute on the crime of aggression, and in this regard recalling resolution RC/Res.6, Reaffirming the purposes and principles of the Charter of the United Nations, Recalling its resolve to activate the Court’s jurisdiction over the crime of aggression as early as possible, subject to a decision according to paras 3 of Article 15bis and Article 15ter, Noting with appreciation the Report on the facilitation on the activation of the jurisdiction of the International Criminal Court over the crime of aggression1, which summarizes the views of States Parties, Recalling para 4 of Article 15bis and para 5 of Article 121, Recalling also that in para 1 of RC/Res.6 the Review Conference decided to adopt, in accordance with para 2 of Article 5 the amendments regarding the crime of aggression, which are subject to ratification or acceptance and shall enter into force in accordance with para 5 of Article 121; and noted that any State Party may lodge a declaration referred to in Article 15bis prior to ratification or acceptance of the amendments, 1. 2.

Decides to activate the Court’s jurisdiction over the crime of aggression as of 17 July 2018; Confirms that, in accordance with the Rome Statute, the amendments to the Statute regarding the crime of aggression adopted at the Kampala Review Conference enter into force for those States Parties which have accepted the amendments one year after the deposit of their instruments of ratification or acceptance and that in the case of a State referral or propio motu investigation the Court shall not exercise its jurisdiction regarding a crime of aggression when

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committed by a national or on the territory of a State Party that has not ratified or accepted these amendments; Reaffirms para 1 of Article 40 and para 1 of Article 119 of the Rome Statute in relation to the judicial independence of the judges of the Court; Renews its call upon all States Parties which have not yet done so to ratify or accept the amendments to the Rome Statute on the crime of aggression.