Applying the crime of aggression to the First World War: legal liability vs. moral responsibility.

Author:Nichols, Zachary D.
  1. Introduction II. The Crime of Aggression III. The First World War: Facts and History IV. Legal Liability A. The First Element: Act of Aggression B. The Second Element: Threshold Requirements C. Scope of Applicability: Can a Single War Contain Multiple Crimes of Aggression D. Determining Individual Criminal Liability E. Defenses F. Conclusions on Legal Liability V. Moral Responsibility For The First World War A. The Austro-Hungarian Empire B. France C. Germany D. Russia E. Serbia F. United Kingdom G. Concluding Remarks on Moral Responsibility VI. The Relationship Between Moral Responsibility and Legal Liability VII. Solutions A. Eliminating the Crime of Aggression from International Criminal Law B. Maintaining the Status Quo C. Enforcing the International Legal Prohibition of "Threats of Force": A New International Crime of "Instigation" D. Conspiracy to Commit a Crime of Aggression E. Consideration of Mitigating Factors in Aggression Prosecutions F. Considering All Actors Involved in the Outbreak of a War Criminally Liable: A Several Criminal Liability Approach VIII. Conclusion A. The Shortcomings of the Crime of Aggression in Contemporary Warfare B. Concluding Remarks I. INTRODUCTION

    Statesmen, social scientists, and historians have argued over where to assign blame for the First World War (WWI) for the past century. Their conclusions on just who should be considered responsible for one of the deadliest conflicts in human history--which states and which individuals--have varied over the years, across disciplines, eras, and locations. (1) Curiously, lawyers have largely steered clear of this discussion, despite the fact that criminal law is specifically designed to determine who should be held responsible when something reprehendsible happens, and international criminal law already has an approach to answer the question of which individuals are liable for starting an armed international conflict, the "crime of aggression." (2) This crime is relatively new, and in its present form entirely untested. (3) Therefore, in an effort to both test the effectiveness of the current definition of the crime of aggression, and to see how the legal results compare to the determinations made by the various other disciplines, this Article will apply the criminal statute outlawing aggression to the facts of the First World War.

    In undertaking this project, this Article will attempt to answer two primary questions: first, under the crime of aggression, who is culpable for starting the First World War? And second, does this legal notion of criminal liability coincide with our contemporary conceptions of justice and moral responsibility? This analysis will require consideration of a third (unexpected) question: whether a single war can maintain multiple crimes of aggression. The answer for the first question will be satisfying to many, but the answer to the second question may not. Although the law would hold both Germany and Austria-Hungary responsible (demonstrating that a single war can contain multiple crimes of aggression), a longer list of states deserve to be held morally responsible. After determining that there is a substantial gap between those morally responsible for the First World War and those whom the crime of aggression could find criminally liable, the Article will propose a series of solutions to the potential over and under inclusivity of the crime of aggression under international law.

    In Part II, this Article will begin by examining the evolution of the crime of aggression, along with its present definition in the International Criminal Court (ICC). Part III considers the facts and history of WWI, while Section IV will apply the law of the crime of aggression to the conflict. Part V discusses the broader moral responsibility for starting WWI, separate from any established law. Part VI will contrast the concepts of legal liability and moral responsibility, and Part VII presents a series of proposals designed to rectify that divide. Part VIII will conclude the article by demonstrating that the same inconsistency between legal liability and morality responsibility present in the case of WWI continues to exist in more contemporary conflicts, namely the Second Congo War.


    Individual criminal liability and the crime of aggression are both relatively recent revelations in international criminal law. The first determinations of individual criminal liability based on the actions of a state initiating aggressive war came in the aftermath of the Second World War. (4) The International Military Tribunals in Nuremberg and Tokyo were convened immediately following the conclusion of each theater of the war, and convicted a number of individuals from the leadership of both Nazi Germany and the Empire of Japan for "crimes against peace," the era's name for the contemporary crime of aggression. (5) The charges for crimes against peace at the two International Military Tribunals included both conspiracy to wage an aggressive war, and waging an aggressive war. (6) These tribunals were also the last time the crime was prosecuted under international law.

    The ICC agreed on a definition of aggression in Kampala, Uganda in 2010. (7) The agreement was the result of more than fifty years of work. (8) Although the definition is not yet fully in place for use by the Court, (9) it is the most fully developed definition produced to date, and thus the best available definition for application to the events of WWI. It is also the most likely definition to be used at any point in the near future.

    The amended Rome Statute of the International Criminal Court (Rome Statute) provides the definition for the crime of aggression in Article 8 bis (1). The article limits liability for aggression to persons "in a position effectively to exercise control over or to direct the political or military action of a state." (10) The same article defines the "crime aggression" as the "planning, preparation, initiation or execution ... of an act of aggression which, by its character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations." (11) Article 8 bis (2) proceeds to define an "act of aggression" as "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" regardless of any declaration of war. (12) Finally, the article describes a series of seven acts that would qualify as aggression: invasion, bombardment, blockade, the attack of sea or air forces, the use of forces legally located within another state for purposes outside of those provided in the agreement allowing their presence, allowing territory to be used for aggressive purposes by a third state, and using irregular forces against another state. (13)

    This definition presents a few points worth reiterating. First, not all "acts of aggression" amount to "crimes of aggression." In order for an "act of aggression" to breach the "crime of aggression" threshold, it must be constitute a manifest (14) violation of the U.N. Charter in terms of its character, gravity, and scale. (15) Second, the list of individuals who could potentially be held liable for aggression should be quite small in most cases, restricted to only those "in a position effectively to exercise control over or to direct the political or military action of a state." (16) Thus, common enlisted soldiers and even officers operating at a level below a level of major policy and grand tactical formation cannot be found guilty of the crime in the ICC, even if they actively participated in the act or crime of aggression in question. (17)

    Based on these factors, a short three-part test can be put forward to determine whether an individual can be held liable for the crime of aggression: (1) did an act of aggression occur; (2) did that act of aggression constitute a crime of aggression; and (3) did the individual in question exercise the level of authority necessary to be held liable? The list of examples of acts of aggression (18) should be consulted in step one. Step two will analyze whether the "character, gravity, and scale" of the act constitute a "manifest violation" of the U.N. Charter. (19) The final step analyzes whether the individual in question was "in a position effectively to exercise control over or to direct the political or military action of a state." (20) At first blush this all seems relatively clear, (21) and even somewhat intuitive--if an act of aggression occurred, and that act was significant enough to warrant major international attention, the individuals responsible for planning and ordering it will be held liable. Understanding that the crime of aggression requires an act of aggression, the question to keep in mind during the next section is what would, and what should happen to those individuals who orchestrate a war, while also ensuring that it will occur without their side actually carrying out an aggressive attack?


    The buildup to the First World War, and even its early days, were extremely complex. Because of this complexity, it is essential to lay out and clarify all of the key facts before moving on. Without this background clear and fresh in mind, it will not be possible to accurately understand the context for the breakout of the war. This background also illustrates why a complex definition of aggression is necessary, and why opinions on who is to blame differ so greatly. (22) Without this thorough understanding of the outbreak of the conflict, it will not be possible to fairly determine who is legally liable and morally responsible.

    School children learn that WWI began when Gavrilo Princip assassinated Archduke Franz Ferdinand of the Austrian-Hungarian Empire in Sarajevo on June 28, 2014. (23) Princip was a Bosnian Serb and an associate of the Black Hand...

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