International criminal law: new voices.

Position:Proceedings of the 2015 Annual Meeting of the American Society of International Law: Adapting to a Rapidly Changing World - Discussion
 
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This panel was convened at 4:30 p.m., Thursday, April 9, by its moderator David M. Crane of Syracuse University School of Law, former prosecutor for the Special Court for Sierra Leone, who introduced the panelists: Tom Dannenbaum of University College London; Jonathan Hafetz of Seton Hall University and Princeton University; and Matiangai V.S. Sirleaf of the University of Baltimore Law School.

AN AGE OF EXTREMES

By David M. Crane *

The "New Voices" panel addressed critical issue related to the place of the rule of law in an age of extremes. At no time has the rule of law been more challenged than now. Combatants in dirty little wars pay little heed to international humanitarian law principles. At no time has the unlawful combatant been more pronounced. Yet this is where we find the present condition.

Additionally, basic principles of warfare have shifted from industrialized conflict of standing armies to rogue groups moving about a region of the world ignoring boundaries and attacking at a whim for no apparent reason other than to cause havoc. The system around international governance in Westphalia established centuries ago never contemplated this state of affairs. In parts of the world the conflicts have a vague look of tenth and eleventh century warfare.

In this age of extremes, we are now fighting what I call kaleidoscopic warfare. The combatants and other actors are fighting each other one day and then an event happens which changes the entire paradigm and possible solutions. The international community cannot plan for this type of warfare nor keep up with a dynamic that can be changing hourly, weekly, and monthly. The effect is a conflict with no end-state, geopolitically a situation with no solution. Can the international community live with an "open sore" absent extreme radical solutions unlike the Band-Aid approach that is currently being used? Our system of rule of law to promote international peace and security is facing the very real possibility that the United Nations cannot maintain international peace and security given the current state of the world.

The "givens" are that the United Nations Security Council is failing in its mandate, locked in a political stalemate reminiscent of the Cold War. Additionally the role of Europe as a united body and former individual power centers like the United Kingdom and France, as well as Germany, are no longer relevant. They simply do not have the political, military, or practical means of affecting international outcomes any longer. For the first time in a thousand years, Europe no longer matters, but for its possible economic influence. This is extraordinary and far-reaching; the result is an uncertain future, a future we can no longer control or, more of concern, predict. In the age of extremes, we can only react to unforeseen events that evolve into kaleidoscopic warfare where everything is in flux, changing in ways never planned for or contemplated.

The New Voices panel that met at the 109th Meeting of the American Society of International Law focused on themes that reflect my opening comments of a challenged rule of law * under the current United Nations framework. The panelists were: Professors Tom Dannenbaum, University College, London; Jonathan Hafez, Seton Hall University and Princeton University; and Matiangai V.S. Sirleaf, University of Baltimore School of Law. Their important and insightful remarks regarding the criminalization of aggressive war and why that matters; whether the crime of terrorism should be raised to the level of an international crime; and whether the rise of regional courts--the African Court of Justice and Human Rights--signal a shift away from the Rome paradigm that is the International Criminal Court.

The panel concluded with remarks by Ben Ferencz, a former Nuremberg prosecutor, who called for facing down the beast of impunity wherever it is found and outlawing aggressive warfare. He reflected that only through the rule of law can mankind hope to move forward into the future. His words echoed about the room, giving pause to reflect.

The papers that follow are important, evocative, and necessary to assure that a centered and considered approach to the many rule of law challenges in this age of extremes can be met using traditional as well as new approaches to international peace and security. As Robert H. Jackson stated at Nuremberg seventy years ago this year: "If we can cultivate in the world the idea that aggressive war-making is the way to the prisoner's dock rather than the way to honors, we will have accomplished something toward making the peace more secure." Opening Address to the International Military Tribunal at the Nuremberg Trials (November 10, 1945).

* Professor at Syracuse University College of Law and the former Chief Prosecutor of the international war crimes tribunal in West Africa called the Special Court for Sierra Leone from 2002-05.

WHY WE HAVE CRIMINALIZED AGGRESSIVE WAR AND WHY IT MATTERS

By Tom Dannenbaum *

I am interested here in exploring two questions. First, why have we criminalized aggression? And second, why does the answer to that question matter? Motivating these questions is the observation that aggression seems to be the odd crime out in international law.

The crime of aggression is peculiar not just due to its relative dormancy since Nuremberg and its limited scope of liability and jurisdiction in the pending amendment to the statute of the International Criminal Court (ICC), but also in a deeper normative sense. Whereas genocide, crimes against humanity, and war crimes criminalize the gravest wrongs against human persons, aggression seems to criminalize a wrong against states. Indeed, that is how both many defenders of the criminalization of aggression and opponents of that legal move understand the moral underpinnings of the crime.

In the former camp, Michael Walzer argues for what he terms a "communal right" vested in the state on behalf of the political collective not to be subject to certain forms of external interference. (1) For him, the criminalization of aggression captures the grave wrongfulness of infringing that collective, national, moral right.

Many--like David Luban--accept Walzer's as the correct moral account of the crime. In other words, they agree that, from the internal point of view, the crime of aggression condemns a wrong against the "moral rights" of states or political collectives. (2) But Luban, like other critics, argues that this is precisely why we should oppose that criminalization. As a moral matter, states just do not have the rights the law ascribes to them here. Therefore, the putative wrong underpinning the crime is not morally a wrong at all.

I think both sides in this debate start from the wrong premise. To be clear, I agree with both sides that criminalizing an action, especially in international law, entails the internal normative claim that it contravenes basic moral values, and is worthy of condemnation. I am also committed to the view that we can accurately identify the moral underpinnings of a legal rule. In my view, the basic test is to ask what scheme of right and wrong best explains the contours of the rule in a way that coheres with the regime of which it is part.

Where I disagree is that the criminalization of aggression is properly understood as expressing a morality of states' rights. Clearly, a violation of sovereignty is often important to whether a war is criminal, but it is not why aggressive war is an international crime. It is not the wrong that the law condemns and punishes. That wrong is instead the wrong of massive killing (or threatened killing) without the justification of responding to wrongful killing or the immediate threat thereof. Call this the "unjustified killing account."

For five reasons, the unjustified killing account better captures the crime of aggression than does the "statist account," wherein the wrong at the core of the crime is against the victim state, or the political community that it represents. First, "states' rights" are indeterminate in making sense of jus ad bellum. Prohibiting the use of aggressive force restricted severely the state's sovereign capacity to vindicate its legal rights unilaterally. In other words, as much as criminalizing aggression protects states from the harm of armed attack, it also restricts states from using force to protect any of their other rights, including even rights of political independence and territorial integrity.

Second, what distinguishes aggression from any other sovereignty violation--what makes it criminal, when no other sovereignty violation is criminal--is not that it involves an especially egregious violation of territorial integrity or political independence, but that it involves widespread killing without justification. Non-violent, but effective breaches of territorial integrity or political independence, like manipulating foreign elections, are not international crimes. Conversely, a straightforward reading of the ICC provision criminalizing aggression indicates that waging war against a humanitarian intervention authorized by the United Nations Security Council--and thus using force in a way "inconsistent with the Charter of the United Nations"--is criminal despite involving no harm to sovereignty. (3) And, notably, internal forms of massive killing that do not respond to the threat or infliction of the same are typically criminal in some other form. In each of these respects, we cannot make sense of why aggression is a crime with reference to the wrong of infringing even the most important states' rights. We can make sense of it with reference to the wrong of mass killing without the justification of responding to the same.

The third of the five reasons to prefer the unjustified killing account is that it makes sense of aggression's standing alongside genocide, war crimes, and crimes against humanity as an essential aspect of what Theodor...

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