Why have we criminalized aggressive war?

• Author: Dannenbaum, Tom

ARTICLE CONTENTS INTRODUCTION I. THE NORMATIVE UNDERPINNINGS OF A CRIME II. THE ORTHODOX NORMATIVE ACCOUNT OF THE CRIME OF AGGRESSION A. The Walzerian Account: The State as Victim and Perpetrator in the Law B. Criticizing the Criminalization of Aggression on Walzerian Terms III. WHY AGGRESSIVE WAR IS AN INTERNATIONAL CRIME A. Sovereignty Cannot Explain the Just Ad Bellum or the Criminalization of Aggression B. The Human Core of Aggression C. The Humanization of International Law D. Revisiting the History of the Move to a Restrictive Just Ad Bellum E. Aggression and the Human Dimension in the Courtroom E The Wrong of Aggressive War IV. TWO PROBLEM CASES: BLOODLESS AGGRESSION AND HUMANITARIAN INTERVENTION A. Bloodless Invasion B. Humanitarian Intervention V. WHY IT MATTERS THAT AGGRESSION IS A CRIME OF UNJUSTIFIED KILLING A. The Utility of Normative Clarity in Resolving Ambiguous Cases B. The Right To Disobey C. Reparations and Participation at the ICC CONCLUSION INTRODUCTION

Nearly seventy years have passed since an international tribunal has convicted a defendant of the crime of aggressive war. Nonetheless, beginning this year, aggression is likely to join the list of violations over which the International Criminal Court (ICC) has jurisdiction. (1) To understand the implications of this development, and to grasp the controversies surrounding it, we need to be clear about what is criminally wrongful about aggressive war. This Article investigates that question.

Like most elements of international criminal law, aggression finds its foundation in the statutes and jurisprudence of the post-World War II tribunals at Nuremberg and Tokyo. (2) However, it is an anomalous crime in several respects. The statutes of every post-Cold War international and hybrid criminal tribunal other than the ICC have ignored aggression, even as the General Assembly has repeatedly endorsed its status as an international crime. (3) This marginalization stands in stark contrast to the central focus placed on war crimes, crimes against humanity, and genocide in those tribunals. Even aggression's initial codification in the Rome Statute in 1998 was extraordinary. Despite being included as one of the four categories of crime, aggression was a placeholder bereft of content; the Statute required a subsequent definitional amendment before it would come into effect. (4)

The scope of criminal responsibility for aggression is also unique. At Nuremberg and Tokyo, the tribunals held that soldierly obedience was 110 excuse for participation in war crimes and crimes against humanity. (5) In the case of aggression, however, they restricted criminal liability exclusively to members of the German and Japanese leadership cabals. (6) The ICC amendment makes this leadership element explicit and buttresses it with a provision specific to aggression that narrows significantly the complicity doctrines on which almost every post-Cold War international conviction has hinged.

Finally, and most significantly, aggression is widely understood to be rooted in a moral wrong "committed against a state" rather than in wrongs "against individuals." (8) In an open letter urging States Parties not to proceed with the incorporation of aggression, a coalition of pro-ICC human rights activists stressed precisely this normative contrast between the state-focused crime of aggression and the human-focused crimes of genocide, war crimes, and crimes against humanity. (9) The distinction is arguably implicit in every relevant international criminal law provision, from Nuremberg and Tokyo to the ICC amendment. (10)

The most influential moral accounts of the crime of aggression also understand the wrong of aggression in these terms. For Michael Walzer and others defending its criminal wrongfulness, aggression is fundamentally a crime against the political collective, rooted in a "domestic analogy" in which states "possess rights more or less as individuals do." (11) Critics of the criminalization of aggression adopt the same understanding of the internal normative posture of the law, but object to its classification alongside the other international crimes precisely because it privileges sovereignty over humanity. (12) For them, this feature of aggression contradicts what they take to be the defining moral thrust of international criminal law. Walzer and these critics disagree on whether the sovereignty violation that occurs in an aggressive war is a moral wrong worthy of criminalization. However, from the internal legal point of view, they agree that the crime as currently constituted is rooted in that claimed wrong.

Other international crimes, like genocide, also involve wrongs against a collective entity, but what is special about the putative wrong underpinning the crime of aggression on both of these competing views is that it occurs exclusively on the macro level. No one would deny that the individual men and boys killed at Srebrenica were the victims of genocide, even though it was also a crime against Bosnian Muslims as a group. (13) In contrast, individual soldiers killed while fighting their states' lawful wars against aggression are generally not thought to be victims of a crime. (14) Or so the traditional normative account goes.

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

To be clear, the dominant view, shared by both defenders and critics of the criminalization of aggression, is correct in one respect: a war of aggression is an interstate breach and, typically, a violation of sovereignty. In other words, whether a war is criminal depends in large part on whether that interstate breach occurred. However, imputing personal criminal responsibility for an interstate breach is anomalous; that violation is not why aggressive war is criminal. The core moral problem with aggressive war is neither that it infringes sovereignty, nor even the extent to which it infringes sovereignty. Indeed, in at least one circumstance, it need not infringe sovereignty at all. (15) Rather, the core moral issue is that aggressive war entails killing and maiming for reasons that are now considered unacceptable: reasons other than the protection and security of human life.

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

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

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

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

This Article provides the normative foundation for those doctrinal and operational implications. Part I explains what it is to offer a normative account of a law and why it is appropriate here. Part II identifies the dominant normative account of aggression, as understood by both advocates and critics of its criminalization. On this view, the core wrong of aggressive war is a wrong against the victim state and the political collective that it represents. Part III debunks that account, arguing that five aspects of aggression and its legal context show that its criminalization is primarily about wrongful killing: (1) sovereignty is indeterminate as a...