Aggression, humanitarian intervention, and terrorism.

AuthorMay, Larry
  1. JUS AD BELLUM PRINCIPLES: HISTORICAL ROOTS OF THE IDEA OF STATE AGGRESSION

    If there are going to be trials for those who initiate or perpetrate an aggressive war, what constitutes an aggressive war, or an act of State aggression, needs to be defined. Indeed, if individuals are going to be prosecuted, and their liberty put in serious jeopardy, for allegedly committing this crime, it is incumbent on the international community to have a very clear understanding of what State aggression is. Philosophers, diplomats, and lawyers have debated this topic for hundreds of years and have not all agreed. This article discusses several ideas about the definition of aggression in which there might be broad consensus, even if much of the terrain of aggression remains mired in political and ideological squabbles.

    A quite useful starting point for understanding State aggression is the relatively modern-sounding translation of Thomas More's work. Here is part of More's discussion of Just Wars in Book II, "Military Affairs," of his famous work, Utopia:

    Utopians 'go to war only for good reasons: [1] to protect their own land, [2] to drive invading armies from the territories of their friends, or [3] to liberate an oppressed people in the name of humanity, from tyranny and servitude.' (1) One can begin to understand what aggressive war is by first thinking about what it is not. And I would think that today many would agree that wars waged for the three reasons given by More would not be considered aggressive wars. Indeed, it is interesting that, as far back as Augustine, theorists held that war was most surely justified when undertaken on behalf of those who were innocently attacked, which included wars waged in defense of others as well as self-defensive wars. (2)

    One could challenge this beginning idea, taken from Thomas More, by arguing that protecting State territory is not sufficient to warrant the taking of human life that is nearly inevitably a part of war. Invasion of territory does not necessarily mean that innocent people are attacked. Indeed, territory can be uninhabited, for instance, as in the case of certain small islands. If one State claims these islands and another State captures them, is this enough to justify initiating a war where it is highly likely that people, both combatants and noncombatants, will be killed? It can also be true that some islands claimed as part of a State's territory provide no particular military or economic advantages for the State that claims them. If these islands are captured by another State, it would be unclear that the interests of the State, such as its ability to defend the populated mainland, or to have economic self-sufficiency for the populated mainland, would also be adversely affected. So, it is not initially clear why simple invasion of one State's territory by another State is aggression that warrants prosecution.

    It is possible to countenance a wider scope for what counts as State aggression when one eliminates State aggression as one of the elements of the crime of aggression. (3) In deciding whether to condemn a State, rather than prosecute one of its leaders, one might allow for a simple "violation of territorial integrity" criterion to suffice, especially since there is a long history of using this criterion in international law. (4) But, more than this should be needed for demonstrating State aggression as the first hurdle in establishing the elements of the crime of aggression. And this is because when we put an individual's liberty in jeopardy for a trial for such a crime, we need to make sure that the individual has indeed done something of commensurate harm to the loss of liberty he or she is now forced to risk in the trial. (5)

    Self-defense should also not be identified with merely repelling invasion. The contrary position is supported by an analogy between States and individual human persons. The self of the human person is the person's body and the corresponding self of the State is its territory. If a person's body is attacked, this is the kind of aggression that will trigger a criminal trial. If a State's territory is attacked, this is also supposed to be the kind of aggression that could trigger an international criminal trial. But there is a significant disanalogy. If a physical attack occurs on a person's body there are serious repercussions for the rest of the body--any attack will cause bruising or bleeding that will adversely affect the functions or stability of the rest of the body. But as indicated above, States can have as part of their territories land that is not contiguous with the mainland, or in any event land that when attacked will not necessarily affect the rest of the State's territory or 'body.'

    One could object to this proposal that a State is more than a mere population within a territory. A State is also a territorial jurisdiction in which it has a monopoly of enforcement power. Insofar as a State's enforcement jurisdiction is limited by an occupation of part of its territory, the State becomes less of a State than it was before. Indeed, the traditional way of understanding aggression was to see it as merely involving a violation of territorial integrity or political sovereignty, and this characterization survived in the drafting of the United Nations Charter. (6) This "Statist" way to understand aggression has been dominant for a very long time, but it is wrong-headed.

    One could accept the traditional way of understanding aggression if one were interested in a merely stipulative legal meaning of the term. But if one is interested in a definition of aggression that was normatively persuasive, more is needed than merely a reference to violating territorial integrity or political sovereignty. At very least, a normative defense of territory or sovereignty would be needed. And in addition, one would have to give some normative rationale for thinking that continuing as a State is indeed always worthwhile. Defining "aggression" this way cannot be done in general, but only by reference to a State's protection of human rights. (7)

    Another objection could be made on similar grounds--namely, to the idea that aggression can involve the repelling of a State that has invaded the territory of a friendly State. Again, since the friendly State's territory is not analogous to a human person's body, it is not clear why invasion per se should count as aggression that warrants retaliation and that is not itself considered aggression. There are also serious objections to the third rationale for aggression--adapted from Thomas More--namely, that it is not aggression to liberate an oppressed people in the name of humanity. Humanitarian wars pose an especially difficult problem for an account like More's. The general presumption in favor of State's not being attacked if they have not attacked other States is in need of a normative rationale, which is generally lacking in the literature on aggression.

    There is an initial way to get out of some of these traditional problems and still save the main idea behind More's account. My initial proposal is that defense of self or others that aims to protect the core of the State, that is its human population and essential economic and political institutions that protect this population, should not count as aggression. In addition, military action that involves self-defense of a State's core population and the institutions that support that population should also not constitute aggression. (8) Whenever another State acts in a way that threatens a given population or its supporting institutions, then rising to defend that State from such assaults is not itself a form of aggression. And the main rationale here is drawn in terms of the value of, and need for protection of, the human rights of members of a population. But defense of a population is not the same as defense of a territory.

  2. AGGRESSION AND FIRST STRIKE

    It is seemingly even harder to say what constitutes aggressive war than what does not. Sixteenth Century philosophers provide some inspiration. For example, Francisco Vitoria said, "assuming that a prince has authority to make war, he should first of all not go seeking occasions and causes of war." (9) In Vitoria's view, in most situations sovereigns act aggressively when they initiate war. (10) War is prima facie aggressive if the first State to use violent force does so for reasons other than the three mentioned above, namely for self-defense, defense of an ally, or to liberate an oppressed people, insofar as those are linked to human rights protection. (11) The first strike element of aggression is not alone sufficient but it does seem to be necessary for a prima facie showing of aggression.

    The first strike element is meant to separate those who initiate violence and those who merely respond or retaliate. (12) Again the idea is intuitively related to the case of human persons. In a barroom brawl, one of the first questions on the table is who threw the first punch. Of course, this can sometimes be countered by the claim that the first person to act was not the one who threw the punch but the one who provoked the first punch, perhaps by the use of insults. So the first strike element should not be understood literally as the first State to use violence. The first strike element is an attempt to get people to try to see which State wrongly started a causal chain that resulted in a war, and hence which State is normatively prima facie the aggressor.

    My amendment to, or clarification of, the traditional Just War way of understanding aggression is that "first strike" should be seen as shorthand for "first wronging" rather than about which State literally engaged in physical assault first. It may seem odd to say that the State that provokes is an aggressor, rather than the State that launches an attack. But history has shown many examples of States that try to start wars stealthily by provoking...

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