Criminally disproportionate warfare: aggression as a contextual war crime.

AuthorVanLandingham, Rachel E.
PositionAbstract through II. War Crimes as Shadow Crimes of Aggression A. The Gap, p. 215-243 - Benjamin B. Ferencz Essay Competition First Place Winner

International law has long recognized the general principle that an illegal act cannot produce legal rights. Yet, this principle of ex injuria jus non oritur is seemingly ignored in the uneasy relationship between the two international legal regimes most associated with war. A head of State can, for example, violate international law regulating the resort to armed force by ordering his military forces to illegally invade another country, yet he, through his military forces, simultaneously and subsequently benefits on the battlefield from the application of the separate body of international law regulating the actual conduct of war. The paradoxical benefit flows from the latter regime's salutary rules that allow for both the killing of opposing military forces, and for the incidental death of civilians and destruction of civilian property during hostilities, even if the war is illegally triggered.

Yet, the ex injuria jus non oritur principle is not completely jettisoned by this divorced operation of related legal regimes; the once-controversial crime against peace developed at Nuremberg has blossomed into the modern international crime of aggression, thus in theory condemning such a head of State under international criminal law for his role in launching an illegal invasion, thereby limiting his illegal gains. However, the prosecution of a head of State for the crime of aggression remains chimerical, at least for the time being, as the international community moves in fits and starts to enforce international law in the criminal arena.

While the crime of aggression has not been prosecuted since its predecessor was controversially developed and implemented at Nuremberg, the international community has since witnessed numerous international prosecutions of war crimes--violations of international laws governing the battlefield. This Article explores whether the crime of aggression can be prosecuted as a war crime by exposing the intersection of war's two legal regimes within the war crime of disproportionate attack. It concludes that, exclusively for those State leaders responsible for crimes of aggression, the resultant collateral damage caused by such aggression--the civilian deaths and property destruction otherwise allowed by the international laws governing warfare--could be considered criminally excessive by building upon the contextual approach inherent in both bodies of law. Such an approach resides at the outer edges of the lex lata, but is one that normatively resonates with both common sense and the dictates of humanity.

CONTENTS INTRODUCTION I. Jus Ad Bellum And Jus In Bello A. Modern Contours B. Separation of Jus ad Bellum and Jus in Bello C. On Lessening The Separation II. WAR CRIMES AS SHADOW CRIMES OF AGGRESSION A. The Gap B. ICC Crime of Aggression and War Crimes: Definitions and Elements 1. ICC Crime of Aggression 2. ICC War Crimes III. PROSECUTING THE CRIME OF AGGRESSION AS A WAR CRIME A. Key Assumptions And Elemental Background B. Addressing the Crime of Aggression Through War Crimes: Modes of Liability C. Crime of Aggression As An Excessive Attack 1. General Concept 2. War Crime of Excessive Attack: Background and Elements 3. The Symmetry with Article 8bis Crime of Aggression 4. Application CONCLUSION INTRODUCTION

One of the paradoxes of international law is the fact that not all acts of death and destruction committed in the course of pursuing an illegal war are illegal, never mind criminal. For example, if one assumes that Saddam Hussein violated jus ad bellum (1) when he led Iraq to invade Kuwait in 1991, that assumption does not legally taint the battlefield killing and property destruction necessary to carry out the invasion. Simply put, the illegality of Iraq's armed invasion, or aggressive war, did not itself make the violent acts taken to carry out that conflict either illegal or criminal: illegal wars can be legally fought. (2)

This counter-intuitive result stems directly from the intentional bifurcation of jus ad bellum from jus in bello: there is a wall between the international legal framework regulating States' resort to war and that governing the actual conduct of war. (3) As this Article describes, the separate operation of these legal regimes is teleological and pragmatic in nature, linked to both the distinct purposes of the two frameworks as well as their histories. Fundamentally, the wall dividing these legal realms stems from jus in hello's humanitarian impulses. Because it aims to lessen the suffering associated with war, the scope of jus in bello, or international humanitarian law (IHL), is pragmatically designed to be as wide as possible, equally applying to all parties in a conflict regardless of the legality of their cause. (4)

This equal application of jus in bello to those on both sides of an armed conflict, aggressor and victim, seems to offend the legal precept of ex injuria jus non oritur, that legal rights cannot be acquired by an illegal act. (5) Despite Iraq's illegal invasion of Kuwait, its armed forces benefited from belligerent rights found in jus in bello during the conduct of that invasion; jus in bello tolerates incidental civilian death and destruction if proportionate to the military ends. (6) While one can argue that Iraqi forces did not actually acquire jus in bello privileges from the invasion--that they were, instead, technically acquired through the application of positive law which created jus in hello's privileges and strictures--the practical effect is the same. (7) By triggering an armed conflict through a violation of jus ad bellum, an aggressor such as Hussein also triggers international humanitarian law that provides rights to, as well as imposes obligations on, his armed forces equal to that of the victim's belligerent forces, seemingly in violation of ex injuria jus non oritur.

International criminal law partially rectifies this apparent injustice by criminalizing clear jus ad bellum violations. The international crime of aggression, codified in the Rome Statute of the International Criminal Court, criminalizes manifest violations of jus ad bellum. (8) Applied to the Iraq invasion of Kuwait, such criminalization would theoretically result in the criminal conviction and punishment of Saddam Hussein and other national leaders responsible for the illegal invasion, without attaching criminality to Iraqi soldiers' individual acts on the battlefield. The soldiers' acts of warfare, as long as conducted in accordance with jus in bello, would remain immune from prosecution despite their context of supporting a criminal war of aggression. This is international law's incentive structure, one designed to limit the effects of war by shielding from criminal prosecution acts of warfare as long as jus in bello rules are followed. (9)

Prosecuting the crime of aggression, in theory, provides individual criminal accountability for the senior leaders of government for starting and conducting wars of aggression, thereby furthering international criminal law's goals of deterrence and retribution. Concurrently, the jus in bello separation from jus ad bellum, instead of allowing a criminal to, in a sense, gain from their criminal acts, mitigates the suffering experienced by the victims of the crime of aggression through jus in hello's set of rules governing warfare. (10) Yet, since Nuremberg's controversial development and implementation of the crime of aggression's predecessor, the crime against peace, there have been no criminal prosecutions for the crime of aggression, and it is unclear when such a prosecution may occur. (11) Hence, the equal application of jus in bello to both aggressor and victim forces appears particularly jarring, immunizing the Hussein-type aggressors from criminal accountability for their war's resultant death and...

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