Justified Uses of Force and the Crime of Aggression

II. UNCERTAINTIES AND RISKS: POLICY ISSUESARISING OUT OF THE KAMPALA COMPROMISE

Justified Uses of Force and theCrime of Aggression

Erin Creegan*

AbstractThis article contends that the crime of aggression should not have been codified inthe Rome Statute of the International Criminal Court (ICC). The crime of aggressionis an outlier in the Rome Statute, and not so unambiguously morally wrong as thehumanitarian crimes of war crimes, crimes against humanity and genocide.Aggression is instead a political crime, which yields an abstract harm. The decisionby states to use force is itself political, and should be subject to political sanctionsrather than criminal ones. It should also be the providence of states, through changesin custom particularly, to determine which uses of force are legitimate and whichare not. More than this, the article also disputes that the concept of aggression is agood one to distinguish positive and negative uses of force.Whether a use of force isalso an incursion into sovereign territory is not as important as whether the use offorce is committed for a just purpose or not. The article lists several examples ofuses of aggressive force that show that penalization of aggression may be undesir-able: humanitarian intervention, anticipatory self-defence, defence against non-stateactors, prevention of conflict escalation, and intervention in favour of self-determination or democratic governance. The article thus concludes that uses offorce by states should be decriminalized and further evaluated.

1. IntroductionAt the International Criminal Court (ICC) Review Conference in Kampala,Uganda in June 2010, a decision was finally reached on the inclusion of the

* Erin Creegan is a Trial Attorney at the US Department of Justice, National Security Division,Counterterrorism Section, and an Adjunct Professor of International Criminal Law at theUniversity of Maryland-College Park. The opinions represented in this article are those of theauthor and do not express the positions of the United States government in any way.[[email protected]]

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crime of aggression in the Rome Statute. Yet there continued to remain agreat many questions regarding the crime of aggression: what magnitude ofattack, what degree of knowledge that the act is aggression in the mind ofthe perpetrator, how senior in political leadership a perpetrator must be tobe held culpable and so on.1 One of the issues discussed has been whetherthere should be a jurisdictional triggering mechanism, such as the approvalof the United Nations (UN) Security Council, the General Assembly or theInternational Court of Justice (ICJ), before a case of alleged aggression isreferred to the ICC prosecutor.2 Another issue that received far less consider-ation at Kampala was whether certain activities that could otherwise consti-tute aggression could be carved out and protected.3 The negotiators at theconference attempted to deal with threshold issues such as low-level asser-tions of force by requiring that only the most dangerous and serious formsof illegal use of force [would] constitute aggression.4 The United States inparticular proposed that other technical issues in the definition could bedealt with if the states parties adopted certain understandings of the RomeStatute, including that the purpose of the use of force would matter as wellas harm ultimately caused; and that character, gravity and scale of an ag-gression must all be sufficient to constitute a manifest violation of the UNCharter.5

Ultimately, the delegates adopted a definition of the crime of aggression thatattempted to finally resolve these questions:

Article 8 bisCrime of aggression

(1) For the purpose of this Statute,crime of aggressionmeans the planning, preparation, initi-ation or execution, by a person in a position effectively to exercise control over or to

1 See Non-paper by the Chairman on the Elements of Crimes, Informal Inter-sessional Meeting on theCrime of Aggression, 28 May 2009, at http://www.icc-cpi.int/iccdocs/asp_docs/SWGCA/Non-paper-Elements-of-the-CoA-28May2009-ENG.pdf (visited 1 December 2011).

2 See Non-paper by the Chairman on the conditions for the exercise of jurisdiction, 28 May 2009,at http://www.icc-cpi.int/iccdocs/asp_docs/SWGCA/Non-paper-conditions-jurisdiction-28 May2009-ENG.pdf (visited 1 December 2011).

3 Although not discussed officially by negotiators or members of the ICC Working Group, at leastone scholar raised the issue. See e.g. S.D. Murphy, Criminalizing Humanitarian Intervention,41 CaseWestern Reserve Journal of International Law (2009) 341, at 362.

4 Non-Paper on possible further understandings (Annex III of the Conference Room Paper), seeC. Kre and L. von Holtzendorff, The Kampala Compromise on the Crime of Aggression,8 Journal of International Criminal Justice (JICJ) (2010) 1179, at 1205 and note 94.

5 Ibid. Also, S. Barriga,W. Danspeckgruber and S.Wenaweser (eds), The Princeton Process on theCrime of Aggression: Materials of the Special Working Group on the Crime of Aggression,2003-2009 (Lynne Rienner Publishers, 2009), 87 (Report on the June 2008 Special WorkingGroup on the Crime of Aggression meeting) (Delegations supporting this threshold clausenoted that it would appropriately limit the Courts jurisdiction to the most serious acts of ag-gression under customary international law, thus excluding cases of insufficient gravity andfalling within a grey area.).

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direct the political or military action of a State, of an act of aggression which, by its char-acter, gravity and scale, constitutes a manifest violation of the Charter of the UnitedNations.

(2) For the purpose of paragraph 1, act of aggression means the use of armed force by a Stateagainst the sovereignty, territorial integrity or political independence of another State, orin any other manner inconsistent with the Charter of the United Nations. Any of the fol-lowing acts, regardless of a declaration of war, shall, in accordance with United NationsGeneral Assembly resolution 3314 (XXIX) of 14 December 1974, qualify as an act ofaggression:

a. The invasion or attack by the armed forces of a State of the territory of anotherState, or any military occupation, however temporary, resulting from such inva-sion or attack, or any annexation by the use of force of the territory of anotherState or part thereof;

b. Bombardment by the armed forces of a State against the territory of anotherState or the use of any weapons by a State against the territory of anotherState;

c. The blockade of the ports or coasts of a State by the armed forces of another State;d. An attack by the armed forces of a State on the land, sea or air forces, or marine

and air fleets of another State;e. The use of armed forces of one State which are within the territory of another

State with the agreement of the receiving State, in contravention of the conditionsprovided for in the agreement or any extension of their presence in such territorybeyond the termination of the agreement;

f. The action of a State in allowing its territory, which it has placed at the disposal ofanother State, to be used by that other State for perpetrating an act of aggressionagainst a third State;

g. The sending by or on behalf of a State of armed bands, groups, irregulars ormercenaries, which carry out acts of armed force against another State of suchgravity as to amount to the acts listed above, or its substantial involvementtherein.

While this definition is an answer to many long-standing questions, and ahard-won answer, the attenuated process of negotiation over the crime of ag-gression should in fact have shown the importance of not reaching a final de-cision. It should instead have given the international community cause toforever abandon the attempt to integrate the crime of aggression into theRome Statute.

2. The Problem ConsideredThe question is: can the international community effectively prosecuteuse-of-force crimes? Specifically, have we established with certainty which ofthe uses of force are acceptable and which are not? Do we wish to codify anunderstanding of the permissible uses of force that cannot easily be adjustedby customary law? Does our desire to proscribe aggressive force compromiseother goals of the international system? Does proscribing uses of force along-side the human rights crimes make sense? Is there something perhaps inher-ently different about the two kinds of international crimes?

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A. Political Crime v. Human Rights Crime

None would dispute that the waging of an unjust war is a grave wrong. But thisarticle contests that uses of force can be penalized and administered in thesame way as other international crimes. There is an inherent awkwardness inplacing the crime of aggression next to the other crimes of the Rome Statute,the most severe awkwardness is caused by our awareness of the fundamentallyevil nature of all human rights crimes and the fact that these crimes requireserious, pervasive human suffering before the International Criminal Courtsjurisdiction is triggered.6

While genocide, crimes against humanity or war crimes are inexcusableabuses, aggression, by contrast, is a more political crime. It is a crime com-mitted by the leadership of one state, directed against the abstract interests ofanother state, both states being political entities and actors. The harm of ag-gression is the insult to a states territorial independence and sovereignty,itself a political idea. The suffering of persons is attendant upon harm to astates sovereignty yet preventing wartime suffering is not the direct objectof the crime of aggression as defined. Aggression can be accomplished withouta single person being physically harmed. Aggression can also be apeace-oriented state policy that may not only yield no discrete harm, and caneven prevent human suffering.Political crimes are not popular in this day and age of criminal legal thought.

The prevailing utilitarian notion is that it is discrete harm and should be pun-ished. Consider the harm principle.7 John Stuart Mill formulated the conceptas such: the only purpose for which power can be rightfully exercised overany member of a civilized community, against his will, is to prevent harm toothers.8 The harm principles main manifestation in criminal law is in theidea that where there is no injury resulting from the bad act, the bad actshould be punished less, even if committed with the same culpable mind.9

The harm principle also appears in criminal law in another way; crimes inwhich there is very clear relationship between an act and a great injury arepunished the most. Crimes in which the bad act may be extremely severe, butthe injury not as clear, are punished less or even conceptually disregarded.Environmental and complex or diffuse white-collar crimes often suffer fromthis kind of neglect.10

6 See Art. 6 ICCSt. (Genocide requires acts committed with intent to destroy, in whole or in part,a national, ethnical, racial or religious group); Art.7 ICCSt.(Crimes against humanity involvesacts when committed as part of a widespread or systematic attack directed against any civilianpopulation); Art. 8 ICCSt.(War Crimes: in particular when committed as part of a plan orpolicy or as part of a large-scale commission of such crimes).

7 J.S. Mill, On Liberty (JohnW. Parker & Son, 1859), at 21^22.8 Ibid., at 9.9 For more on the role of the harm principle in criminal law, see A.P. Simester and A.T.H. Smith(eds), Harm and Culpability (Oxford University Press, 1996); see also R.A. Duff, CriminalAttempts (Clarendon Press, 1996), at 116^119.

10 See J. Feinberg, Harm to Others (Oxford University Press, 1984), at 187^245 (vol. 1 in series: TheMoral Limits of the Criminal Law).

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In many counties influenced by utilitarian philosophies, the harm principleis strongly embedded. The Argentine constitution, in Article 19, upholds the fol-lowing principle: Peoples private actions, which in no way offend public moral-ity and order, or affect third parties, are only reserved to God, and free fromthe authority of the magistrates.11 Attempted crimes are punished consider-ably less rigorously than accomplished ones in many criminal justice systems,even where the actions and intended malice of the perpetrators are deemedidentical.12 Speaking to the unpopularity of political crimes for prosecution,the political crime of treason has not been tried in the United States in dec-ades.13 Instead, it is always the underlying and most directly injurious crimethat is punished the murder or maiming or bombing itself.While one does not have to approve of a view that allows low punishments

or abandonment of punishment for political crimes a view that has notendured throughout our juridical history, for in earlier times political crimeswere considered the most severe and dangerous it is still the case that ag-gression is just the same sort of crime where the direct harm to the statesinterests is unclear. Without adversely affected human victims, it is hard toput a crime like aggression in a category similar to war crimes or crimesagainst humanity or genocide. And it does not seem to belong next to them; italmost demeans them. While aggression can lead to these most incredibleforms of harm, it may be better to punish those acts instead.

B. Conquest v. JustWar

There will always be those who believe that force cannot be used to achieveany positive aim.14 These leaders and thinkers provide the aspiration to afuture of non-violent political discourse that we hope one day to achieve. Yetmost accept the legitimacy of defensive practices. Most accept the use of forceto defend others. The oldest roots of just war theory accept the waging of war

11 K.J. Heller and M.D. Dubber (eds), The Handbook of Comparative Criminal Law (Stanford LawBooks, 2011), at 21.

12 For example, in the emblematic English Carmichael case, where an unrepentant man tried todisfigure his companion, the court opined that the fact that the assailant did his intendedvictim no harm in truth does not redound to your credit at all [but nonetheless] reduce[s]your crime ::: to the category of attempts :::, and you are entitled ::: to have it remembered thatyou really only attempted to burn and disfigure this poor girl. [1930] 22 Cr. App. R. 142, re-counted in Duff, supra note 9, at 117.

13 The last active treason prosecution in the United States was the Kawakita case, 343 U.S. 717(1952); since then there has only been one indictment in nearly 60 years: that of American AlQaeda member Adam Gadahn, see C. Lagorio, American Charged with Treason, CBS News(11 October 2006), at http://www.cbsnews.com/stories/2006/10/11/terror/main2082055.shtml(visited 1 December 2011).

14 For example, Mahatma Gandhi was famous for eschewing the use of force to attainself-determination. Gandhi also rejected many of the uses of force that were considered trad-itionally justified in Hindu ethical thought. See M.K. Gandhi, Non-Violence in Peace and War(Garland Publications, 1972).


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for either purpose.15 It may be argued that the crime of aggression does notoutlaw the use of force strictly, but the definition of aggression that has beenchosen brings many forms of what have traditionally been considered legitim-ate uses of force within its ambit.Some will say that the era of just wars is over, that the days of St Thomas

More and St Augustine are long gone. That may be so in many ways, but thepractice of modern states themselves can be used to show the current ambiva-lence toward the crime of aggression.While the time for conquest to be con-sidered a legitimate activity has surely passed,16 conquest being the mostpernicious and modernly unacceptable form of aggression, the era of just waris not over. State practice shows the continuing vitality of innovative forms ofself-defence, of humanitarian intervention, and of other offensive uses of forcethat have been defended in just war theory and maintain their appeal in thecontemporary world.If the crime of aggression were to be written narrowly to proscribe only con-

quest, or enumerate conquest with other aims of force that are considered rep-rehensible, it would find greater favour here. As it is, the crime of aggressionis an uneasy compromise of a mind not made up. The international communitycannot resolve how greatly it values peace as an end in itself, and other, com-peting values, such as democratization and self-determination.17 Yet the great-est challenge to the proscription on the use of aggressive force is the desire forpeace as its own end. To defend, deter and prevent greater conflicts and greaterviolence, sometimes force, sometimes even aggressive force, must be used.

C. Carve-outs?

Having said that the concept of aggression would perhaps be more useful if itwere punished as the crime of conquest, invasion and other badly motivateduses of force, it is inescapable that the crime of aggression has already beenwritten into the statute much more broadly. The question now could be posedwhether it is better, rather than pulling out those truly bad acts, like conquest,to punish, to exempt those possibly good acts, like humanitarian intervention,from prosecution as aggression. Carving out good aggressions is not an

15 SeeT. More, Utopia (1516), G.M. Logan and R.M. Adams (eds) (Cambridge University Press 2002),85; Augustine, City of God (circa 410), D. Knowles (ed.), H. Bettenson (trans.) (Penguin Books,1984), 860^867. See also L. May, Aggression, Humanitarian Intervention, and Terrorism, 41CaseWestern Reserve Journal of International Law (2009) 321 (discussing the enduring relevanceof these works).

16 For a history on how the right of conquest in international law ultimately collapsed, seeS. Korman, The Right of Conquest: The Acquisition of Territory by Force in International Law andPractice (Oxford University Press, 1996).

17 See e.g. J. Castellino, International Law and Self-Determination: The Interplay of the Politics ofTerritorial Possession with Formulations of Post-Colonial National Identity (Martinus NijhoffPublishers, 2000) (see particularly Ch. 3: The State and Self-Determination: The ConceptualConflict between Self-Determination and Territorial Sovereignty).

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acceptable answer to the issues discussed above. It is possible to carve outevery possible good use of force that this article will explore, and there wouldstill be a problem: there are even more potential positive uses. It is possible forstate practice to open up some new, positive uses of force, and to discreditothers. The dynamism of state practice is critical in shaping the legitimateuses of force.But more than this, carving out good aggressions suggests that everything

left behind is bad aggression.Yet this does not seem to be true. The idea of ag-gression itself is a conceptual nullity. It subsumes all manners of good andbad force in any case where that force is directed against a states territory.It makes as little normative sense to punish the use of offensive or aggressiveforce as it does to punish the use of force generally. If there is to be a future re-definition of aggression, it cannot catalogue the bad acts, like bombardmentand blockade, devoid of questions of the context and aim of those actions.Any future proscription must ask the mind and purpose of that force, whetherit is intentionally predatory or reasonably believed to be just. But a criminaliza-tion of bad uses of force is of doubtful desirability, as questions relating to theuse of force are political in nature.

D. The Need for Political Evaluation

The justness of a use of force should be politically judged by other states.Individual criminal liability is ill-suited to managing aggression. The germina-tion of the idea of international criminal liability lies in the notion that themost heinous crimes can be committed or allowed by political leaders, andthat domestic criminal justice systems may be inadequate to stop and punishthese wrongs. Neither state leaders nor anyone else have the right to engagein humanitarian abuses that form the other crimes of the Rome Statute.When they do so, they are always morally and legally wrong.The use of force can, on the other hand, be legitimately exercised for the pol-

itical well-being of the state or the international system, even when doing sodoes appear to violate the text of the UN Charter. Ideas on what a proper useof force is can also change. And, moreover, in the democratic era, uses offorce are rarely decided on by a politically isolated rogue leadership or a dicta-tor. Instead, humanitarian interventions, pre-emptive strikes and other poten-tially aggressive uses of force can enjoy the support of a states democraticallyelected leadership, its people, and the political leadership of other states.Individual criminal responsibility for aggression in such cases becomes an ab-straction at best.One thought on how to control the problem of some aggressions ultimately

not seeming right for prosecution was the imposition of a filtering mechanismin the form of a non-governmental body. The thought in having a gatekeeperwas that either the political bodies like the UN General Assembly or the UNSecurity Council, or the more neutral ICJ or ICC judges would choose which


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aggression cases should go to the ICC.18 That the idea of a gatekeeper exists andhas gained significant support shows how important subjective judgments arein distinguishing good and bad aggression. The fact that there are some,hard-to-define acts of aggression that are perhaps acceptable shows that thecrime has not achieved satisfactory consensus and definition shows that it isunready to be prosecuted at all.Yet, if we accept this filtering idea and evaluate the effectiveness of possible

gatekeepers, it becomes apparent that the ICJ, ICC or any bureaucratic body,while extremely adept at handling some tasks that political bodies cannot, isnot designed for making policy judgments about a good use of force. Judicialorgans concern themselves with issues such as deterrence and uniformity inapplication, perhaps targeting powerful states alongside weaker ones in orderto demonstrate their even handedness. Such a policy could have disastrous re-sults if the court felt compelled to go after future leaders who are well inten-tioned, and perhaps even ultimately vindicated by political opinion. A courtsattempts to make a political evaluation in-house rather than proceed uni-formly against bad and less-bad aggressor alike could end in disarray. Wherethe court attempts to decline prosecution, sensing that a use-of-force technic-ally deemed as aggression is nevertheless politically accepted, it may wildlymiscalculate at the worst, but even at best will lose deterrence value and cred-ibility by acting politically.International courts themselves have acknowledged that they are not

equipped to handle political questions.19 Sir Robert Jennings, ICJ President atthe time, remarked that I think there is now much more appreciation thatsome disputes require political decisions by a political body.20 The fear of

18 See e.g. A.R. Lacanilao, International Criminal Court in the Balance: Should the SecurityCouncil be Given a Role in the Crime of Aggression, 1 Eyes on the ICC (2004) 98 (finding anyrole for the Security Council to be likely to undermine the credibility and fairness of theCourt); R. Peirce, Note: Which of the Preparatory Commissions Latest Proposals for theDefinition of the Crime of Aggression and the Exercise of Jurisdiction Should be Adopted intothe Rome Statute of the International Criminal Court, 15 BYU Journal of Public Law (2001) 281(noting serious drawbacks to either utilizing or omitting the Security Council as a gatekeeper);M.S. Stein, The Security Council, the International Criminal Court, and the Crime ofAggression: How Exclusive Is the Security Councils Power to Determine Aggression, 16Indiana International and Comparative Law Review (2005) 1 (advocating a role for the SecurityCouncil and the ICJ in aggression cases); R. Schaeffer, The Audacity of Compromise: The UNSecurity Council and the Pre-Conditions to the Exercise of Jurisdiction by the ICC withRegard to the Crime of Aggression, 9 International Criminal Law Review (ICLR) (2009) 411(finding support within the working group for the Security Council as gatekeeper); J.Verbitsky,What Should be the Relationship between the International Criminal Court and the UnitedNations Security Council in the Crime of Aggression, 4 Review of International Law and Politics(2008) 141 (arguing for ICC independence from Security Council determinations).

19 Legal Consequences of the Construction of a Wall in the Occupied Palestine Territory, AdvisoryOpinion, ICJ Reports (2004) 136, at xx 51^58 (9 July); Accordance with International Law of theUnilateral Declaration of Independence In Respect of Kosovo, Advisory Opinion, 22 July 2010, atxx 26^48.

20 Speech by Sir Robert Jennings, President of the International Court of Justice, to the UN GeneralAssembly, UN Doc. A/48/4, 15 October1993, reprinted in 88 American Journal of InternationalLaw (AJIL) (1994) 421, at 423.

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politicization of the international courts, tasked to be neutral arbiters, has beena recurring issue in the creation of such courts.21 The United States announcedits withdrawal from the compulsory jurisdiction of the ICJ with the notationthat the court was being used politically against the United States.22 In theUnited States domestically, as in other countries, the federal courts prudentlydecline to hear issues with political content even where jurisdiction exists,under a philosophy known as the political question doctrine.23 This juridicalnotion follows sensibly from the ideal of separation or compartmentalizationof governmental powers, a governance goal to which many countries aspire.24

Because of the textual commitment of judging threats to international peaceand security, the UN Security Council emerges as a particularly powerful con-tender for the role of gatekeeper.25 The Working Group came to favour theSecurity Council as the lead contender for a gatekeeper role,26 and, by thetime of the Review Conference, it was the only gatekeeper seriously con-sidered.27 The involvement of the Security Council in determining aggressionhas been debated a long time since it is the political body directly responsiblefor evaluating breaches of peace, and doing so through an avowedly politicalprocess.28 While it is technically less inapposite for a political body to make apolitical decision about whether there has been a badly intentioned aggressionor not, this scarcely solves all theoretical problems concerning whether theconceptual tool of aggression is a useful one to distinguish good and bad usesof force. Moreover, the UN Security Council and other political bodies have nu-merous negotiation tools at their disposal: sanctions, resolutions, and otherforms of political pressure and diplomacy, even the use of force itself, thatmight be more effective at achieving their aims.29

21 See e.g. S.C. Roach, Politicizing the International Criminal Court (Rowman & LittlefieldPublishers, 2006).

22 US Dept of State, Letter and Statement Concerning Termination of Acceptance of ICJ CompulsoryJurisdiction, 7 October 1985, reprinted in 24 International Legal Materials (ILM) (1985) 1742, at1744.

23 Baker v. Carr, 369 U.S. 186 (1962) (finding six factors for a court to consider in declining todecide a case: (1) a textually demonstrable constitutional commitment of the issue to a coordin-ate political branch; (2) a lack of judicially discoverable standards; (3) the impossibility for acourt independent resolution without expressing a lack of respect for a coordinate branch ofthe government; (4) the impossibility of deciding the issue without an initial policy decision,which is beyond the discretion of the court; (5) an unusual need for unquestioning adherenceto a political decision; (6) the potential embarrassment of various departments of thegovernment).

24 See generally L.E. de Groot-van Leeuwen andW. Rombouts (eds), Separation of Powers in Theoryand Practice: An International Perspective (Wolf Legal Publishers, 2010); A. Dodek and L. Sossin(eds), Judicial Independence in Context (Irwin Law, 2010).

25 Art. 24 UN Charter.26 See Schaeffer, supra note 18.27 See Official Records, Review Conference of the Rome Statute of the International Criminal Court, ICC

Doc. R/11, 31 May^11 June 2011, x34.28 See e.g. pertinent references of previous paragraph.29 See Art. 41 UN Charter; see also V. Lowe et al. (eds),The United Nations Security Council andWar:

The Evolution of Thought and Practice Since 1945 (Oxford University Press, 2008); E. De Wet, TheChapterVII Powers of the United Nations Security Council (Hart Publishers, 2004).


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With aggression, the victim is always a state, and states have recourse in theinternational system. They do best to deal with each other. That does notmean that the decisions states make should not be moral, such as avoidingunjust pretexts for uses of force, or causing unnecessary suffering. Nor doesthat mean there should not be consequences when states do make the decisionto use force immorally, such as sanctions by the community of states.Moreover, there should still be law on the issue of proper use of force, but thatlaw should be the dynamic law of state custom, changing as needed and in-formed by the policy wisdom of states, not immutably transfixed by a court.The mechanism of criminal law is less suited to producing justice with uses offorces than it is with humanitarian wrongs.Genocide, crimes against humanity, and war crimes are crimes for

which state suppression often fails because of the states complicity in thewrong, but for which the victims are mostly civilian populations. The abil-ity of civilian populations to protect themselves through international pol-itics is radically less than that of states. Their right not to be the victims ofsuch crimes is often infinitely more. While no civilian population deserves tobe victim to humanitarian abuses, bad state acts including instigating suchhumanitarian abuses can precipitate an aggressive but reasonable use offorce.

E. International Peace and Security

It has been observed that states were not keen to include the crime of aggres-sion in the Rome Statute and that it was due to the persuasive skills of formerNuremberg prosecutors that it was included, then as a placeholder only, atall.30 The reason why aggression was punished individually at Nuremberg assupreme international crime is that it begot the other crimes committed bythe Nazis in World War II. Time has proven the importance of the Nurembergtrials in many ways, but the more enduring lesson from World War II is theneed to prevent atrocities against civilians. Nazi aggression itself was conquest,a hated form of aggression, but not the only kind in existence today. NeitherWorld War II nor the period that has followed has shown that aggressive usesof force cannot be utilized for a good purpose.It is possible for international peace and security to be advanced through

acts that may meet the letter, but not the spirit, of the definition for aggression.Several scholars have argued that military security is so important the ICCshould not regulate it;31 there are also many arguments out there about the

30 M.P. Scharf and P.S. Hadji, Foreword and Dedication, 41 Case Western Reserve Journal ofInternational Law (2009) 267, at 267.

31 J.Yoo, Using Force, 71University of Chicago Law Review (2004) 729, at 731 and 731n. 6 (collect-ing scholarship to that effect) (Yoo is a controversial figure for his scholarship on torture, butscarcely alone in advocating the point of view that issues of military security should not beregulated outside the state.).

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uses of force that should be allowable.32 This short work attempts to expand toa fuller list the possible uses, from the perspective of American history, of thepossible uses of force that are now off the table under the formulation of ag-gression that has become law. This article is not the first to point to many ofthese scenarios just war theory is centuries old and some historical ex-amples have most likely been troubling statesmen since the concept of a crimeof aggression emerged but let us consider all that we have now outlawed.

3. Humanitarian Intervention

A. Such as Military Interference in the Balkans

One of the chief concerns that scholars have expressed about a final integra-tion of the crime of aggression into the Rome Statute is that humanitarianintervention does not appear to be protected.33 While some scholars claimthat humanitarian intervention is implicitly exempted from the definition ofaggression, because of its benign nature, or because it may not technically bein contravention of the UN Charter,34 that optimistic reasoning scarcely re-solves the problem: the existence of international legal support for humanitar-ian intervention that falls within the wording of the definition of aggressionshows that there is such a thing as benign aggression.Humanitarian intervention is: The threat or use of force across state borders

by a state (or group of states) aimed at preventing or ending widespreadand grave violations of the fundamental human rights of individuals :::with-out the permission of the state in whose territory force is applied.35

Humanitarian intervention has been state practice for centuries. States haveintervened to protect the natural rights of other states subjects, or to protect

32 See e.g. T. Gazzini, The Changing Rules on the Use of Force in International Law (ManchesterUniversity Press, 2005); K.A. Petty, Criminalizing Force: Resolving the Threshold Question forthe Crime of Aggression in the Context of Modern Conflict, 33 Seattle University Law Review(2009) 105; A.C. Arend and R.J. Beck, International Law and the Use of Force: Beyond the UNCharter Paradigm (Routledge, 1993).

33 See E. Leclerc-Gagne and M. Byers, A Question of Intent: The Crime of Aggression andUnilateral Humanitarian Intervention, 41 Case W. Res. J. Intl L. (2009) 379; C.P. DeNicola,A Shield for the Knights of Humanity: The ICC Should Adopt a Humanitarian NecessityDefense to the Crime of Aggression, 30 University of Pennsylvania Journal of International Law(2008) 641.

34 Compare I. Brownlie, Humanitarian Intervention, in J.N. Moore (ed.), Law and Civil War in theModernWorld (Johns Hopkins Press, 1974), at 218^219 (finding that the UN Charter does notexempt humanitarian intervention), with R. Lillich, Humanitarian Intervention: A Reply toDr. Brownlie and a Plea for Constructive Alternatives, in Moore (ed.), ibid., 229, at 247^248(finding that the Charter does allow such interventions).

35 J.L. Holzgrefe, The Humanitarian Intervention Debate, in J.L. Holzgrefe and R.O. Keohane (eds),Humanitarian Intervention: Ethical, Legal and Political Dilemmas (Cambridge University Press,2003), at 18 (I have modified this definitions requirement that the afflicted population not becitizens of the intervening state since that is not in accord with much of the history of humani-tarian interventions).


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their own subjects from abuse in a foreign land.36 It was not until the UNCharter so firmly laid down the idea of complete territorial sovereignty thatsuch interferences became barred, particularly with disdain for the idea thatinvasions could be pretextually termed benign invasions.37

Ironically, at the same time, and in the advent of colossal collateral damageto civilians during World War II, there arose a competing notion that thereshould be an internationalized body of human rights law.38 Thus the interna-tional community is pulled into two opposite directions, justice versus peace,whereas sovereigns from older time periods claimed to value only justice. Yetas the international community gets farther away from the memories ofWorld War II and faces more modern tragedies, it becomes more difficult tovalue peace and non-intervention over justice and thus support for humani-tarian intervention grows.39

Importantly, in the context of humanitarian intervention, the crime of ag-gression and the other crimes of the Rome Statute are put into violent contrast:humanitarian intervention is a tool to prevent war crimes, genocide andcrimes against humanity yet it is indictable elsewhere in the Rome Statute.Again, this contrast underscores the fundamental wrongness of war crimes,genocide and crimes against humanity in any context, as the true highestcrimes of the international system, while aggression remains a way to bothprecipitate and alleviate these wrongs. State practice appears to have favouredhumanitarian intervention, at least in clearly nonpretextual cases, such as inBosnia40 and Rwanda.41

In the case of the Bosnian genocide, an ethnic cleansing campaign tookplace in areas controlled by the Army of Republika Srpska during a war thatspanned from 1992 to 1995.42 Atrocities reached a peak when, in 1995, at least7,000 Bosnian Muslims were killed and another at least 20,000 were expelledfrom the town of Srebrenica.43 After the Markale massacres came to light, theNorth Atlantic Treaty Organization (NATO) executed the UN-blessedOperation Deliberate Force against the Army of Republika Srpska, whichproved instrumental in ending the BosnianWar.44 When ethnic conflict againbroke out, there was no advance authorization by the UN Security Council forthe NATO forces that went into Kosovo to prevent war crimes and genocide in1999; recent experiences in Bosnia had impressed upon the member states of

36 F.K. Abiew, The Evolution of the Doctrine and Practice of Humanitarian Intervention (Kluwer LawInternational, 1999), at 31.

37 Ibid., at 64.38 Ibid., at 75.39 Ibid., at 221.40 For a prosecutorial history, see M.P. Scharf, Balkan Justice:The Story Behind the First International

War Crimes Trial Since Nuremberg (Carolina Academic Press, 1997).41 For a history, see M. Barnett, Eyewitness to a Genocide: The United Nations and Rwanda (Cornell

University Press, 2002).42 See S.L. Burg and P.S. Shoup, The War in Bosnia-Herzegovina: Ethnic Conflict and International

Intervention (M.E. Sharpe, 1999).43 Judgment, Krs tic (IT-98-33-T),Trial Chamber, 2 August 2001, x1.44 R. Holbrooke,To End aWar (Random House, 1999), at 102.

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NATO the heavy humanitarian toll that can be paid if only diplomatic optionsare pursued or help delayed in a humanitarian crisis.45

The Rwandan genocide was an internal ethnic conflict between Hutus andTutsis in which as many as 800,000 people or nearly 20% of the countryspopulation may have been killed.46 UN assistance, either on its own or throughthe authorized French force, was ineffectual to assist those being persecuted,and led the UN to later declare its response to the genocide a failure.47

The response of the international community to such crises has been mixedbetween general esteem for the conduct of humanitarian interventions, anduncertain reflections on how this exception characterizes the prohibition onaggression. The Secretary-General of the United Nations responded to thehumanitarian interventions of the 1990s with ambivalence as well, noting theincredible humanitarian horrors that could have unfolded but for intervention,and the possibility that humanitarian intervention could be used pretextuallyin the future.48 A committee of international legal jurists ultimately formulateda report entitled Responsibility to Protect now famously referred to as R2P, acriteria under which humanitarian interventions should and should not beundertaken, hoping to both promote essential interventions and limit pretex-tual ones.49 R2P is a distinct but related concept to humanitarian intervention,stressing an affirmative responsibility for states to intervene in cases of geno-cide, war crimes, crimes against humanity and ethnic cleansing.50 Its propon-ents advocate for a progressive view of sovereignty based on the ideas that thesovereign has the obligation to protect its own citizens, that the internationalcommunity must assist incapable states to protect their people, and that ifstates still failure to uphold their protection obligation, intervention by theinternational community may be necessary.51 R2P lays down six criteria forintervention: just cause, right intention, final resort, legitimate authority, pro-portional means and reasonable prospect.52 This progressive view, not yetendorsed by the community of states, shows how ideas of correct use of forceare under normative negotiation and are subject to change.Even if one looks only to the human rights obligations that may currently

exist under international law, there are a great many publicists and leaders inthe international community that believe that international commitment toending genocide, war crimes and crimes against humanity cannot be

45 See GA Res. 47/121, 18 December 1992.46 Rwanda: How the genocide happened, BBC, 18 December 2008, at http://news.bbc.co.uk/2/hi/

africa/1288230.stm (visited 1 December 2011).47 UN admits Rwanda genocide failure, BBC, 15 April 2000, at http://news.bbc.co.uk/2/hi/africa/

714025.stm (visited 1 December 2011).48 Report of the Secretary-General, UN Doc. A/54/PV.4, 20 September 1999.49 The Responsibility to Protect, Report of the International Commission on Intervention in State

Sovereignty (2001), at http://www.iciss.ca/report-en.asp (visited 1 December 2011).50 2005 World Summit Outcome, UN Doc. A/60/L.1, 15 September 2005.51 Ibid.52 The Responsibility to Protect, supra note 49.


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accomplished without utilizing humanitarian interventions.53 If this is so, ourhuman rights obligations and our obligations to respect the territorial integrityof other states must come into conflict.

4. Anticipatory Self-Defence

A. Such as Airstrikes onWeapons Plants in Rogue Nations

Humanitarian intervention is a noble aggression; it is the use of force in the de-fence of others for no benefit of the intervening nation. Its analogue in criminallaw is the use of deadly force homicide being the ultimate national crime for the defence of another.54 But what can be said about the use of force indefence of oneself? Both are justified in most domestic legal systems; wouldthe defence be viable against crime of aggression as with the crime of homicide?The right to defend against aggression is sacrosanct in international law.55

Reactive self-defence, the response to an attack in progress, is protected byboth the UN Charter and the new definition of the crime of aggression.Anticipatory self-defence, unlike reactive self-defence, would be the right of anation, under international law, to use force to protect itself from an act thatwill imminently occur but has not yet begun. Like any other permissible useof force in self-defence in international law, force used in anticipatoryself-defence should be proportional in degree and scope to the threat, must benecessary in the sense that there is no other choice of options, and must beprovoked by immediacy, meaning they respond to an ongoing threat.56

Anticipatory self-defence is a controversial idea. Article 51 of the UN Charterstates that, [n]othing in the present Charter shall impair the inherent right ofindividual or collective self-defence if an armed attack occurs against aMember of the United Nations ::: . Article 51 has been interpreted two ways:either to preserve the progressive development of international law regardingself-defence, and therefore protect any rights to anticipatory self-defence thatexist in customary law, or to allow self-defence only once an armed attack hasoccurred.57 The prevailing opinion appears to be the latter,58 although theUnited States and others have maintained a right to engage in anticipatoryself-defence.59

But what can we say of the use of aggression as an offensive tactic with a de-fensive purpose? In earlier times, and generally speaking, there could be no

53 See GA Res. 60/1,16 September 2005; see also R.H. Cooper and J.V. Kohler (eds), Responsibility toProtect: The Global Moral Compact for the 21st Century (Palgrave Macmillan, 2009).

54 American Law Institute, Model Penal Code x 3.05 (defence of another), x3.04 (self-defence).55 See S.A. Alexandrov, Self-Defense against the Use of Force in International Law (Kluwer Law

International, 1996) (tracing the modern historical development of the right).56 J. Kittrich,The Right of Individual Self-Defense in Public International Law (Logos, 2008), at 22^28.57 SeeY. Dinstein,War, Aggression and Self-Defense (4th edn., Cambridge University Press, 2005), at

182^187.58 Kittrich, supra note 56, at 29.59 Dinstein, supra note 57, at 182.

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threat on territory without aggression unless the armies crossed into an-other territory, they could hardly harm its inhabitants in any way. That is nolonger true. For decades there have been weapons of such destructiveness biological, chemical, radiological and, most terrifyingly, nuclear weapons that the threat does not begin to mount when the first soldiers boot crossesthe border, but when the first brick is laid of a weapons facility. Finding a wayto respond to these technological threats, while respecting sacrosanct territor-ial integrity, has been a consistent problem in the international system. TheUnited States asserted a right to enter into a war of self-defence againstSaddam Husseins Iraq for the purpose of preventing Iraq from developingweapons of mass destruction (WMD) technologies that might be used againstthe United States and others.60 There is some speculation anticipatoryself-defence may become necessary against Iran as it moves closer to develop-ment of a domestic nuclear programme.61 States have become used to fly-overbombings of their facilities and other offences against sovereignty,62 such asIsraels airstrike against an Iraqi nuclear reactor in 1981,63 or against a Syriannuclear weapons plant in 2007.64 The international community does not pro-test these activities too loudly.65 Yet some of these strikes do seem to fallunder the current definition of aggression. While the doctrine of preemptiveself-defence is still evolving and may either be adopted or discarded, it seemsas though it could become a legitimate response to increasingly destructivewarfighting technologies.

5. Substituted Law Enforcement and Defenceagainst Non-State Actors

A. Such as Eradicating Terrorist Training Camps in Somalia

States in the international system may have a duty to engage in certain law en-forcement actions, especially to prevent harm originating in their countryfrom affecting another state.66 A state would be negligent in its peace-and-security duties if it allowed substate actors to launch a war from its terri-tory or a weapon or to create a safe haven for their transnational crime

60 G.W. Bush, RadioAddress,President Discusses Beginning of Operation Iraqi Freedom, 22 March2003.

61 Israel minister: Strike on Iran could be necessary, Newsday, 30 May 2011.62 See Arend and Beck, supra note 32, at 71, 138^139.63 G. Russell, Attack ^ and Fallout: Israel and Iraq,Time, 22 June 1981.64 D.E. Sanger and M. Mazzetti,Israel Struck Syrian Nuclear Project, Analysts Say, NewYorkTimes,

14 October 2007.65 Arend and Beck, supra note 32, at 155 (from1969^1993 there were 18 strikes in countries in the

Middle East that violated the sovereignty of those states).66 See Art. 7 Draft Declaration of the Rights and Duties of States (1949) (Every State has the duty

to ensure that conditions prevailing in its territory do not menace international peace andorder.); see also Ban Ki-moon, States Have Shared Duty to Fight Transnational Threats toInternational Peace, Security, UN Doc. SG/SM/12763, 24 February 2010.


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operations.67 Since states cannot succeed in fulfilling these obligations in allplaces at all times, it makes sense to respect state sovereignty as long as thestate acts in good faith and makes reasonably successful efforts to controlcrime and violence originating from its territory.Setting aside the problem of state sponsors of violence, and other states who

are complicit or indifferent to substate actors using their territory to harmother states, questions arise when a state is simply too weak or incapable toperform law enforcement actions. Especially when that weakness is so clearthat the state must be declared a failed state. While the Westphalian unit ofthe state remains as an entity after all, under the Montevideo criteria ofstatehood, a capable government need only exist at the time of founding andit need not endure to maintain statehood68 the state is no longer carryingout its obligations, yet retains its right to territorial integrity. Must states, tocomply with international law, allow themselves to be harmed by non-stateactors or other criminal activities within the borders of the failed state?The question becomes further complicated when a state has not quite failed,

and yet still cannot satisfactorily fulfil its law enforcement functions? Let useven say that the state is providing its true-and-good faith efforts at law en-forcement, yet cannot suppress all harm leaving its borders and affectingother states. If that state does not consent to law enforcement assistance or toentrance in their territory, must the potential victim state accept the harmsbeing planned and launched from that host states territory? What if the at-tacks are extraordinarily severe or have the potential to be, such as the plan-ning or terrorism attacks or attacks with weapons of mass destruction?This is, of course, our anticipatory self-defence problem writ in a new way. In

this version, the state is not complicit in the wrong in that the state is notitself posing the threat. Does the right of defence, maybe even preemptiveself-defence, exist against non-state activities even where that right might im-pinge the territorial integrity of a sovereign state? Historically the right ofself-defence was thought to possibly extend to non-state actors in the territoryof another state.69 It is not clear under our current formulation of the crimeof aggression or the right of self-defence in the UN Charter whether defensiveactions against non-state actors are protected, and even less so if the defensiveactions might also be considered anticipatory self-defence.Yet actions such as these do occur and are not wholly condemned by the

world community. Perhaps because failed or weak states are not in any pos-ition to assert their lack of consent. Perhaps because the purported leadershipsof such states are embarrassed by the states low capabilities. Or perhaps be-cause consent is quietly and unofficially given in some cases. In the yearssince the terrorist attacks of 11 September 2001, the United States has made it

67 See e.g. Case Concerning United States Diplomatic and Consular Staff in Tehran (United States v.Iran), ICJ Reports (1980) 3, at x 74.

68 See Montevideo Convention on the Rights and Duties of States, 165 LNTS 19, 26 December 1933.69 See in particular, the story of the Anglo-American Caroline Affair, recounted in K.R. Stevens,

Border Diplomacy: The Caroline and McLeod Affairs in Anglo-American-Canadian Relations,1837-1842 (University of Alabama Press, 2005).

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a military priority to destroy terrorist training camps around the world. To fur-ther this effort, there have been a number of strikes against terrorist trainingcamps in, for instance, Somalia, where the domestic government is incapableof fully policing its territory and destroying these camps.70 Is an action suchas this the highest crime of the international system, comparable to the Naziadvancement through Europe? Can it stand in the same company as genocide,war crimes and crimes against humanity? Or, could this be a use of force thathas already begun to be legitimated by state practice?

6. Preventing Conflict Escalation

A. Such as the Blockade during the Cuban Missile Crisis

As a corollary to defence of oneself, can there be incidence of strategic aggres-sion in a state of conflict, focused on threat reduction? If the ultimate objectiveto a trespass of territorial integrity, even an extremely major one, is not toharm but simply to momentarily incapacitate a rival, could this objective notworthily advance international peace and security?During the Cold War, in the Cuban Missile Crisis, the United States learned

that the Soviet Union was transporting nuclear warheads to Cuba, wherethey would be in easy reach of targets in the United States.71 The UnitedStates and the Soviet Union engaged in a tense diplomatic exchange gearedtoward reducing the nuclear threat.72 With negotiations not reaching a reso-lution and the nuclear warheads en route to delivery to be made operational,US President John F. Kennedy ordered a blockade of Cuba so that the warheadscould not be brought to port.73

Blockades are greatly disfavoured under international law, as extreme intru-sion on territorial sovereignty74 and freedom of the seas.75 They are explicitlyforbidden under the current formulation of aggression. Yet in the time thatthis Cold War blockade took place, a diplomatic settlement was reached andpossible nuclear war avoided. Considered a hero by many for his calmnessand commitment to non-violent resolution of the crisis, it would have beenquite a reward for President Kennedy to have later found himself imprisonedat The Hague for these actions.

70 See e.g. L. Martinez et al., US Launches Military Strike in Somalia Against al Qaeda Target,ABC News, 14 September 2009, at http://abcnews.go.com/Politics/us-forces-somalia-kill-saleh-ali-nabhan-commando/story?id8569619 (visited 1 December 2011); Witnesses: US strikes onal-Qaeda suspects kill 31 Somali civilians, USA Today, 9 January 2007, at http://www.usatoday.com/news/world/2007-01-09-al-qaeda-airstrikes_x.htm (non-official support from Somaligovernment).

71 See A. Chayes,The Cuban Missile Crisis (Oxford University Press, 1974), at 8^10.72 Ibid., at 10^24.73 Ibid., at 25^40.74 See GA Res. 3314 (XXIX), 14 December 1974, annex Art. 3(c) (Definition of Aggression).75 See Art. 87 United Nations Convention on the Law of the Sea,1833 UNTS 397,10 December1982

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If our previous examples show the justifications of self-defence and defenceof others, then preventing conflict escalation is comparable to the commonlaw defence of the lesser evil. In common law, a perpetrator is excused from li-ability for committing a crime that was done to avoid a greater harm.76 Whilethe new formulation of aggression specifically calls out the ancient prohibitionon the blockading of ports, the ability to do so to prevent the outbreak of nu-clear war, which could have led to millions of attendant casualties, can scar-cely be of any clearer importance. Again this situation demonstrates anapplication of the harm principle millions of human lives lost, versus themore abstract territorial harm of blockading. The importance of preservinguse-of-force options for states working toward peace and security also seemsclear in this case.

7. Self-determination of Peoples

A. Such as the Creation of an Independent East Timor

In the international community, new states are generally produced onlythrough the consent of the host state77 or by the secessionists assertion offorce.78 On such rebellions, one commentator has written:

No state today would deny the basic principle that the people of a nation have the right,under international law, to decide for themselves what kind of government they want, andthat this includes the right to revolt and to carry on armed conflict between competinggroups. For a foreign state to support, with force, one side or the other in an internal con-flict, is to deprive the people in some measure of their right to decide the issue bythemselves.79

Under traditional international law, once a rebellion, insurgency or inde-pendence movement grows to mount a great enough threat to the host country,it was granted status as a belligerency.80 Certain reciprocal law-of-war rightswere accorded between the host country and the belligerency, at least in theclassical model, without the host country conceding that the belligerency waslegitimate or lawful under domestic law.81 At the point at which a viable belli-gerency exists, other members of the community of states are meant toevince neutrality and let the two entities resolve their disagreement through

76 American Law Institute, Model Penal Code x 3.02.77 J. Crawford,The Creation of States in International Law (2nd edn., Oxford University Press, 2007),

at Ch. 8 (Devolution).78 Ibid., Ch. 9 (Secession).79 O. Schachter, The Right of States to Use Armed Force, 82 Michigan Law Review (1984) 1620, at

1641.80 Y. Lotsteen, The Concept of Belligerency in International Law, 166 Military Law Review (2000)

109, at 109.81 Ibid., at 110.

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the use of force.82 A state could intervene on either side under the traditionalrule, but would immediately lose its neutrality.83

It has been observed that, in recent times, the practice of recognizingformally the existence of viable belligerency has fallen into disuse.84 TheAmerican Civil War may have been the last time that the doctrine of belliger-ency was truly applied.85 It is also possible that the UN Charter, whichhas greatly scaled back the ideas about what may constitute a just war in theinternational system, now overrides traditional belligerency and neutral-ity law principles.86 The UN Charters strict protection of territorial integrity87

would seem to ban intervention to support a viable belligerency. However,humanitarian intervention, self-determination and the responsibility to pro-tect are grounds, appearing elsewhere in the UN Charter, which may at somepoint in the future be though to overcome the Charters modern ban onintervention.Long before the drafting of the UN Charter, in the beginning of the 20th cen-

tury, there were very few states in the international system and there werelarge, sprawling non-democratic, colonial European empires.88 In the hundredyears since, democratic movements have flourished around the globe. Thosewho were colonized have sought to control their own political destiny andoften sought independence through violent liberation movements.89 Discretecommunities of people have sought political independence in states of theirown,90 or minority rights within the democracies they inhabit.91 The conceptof the self-determination of peoples is the idea that the people have a right tofreely determine their political status and freely pursue their economic, socialand cultural development.92 This right is enshrined in Article 1(2) of the UNCharter.

82 Ibid., at 109.83 See Arend and Beck, supra note 32, at 84.84 L. Oppenheim, International Law, H. Lauterpacht (ed.) (7th edn., Longmans, 1952), at 653^654.85 Lotsteen, supra note 80, at 110.86 See L. Henkin, How Nations Behave (2nd edn., Columbia University Press, 1979), 140.87 Article 2(4) UN Charter.88 See e.g. Cambridge Modern History Atlas, The World: Colonial Possessions and Commercial

Highways 1910 (1912), at http://www.lib.utexas.edu/maps/historical/ward_1912/world_1910.jpg(visited 1 December 2011).

89 See generally H.A. Wilson, International Law and the Use of Force by National LiberationMovements (Oxford University Press, 1988).

90 This process is known as external self-determination. See A. Cassese, Self-Determination ofPeoples: A Legal Reappraisal (Cambridge University Press, 1995) (esp. Ch. 4: The Emergence ofCustomary Rules: External Self-determination).

91 This process is known as internal self-determination. See A. Buchanan,The Quebec SecessionIssue: Democracy, Minority Rights, and the Rule of Law, in S. Macedo and A. Buchanan (eds),Secession and Self-determination (New York University Press, 2003) 238; see also Cassese, supranote 90 (esp. Ch. 5: The Emergence of Customary Rules: Internal Self-determination).

92 Declaration on the Granting of Independence to Colonial Countries and Peoples, GA Res. 1514(XV), 14 December 1960, x 2.


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Often, ambivalence about how to respect the competing values of territorialintegrity and self-determination has led to inaction in the many civil wars ofthe 20th century. Those liberation movements which won their freedom werewelcomed into the international community.93 Those that failed may have suf-fered a repressive response, perhaps even a repressive military response, fromthe host state.94 Yet some states do choose to intervene to support either themaintenance of territorial integrity by assistance to the host state,95 or effortstowards decolonization and independence.96 Thus, the question is, do statesnow have the right to intervene where the doctrine of self-determinationseems to require vindication, for instance, where internal self-determinationcannot be achieved and the seceding group seems to have the right to state-hood, but not the ability to assert that right?States seem to believe this can be so. AfterWorldWar I, a weakened but trad-

itionally independent Poland was re-granted its independence by the interna-tional community rather than achieving independence by force.97 A similarcase arose in East Timor, a former Portuguese colony, which upon declaring in-dependence from Portugal, was annexed by Indonesia.98 After an increase inviolence in response to the pro-independence results of a referendum, the UNintervened with Indonesian acceptance and under the auspices of UNSecurity Council Resolution 1264, a new, independent state infrastructurewas established in East Timor.99 This concerted UN action was legal becauseit was authorized under the Charter, though it would have been illegal aggres-sion if a unilateral or non-UN coalition of states had so intervened.A single state or coalition of states giving support to an independence move-

ment without Security Council-blessing could be aggression under the newRome Statute but not under traditional belligerency laws. The status ofself-determination in international law is thus unclear. It is conceivable thatnew norms of justice will permit uses of force to assist in self-determinationon new grounds.What is not clear is how much the development of the crimeof aggression will impede the development of a just intervention norm incases of self-determination.

93 For example, Finland (Russia), Ireland (United Kingdom), Bangladesh (Pakistan), Angola(Portugal).

94 For example,Tibet (China), Kurdistan (multiple states), Palestine (Israel), Chechnya (Russia).95 See L. Doswald-Beck, The Legal Validity of Military Intervention by Invitation of the

Government, 56 British Year Book of International Law (1985) 189; The PanamanianRevolution, Panel, 84 American Society of International Law Proceedings (1990), at 182^189.

96 See Arend and Beck, supra note 32, at 86.97 M.B. Biskupski,The History of Poland (Greenwood Press, 2000), at Ch. 4.98 J. Nevins, A Not-So-Distant Horror: MassViolence In East Timor (Cornell University Press, 2005),

at 1^42.99 Ibid., at 43^94.

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8. Restoring a Rightful or Democratic Regime

A. Such as Reinstating President Aristide in Haiti

States in the international system may have a duty to recognize viable newstates,100 so long as their creation does not violate peremptory norms.101 Thede facto control test also determines international recognition of the govern-ment of a state, declaring that whoever actually exercises power has the rightto exercise power, and sometimes legitimating domestically illegal transfers ofpower.102 Yet must states always accept a coup that occurs in another country,illegally transferring power under its own domestic laws? Is it not all theworse when the change of power is perhaps certain to lead to humanitariancrises and further bloodshed, such as when an unpopular military cadrewrests power from a democratic government? How are we then to think aboutthe democratic rights of self-determination by voters in that country? What ofthe tangled web of competing international obligations in such a case?The Organization of American States faced these questions when a military

coup in Haiti ousted democratically-elected President Jean-Bertrand Aristide.103

Although the United States and other countries used force only under the aus-pices of the Security Council,104 which would render anything which they didthat might be considered aggression legal, it was nonetheless through thethreat of force and the US military ultimately entering Haiti that the coup wasousted and the democratically elected president returned to power.105

This historical example, as with East Timors, raises the issue of how actionsthat would otherwise be considered as aggression can be acceptable whenthey are blessed by the UN Security Council and committed for the purposeof maintaining international peace and security, but not when the action isundertaken by a state or a group of states for the very same purpose. It is thisambiguity, that what would otherwise be aggression is somehow not-so whenthe international community, though the Security Council, says otherwise,which is in stark contrast to the other crimes of the Rome Statute. Neither theUN nor any man-made body will ever have the right to bless, and thus render

100 It is a running debate in international law whether recognition is due to a viable state. TheRestatement (Third) of the Foreign Relations Law of the United States asserts that, a state is notrequired to accord formal recognition to any other state but is required to treat as a state anentity that meets the requirements of [statehood]. x 202(1).

101 Such as against racism. See e.g. SC Res. 216, 12 November 1965 (calling on states not to recog-nize Rhodesia because it had declared independence in order to incorporate a racist regime).

102 Memorandum from the Secretary-General to the President of the Security Council on the LegalAspects of the Problem of Representation in the United Nations, UN Doc. S/1466, 9 March 1950;S.D. Murphy, Democratic Legitimacy and the Recognition of States and Governments, 48ICLQ (1999) 545.

103 D.E. Acevedo, The Haitian Crisis and the OAS Response: A Test of Effectiveness in ProtectingDemocracy, in L. Damrosch (ed.), Enforcing Restraint: Collective Intervention in InternalConflicts (Council on Foreign Relations Press, 1993) 119.

104 SC Res. 940, 31 July 1994.105 Acevedo, supra note 103.


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benign, what are the most horrific human rights crimes: genocide, war crimesand crimes against humanity.If it is the UNs blessing that changes the character of aggression by bringing

it into conformity with the UN Charter, then not only does this cause us towaiver in condemning aggression uniformly, but it also brings some practicalconsiderations to mind. It is well and good to say that individual states mightabuse any grant they have to engage in just aggression, and that powershould exist only in the international community to make a determination asa whole, but the UN is not infallible.When the ideal functioning of the UN orthe Security Council somehow fails, states must ask themselves a question: isit better to try to bolster a flaying UN by allowing actions to go through asometimes-less-than-perfectly-functioning international organization, or is itbetter to prevent the harm themselves directly?Aside from all this, there is an even more essential consideration in the

Haitian example: the value of self-determination. Self-determination is typic-ally thought of, as in the previous section, as the ability of a discrete people ornation to receive both full political and cultural expression within a multicul-tural state (internal self-determination)106 or to become independent andform a state of their own (external self-determination).107 Yet the idea ofself-determination encompasses more than this. Self-determination is the abil-ity of a people to choose their destiny. The people of Haiti chose democracy;they chose the person they wished to represent them. The coup that cameinto power denied them this political expression; by seizing and holdingpower the coup violated their right to self-determination. Recognition of thenew regime, or even inaction, by the international community would have fur-thered that wrong.There is a newly emerging norm in the international system that new states

will not be accepted into the international system if they lack democraticgovernance.108 Perhaps in the future states will refuse to recognize non-democratic governments as they have begun to refuse to recognize the creationof new states with non-democratic governments. There is also an emergingpractice among states to intervene unilaterally or in conjunction with a fewallied states to protect democratic expression alongside more traditionalself-determination rights. The famous Reagan Doctrine was a policy by USPresident Ronald Reagan to defend democratic movements across the globe.109

On this point, one legal theorist has stated:

There is neither need nor justification for treating in a mechanically equal fashionTanzanias intervention in Uganda to overthrow Amins despotism, on the one hand, and

106 See Buchanan, supra note 91, at 283; see also Cassese, supra note 90 (esp. Ch. 5: TheEmergence of Customary Rules: Internal Self-Determination).

107 See Cassese, supra note 90 (esp. Ch. 4: The Emergence of Customary Rules: ExternalSelf-Determination).

108 See Murphy, supra note 102.109 R.L. Garthoff, The Great Transition: American-Soviet Relations and the End of the Cold War

(Brookings Institution, 1994), at 692^715.

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Soviet intervention in Hungary in 1956 or Czechoslovakia in 196[8] to overthrow populargovernments and to impose an undesired regime on a coerced population, on the other.Here, as in all other areas of law, it is important to remember that norms are instrumentsdevised by human beings to precipitate desired social consequences. One should not seekpoint-for-point conformity to a rule without constant regard for the policy or principlethat animated its prescription, and with appropriate regard for the factual constellation inthe minds of the drafters.

Coercion should not be glorified, but it is naive and indeed subversive of public order toinsist that it never be used, for coercion is a ubiquitous feature of all social life and a charac-teristic and indispensable component of law.110

Some might rightly point out that a justifiable use of aggression to promotedemocracy is easy to manipulate into a pretext.111 Yet support for democraticgovernance, as for self-determination, if it is not all pretence, may emerge as ajustifiable use of force through state practice. The Rome Statute now criminal-izes it.

9. ConclusionPurpose matters in evaluating uses of force. Even the use of force that is notcollective and Security Council-blessed, or is in response to an armed attack,can be justifiable. There could be carve-outs, setting up of jurisdictional gate-keepers, political or bureaucratic, and special understandings and interpret-ations of the crime of aggression that would alleviate concerns overprosecution in all of the cases above, and make them somehow not aggression.But it would be doctrinally messy and normatively confusing to applaud someaggressions and express the highest moral condemnation for others. If we ac-knowledge that there are some justifiable aggressions, we must acknowledgethat we have not yet fleshed out a normatively cohesive way to penalize baduses of force.There will be new and future acts of aggression not listed here that are not

deserving of condemnation.Yet, we can say with absolute certainty that therewill be no excusable war crime, crime against humanity or genocide in thefuture. The two groups of offences, human rights crimes and the politicalcrime of aggression simply cannot be compared. International criminal justicemay work best and with the clearest mandate when preventing and punishingmassive humanitarian wrongs, not the acts that can sometimes precipitatethem but can also facilitate greater prospects of international peace andsecurity.Conversely, the community of states is in the best position to evaluate mo-

tives behind uses of force. States select policy in the international system; it is

110 W.M. Reisman, Coercion and Self-Determination: Construing Charter Article 2(4), 78 AJIL(1984) 642, at 643^644.

111 R. Higgins, Problems and Process: International Law and HowWe Use It (Oxford University Press,1994), at 247.


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states that must decide whether humanitarian intervention or anticipatoryself-defence or any other use of force is good policy. States are in the best pos-ition to make a choice about the tenuous balance of justice and peace, andwhich goal of the international community must take precedence in new situ-ations. That is why the development of customary international law is so crit-ical in determining which uses of force are acceptable. Thus, the crime ofaggression must be excluded from the jurisdiction of the ICC and the under-standing of good or bad uses of force trusted to the development of state prac-tice and the political judgment of states. Use of force should remain a questionof customary international law, rather than international criminal law. Weneed not abandon the search for a morally correct view of which uses of forceare permissible simply because we find that use-of-force questions should bedivorced from criminal law.This article does not endeavour to give any firm opinion as to whether the

state actions that are described above are definitely legal or illegal or morallyright or not. But if the ICCs object is to help preserve or expand internationalpeace and security, there is no doubt that some uses of force such as thoseexamined in this article, which may come to be considered aggression, can rea-sonably be thought to advance international peace and security, or justice.The Cuban Blockade may have prevented nuclear war. Strikes on trainingcamps may have prevented terrorist attacks on civilians. Intervention in an in-ternal war may prevent even greater human rights abuses, and give effect to ajustified exercise of self-determination. Can penalization truly deter statesfrom undertaking these activities if states feel that they are justified? And ifwe wish to deter future acts of aggression, should we not ask what the conse-quences will be?

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Justified Uses of Force and the Crime of Aggression