ENSURING INTERNATIONAL ACCOUNTABILITY FOR THE USE OF FORCE BY STATES

At the 1945 Nuremberg and Tokyo tribunals, the crime of inter-state aggression was rightly designated the "crime of all crimes" for the suffering it produces. War crimes cannot exist without war. Crimes against humanity and genocide are enabled by the existence of armed conflict. Set the right deterrent, and unjust war can be avoided. Why were we further ahead in 1945 than we are today?

An effectively prosecuted crime of aggression is a sobering prospect for governments with expansionist agendas. It is the ultimate manifestation of the international rule of law, demonstrating that representatives of the highest level of government remain accountable for their war-making powers, even in the most extreme circumstances. In short, it is an exceptional deterrent to inter-state armed conflict.

In 2010 the crime was finally legally defined at the International Criminal Court Review Conference in Kampala; and in 2018 the authority of the ICC was activated only for those states that have formally accepted the court's jurisdiction over the crime (currently 39 of 193 UN states). The problem for certain law-abiding but non-subscribing states is one of incentive. They envisage a situation, such as Kosovo 1999, in which a government is committing atrocity crimes against its own people, and yet the Security Council is blocked from taking action by the threatened or actual veto of a permanent member. Those states that wish to reserve the option of circumventing the Council, joining a coalition to use military force to protect the civilian population, may ultimately run up against the crime of aggression.

 

Indeed, states are bound by the UN Charter's peremptory prohibition on the use of force except when they act in self-defence against an armed attack. They may also use force when they are hatted as the UN Organization, normally through a Security Council resolution under Chapter VII. Any other use of force, including "humanitarian intervention" that circumvents the Council, may well amount to aggression.

There is a potential solution: an interpretation of the UN General Assembly's Uniting for Peace resolution that conforms to the UN Charter. If, following referral of a matter by the Security Council, the General Assembly delegates to member states the authority to carry out collective action on behalf of the UN Organization, then they do so without contravening the law of aggression. States may rest assured that by subsuming their authority to intervene to the UN, they serve to reinforce the legality and legitimacy of their action. This would of course require that they successfully make their case for the necessity of intervention, based on pressing humanitarian needs, before their peers at the Security Council and the General Assembly. In other words, the procedure would reinforce the international rule of law.

“That four great nations, flushed with victory and stung with injury, stay the hand of vengeance and voluntarily submit their captive enemies to the judgment of the law is one of the most significant tributes that Power has ever paid to Reason.”


― Robert H. Jackson, Chief Prosecutor, Nuremberg IMT

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