"At his best, man is the noblest of all animals; separated from law and justice he is the worst."
A T this stage in the evolution of the human race, questions about the legitimacy of war and the definition of what constitutes aggression or weighing the options for intervention on humanitarian grounds versus waging a war for geopolitical supremacy are paramount and both timely and relevant. It is time we called for an end to the indiscriminate use of armed force against civilians, brutal occupation and carpet-bombing of cities, murder and torture of innocent civilians, bombing of hospitals and schools and genocide of ethnic minorities.
Noah Weisbord, the author of The Crime of Aggression , the insightful book under review, offers a valuable and provocative thesis that “making war, traditionally a prerogative of presidents and princes, may soon become an international crime”. The legal fights that have stretched for decades have ended with the enactment of a historic legislation that holds politicians liable for any unlawful acts of aggression in the nature of war, drone strikes or cyberattacks.
When threats of economic sanctions fail, international institutions of justice come into play, often through humanitarian military intervention or international alliances that take on the responsibility of averting genocides. Although the motives for intervention may be more in terms of regional geopolitics than humanitarian, in cases of ambiguity of the nature of the crime, the International Criminal Court (ICC) will swing into action. However, delays and procrastination often ensue because of burdensome theoretical laws and extensive bureaucratic procedural paperwork and details.
Weisbord seeks to examine the contravention of justice by defining “aggression” through a critical multilayered view of the history of the crime and the inherent multiple perspectives underscoring the importance of arriving at the nature of the aggression, defining it, and deciding who shall be put on trial and by whom.
Taking action in the form of an armed attack is subject to scepticism on the grounds of the questionable legitimacy of the humanitarian motive. If it happens to be in the nature of justice and peace, it will be difficult to ensure that the military intervention is not at a later date construed as illegitimate and, consequently, punishable under international law.
Weisbord suggests that in view of the problematic nature of the definition of aggression, it must be in the ambit of the ICC to take the final call, as the existing international bodies such as the United Nations General Assembly and the Security Council have a long history of political bias and failure in marshalling a peaceful conclusion to any escalating international issue. Examining the “crime” of aggression and the “act” of aggression, therefore, become primary for the purpose of arriving at a justifiable solution largely with the question of peace uppermost: “To engage in bona fide humanitarian intervention is to be exempt from prosecution for aggression.”
Criminal tribunals must bear in mind the binary of peace and justice and prioritise the value of peace as the keystone of their jurisprudence. The scope of “self-defence, the status of humanitarian intervention under the U.N. Charter and the character of an armed attack”, therefore, become significant aspects for investigation before any adjudication.
Weisbord underscores the exclusive jurisdiction of the ICC to scrutinise the crime of aggression that will supersede the power of the Security Council and also go forward in developing an “affirmative defence to the crime of aggression that would allow indicted leaders to use either a high or low evidentiary standard depending on whether their state acted alone or through a multilateral organisation”. Weisbord, himself a key drafter of the law for the ICC, makes a case for prosecution, placing the criminal culpability on individual perpetrators rather than the state. The states that have signed on the treatise of the ICC are finally at a juncture where “aggression” is rightly added to the list of crimes of genocide, crimes against human rights and war crimes.
This law, endorsed on July 17, 2018, will be a game changer in international diplomacy, although it carries great risks along with many promises: “The idea of prosecuting a country’s leader for ordering a war that violates the United Nations Charter is appealing, until you imagine your own leader in the dock for a war that your countrymen accepted as self-defence or humanitarian intervention. Just as one nation’s terrorist is another nation’s freedom fighter, one state’s just war is bound to be another state’s unjust war” ( Who Started the Fight? byNoah Weisbord, TheNew York Times , May 3, 2010).
The creation of the ICC has been long delayed owing to the inability to arrive at a unanimous definition of “aggression” during the Cold War. By citing examples of war crimes in Myanmar, Sudan, Somalia and Syria, Weisbord gives the parallel of the Nuremberg Trials (1945-49), where Hermann Goering and many high-ranking Nazi military officers were put on trial and whose processes resulted in the categorisation of crimes and the constitution of the ICC.
The time has come now to take cognisance of the mounting urgency of the epidemic of war and international injustice. Aggression, according to the ICC, carries the definitive semantics of “invasion, bombardment, blockade, attacking the armed forces of another state, contravening an agreement to station forces in another state, allowing one’s territory to be used by another state to attack a third state, and the sending of armed bands. Saddam Hussein’s invasion of Kuwait in 1990 is a textbook act of aggression.” The North Atlantic Treaty Organisation’s (NATO) intervention to stop ethnic-cleansing in Kosovo by Slobodan Milosevic is a fitting example.
Weisbord does not overlook the “sceptics” who regard the ICC as politically too fragile, mainly on the grounds that the definition of “aggression” is deeply subjective or relative. Consequently, accusations of aggression against a nation in all probability may result in unforeseen tensions and aggravated tempers, thereby vitiating the delicate balance of world peace. But the people behind the draft counter such critics arguing that until the ruthless rulers of Sudan, Syria and North Korea are removed, the world will remain in a state of uncertainty and turbulence, exacting the most punishing toll on innocent people. Saddam Hussein had to be eliminated (in 2003) to give peace a chance.
International law gains some credibility in the context of the new law and the faith of the nation-states in it for furthering the cause of world peace. With a legal system in place and ready to promulgate harsh sanctions on perpetrator states, insurgents or individuals, the crimes of brutal and hard-nosed leaders will no longer be tolerated. The suffering of the people of Iraq under Saddam Hussein’s cruel reign is a case in point.
Understandably, Britain would have stayed off from the invasion of Iraq had Prime Minister Tony Blair feared being termed an aggressor by the ICC. The fear of prosecution will at least act as a deterrent for the signatories of the draft, sending a signal to non-signatories about the importance of handling international affairs in a just and thoughtful manner.
We have waited too long for such an enactment. Powerful nations may resist, but for the moment those who are willing to follow the rule of international law go a long way in setting an example that may ultimately lead us to a more peaceful and harmonious cross-border coexistence. This view, though grossly optimistic now, draws us towards a more realistic picture of the road map that international law must adopt.
The message is loud and clear in Weisbord’s efforts to grasp the vision of a more just world through the formation of robust institutions that can tackle the crimes of aggression. His historical study of the evolution of international law from the days of the League of Nations to the negotiations over the Rome Statute of the ICC, and the amendments to the statute in 2010 on the crime of aggression take the final trajectory of his study to the bringing of charges against the Russian military for aggression in Ukraine and the inquiry of Blair's conduct in the Iraq war.
Rule of justice
Weisbord’s insights on the limitations of the crime of aggression as well as his analysis of cyberattacks and warfare conducted with drones clearly contextualise the rule of justice in critical issues of international diplomacy. The real-life situations of September 11, 2001, and the subsequent war on terror as well as the critical analysis of the ongoing conflictual stance of the supporters of this enactment and those who aim to sink the ship amply justify the arguments of the book that seek to further the cause of “humanising modern statecraft”.
The world is embroiled in protracted wars, with aggression unleashed on the most vulnerable and powerless peoples. The time is ripe to align with thinkers such as Weisbord, who advance a bold step forward for the restoration of relative peace rather than descend in a hopeless spiral of endless, grievous aggression against fellow human beings.
Hope is a catalysing force, as Albert Camus said in his parable The Myth of Sisyphus : “A man devoid of hope and conscious of being so has ceased to belong to the future.”