Aggression as 'Organized Hypocrisy?' – How the War on Terrorism and Hybrid Threats Challenge the Nuremberg Legacy
The Windsor Yearbook of Access to Justice Vol 30 (1)
20 Pages Posted: 24 Jun 2011 Last revised: 18 Oct 2012
Date Written: 2011
Modern threats to international peace and security from so called, "hybrid threats," such as cyber war, low intensity asymmetric conflict scenarios, global terrorism, etc., which involve a diverse and broad community of affected stakeholders involving both regional and international organisations/structures, also pose further questions for the existing legacy of Nuremberg. The (perhaps unsettling) question arises of whether our present concept of, "war and peace," with its legal pillars of the United Nations Charter’s Articles 2(4), 51, and the notion of the criminality of waging aggressive war based on the, "legacy," of Nuremberg has not become outdated to respond to new threats arising in the 21st century. This article also serves to warn that one should not use the definition of aggression, adopted at the ICC Review Conference in Kampala in 2010, to repeat the most fundamental flaw of Nuremberg: Ex post facto criminalisation of the (unlawful) use of force. A proper understanding of the, "legacy of Nuremberg," and a cautious reading of the text of the ICC definition of aggression provide some markers for purposes of the debate on the impact of new threats to peace and security and the use of force in international law and politics.
Keywords: Armed Conflict, Legality of the Use of Force, Nuremberg Principles, Hybrid Threats, Asymmetric Warfare, ICC Review Conference Kampala
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