To Wreck a State: The New International Crime

Abstract

The Responsibility to Protect Doctrine (R2P) - a modern version of the doctrine of Humanitarian Intervention - seemed to gain growing acceptance amongst scholars and statesmen during the first decade of the twenty-first century. When Libyan dictator Muammar Gaddafi faced an insurgency against his rule in 2011, R2P was deployed as the legal justification for the U.N.'s intervention in Libya via NATO, which resulted in the elimination of the Gaddafi regime. However, in the five years since the intervention, Libya has devolved into a broken and failed state. Its social and economic demise raises the question: Should there be consequences in international law for "wrecking" a state, provided the wrecking is accomplished through the pretextual and fraudulent use of humanitarian concerns? This Article answers this question in the affirmative, and proposes the recognition of a new crime in international law - "Aggression-By-Pretense" - to be prosecuted at the international level in the International Criminal Court. It explores the key theoretical and practical dimensions of this new crime, moving us past the long and somewhat tired debate over the wisdom of R2P toward an exploration of the concrete legal consequences that should ensue for the world’s statesmen in the event R2P is abused.

Keywords: Responsibility to Protect, aggression-by-pretense, R2P criminal cases