Criminally Disproportionate Warfare: Aggression as a Contextual War Crime
51 Pages Posted: 10 Oct 2015
Date Written: August 27, 2015
International law has long recognized the general principle that an illegal act cannot produce legal rights. Yet this principle of ex injuria jus non oritur is seemingly ignored in the uneasy relationship between the two international legal regimes most associated with war. A head of State can, for example, violate international law regulating the resort to armed force by ordering his military forces to illegally invade another country, yet he, through his military forces, simultaneously and subsequently benefits on the battlefield from the application of the separate body of international law regulating the actual conduct of war. This paradoxical benefit flows from the latter regime’s salutary rules that permit the killing of opposing belligerent forces and the destruction of military objects while also allowing the incidental death of civilians and destruction of civilian property during hostilities, even if the war is illegally triggered.
Yet the ex injuria jus non oritur principle is not completely jettisoned by this divorced operation of related legal regimes; the once-controversial crime against peace developed at Nuremberg has blossomed into the modern international crime of aggression, thus in theory condemning such a head of State under international criminal law for his role in launching such an illegal invasion, thereby limiting his illegal gains. However, the prosecution of a head of State for such a crime of aggression remains chimerical, at least for the time being, as the international community moves in fits and starts to enforce international law in the criminal arena.
While the crime of aggression has not been prosecuted since its predecessor was controversially developed and implemented at Nuremberg and Tokyo, the international community has since witnessed numerous international prosecutions of war crimes — violations of international laws governing the battlefield. This Article explores whether the crime of aggression can be prosecuted as a war crime by exposing the intersection of war’s two legal regimes within the war crime of disproportionate attack. It concludes that, exclusively for those State leaders responsible for crimes of aggression, the resultant collateral damage caused by such aggression — the civilian deaths and property destruction otherwise allowed by the international laws governing warfare — could be considered criminally excessive by building upon the contextual approach inherent in both bodies of law. Such an approach resides at the outer edges of the lex lata, but is one that normatively resonates with both common sense and the dictates of humanity.
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