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Every reasonable person hates war. Even Dwight D. Eisenhower, who commanded the Allied military in the worst war in human history, said, “I hate war as only a soldier who has lived it can, only as one who has seen its brutality, its futility, its stupidity.” Yet it still persists. Today at least 32 countries are at war, including, of course, the Russia-Ukraine War and the Hamas- Israel War in Gaza, and another source estimates there are more than 110 armed conflicts.
War is not legal. Aggression is a crime against peace and those who commit this crime shall be prosecuted and held accountable. Here I’ll review how war was made illegal, when the use of force can be legal, the definition of the crime against peace or aggression in the 1998 Rome Statute, and how those who commit the crime against peace shall be prosecuted.
World War I had about 40 million casualties: 20 million fatalities and 21 million injured. Among the fatalities there were 9.7 million military personnel and 10 million civilians. The estimated financial costs were $125.266 billion for the Allies and $61.215 billion for the Central Powers, in 1914-1918 dollars.
The utter devastation of that war led to a demand for an end to wars and the creation of the League of Nations, based on the principle of collective security. It did not include all countries but over 60 countries joined.
But what made war definitively illegal was the 1928 Kellogg-Briand Pact or the Paris Peace Pact. It was first proposed by France and the United States, French Foreign Minister Aristide Briand and US Secretary of State Frank B. Kellogg. It was signed by most of the established countries in the world at the time who signed a pact stating that this crime shall be prosecuted they condemn recourse to war for the solution of international controversies and renounce it as an instrument of national policy.
So, another mechanism would be required to resolve disputes amongst States. This came with the establishment of the Permanent Court of International Justice to arbitrate disputes among States.
Nevertheless, World War II came and killed 75 million people – 20 mil- lion military personnel and 40 mil- lion civilians. The financial costs were astronomical – an estimated $4 trillion in today’s dollars.
WW I, “the war to end all wars,” had been devastating, but WW II exceeded it manifold. And again, an overwhelming desire to end war arose, and the United Nations was established.
The Charter of the United Nations declared its purpose: “to save succeeding generations from the scourge of war, which twice in our lifetime has brought untold sorrow to mankind.” The UN is dedicated to the maintenance of “international peace and security;” and all its Members accept that “armed force shall not be used, save in the common interest.”
Even the threat of the use of force is strictly forbidden by Member States.
There are, however, two exceptions to this prohibition: (a) a State’s right to (individual or collective) self-defense, and (b) collective security measures ad- opted by the UN Security Council.
In addition, the right of peoples to self-determination is a possible exception to the prohibition of the use of force. But the officials of any State that does not adhere to these legal international principles has broken the law and ought to be prosecuted.
There are three essential components to the human right to peace: (a) the right to life; (b) the right to dignity; and © the right to order allowing for the full outcome of rights.
Each of these human rights are a part of the Universal Declaration of Human Rights. And the 1966 International Covenant on Civil and Political Rights states that, “any propaganda for war shall be prohibited by law,” and that “any advocacy of national, racial, or religious hatred that constitutes incitement to dis- crimination, hostility or violence shall be prohibited by law.” Also, war contradicts the International Covenant on Economic, Social and Cultural as several United Nations Resolutions, three Declarations and a definition of aggression that declares that a “war of aggression is a crime against peace.”
There is a human right to peace in international law and, if a State uses force, save in a very restricted way, then it is committing a crime against peace or aggression.
The Nuremberg Charter was the first time that crimes against peace, war crimes, and crimes against humanity were used in international instruments. Also, General Douglas MacArthur, Supreme Commander for the Allied Powers in Japan, established the International Military Tribunal for the Far East (IMTFE) in Tokyo in 1946. It adopted the terms and definitions of the Nuremberg Charter. However, what was unique about the IMTFE was that all the accused were charged with the crime against peace as well as war crimes or crimes against humanity. Moreover, unlike the Nuremberg trials, only individuals whose crimes included crimes against peace could be prosecuted by the Tribunal.
Following the Nuremberg and Tokyo crime trials, there were no further prosecutions for crimes against peace or aggression until the establishment of UN Special Tribunals in the 1990s.
The 1998 Rome Statute established the International Criminal Court (ICC) which has the jurisdiction to try crimes against peace. It states that the “crime of aggression” means the planning, preparation, initiation, or execution, by a person in a position effectively to exercise control over or to direct the political or military action of a State…” Further, it states that an “act of aggression” means the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State…“
However, the ICC’s jurisdiction over the crime against peace or aggression is highly constrained. Its jurisdiction over crimes of aggression depends on whether a State is a party to the Rome Statute and has accepted the amendments to the Rome Statute giving the ICC jurisdiction over crimes of ag- aggression. The ICC can only consider those crimes of aggression that take place one year after 30 States have ratified or accepted the amendments (i.e. since 2018).
There are also other limitations. For ex- ample, the UN Security Council has the authority to designate whether a crime of aggression has taken place and can make referrals to the ICC. The rule makes it highly problematic, although in a few cases possible, for the ICC to prosecute individuals for the crime of aggression.
The ICC is greatly constrained when prosecuting blatant acts of aggression by Russia. On March 17, 2023, the ICC indicted Russian President Vladimir Putin and Maria LvovaBlova for war crimes of unlawful deportation of population (children) and the unlawful transfer of population (children) from occupied areas of the Ukraine to the Russian Federation. About a year later, the ICC indicted Lt. General SergeiIvanovich Kobylash, Commander of Russia’s Long- Range Aviation, and Admiral Viktor Nikolayevich Sokolov, Commander of Russia’s Black Sea Fleet, for the war crime of directing attacks on civilian objects and causing excessive incidental harm to civilians or damaging civilian objects, and crimes against humanity of inhuman acts. While the ICC should be applauded for doing so, given Russia’s conduct of the war in the Ukraine, they did not indict these persons for the crime of aggression or the supreme international crime. Why not?
As Professor Derrick Wyatt, KC, has noted, the ICC’s authority is limited in two respects. First, its rules prohibit trying defendants in their absence. Second, it can only try an individual for the crime of aggression if they are a national of a state that has signed the Court’s statute. That rules out such proceedings against Presidents Putin and Lukashenko because neither Russia nor Belarus has done so.
Given these restrictions, there have been many calls for a Special Tribunal for the prosecution of the crime against peace or aggression, as in the Nuremberg and the Tokyo Trials. For example, the European Commission has established the International Centre for the Prosecution of the Crime of Aggression in The Hague that is operating within Eurojust. And some 40 countries are negotiating to set up a Special Tribunal for the prosecution of those responsible for the crime against peace or aggression.
The human right to peace makes war illegal and limits the use of force to specific situations and circumstances and only when sanctioned by the United Nations. The world has endured vast turmoil and suffering to get to this point.
The United Nations Security Council (UNSC) is key to maintaining “international peace and security” and restricting or authorizing the use of force for self-defense. But, as we know, the veto power of the five permanent members deadlocks the UNSC on these matters.
Likewise, the ICC has the authority to prosecute those responsible for the illegal use of force or the crime against peace or aggression, but the current provisions of the ICC on the crime of aggression make that almost impossible. Therefore, some States are considering other measures such as a Special Tribunal to indict and prosecute those responsible for crimes against peace or aggression.
The human right to peace should be upheld vigorously. The supreme inter- national crime of aggression should be enforced with equal vigor. No one is above the law, period. Impunity for the crime against peace or aggression must never be tolerated.