Benjamin B. Ferencz speaking in the courtroom, November 2011. (Courtesy Ben Ferencz)

98 Illegal Armed Force as a Crime against Humanity by Benjamin B. Ferencz1 Abstract of respected military commanders, distinguished academicians and noted At the in 1946, the human rights advocates, this paper waging of aggressive war was indelibly concludes that those leaders who, branded as “the supreme international without lawful justification and with crime, The United Nations affirmed the requisite knowledge and intent, are the Nuremberg Principles and UN responsible for foreseeable large scale committees began creating a new civilian casualties, should be accused International Criminal Court (ICC) of and held to help maintain future peace. Half accountable by fair trial in a competent a century later, in 1998, in Rome, national or international court of law. an enabling statute for an ICC was overwhelmingly acclaimed by 120 1. From Nuremberg to nations. After speedy ratification, the Court became operational in 2002. It Kampala was authorized to deal with genocide, The history of humankind has been crimes against humanity, war crimes the history of wars. The father of and the crime of aggression. However, international law, Hugo Grotius, had several major powers were not prepared called for humane conduct even in to accept any international judicial warfare “lest by imitating wild beasts review of their perceived sovereign too much we forget to be human.”2 right to wage war; the same hesitations Following the devastating U.S. civil still prevailed at an amendment war, Francis Lieber’s code set forth conference in Kampala, Uganda in 2010. humanitarian Rules for the Governance Although aggression was re-defined by of Armies in the Field.3 At consensus, jurisdiction by the ICC was in 1899, delegates adopted the famous again postponed for consideration at Martens Declaration that “belligerents some later date after 2017. The crime remain under the protection of the of aggression still hangs in legal limbo. law of nations as they result from the There is a dangerous gap in the law. usages established among civilized peoples, from the law of humanity and Deterrence is the primary goal. the dictates of the public conscience.”4 If no court is competent to try The Commission on Responsibilities for aggressors, the crime is more likely concluded that those who to be encouraged than deterred. This violated “the laws of humanity” were paper seeks to narrow the immunity “liable to criminal prosecution.”5 Rules gap by suggesting a practical legal outlawing the inevitable atrocities solution to discourage aggressive of war almost invariably contained wars. Legal quibbling encourages exceptions in case of “military evasions. Illegal use of armed force necessity” or “national interests” but should be punishable as “other the “laws of humanity” became an inhumane acts” within the meaning of accepted minimum standard of binding the ICC prohibition of crimes against customary international law. humanity. After considering the views 99 Illegal Armed Force as a Crime against Humanity

In 1945, following the horrors of World a permanent jurisdiction for their War II, the International Military punishment based on practical, Tribunal (IMT) at Nuremberg, together enforceable and enlightened principles, with the United Nations, sounded a we will indeed have reached a turning wake-up call. New thinking and new point in the history of international institutions would be needed, as stated law.11 in the preamble to the U.N. Charter, Expanding and refining legal principles “to save succeeding generations from of crimes against humanity was not the scourge of war.”6 The Charter something that could be accomplished clearly prohibited the threat or use quickly or easily. Universal humanitarian of armed force except in self-defense proclamations have multiplied over the against an armed attack or after years but enforcement of the noble authorization by the Security Council.7 goals has been very slow in coming. U.S. Supreme Court Justice Robert Perpetrators of crimes in armed Jackson, America’s most distinguished conflicts insist that their deeds were jurist, served as Prosecutor for the all necessary and justifiable; victims at the IMT. He reported claim just the opposite. If such disputes to the President that the American cannot be resolved by peaceful legal position “would be based on the means, and there is no impartial common sense of justice … We must not court competent to render a binding permit it to be complicated by sterile judgment, violence is unavoidable. legalisms developed in the age of Yet, we may be approaching a turning imperialism to make war respectable.”8 point as we peruse recent milestones The IMT declared: “This law is not static that mark the progress in protecting but by continual adaptation follows the humanity through law. needs of a changing world.”9 The 1948 General Assembly Universal IMT jurisdiction was based on existing Declaration of Human Rights customary international law and proclaimed the inalienable right of treaties which condemned Crimes all members of the human family to Against Peace, War Crimes and “freedom, justice and peace in the Crimes Against Humanity, such as world.”12 Life, liberty and security of “murder, extermination, and “other persons was fundamental.13 Another inhumane acts committed against any Resolution, in 1984, proclaimed that civilian population.”10 General Telford “the peoples of our planet have a sacred Taylor (later a professor at Columbia right to peace.”14 In the 1990’s the UN University), who directed a dozen Security Council created temporary subsequent trials at Nuremberg, courts to punish genocide and “other following the IMT, concluded, in a inhumane acts” committed in Rwanda prescient speech in Paris in April, 1947: and Yugoslavia. Yet, some powerful If the trials in Nürnberg … can help to governments that supported the expand and refine the legal principles human rights system when it applied to of crimes against humanity, and if others were unwilling to subject their the nations of the world can establish own conduct to legal scrutiny. Despite

100 by Benjamin B. Ferencz such vacillation, the gradual movement and accepted by the UN General toward a more humane world order Assembly (GA Res. 3314).15 In any protected by law was unmistakable. event, the impasse in Rome regarding There has been a slow awakening of the the crime of aggression was bridged human conscience. by postponing further consideration pending a Review Conference intended In 1998, nations meeting in Rome to be convened seven years later. adopted a Statute for an International Criminal Court (ICC) based on the In June 2010, the promised Review Nuremberg precedents. The treaty Conference was finally held in establishing the Court received the Kampala, Uganda. The participants required 60 ratifications and became seemed to acknowledge at the outset operational for over 70 countries in that decisions would be reached only July 2002. Ten years later the number by consensus. “Consensus”, of course, of accepting State Parties had reached meant that everyone had a veto right 121. With the creation of the ICC, about everything. Under such restraints for the first time in human history, a it would be exceedingly difficult to permanent international criminal court reach clear meetings of the mind on came into existence. Only four core any important matters of substance. crimes “of concern to the international Nevertheless, a revised consensus community as a whole” came within definition of aggression was finally the jurisdiction of the Court: genocide, reached that was largely based on the crimes against humanity, war crimes 1974 consensus.16 Its most significant and the crime of aggression. change was that the aggression had to be a “manifest” violation of the UN Major powers were still opposed, as Charter.17 What actually was meant they had always been, to having any by “manifest” remained uncertain. foreign court adjudicate the legality Still, no longer could the convenient of their military actions. They balked but spurious argument be made that at allowing the ICC to try aggressors. aggression could not be prosecuted Small states insisted that without being because it had not been defined. able to punish aggression - “the mother of all crimes” - the ICC would be a Yet, once again, as had been done in farce. As a compromise, aggression was Rome, under pressure from powerful recognized as a crime, but the ICC was states, giving the ICC active jurisdiction prohibited from dealing with it until over the crime of aggression was not certain additional restrictive conditions accepted. As a compromise, it was were met. What was demanded was an agreed to postpone the issue for acceptable new definition of aggression reconsideration at some unspecified and assurances that Security Council future date after 2017. It was an echo of powers would not be diminished. No the lame historical excuse: “the time is one seemed to notice, or wanted to not yet ripe.” Thus, malevolent leaders notice, that in 1974, after years of responsible for what the IMT called negotiation, a consensus definition of “the supreme international crime” still aggression had already been reached remained beyond the ICC’s reach. If

101 Illegal Armed Force as a Crime against Humanity illegal war-makers were to be deterred and increasingly democratic world, by the threat of punishment by a court sovereignty belongs not to a monarch applying “enlightened and enforceable who is above the law but to the people. principles,” new ways had to be found The notion of absolute sovereignty is to end the existing immunities. absolutely obsolete. Enlightened military leaders who 2. Protecting Human experienced armed combat learned Rights Through Law the hard way that law is always better “Enlightenment” begins with the than war. When Dwight D. Eisenhower, recognition of the need for change. who had been Supreme Commander One of the primary objections to of the victorious allied forces in World accepting new international rules War II, became President of the United to govern national conduct was the States, he made an important speech misguided complaint: “Our sovereignty in which he said: “In a very real sense is at stake!” For thousands of years, war the world no longer has a choice was the accepted path to conquests, between force and law. If civilization riches, and glory. Centuries ago, is to survive, it must choose the rule 20 Thucydides articulated the oft-quoted of law.” He was echoing General observation: “We know as practical Douglas MacArthur, Commander in men that the question of justice arises the Far East, who, in 1946 praised the only between those equal in strength, new constitution of Japan, in which the and that the strong do what they can, Japanese people forever renounced and the weak submit.”18 Power was war as a sovereign right. MacArthur, decisive. International law did not exist. a great war hero, called for universal renunciation of armed might. He The treaties of Westphalia in 1648 pointed to modern science and warned ended 30 years of religious conflict in that failure to unshackle ourselves Europe by creating a regional system from the past “may blast mankind to of sovereign States in which a monarch perdition.”21 Recently retired Chairman reigned supreme only within his of the US Joint Chiefs of Staff, Admiral realm. Conquest by combat remained Mike Mullen, has repeatedly declared legitimate. This condition persisted that he would rather prevent or deter a even up to the formation of the League war than fight one.22 It should be noted of Nations, which recognized war- that prohibiting the illegal use of armed making as lawful – as long as the enemy force is designed to protect military as 19 was given three months’ notice. well as civilian victims. The Nuremberg Principles sought Many of our most far-sighted to substitute a rule of enforceable international legal scholars, such humanitarian law to replace the as revered Professors Hersch horrors of armed conflict. Those who Lauterpacht,23 Myres McDougal24 stubbornly refused to be bound by new and his protégé, Michael Reisman25 international rules failed to recognize recognized that the human rights of that, in today’s interdependent the individual can best be protected

102 by Benjamin B. Ferencz by an expansive and not restrictive As a first step, all States Parties to characterization of prohibited behavior the Rome Statute who were present and that we should look to the future, in Kampala should now ratify the and not to the past, in developing amendments on aggression, including norms of acceptable conduct. With the negotiated understandings agreed respect to crimes against humanity, the to by consensus in 2010.29 Failure to highly esteemed Prof. Cherif Bassiouni provide the necessary 30 ratifications has observed that “the purpose of would undermine the utility and the prohibition is to protect against integrity of the entire Kampala effort. victimization irrespective of any Those States Parties that accepted and legal characterization or the context ratified the Rome Statute are already in which it occurs.”26 In his recent legally bound by that treaty to assume book “Unimaginable Atrocities”, Prof. primary responsibility for supporting William Schabas recognized that taking the ICC goals and mandates. If they fail the Nuremberg Principles forward is to ratify their own Kampala consensus, “the mission of international justice, as they foul their own nest. well as international human rights, as a Professor Otto Triffterer of the civilizer not only of individuals but also University of Salzburg, one of of nations.”27 the earliest champions of an Countless non-governmental international criminal court, in his organizations and official UN agencies latest comprehensive commentary have recognized the need for improved drew attention to the Rome Statute’s protection of humanity through law. In preambular mandate stressing “the the absence of competent courts and duty of every State to exercise its political will by world leaders, the right criminal jurisdiction over those to peace proclaimed in a wide variety responsible for international crimes.”30 of resolutions remained little more The statute’s preamble similarly than an articulated but unenforceable speaks of punishment “at the national aspiration. Declaring the law is one level and by enhancing international thing; respecting or enforcing it is cooperation” and emphasizes that the another. The evolution of international ICC is “complementary to national law had not yet reached the point where criminal jurisdictions.”31 This principle institutions or means were available for of “complementarity” meant that it effective peaceful enforcement of the was only when domestic courts were rule of rule of law.28 The existence of unwilling or unable to provide a fair trial the ICC, with its legally binding statute that ICC intervention was appropriate. that required all parties to the treaty Of course, it made good sense to rely to honor their obligations, held forth first on local courts where victims the implied promise that the future could see that justice was being done, would be better than the past. Hope, evidence was more readily attainable, however, does not become reality and costs would be limited. To be sure, without sustained efforts to persuade the Security Council, as provided in the sceptics. the Charter and the Rome Statute, can always intervene in the interest of 103 Illegal Armed Force as a Crime against Humanity world peace.32 as the primary deterrent worldwide.”35 It is particularly notable that States The Human Rights Council Advisory can trump and bypass ICC powers Committee on the right of peoples to by enacting their own local laws peace has recently similarly emphasized authorizing their own courts to try any that there is a universal right for all of the ICC crimes. Leaders who violate peoples to be free from the use of force international criminal law should have in international affairs, and that states to answer to their own courts and their should do their part in advancing such own citizens. If that is not possible or rights.36 The net by which perpetrators feasible, those responsible for massive of international crimes may be killings should not expect the world to apprehended and brought to justice is turn a blind eye to their crimes, but still under construction. Yet, if enough should expect that in the final analysis states carry out their acknowledged justice will be done by the ICC. primary responsibility to enforce the rule of law, those leaders responsible 3. The Primacy for massive human rights violations will of National Courts eventually be left with no place to hide. Addressing the Assembly of State What is needed now is new national Parties on 12 Dec. 2011, the highly criminal legislation to put perpetrators respected United Nations High of human rights violations on notice Commissioner for Human Rights, Navi that their evil deeds will no longer be Pillay, called on nations to fulfil their tolerated. As far as punishing the crime obligations by enacting comprehensive of aggression is concerned, the lock legislation incorporating the Rome will unfortunately remain on the closed Statute into their domestic criminal ICC door until some unpredictable codes. She called upon the Assembly date after 2017 – at the earliest. Still, it to work “toward ending impunity for may be possible for the essence of the gross human rights violations that egregious offence to make its way into amount to the worst crimes.”33 She was national criminal jurisdictions of peace- right to note that the primary objective loving nations. It should be noted that “is not to bring as many perpetrators national laws to protect the right to as possible before the ICC, but to get life and other peaceful humanitarian states to diligently implement their goals do not require Security Council obligation to prosecute international approval. crimes.”34 In reviewing the work of It is, of course, inevitable that on such the ICC on its tenth anniversary, the difficult problems as war and peace President of the Court, Judge Sang- there will be differences of opinion. Hyun Song, correctly observed that Those powerful states that prefer to “the most important aspect of the fight rely on their own unrestrained military against impunity takes place in each might remain free to go their own ways. country, society and community around As long as such differences are dealt the globe. Domestic justice systems with by peaceful means they deserve must be strong enough to be able to act respect. But the use of armed force, 104 by Benjamin B. Ferencz particularly against innocent civilians, torture and other crimes against should not be tolerated. If the Security humanity as punishable in their national Council fails in its duty to maintain courts because they are recognized as peace, other lawful means must be customary international law that should found to protect innocent victims bind all countries. Other states do not and end the outrage that leaders recognize customary international law responsible for the most atrocious unless specifically adopted in their own crime of illegal war-making remain legislation.38 The humanization of man’s immune. Recent experience has shown most inhumane activity must be an that when illegal violence becomes ongoing process in the interest of our unbearable, tyrants may be toppled common humanity. by the awakened und unrestrained To be sure, many smaller states may outrage in the court of public opinion; need help in adapting their local laws to surely, a peaceful legal resolution of meet contemporary needs or threats. such conflicts would be more humane The ICC should, as a form of “positive and in everyone’s interest. complementarity,” assist States to Although uniformity is desirable, close the impunity gap that now different countries have differing legal exists for crimes that were universally systems, and different terminology outlawed at Nuremberg. They should may be needed to enable national let it be known that if nations fail codes to curtail the illegal use of in their duty to protect their own force. If the term “aggression” seems citizens from slaughter, the responsible too politically sensitive, States should leaders may be brought to The Hague consider criminalizing the offense to face trial for their inhumane acts. under a more general description. Similarly, NGO’s and other supporting “The illegal use of force” should be institutions can play a valuable role with recognized and condemned as a “crime respect to informing and galvanizing against humanity”. Of course it would support from the general public and have to be more explicitly defined and sympathetic legislators. The goal should explained, but it might induce militant be to include in national criminal codes extremist groups or states to pause or all of the crimes that were punishable desist from causing great suffering to in Nuremberg and are listed as crimes large numbers of blameless victims. by the ICC and other new international courts. Humanitarian law enforcement Even powerful countries may come begins at home. to see the value of restraining their own military might. The postwar constitutions of Japan and , for 4. Some Practical example, contain provisions recognizing Suggestions that aggression is a crime and curtailing The Rome Statute that binds the their own right to use armed force ICC spells out the parameters of all 37 except in self-defense. Many other of the crimes within its own current states condemn various human rights jurisdiction. Enumeration of certain violations such as genocide, apartheid, actions as “crimes against humanity” 105 Illegal Armed Force as a Crime against Humanity in the ICC statute and similar codes a draft of a model code or template was never intended to be exhaustive to help define the conditions under or exclusive. Crimes which were which an illegal use of force may come separately categorized as “genocide” within the purview of Crimes Against and “aggression” were being dealt with Humanity, possibly as a category of by special UN committees, but such crime included within “other inhumane separate crimes could very well have acts.” In essence, what is required is fit within the broader categorization national legislation along the following of “crimes against humanity.” The ICC lines: statute includes, by way of example, “Any person responsible for the illegal acts which qualify as crimes against use of armed force in violation of humanity: murder, enslavement, the United Nations Charter, which apartheid, rape, torture, and half unavoidably and inevitably results in a dozen similar outrages. The final the death of large numbers of civilians, enumeration of offending types of is subject to punishment for crimes conduct also condemned a catch-all against humanity.” category: “other inhumane acts of a similar character intentionally causing Limiting the crime to persons great suffering or serious injury to body responsible implies a leadership or to mental or physical health.”39 This position. What is illegal is made plain provision is consistent with the IMT by the UN Charter itself: there is an language and with the statutes and inherent right to individual or collective jurisprudence of the ad hoc tribunals self-defense against an armed attack which have been set up by the Security (Art. 51), and, of course, the Security Council. Council can authorize any measures to maintain peace (Art. 42). If those The precise character of “other conditions do not exist, the use of inhumane acts” as crimes against armed force is illegal. humanity was left to interpretation by courts and judges. The door was It should be noted that those who deliberately left open to possible undertake legally authorized armed inclusion of other unforeseeable major force fall into a different category inhumanities that might otherwise have altogether. The legitimate use of escaped judicial scrutiny. Nuremberg armed might is permissible so long correctly condemned aggression as “the as such force is applied in a manner supreme international crime” because proportional to the harm sought to it included all the other crimes.40 be redressed and consistent with Even if the appellation “aggression” established rules of armed conflict. is not used, the consequences of the It is the illegality of the use of force illegal use of armed force may be that gives rise to a crime against equally reprehensible and should not humanity because it shocks the human be allowed to escape criminalization conscience by violating fundamental because of nomenclature. norms of permissible human behavior. It may be useful, therefore, to consider Of course, all of the safeguards of due

106 by Benjamin B. Ferencz process and fair trial must apply to both means. Humanitarian intervention must national and international courts. The not be a cloak for concealed political ICC, for example, can only consider objectives. The use of armed might can “crimes of concern to the international only be legitimate under circumstances community as a whole.” It must be permitted by the U.N. Charter. The shown that the crime against humanity determination of whether armed force was part of a widespread or systematic is lawful or criminal cannot be left to the attack against any civilian population, self-serving and biased protagonists with knowledge of the attack. The or their allies. ICC prosecutors and Prosecutor must prove that the accused judges are required by law to take meant to cause the consequences “or is account of all relevant circumstances, aware that it will occur in the ordinary including mitigating factors, in order course of events.” (Art. 30). The judges to serve the interests of justice. A fair and the Prosecutor must take into and transparent judicial decision by account the gravity of the crime and judges of mixed gender and varied whether the prosecution would serve nationalities, applying humanitarian the interests of justice. (Art. 53). The rules of law remains the safest path to law must be strictly construed and not peace. extended by analogy. It will be up to the ICC rules of procedure and decisions judges rather than the protagonists to by the specialized tribunals created decide whether the specific deeds are by the Security Council to penalize “other inhumane acts” as contemplated the horrors committed in this century by the law. are creating valuable jurisprudence by With such a wide array of safeguards, which the legality of human inhumanity leaders who do not plan to use armed can be judged. If even one murder can force illegally need not fear their qualify as a crime against humanity, national courts or the ICC. They surely maiming and killing thousands should welcome this extension of of innocents should also be recognized international law as a protective shield as a punishable crime by competent for themselves and their citizens. True, national, regional or international national courts are not likely to bring tribunals. charges against their own tyrannical No one can expect all crimes to be leaders. But changes in regime are not eliminated simply by making them uncommon and an independent and punishable locally or internationally. transparent judiciary may offer justice As wisely stated by Professor Theodor instead of vengeance. Meron, an internationally esteemed The international community, legal scholar and currently the frustrated by political inability to use President of the International Criminal authorized armed force, has heralded Tribunal for the Former Yugoslavia, “To a new justification under the guise of genuinely humanize humanitarian law, a “responsibility to protect.” But one it would be necessary to put an end to should never forget that lawful goals all kinds of armed conflict.”41 Of course, should not be pursued by unlawful he’s right. Furthermore, a vast matrix of

107 Illegal Armed Force as a Crime against Humanity social improvements is also required. the power of a self-serving military- The threat of punishment, however, industrial complex that could only certainly has some deterrent effect. A be controlled by “an alert and guarantee that the offender cannot or knowledgeable citizenry.”42 An ideology will not be tried can only encourage cannot be killed by a gun. It requires a more criminality. If the illegal use of more acceptable ideology. The logic armed might can be deterred, even to a of armed might breeds crime. Every slight extent, the effort to save human war makes murderers out of otherwise lives and treasure is surely worthwhile. decent men. Whether they are nations or armed bands, militants must learn 5. Concluding Thoughts to resolve their differences without having to kill their adversaries and their Internal and external wars that brutalize neighbors. The rule of law, nationally human beings continue to deface the and internationally, points the way human landscape. New technologies toward a more humane world. Failure to enhance man’s capacity to kill his fellow enforce the law undermines law itself. humans. The threat to humanity posed by the illegal use of armed force by Skepticism is understandable but, nations and militant groups increases if change is desired, inaction is daily. Having invented the means for intolerable. When the Statute for the destruction of all life, it is difficult to International Criminal Court emerged believe that we lack the intelligence from the negotiations at Rome, U.N. and capacity to prevent it from Secretary General, Kofi Annan, called happening. Of course, there are those it “The hope of future generations.”43 who still believe, as Thucydides did, Legislators, diplomats, students, that wars are inevitable and people will teachers, religious leaders, non- act only to protect their own interests. governmental organizations and every Yet, in today’s inter-dependent and segment of society must be alerted potentially life-ending world, is it not to the vital importance of developing in the interest of all nations to do what national and international criminal law they can to deter war? The notion that to help protect the basic human rights war is an immutable manifestation of of people everywhere. There is nothing some Divine providence simply cannot more important than the right to life. stand the light of intelligent, informed Putting Nuremberg defendants on trial, analysis. War is never Divine; in fact, as Justice Jackson noted in his brilliant war is hell. The willingness among opening statement in 1945, was “one of some to accept violence as the final the most significant tributes that Power arbiter of disputes has given us the has ever paid to Reason.”44 Failure to world of terror, genocide, mass killings recognize that illegal war-making is of children, and similar atrocities that a punishable crime against humanity raise doubts about whether humans repudiates Nuremberg and would be a are really human. tragic triumph of Power over Reason. “Law, not war” remains my slogan and In his farewell address in 1961, U.S. my hope. President Eisenhower warned about 108 by Benjamin B. Ferencz

1 Editor’s Note: The author is the former Nuremberg reporting on the Nuremberg Trials, available on- Chief Prosecutor of the Einsatzgruppen Case, line at http://avalon.law.yale.edu/imt/jack08.asp. in which 22 high-ranking Nazis were convicted 9 IMT Judgement, The Law of the Charter, of slaughtering of over a million innocent men, available on-line at http://avalon.law.yale.edu/ women, and children. In his opening statement to imt/judlawch.asp. See also Benjamin B. Ferencz, the Court, he declared, “The case we present is a An International Criminal Court, A Step Towards plea of humanity to law.” (Original video footage World Peace, p. 479, Oceana Publications, Inc. 1980 is available online at http://www.ushmm.org/wlc/ available online at http://www.benferencz.org/ en/media_fi.php?ModuleId=10007080&MediaId=1 books/FerenczAnInternationalCriminalCourtVol1. 84). He has been an active advocate for the rule pdf. of law throughout his career and a comprehensive 10 Constitution of the International Military selection of his writings, essays, and lectures may Tribunal, Article 6(c), available online at http:// be accessed online at www.benferencz.org. He avalon.law.yale.edu/imt/imtconst.asp. was assisted editorially in the preparation of this essay by his son, Donald M. Ferencz, who is also an 11 speech of April, 1947, translated active proponent of international justice and the copy on file with the author. rule of law; he may be reached at donferencz@ 12 See preamble to General Assembly resolution aol.com. 217 A (III), available online at http://daccess-dds-ny. 2 Hugo Grotius, On the Laws of War and Peace, un.org/doc/RESOLUTION/GEN/NR0/043/88/ Book III. Chap XXV, Section II, available online at IMG/NR004388.pdf?OpenElement. http://books.google.com/books?id=j1esrnUC-YQ 13 Id. at Article 3. C&pg=PA83&lpg=PA83&dq=lest+by+imitating+w 14 G.A. Res. 39/11, 1984, available online at http:// ild+beasts+we+forget+to+be+human&source=bl& daccess-dds-ny.un.org/doc/RESOLUTION/GEN/ ots=5Qu504gqq_&sig=msOgyF3vNMIcNv8VM3 NR0/459/88/IMG/NR045988.pdf?OpenElement. NcFPuLM5s&hl=en&sa=X&ei=6RzBT9OcGomk9 15 ASuwby0Cw&sqi=2&ved=0CEYQ6AEwAA#v=o G.A. Res. 3314 (1974), available online at http:// nepage&q=lest%20by%20imitating%20wild%20 daccess-dds-ny.un.org/doc/RESOLUTION/GEN/ beasts%20we%20forget%20to%20be%20 NR0/739/16/IMG/NR073916.pdf?OpenElement; human&f=false. see also Benjamin B. Ferencz, Defining International Aggression, Volume II, Oceana 3 Available on-line at http://avalon.law.yale. Publications, Inc. (1975), B. Ferencz, “The United edu/19th_century/lieber.asp. Nations Consensus Definition of Aggression: 4 See The Preamble to The Geneva Convention (IV) Sieve or Substance?”, Journal of International respecting the Laws and Customs of War on Land Law and Economics, National Law Center, George and its annex: Regulations concerning the Laws and Washington University 10 (Aug.-Dec.,1975) 701-724. Customs of War on Land. The Hague, 18 October 16 For a comprehensive discussion of the Kampala 1907, available online at http://www.icrc.org/ihl. amendments and process, see Stefan Barriga nsf/WebART/195-200001?OpenDocument. and Leena Grover, A Historic Breakthrough on 5 Violations of the Laws and Customs of War, the Crime of Aggression, American Journal of Reports of Majority and Dissenting Reports International Law, July 2011 edition, Vol. 105:477, of American and Japanese Members of the pp. 517-533, available online at http://www. Commission of Responsibilities Conference of regierung.li/uploads/media/105_AJIL_July_2011_-_ Paris 1919, Carnegie Endowment for International Barriga-Grover_-_Historic_Breakthrough_on_the_ Peace, Division of International Law, Pamphlet Crime_of_Aggression_01.pdf. No. 32, Clarendon Press, Oxford, 1919, at p. 20, 17 For a discussion of the development of the available online at http://archive.org/stream/ definition of the crime of aggression up to and violationoflawsc00pariuoft#page/n1/mode/2up. including the Kampala review conference, see 6 Preamble to the United Nations Charter, Prof. Claus Kress and Leonie von Holtzendorff, available online at http://www.un.org/en/ The Kampala Compromise on the Crime of documents/charter/. Aggression, available online at http://intl-jicj. 7 U.N. Charter Articles 2(4), 42-51, available online oxfordjournals.org/content/8/5/1179.full.pdf+html. at http://www.un.org/en/documents/charter/. 18 Excerpted from a History of the Peloponnesian 8 Letter from Justice Robert H. Jackson to the Wars, relevant portion available online at President of the United States, 6 June 1945, http://www.rooseveltlausd.org/ourpages/ 109 Illegal Armed Force as a Crime against Humanity

auto/2010/9/29/49133548/Thucydides%20 humanity, see also Leila N. Sadat, Forging a History%20of%20the%20Peloponnesian%20 Convention for Crimes Against Humanity, War.doc. Cambridge University Press, 2011. 19 Covenant of the League of Nations, Art. 12, 27 William Schabas, Unimaginable Atrocities, available online at http://www.unhcr.org/refworld/ Oxford University Press, 2012, at p. 221. publisher,LON,,,3dd8b9854,0.html. 28 For a general discussion of the development 20 Statement by President Dwight D. Eisenhower of international law, see Benjamin Ferencz, New made on April 30, 1958, in recognition of Legal Foundations for Global Survival, Oceana Law Day, available online at http://www. Publications, 1995 and Enforcing International Law, eisenhowermemorial.org/pages.php?pid=504 . A Way to World Peace, Oceana Publications, 1983 21 Excerpted from an address to The Allied (included among selected works of the author Control Council in Tokyo, April 1946, American available online at http://heinonlinebackup.com/ Affairs, Vol. III, No. 3, at p. 150, Summer Edition HOLtest/UNLAV ). (July, 1946), available online at http://mises.org/ 29 Ambassador of Liechtenstein to the United journals/aa/AA1946_VIII_3.pdf. Nations, Christian Wenaweser, as the outgoing 22 See, for example, Mullen’s address to The President of the Assembly of States Parties, Washington Center for Internships and Academic declared, “It is now up to each one of us States Seminars, Washington, DC, 6 January 2010, where Parties to do what is necessary to have this he said “I would much rather prevent a war than system become operational in 2017.” Remarks fight a war.” Available online at http://www.c-span. by Christian Wenaweser as ASP President org/Events/Washington-Center-Seminar-with- (2009-2011), p. 2, available online at http://www2. JCS-Chair-Adm-Michael-Mullen/16680/. icc-cpi.int/iccdocs/asp_docs/ASP10/Statements/ 23 ASP10-ST-PASP-CW-CLRemarks-ENG.pdf. The For a short biographical sketch and tribute Principality of Liechtenstein became the first to Hersch Lauterpacht, see Philippe Sands, My State to deposit its instrument of ratification of legal hero: Hersch Lauterpacht, The Guardian the Kampala amendments on 8 May 2012. Online, 10 November 2010, available online at 30 http://www.guardian.co.uk/law/2010/nov/10/ For his major work reviewing the Rome Statute, my-legal-hero-hersch-lauterpacht. see Triffterer: Commentary on the Rome Statute 24 of the International Criminal Court: Observers’ See, for example, McDougal, Myres S., Notes, Article by Article (Second Edition), Hart “International Law and the Future” (1979). Publishing, 2008. Faculty Scholarship Series. Paper 2662, available 31 online at http://digitalcommons.law.yale.edu/cgi/ Preamble, The Rome Statute of the International viewcontent.cgi?article=3677&context=fss_papers . Criminal Court, available online at http://untreaty. 25 un.org/cod/icc/statute/romefra.htm. See also As noted by Myres McDougal, supra, note 24, the remarks of Amb. Tiina Intelmann, the current at p. 260, “Michael Reisman has appropriately President of the Assembly of States Parties who, emphasized that lawyers must continuously make upon her election stated, “States Parties should judgments about the future. In Reisman, Private increase their focus in building capacities of Armies in a Global War System: Prologue to a national jurisdictions. This is also the only way Decision, 14 VA. J. OO’L L. 1,33 (1973), he writes: to deter future crimes.” SECRETARIAT OF THE Lawyers too often overlook the painfully obvious ASSEMBLY OF STATES PARTIES, Tenth Session fact that though the events which precipitate of the Assembly, New York, 12 – 21 December 2011, decisions come from the past, decisions Remarks by Amb. Intelmann, the new President themselves are future oriented; the test of their of the Assembly upon election, at p. 1, available quality is not whether they conform to the past, online at http://www2.icc-cpi.int/iccdocs/ but rather whether they structure processes and asp_docs/ASP10/Statements/ASP10-ST-NPASP- value allocations in the near and distant future in Remarks-ENG.pdf. preferred ways.” 32 26 ICC Statute Article 16, available online at http:// M. Cherif Bassiouni, Crimes Against untreaty.un.org/cod/icc/statute/romefra.htm. Humanity in International Criminal Law, at p. 44, Kluwer Law International, 2d ed. 1999. For an 33 Statement of Navi Pillay to the Assembly of excellent discussion of the movement toward States Parties, 12 December 2011, available online an international convention for crimes against at http://www2.icc-cpi.int/iccdocs/asp_docs/ ASP10/Statements/ASP10-ST-UNHCHR-ENG.pdf. 110 by Benjamin B. Ferencz

34 Id. See also speech of Navi Pillay, UN High 38 See, for example, R. v. Jones, where the U.K. Commissioner for Human Right, at Cinema Law Lords opined that the crime of aggression for Peace Dinner, December 2011, New York, exists in customary international law, but must NY, available online at http://www.ohchr. first be domesticated into national law by specific org/en/NewsEvents/Pages/DisplayNews. legislative action before it can be prosecuted in aspx?NewsID=11724&LangID=E. domestic courts, [2006] UKHL 16, available online 35 International Criminal Court Turns Ten, Opinion at http://www.publications.parliament.uk/pa/ piece by Judge Sang-Hyun Song, President of ld200506/ldjudgmt/jd060329/jones-1.htm. the International Criminal Court, 2 July 2012, 39 The Rome Statute of the International Criminal available online at http://appablog.wordpress. Court, Article 7, Paragraph 1.k, available online at com/2012/07/02/international-criminal-court- http://untreaty.un.org/cod/icc/statute/romefra. turns-ten-opinion-piece-by-judge-sang-hyun-song- htm. By way of example, courts have interpreted president-of-the-international-criminal-court/. beatings and acts of violence, including forcing a 36 See Progress Report of the Human Rights woman to exercise naked in public to constitute Council Advisory Committee on the Right of “other inhumane acts”. See Substantive and Peoples to Peace, as reproduced 9 December 2011, Procedural Aspects of International Criminal A/HRC/AC/8/2, available online at http://www. Law, the Experience of International and National ohchr.org/Documents/HRBodies/HRCouncil/ Court, Gabrielle Kirk McDonald and Olivia Swaak- AdvisoryCom/Session8/A-HRC-AC-8-2_en.doc. Goldman, Volume I, Kluwer Law International, 37 2000, at p. 244. Author’s note: If crimes such as The Japanese Constitution at Article 9 reads these are within “other inhumane acts”, surely “Aspiring sincerely to an international peace based killing masses of civilians in an illegal war merits on justice and order, the Japanese people forever at least equal condemnation as a prosecutable renounce war as a sovereign right of the nation crime. and the threat or use of force as means of settling 40 international disputes. In order to accomplish the Judgment of the International Military Tribunal aim of the preceding paragraph, land, sea, and air at Nuremberg, under the heading The Common forces, as well as other war potential, will never Plan or Conspiracy and Aggressive War, available be maintained. The right of belligerency of the online at http://avalon.law.yale.edu/imt/judnazi. state will not be recognized. “(available online asp. at http://www.kantei.go.jp/foreign/constitution_ 41 94 American Journal of International Law and_government_of_japan/constitution_e.html). (pp.240) (April 2000). Art. 26(1) of the German Basic Law reads: 42 Eisenhower’s farewell addresses to the nation, “Acts tending to and undertaken with intent to 17 January 1961, text available online at http:// disturb the peaceful relations between nations, avalon.law.yale.edu/20th_century/eisenhower001. especially to prepare for a war of aggression, asp. For a video of the speech, as delivered, see shall be unconstitutional. They shall be made http://www.youtube.com/watch?v=CWiIYW_fBfY. a criminal offense.” (available online at http:// 43 www.iuscomp.org/gla/statutes/GG.htm#26); See Statement of U.N. Secretary-General moreover, German Ambassador Hans-Peter Kaul, Kofi Annan at the opening of the Preparatory a respected judge at the ICC, has been an ardent Commission of the International Criminal Court, and outspoken champion of criminalizing the New York, 16 February 1999, available online at crime of aggression and the illegal use of force on http://www.ngos.net/un/icc.html. both the international and national level (See, for 44 Transcripts of the IMT proceedings and example, Is it Possible to Prevent or Punish Future judgement may be found on-line at The Avalon Aggressive War-making? Address by Judge Dr. jur. Project, with the opening statement of Jackson h. c. Hans-Peter Kaul, Second Vice-President of at http://avalon.law.yale.edu/imt/chap_05.asp. the International Criminal Court at the Li Haopei The trial transcript erroneously indicates that Lecture Series “Implications of the Criminalization Jackson used the phrasing “Power ever has of Aggression” , 8 February 2011, Forum for paid to Reason”; what Jackson actually said International Criminal and Humanitarian Law, was “Power has ever paid to Reason,” as may Oslo, Norway, available online at http://www. be seen on live video footage of his opening icc-cpi.int/NR/rdonlyres/6B2BA9C6-C5B5- statement available at http://www.youtube.com/ 417A-8EF4-DA3CA0902172/282974/07022011_ watch?v=L50OZSeDXeA. ImplicationsoftheCriminalizationofAggress.pdf). 111