Tom Dannenbaum | University College London (original) (raw)

Papers by Tom Dannenbaum

Uniquely in international criminal law, the criminalization of aggression is rooted in a wrong in... more Uniquely in international criminal law, the criminalization of aggression is rooted in a wrong inflicted by a state on another state, rather than in a wrong (or collection of wrongs) inflicted on individual human beings by other human beings (whether or not the latter are state agents). Other international crimes, like genocide, also involve wrongs against a collective entity. However, the wrong underpinning aggression is special because it occurs exclusively on the macro level. Even the bloodiest aggressive war need not inflict any criminal wrong on individuals. Or so goes the traditional normative account (shared by those who defend the criminalization of aggression and those who object to that criminalization).

I reject that understanding. Not only are individuals wronged gravely in an aggressive war, the wrongfulness of their treatment as individuals is at the very crux of what explains the criminalization of aggression. It is the normative core of the crime.

To be clear, the dominant view is correct that whether a war is criminal is determined on the macro level by whether there is an inter-state breach. But that inter-state breach cannot explain why waging such wars is criminal. The core moral problem with aggressive war is not that it infringes sovereignty, but that it entails killing, maiming, and destroying in a context that does not warrant the infliction of such profound human harms.

There are five reasons that this is the optimal normative account of the crime of aggression. First, the concept of “sovereignty” or “states’ rights” is indeterminate as a normative guide on the issue of aggression. The criminalization of such wars is at least as great a restraint on state sovereignty as it is a protection of it. Second, what distinguishes aggression from any other sovereignty violation is that it involves widespread killing, not that it involves especially egregious violations of territorial integrity or political independence. Other violations that more effectively and dramatically infringe those sovereign rights are not criminalized. Conversely, there is no sovereignty violation that more directly attacks the physical integrity of human beings than does aggressive war. Third, understanding aggression in this way reconciles it to the broader international criminal law project. Fourth, the claimed imperative to incorporate a restrictive jus ad bellum into twentieth century international law was articulated not in terms of sovereignty, but in terms of human suffering. Finally, the jurisprudence and reasoning of the judges and prosecutors at Nuremberg and Tokyo affirmed their understanding that the prohibition of wrongful killing is normatively central to the crime.

The Article concludes by explaining why clarity on this normative substructure is not merely a point of theoretical accuracy, but has significant upshots for the legal framework. First, genuine unilateral humanitarian intervention may be illegal, but it cannot coherently be deemed criminal. Second, so-called “bloodless aggression” is also unlikely to be criminal, unless it involves a massive, immediate, and direct threat to human life. Third, soldiers who participate in criminal wars are not just participants in a mass criminal action. They are also the immediate perpetrators of the constituent wrongs that make sense of the criminality of that action. This has significant implications for their status under international law. Fourth, recognizing that the victims of aggression are individuals (and not just states) sheds light on how we ought to conceive of reparation in this context.

In this essay, I take up two concerns raised by Harold Koh and Todd Buchwald in their critique of... more In this essay, I take up two concerns raised by Harold Koh and Todd Buchwald in their critique of the Kampala amendments on aggression: what they term " proxy prosecution " and the notion of aggression as a uniquely political question. I also take issue with the argument in Alain Pellet's response on attacks by nonstate actors.

What ought to happen legally when multiple states and international organisations (IOs or organis... more What ought to happen legally when multiple states and international organisations (IOs or organisations) participate in an institutionally thick cooperative venture that subsequently engages in wrongdoing? To whom should such wrongdoing be attributed?
This Chapter proposes a way of thinking about responsibility for a particular form of cooperative action – what I term here the joint public enterprise (JPE). My claim is that the normative principle underpinning the ex post attribution of JPE wrongdoing should be that of reciprocity between public power and preventive responsibility. Enterprise wrongs ought to be attributed to the participant states or organisations that hold the levers of control most relevant to preventing the type of wrongdoing in question. The proposal has two primary virtues. First, it aligns ex post attribution in JPEs with a deep moral principle that already undergirds state responsibility in unilateral contexts. Second, it strikes the right balance between preventing wrongdoing and encouraging cooperation.

What are the contours of the supranational judge’s legal and ethical duties? How should internati... more What are the contours of the supranational judge’s legal and ethical duties? How should international courts be structured so as to enable her to discharge those obligations? This chapter considers the purpose of codes of judicial ethics and defines the issues worthy of focus; it identifies three core ethical challenges peculiar to the international judiciary, evaluates existing efforts to address those issues, identifies priority areas for reform, and reflects on the aspirational nature of such reforms.

When United Nations peacekeepers violate human rights, they do immeasurable damage to their victi... more When United Nations peacekeepers violate human rights, they do immeasurable damage to their victims, their missions, and themselves. Reparation for these wrongs is essential for both rebuilding the trust that is needed for effective peacekeeping and affirming the human dignity of those who suffer the abuse. However, because of the unique status of peacekeepers as both troops in their respective national services and members of an international U.N. force, the question of which entity is liable for reparation is particularly complicated. This Article provides a comprehensive analysis of the law and practice of reparation for the human rights abuses of U.N. peacekeepers and advances a new interpretation of how the "effective control" standard of liability attribution should be applied in this context. Specifically, this Article finds that both the United Nations and troop-contributing states are subject to human rights law under certain circumstances. It also finds that both the United Nations and the troop-contributors are subject to the fundamental duty to remedy human rights violations for which they are responsible. The key question is how to determine, for a given situation, which international legal person is responsible for the human rights abuses of peacekeepers. Effective control is the correct governing principle. However, rather than "overall operational control" as advocated by a number of jurists and as applied in some courts, effective control must be understood to mean "control most likely to be effective in preventing the wrong in question." Applying this revised principle to the peacekeeping context, this Article proposes a five-category framework through which to assess the appropriate locus of responsibility for peacekeepers' human rights violations. Emphasizing the importance of considering the full complexity of the command and control relationships between states, the United Nations and peacekeepers, this framework significantly expands the liability of troop-contributing states from what remains de facto immunity under existing interpretations in the vast majority of situations. Finally, by implementing joint and several liability wherever feasible within the confines of effective control, the proposed framework seeks to maximize the avenues to remedy for victims without prejudice to the fairness and effectiveness of a framework that accurately locates those most responsible.

Harvard International Law Journal Online, 2010

infra notes 41-45 and accompanying text (clarifying the scope of this category). 8 Dannenbaum, su... more infra notes 41-45 and accompanying text (clarifying the scope of this category). 8 Dannenbaum, supra note 3, at 17-80.

International and Comparative Law Quarterly, 2012

This article analyses two nearly identical lawsuits regarding the actions of UN peacekeepers duri... more This article analyses two nearly identical lawsuits regarding the actions of UN peacekeepers during the Srebrenica genocide. The decisions are of importance as a matter of international law for three reasons. First, the Court applied human rights obligations abroad, not by holding that the relevant treaties have extraterritorial effect, but by finding the ICCPR to have been incorporated into the domestic law of the host state (Bosnia and Herzegovina) and determining that the standards codified in the relevant provisions of the ICCPR and ECHR were rules of customary international law that were binding extraterritorially (whether or not the treaty obligations themselves would extend abroad). Second, in finding those obligations to have been breached, the Court relied on the Dutch battalion's eviction of the victims from its UN compound, not on any responsibility to protect those already outside the compound. Finally, on the issue of attribution, the Court of Appeal developed the doctrine of ‘effective control’ in several key respects. I argue that the Court was largely correct in its attribution analysis and that this may prove to be a landmark in the development of international law on attribution in such contexts. Most important among the issues addressed in the Court's discussion of attribution are its findings that: (i) the ‘effective control’ standard applies equally to the contributing state and the receiving international organization; (ii) ‘effective control’ includes not just giving orders, but also the capacity to prevent the wrongdoing; and (iii) troop-contributing states may sometimes hold that ‘power to prevent’ by virtue of their authority to discipline and criminally punish their troops for contravening UN orders.

Security Studies, 2011

In 2004, an al Qaeda affiliate killed 191 civilians in Madrid. Spain's general election three day... more In 2004, an al Qaeda affiliate killed 191 civilians in Madrid. Spain's general election three days later confounded pollsters’ expectations; the incumbent Partido Popular was ousted by the challenging Partido Socialista Obrero Español ( psoe ), a party committed to withdrawal from Iraq. This manuscript examines the notion that this was a strategic terrorist success. The first strategic form considered is coercive bargaining. The paper finds that al Qaeda is not a credible coercive agent and debunks the popular myth that Spanish voters entered a coercive bargain with the network. The paper also considers the attacks through the strategic frameworks of terrorist advertising, provocation, regime destabilization, and morale building. It finds that the attacks’ only strategic achievement was building morale. Finally, the paper provides a multi-factor explanation of how the Madrid bombings contributed to the psoe victory despite their lack of strategic impact. The upshot of the analysis is that there is little reason to believe such electoral impact is replicable.

Wisconsin International Law Journal, 2010