Defining evil. The war of aggression and international law (original) (raw)

"Keywords: Law of war, aggression, outlawry of war, jus publicum europaeum, just war. Jus publicum europaeum developed rules and institutions serving the law of war. The completion of the process was the so called “classical law of war” of the nineteenth century. The theoretical grounding of this law was the right of sovereign States to wage war. The ‘justice’ of wars was a legally irrelevant problem to the classical law of war. War was conceived as a procedure provided by international law for the enforcement of legally protected claims and interests. The end of the First World War constituted the end of the epoch of “classical international law”. The new international law differed from the previous one in several fundamental aspects, but the most significant difference involved the theoretical development of a ‘discriminatory’ concept of war. The abandonment of the sovereign right of war through the procedural provisions of the Covenant of the League of Nations would bring about a certain limitation of war. Afterwards, the Kellogg-Briand Pact qualified war as an illegal act. In the theological medieval tradition (that was characterized by a discriminatory concept of war), justum could be an attribute both of bellum difensivum and of bellum offensivum. After 1919, American, British and French scholars of international law worked out a new just war theory, equating the ‘just war’ with the defensive war and, at the same time, the ‘unjust war’ with the aggressive war. War became either a serious violation of international law, or an act of punishment directed against aggressors who, as outlaws, didn’t deserve observance of the rules of war. The Covenant of the League of Nations, though concerning the sanction of international crimes, failed to establish a comprehensive prohibition of “aggression”. In 1924, the Geneva Protocol was a new effort to develop international law in the direction of a general prohibition of aggressive war, but it failed because it was linked to an utopian plan for general disarmament. The Kellogg-Briand Pact, concluded in Paris in 1928, condemned recourse to war for the solution of international controversies, but did not set out a general renunciation of war as a means of coercively enforcing international law. Moreover, the right to wage war of self-defence was recognized through an exchange of notes between the signatories of the Pact. On top of that, in the text of the Pact there was no definition of the notion of “aggression”. Within the framework of the conventions concluded from URSS with a series of States in 1933, the famous proposal of Nicolas Politis to define aggression didn’t have any real success. The failure of all these efforts shows that uncertainty and vagueness marked the instruments of law enforcement created by postclassical international law. The ‘outlawry of war’ inflicted serious damage upon the authority of international law, producing the negative effect that States no longer made formal declarations of war nor formally proclaimed the state of war. Large-scale armed conflicts took place in the guise of peaceful measures of ‘self-defence’ or ‘reprisal’, depriving these concepts belonging to the jus publicum europaeum of their legal rigorous content. The most important conquest of classical international law, the ‘hedging’ of war, became a caricature. International lawyers, in the main, focused their attention on the so called jus ad bellum, ignoring the jus in bello and removing the fundamental principle of the equality of the legal position of all belligerents. The trend toward a discriminatory concept of war was resumed and more intensely discussed after 1945. But neither the Charter of UN, neither the bulk of the subsequent treaties, nor the activities of several U.N. Special Committees led to a shared definition of “aggression”. The judges of the tribunal established in Nuremberg to try the leaders of the Third Reich for “crimes against peace”, had to derive the international criminal responsibility for the preparation, planning and commencement of an aggressive war from the Kellogg-Briand Pact, namely a treaty that couldn’t serve as a real authoritative legal basis. According to the judgment of the IMT of Nuremberg, to initiate a war of aggression was not only an international crime: it was “the supreme international crime differing only from other war crimes in that it contains within itself the accumulated evil of the whole”. Nowadays, the “supreme international crime” is still waiting for a consensual definition. The main purpose of the present research is to investigate the historical and theoretical reasons of this lack and envisage the possible solutions. Our analysis will look for some alternative answers to the problem: for instance, the definition of the crime of aggression to be added to the Statute of the ICC; the reform of the United Nations, with particular reference to the role of the Security Council in determining whether an act of aggression has occurred; the elaboration of a new jus in bello based on a concept of non-discriminatory war. "