The Crime of Aggression, Humanitarian Intervention and Preventive War

Last summer, the International Criminal Court amended the Rome Statute to formally define the crime of aggression. In general, the crime of aggression is the the planning, preparation, initiation, or execution, by a person in position to effectively exercise control over or to direct the political or military action of a State, of an act of aggression, which by its character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations. The definition creates a whole host of problems in the face of the modern paradigm of international conflict, not the least of which is the prohibition on a country utilizing preventive war as a measure of self-defense. Simply put, preventive war is when a nation uses force BEFORE it has actually been attacked in order to protect itself from an imminent threat to its security. According to the definition in the Rome Statute, this would amount to aggression. Preventive warfare, however, is little different in concept than humanitarian intervention. As most are well aware, humanitarian intervention is when one nation initiates military action against another in order to protect the native population from atrocities. The primary different between preventive war and humanitarian intervention is that the nation taking military action does so to protect its own population with preventive war, and humanitarian intervention is done to protect another nation’s population. Humanitarian intervention is generally accepted as a legitimate use of force, however preventive war is looked upon harshly. Isn’t this hypocritical? Should the ICC consider this when applying the definition of aggression and prosecute both actions? Neither?

7 comments

  1. In fact, it is a bit hypocritical. Joe’s post explains the sole difference quite well; preventative war is when a country protects itself or its allies from an emerging threat, while humanitarian intervention is protecting another population from genocide or other grave human rights abuses. Both are seeking to protect a vulnerable population, and both are using force to combat the threat. Furthermore, both can be used as pretext for preemptive acts of force on other nations. Allowing one but not the other does not make much sense, especially viewed in this light. The ICC needs to look at the underlying issue, the severity of the perceived danger, the population sought to be protected, etc. when applying the law. This is because any country seeking to defend on the basis of either doctrine can invoke the defense even if their motive was something else, and something frowned upon. There is not much of a difference between these two concepts, and it would make the most sense to investigate both before giving one or the other a free pass.

  2. To echo the insight of Joe and Shari, it certainly seems as though this definition of the crime of aggression is not narrowly tailored and therefore, could become rather problematic in its interpretation. The definition acts as a catchall, misguidedly placing military planning in the same category as initiation and execution, and calling these different phases of military action “crimes of aggression.” Speaking pragmatically, this would prove to be cumbersome for nations, aware of potential and imminent threats and attempting to properly prepare themselves or engage in preventive war as a response to what is to come. While humanitarian intervention has been acceptable in the past when nations with greater resources have come to the aid of vulnerable populations, this new definition of aggression, in a way, would find humanitarian intervention to be a violation of the UN Charter, as it is an initiation and execution of military action, on behalf of another, against an imminent threat. Yet, would it be acceptable for these quasi-“big brother” nations to sit back and wait for the atrocities to happen, and then send in resources? In other words, should a country sit on a threat just so they can prove that they, or their allies, did not start “the fight”, although this defenselessness may prove terribly destructive for the native, vulnerable populations?

  3. The Rome statute’s definition of the crime of aggression creates a great deal of ambiguity in the application of the definition. Clearly preventive warfare and humanitarian intervention seek to protect a designated population. It is important, however, to be mindful of the populations endangered by either military action. In instances in which a nation uses military force as preventative warfare, there is the obvious danger of harm to those populations impacted by the military actions (such as populations of a nation deemed to be an imminent threat) accompanying preventative warfare. This is why preventative warfare has been viewed in a negative light. Although the end sought to be achieved by humanitarian intervention is the protection of another nation’s population, any actions taken to achieve that end could place the population at risk of casualties. The ICC needs to evaluate the crime of aggression definition by considering the applications of the statute’s definition to the concepts of preventative warfare and humanitarian intervention. The applications of laws are as important as the language of our laws and the ICC’s definition of the crime of aggression raises many questions. Is humanitarian intervention intended to be included by this definition? If populations are at risk in both preventative warfare and humanitarian intervention, should the statutory definition apply to both concepts? Do we want the ICC to deter humanitarian intervention?

  4. Preventive war is a pretty absurd notion. To me the suggestion that war should be prevented by war is flawed logic. Preventive war, however, is different in one respect than war waged for purposes of humanitarian intervention. The difference is that in the case of preventive war, an act of aggression on behalf of the country upon which war is waged has not yet occurred, whereas in the case of humanitarian intervention, an act of aggression – albeit not against citizens of this country – has occurred. One may argue that, for this reason, humanitarian intervention is justified while preventive war is not.

    Ms. Hochberg is correct to point out that both humanitarian intervention and preventive war can be used as guises for waging war. However, humanitarian intervention is different in that, even if the aggressor’s true motive for war is not humanitarian in nature, at least the country upon which war is waged has actually committed an atrocity or a human rights violation.

    An entirely separate issue, and one worth considering, is whether it is the responsibility of one country to meddle in the internal affairs of another. Some may argue that change is best effectuated when it is a grassroots movement that occurs from within while others assert that where another country’s people are suffering at the hands of a tyrannical regime, it is the rest of the world’s responsibility to act on their behalf.

  5. The merit of the use of aggression, whether in preventive war or war waged for humanitarian intervention, is something that will never be fully agreed upon. On one side, there is there is the desire to protect one’s country or the people of another from a threat, which is a very understandable motive. On the other side, there will always be the question of whether or not the force is too excessive or if diplomatic means could have been used. These issues and others have been effectively addressed by others under this topic heading. Hence, the focus of this post will dwell on the factors of time and its implications on the human factor.
    In making a decision on aggression and when to act, it is important to consider timing and how people will react to any undertaken action. While airing on the side of caution, one not only has the advantage of time for planning an appropriate response, but also the ability to use time to persuade people to the desired point of view. In doing so, the reaction to whatever path is taken will be less extreme as people have had the time to consider the situation and understand the need for aggression. This extra time, while potentially risky, can help prevent not only citizen outcry, but perhaps even retaliation if it shows that the problem was considered with a more humane agenda. On the other side, if one favors action over caution, there is likely to be more resentment and hostility towards the action regardless of whether lives were saved. While this approach may appear to be the most humanitarian, not taking time to consider the repercussions may be a costly mistake.
    For clarification, this post is not meant to contradict anything said by others on this topic, it is meant merely to bring to light another factor worth considering in a messy but necessary process.

  6. The difference in definitions of humanitarian and preventative war does seem to be a bit hypocritical. A nation may have to choose between protecting its own people or risk violating the statute. In a sense the statute seems to make a nation put the needs of the people of other nations above that nation’s own people. A nation can protect another country’s citizens while being unable to do the same thing to protect its own citizens. While some nations may use the term preventative war as a façade to mask true aggression, I have no doubt that if this were to happen the international community would quickly recognize it. If a nation is engaged in a true preventative war, they must be afforded the opportunity to protect their citizens without international interference. Perhaps the actions of the nation at which another nation was forced to wage preventative war against need to be looked into before deciding to punish the aggressor nation.

  7. While I acknowledge and agree in part with the arguments made above, I believe the distinction the ICC has made in prohibiting preventive war while allowing humanitarian intervention works well theoretically. I believe it is the hope of international law generally, that there should never be a need for preventative war. There is a strong concern that by allowing preventative conflict, any nation could claim that an armed conflict was necessary because said nation was anticipating an attack by the other side. I believe that this is a legitimate concern. The Bush administration claimed that the war in Iraq was preventative, and I believe that assertion is questionable at best.

    Alternatively, however, humanitarian intervention is after the fact. Aggression has already ensued on the part of the perpetrator, and the actions of the international community are clearly merited by the inappropriate actions of the aggressors. Permitting this type of warfare, while prohibiting the preventative kind, encourages nations to help out those in need, as they would expect similar help in a situation where they were being attacked.
    It also encourages nations to continue to have faith in peaceful settlements between nations or within their nations.

    In a world with no preventative war, all initial acts of aggression would be from the bad guy. I like that idea.

Leave a Reply

Your email address will not be published.