YJIL Online Symposium: Glennon’s “The Blank-Prose Crime of Aggression” and Blum’s “The Laws of War and the ‘Lesser Evil'”

by Julian Ku


This coming Monday and Tuesday, Opinio Juris will be hosting its fourth online symposium in partnership with the Yale Journal of International Law. Each day, we will be hosting a series of posts revolving around Articles published in YJIL’s most recent Vol. 34-2, which is available for download here.

On Monday, Michael J. Glennon of the Fletcher School of Law and Diplomacy will be leading a discussion around his timely Article The Blank-Prose Crime of Aggression. In his Article, Glennon addresses the draft definition of the crime of aggression that was released in early 2009 and is set to be voted upon by the Assembly of States Parties to the International Criminal Court (ICC) this coming May. This crime has remained undefined since being included in the ICC’s underlying Rome Statute, for what Glennon maintains are good reasons. He argues that the crime of aggression is subject to too much disagreement among strong and weak states to reach the level of specificity necessary for imposing individual criminal liability. As a result, the draft definition is ambiguous, overbroad, and inconsistent with the Rome Statute’s own requirement that the court act consistently with internationally recognized human rights. Given these difficulties, Glennon argues that efforts to criminalize aggression along these lines be dropped. Anthony Clark Arend of Georgetown University and Larry Johnson of Columbia Law School will both provide responses.

On Tuesday, Gabriella Blum of Harvard Law School will be presenting her Article The Laws of War and the “Lesser Evil”. Therein, Blum notes that the international humanitarian law (IHL) governing armed conflicts often demands outcomes that run counter to our moral intuitions, particularly in situations where a technical violation of IHL may seem to be out scaled by significant humanitarian returns. By systematically addressing those arguments frequently leveled against shifting standards in such situations, she argues in favor of a humanitarian necessity justification for IHL violations, and attempts to design an effective and workable legal standard for implementing this justification in both IHL and international criminal law. She ultimately presents a standard that would exempt an actor from criminal liability for their conduct where that conduct was designed to minimize harm done to parties other than the actor’s own compatriots, those actions could reasonably be expected to be effective, and there were no less harmful alternatives under the circumstances to produce a similar humanitarian outcome. Matthew Waxman of Columbia Law School will respond to Blum’s argument.

We hope you enjoy the lively discussion that will no doubt arise around both pieces. And please be sure to make your own contributions in the comments sections!


2 Responses

  1. Just a note — I will be posting a response by Carrie McDougall, a Research Fellow in our Asia Pacific Centre for Military Law, as well.  Carrie’s PhD dissertation was on the crime of aggression and she has been part of the Australian delegation to the Special Working Group.

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