The issues Professor Waxman raises about the relationship between international humanitarian law (IHL) and international criminal law (ICL) are of the highest importance to anyone interested in the regulation of warfare, or, indeed, in international regulation more generally. Certainly, the division of labor between IHL and ICL is not an inevitable one. To some degree, it is the consequence of the historical evolution of international law. To some other degree, it reflects the necessary adaptations of state-based obligations turned into individual-oriented duties. Explanations of its origins notwithstanding, the existence of these two, semi-distinct regimes results in some unintended consequences which are often overlooked (and Professor Waxman rightly refers to Ken Anderson’s recent paper as an important exception to this omission).

[Matthew Waxman is an Associate Professor of Law at Columbia University Law School.] I am delighted to comment on Professor Blum’s provocative and thoughtful Article. The Article highlights in new ways a fundamental tension within international humanitarian law (IHL): that this body of law that disallows “lesser-evil” analysis in many contexts is itself a giant exercise of lesser-evil judgment, that the risks of prolonging and legitimizing warfare are worth the cost of protecting some humanitarian interests during it. Professor Blum injects new thinking to some long-running dilemmas at a time when much IHL discussion is overly politicized or stagnant.

One of the most remarkable aspects of Blum’s Article is its entire form, with her argument cast in terms of international criminal law: that international criminal law has exacerbated old IHL dilemmas, that international criminal prosecutions may in some cases be counter-protective of humanitarian interests, and that a solution lies in crafting a criminal defense that could be asserted by a war crimes defendant.

[We are pleased to introduce the second part of the YJIL Online Symposium discussion articles from Vol. 35-1.  Today, we are delighted to host a discussion of Gabriella Blum's recent article with a comment by Professor Matthew Waxman later today] Why is it that international humanitarian law (IHL) allows no justification for its breach even when such conduct would actually produce less humanitarian harm than if following the law? Why would a defendant who violated IHL in order to save lives be convicted of war crimes? These are the questions I seek to address in my recent Article, “The Laws of War and the ‘Lesser Evil’.”

My interest in this puzzle was sparked by the Israeli Supreme Court’s decision to strike down the “Early Warning Procedure” employed by the Israel Defense Forces (IDF) in the West Bank. Under the Procedure, the IDF would approach a neighbor of a suspected Palestinian militant and request the neighbor to urge the suspect to surrender quietly to the security forces. If the suspect refused, the neighbor would then attempt to clear the residence from its other inhabitants. The stated goal of the Procedure was to reduce potential casualties, both among IDF and local civilians, in case the arrest turned violent. Despite some evidence that the Procedure was effective in reducing civilian casualties, the Court ruled that it violated strict prohibitions on the reliance on local civilians by an Occupying Power for security operations, and was therefore unlawful.

It’s an honor to have two so distinguished scholars comment on my article. As always, I learn from reading their commentary and I thank each for his insights.

Two quick reactions. First, Professor Johnson raises an interesting semantic question (which I do not address in the article): If a state “unsigns” a treaty, is it still a signatory? Professor Johnson is surely correct that a state cannot re-write history by purporting to expunge its signature as a matter of official record. Further, liability that a state incurs as a signatory to a treaty during a given period is not extinguished by a later decision to terminate signatory obligations; the state remains responsible for any action on its part that defeated the object and purpose of the treaty while it was subject to those obligations. On the other hand, a state that is a party to a treaty can under certain circumstances terminate that status and become a non-party. If a state terminates a treaty, it is no longer a party. One may well ask, therefore, why signatory status should be any different. Arguably, analytic clarity is advanced by thinking that signatory obligations and signatory status go together just as obligations under the norm of pacta sunt servanda and status as a party go together. When signatory obligations cease, signatory status might similarly end without altering the historical fact that the state was at one time a signatory. In any event, all this is a matter of terminology, not substance. No serious commentator, so far as I am aware, contends that by “unsigning” the Rome Statute the United States failed to make clear its intention not to become a party to the treaty. It did make that intention clear. The United States therefore terminated all signatory obligations under the treaty. (How a potential U.S. decision to unsign its unsigning might be described is beyond the scope of this post.)

Second, Professor Johnson’s unanswered questions concerning the relationship between the crime of aggression and the articles on state responsibility underscore my central conclusion ― which is the same as his and Professor Arend’s: the definition fails to provide ascertainable standards of guilt. For as Professor Johnson hypothesizes, a defendant charged with the crime of aggression might rely upon the “circumstances precluding wrongfulness” laid out in the articles, and neither the Rome Statute nor the articles provide any useful guidance as to what weight such a defense must be accorded. Moreover, as Professor Arend suggests, what constitutes a manifest violation of the Charter, and who is in a position to control or direct the action of the state, are both questions ― under the existing state of international law ― on which reasonable persons can differ. In this regard I recommend an incisive article by Professor Sean Murphy, “Aggression, Legitimacy and the International Criminal Court,” [http://www.ejil.org/article.php?article=1938&issue=93] in the current issue of the European Journal of International Law. Professor Murphy points out that the new definition would not be regarded as legitimate under the criteria identified by the late Professor Thomas M. Franck. He suggests that the definition’s indeterminacy ― the lack of clarity that leaves those to whom it might apply unable to understand it ― undermines the proposed crime’s pedigree and, ultimately, its probable compliance pull. The burden, I suggest, is now on the new definition’s proponents to show that persons of common intelligence would give the same answers to the many reasonable questions that have now been raised. If the proponents cannot tell us what those answers would be, it is fair to conclude that the definition does not pass muster under the principle of legality.

[Anthony Clark Arend is a Professor of Government and Foreign Service at Georgetown University]. When the Obama Administration came into office over a year ago, it was faced with a daunting task. The previous Administration had run rough-shot over international law dealing with the use of military force.  A man that would be Attorney General would call the Geneva Conventions “quaint,” torture would be defined away by the Vice President and others,  the United States would launch an invasion of Iraq in a move that many believed to be a clear violation of the United Nations Charter, and we could go on.  With this record of disrespect for international law, it is not surprising that the Obama Administration would seek to take a more conciliatory move with respect to the ICC.

Unfortunately, one of the key lacunae left in the Roman Statute related to “the crime of aggression.” As Professor Glennon notes, the drafters of the Rome Statute left that crime undefined with the expectation that the ten-year review conference would be able to come up with a workable definition. In preparation for that conference, a working group has developed a draft. But, as Glennon masterfully demonstrates in his post, the working group has produced absurd definitions for both an “act of aggression” and the “crime of aggression” that defy logic and risk even further marginalizing the United Nations Charter framework.

First, as Glennon notes, the working group seeks to define “an act of aggression” as:

[T]he use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations.

It then goes on to list seven specific acts mentioned in the 1974 Definition of Aggression Resolution as qualifying as acts of aggression. Note the problem:  This definition assumes that all uses of armed force “against the sovereignty, territorial integrity or political independence of another State” are a violation of the Charter, but ignores that such uses of force might be taking in self-defense, done for the purpose of rescuing nationals, or undertaken for other benign purposes that would not rise to the level of a violation of Article 2(4) of the Charter. Hence, Glennon provides us a long list of historical uses of force that would be “acts of aggression” under this definition.

Second, having sought to define an “act of aggression,” the working group proposed a similarly troubling definition for a “crime of aggression.”  The working group submits that a “crime of aggression” means:

[T]he planning, preparation, initiation or execution, by a person in a position effectively to 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.

Where does one begin to deconstruct this definition? And is anyone troubled by the fact that while historically, aggression– whatever it meant– was thought to be a crime under international law, now only certain acts of aggression would rise to the level of “crimes of aggression”– those that constitute “a manifest violation of the Charter”?  But what is a “manifest violation of the Charter”? And who is “a person in a position effectively to exercise control over or to direct the political or military action of a State”?  As Glennon observers, these terms are far too vague to serve as a standard for defining a crime.  He notes that ,

[T]he working group’s definition of the crime of aggression is irretrievably vague.  To use the apt phrase of the United States Supreme Court, it fails to provide “ascertainable standards of guilt.”

So where does this leave us as we approach the review conference? Glennon rightly points out the problems of trying to either include or exclude the Security Council in the process:

The Charter thus presents the states parties to the Rome Statute with an impossible choice: include the Security Council in the decision to prosecute and create inexorable retroactivity problems, or exclude the Council from that decision and create a structure incompatible with the Charter.

There simply does not seem to be an easy (or even hard) fix.

What then is to be done? Glennon concludes his post with this sober note:

[I]t makes sense for the United States to participate as an observer in next May’s proceedings to try to steer the Court’s members away from the proposed definition. The 1998 Rome Statute itself requires that it be applied “consistent with internationally recognized human rights.”  No right is more fundamental than that of a criminal defendant to know what conduct is illegal at the time the conduct occurs.  No one will gain if the Court is permitted to undermine that right.

I agree. If the review conference seeks to define aggression along the lines proposed by the working group, it will only serve to undercut the legitimacy of international law. Indeed, given the current nature of state practice with respect to the use of force and the lack of compliance with the UN Charter framework,  I am led to the conclusion that aggression cannot be defined as a crime under international law at this time. But this should not be too troubling. The Security Council continues to have the authority under Article 39 to find that a state has committed an act of aggression. And the Council continues to have the authority to impose sanctions on the offending state. And it should not be forgotten that individuals can be held personally accountable for war crimes, crimes against humanity, and genocide.

[Michael J. Glennon is Professor of Law at The Fletcher School at Tufts University].
My thanks to Opinio Juris for hosting this symposium on my article, “The Blank-Prose Crime of Aggression,” and also to the editors of the Yale Journal of International Law for arranging it.

The article addresses a question that is particularly important for the United States. The Obama Administration has begun to express a renewed interest in the International Criminal Court (ICC), after almost a decade of distance between the Court and the United States. But American policy-makers should be wary of a time bomb that could explode in May – the adoption of a vague, new crime of aggression that could have broad application to U.S. leaders…

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!