The Illegal Use Of Armed Force As A Crime Against Humanity

Abstract

In 1947, UN Resolution 177 affirmed the Nuremberg principles and condemned individual criminal liability under international law. One year before, the Nuremberg trials had branded the waging of aggressive war as ‘the supreme international crime’. The legacy of Nuremberg culminated in the establishment of a new International Criminal Court (ICC), in 1998. After speedy ratification, the Court became operational in 2002; it was immediately authorised to deal with war crimes, crimes against humanity and genocide. In full compliance with its Nuremberg legacy, the statute reiterated the criminalisation of aggressive war. While jurisdiction over the first three categories of crimes was universally accepted, several major powers were, however, not prepared to accept an international judicial review of their perceived sovereign right to wage war; the same hesitations still prevailed at an amendment conference in Kampala, Uganda, in 2010. Today, the crime of aggression still hangs in legal limbo. If no court is competent to try aggressors, the crime of aggression is more likely to be encouraged than deterred. This guest editorial comment seeks to narrow the immunity gap by suggesting practical legal solutions to discourage aggressive wars. Incorporation of the offence under domestic criminal statutes, and universal jurisdiction, should grant domestic courts the right to try aggressors. The illegal use of armed force should also be punishable as an ‘other inhumane act’ within the meaning of the ICC prohibition of crimes against humanity.