Ohlin: The Crime of Bootstrapping

Jens David Ohlin (Cornell Univ. - Law) has posted The Crime of Bootstrapping (in The Crime of Aggression: A Commentary, Claus Kress & Stefan Barriga, forthcoming). Here's the abstract:

The following commentary offers a counter-intuitive explanation of the crime of aggression, its underlying moral rationale and its proper place within the general structure of the laws of war. Specifically, this essay concludes that aggression penalises States that attempt to bootstrap their way into the permissive legal regime of international humanitarian law (‘IHL’) – a legal regime that permits the wholesale killing of enemy combatants. Part B will explain why criminal law has generally penalised defendants who seek to create their own exonerating conditions, by applying a doctrine that criminal lawyers from civil law jurisdictions call actio libera in causa. The same intuitions apply in common law jurisdictions, though often without the same level of systematicity. Part C asks whether the same principle should apply in the laws of war; I answer in the affirmative. Specifically, the crime of aggression is an example of actio libera in causa because it penalises States that attempt to trigger the application of IHL that will legitimise widespread violence. For this reason we should dub aggression the ‘crime of bootstrapping’, a jus ad bellum framework to close what would otherwise constitute a moral paradox.

Part D takes the analysis one step further by emphasising the respective roles to which jus in bello and jus ad bellum are assigned in public international law; recent attempts to make IHL more restrictive are motivated by the relative paucity of jus ad bellum constraints on State behaviour. This situation can only be cured once the crime of aggression becomes fully operational at the International Criminal Court (‘Court’). Part E discusses two operational obstacles to prosecuting aggression before the Court. The first involves uncertainty over how it would apply to democratic regimes where political control over war-making is vested in a corporate body like a parliament. The second involves uncertainty over the required mental state, and whether politicians should be convicted for foreseeing that military action might become an act of aggression.