Mégret: What is the Specific Evil of Aggression?

Frédéric Mégret (McGill Univ. - Law) has posted What is the Specific Evil of Aggression? Here's the abstract:

This paper seeks to articulate a moral case for criminalizing aggression. At the intersection of international law and moral theory, it takes the former seriously but considers that defenders of criminalization have failed, perhaps because they have allowed themselves to be sidetracked by definitional issues, to make a robust argument for why we should take aggression as one of the worst international crimes. Although this case might seem obvious to activists, one of the reasons for the historical decline of aggression as an international crime may well be persistent (but rarely fully acknowledged) doubts about the foundations of its condemnation and their possibly incompatible character. The chapter thus seeks to make a stylized case for the importance of aggression as an international crime that rehabilitates its normative status by putting it a much more solid (yet radical) footing than what has been bequeathed to us by Nuremberg.

The paper suggests three ways of conceptualizing aggression that can be teased out of the discourse and examines their merits. It finds that the definition of aggression as first and foremost a crime against certain states' sovereignty, whilst undeniably capturing something, needs to deal with the relative normative decline of sovereignty, and its simultaneous implication in the very definition of what is or is not aggression (in a way that makes it difficult for sovereignty to act simultaneously as a signifier of meaning and gravity). Crimes against humanity and genocide as such have a better claim to our indignation, all other things being equal, because of their oppressive and asymmetrical character against the defenceless. More importantly, the paper considers the hypothesis of "war as duel" (one in which two states agree to fight each other), and concludes that we would consider a war no less grave simply because it proceeded from mutual sovereign assent from the outset. In other words, the condemnation of aggression betrays a concern with public order (war is wrong regardless of agreement by parties to it) and reflects above all our misgivings about war as a particular form of violence. We should not confuse war's most common cause (aggression) with the nature of the problem (violence in international relations).

The paper thus turns to a second possible conceptualization of aggression, namely as a form of crime against peace, as illustrated most notably at Nuremberg. Again, this captures something but the idea of peace as the value that is primarily protected by the prohibition on aggression is vague and problematic. In particular, the idea of aggression as the "mother of all crimes" fails to account for the fact that aggression is not necessarily causal of much of the violence that we find objectionable in war in that (i) we no longer typically think that the gravest atrocity crimes (genocide, crimes against humanity) necessarily or logically follow from aggression, (ii) not even war crimes follow strictly from the fact that there was an aggression, and at least we have no reason to think that the aggressor necessarily commits more such war crimes, and (iii) at any rate if it does commit a range of atrocity crimes, these are already and better prosecuted under their own name rather than as simply consequences flowing from aggression. What is more, the computing of the causal evil of aggression is made complicated by international law's obfuscation of the specific violence of war through two simultaneous moves (i) the humanitarian "laundering" of war, i.e.: the extent to which both the killing of combatants and the collateral killing of civilians (within certain bounds) are considered legal, even though they may well in practice account for the greatest number of casualties by far of any given conflict and our sense of revulsion at war, and (ii) the tendency of international human rights law to have abdicated the moral hight ground vis-à-vis the humanitarian sensitivity to war, under the broad rubric of the laws of war as lex specialis of human rights when it comes to determining who can be killed.

The paper then goes on to articulate a third and quite different conceptualization of the evil of aggression, namely that it is a violation of the rights of all of those affected by it. The suggestion is that a radical cosmopolitan take on human rights would rise up to its pacifist potential, and deny aggressor states the possibility of (entirely) hiding behind international humanitarian law to mask their sins by relying on the international reification of war. The chapter articulates some of the doctrinal moves that need to be made to realize such a change in how we conceptualize war, including expanding the recognition of extra-territorial jurisdiction in case of aggression. It seeks to explore all the implications of seeing aggression as a violation not only of the right to peace of collectives, but also to life and integrity of every individual affected by aggression, including not only civilians of the defending state, but also its combatants. More radically, it suggests that we should also consider as victims of aggression the civilians and combatants of the attacking state itself, that are put in harm's way by its decision to commit aggression, a decision that ex hypothesis cannot be justified either under international law or human rights. It also proposes a theory of how this new found sense of the human rights responsibilities of the aggressor might fit alongside the continued (but critically evaluated) application of the laws of war, seeking nonetheless to highlight a normative horizon in which the anomaly of the laws of war would be eliminated. It concludes with a few thoughts on how deploying human rights discourse against positive international law (including mainstream international human rights law) might be a way of helping the idea of human rights in international society rise up to its true potential.