Dannenbaum: Accountability for Aggression: Atrocity, Attributability, the Legal Order, and Sanitized Violence

Tom Dannenbaum (Tufts Univ. - Fletcher School) has posted Accountability for Aggression: Atrocity, Attributability, the Legal Order, and Sanitized Violence. Here's the abstract:

Why is it important that there be criminal accountability for Russia's aggression against Ukraine? Three rationales have been prominent in the existing discourse. The first is that Russia’s aggression entails a fundamental attack on the international legal order. Those who frame the issue in these terms motivate the project of criminal accountability by arguing that all legal tools (including the application of criminal accountability) must be deployed to protect that legal order from the existential threat of this attack. A second rationale depicts aggression as a progenitor crime (the crime without which the war crimes and crimes against humanity that have characterized the war would not have been perpetrated) and reasons that accountability for aggression is necessary to comprehensively vindicate the rights of those victimized by those atrocities. Third, in a related but more instrumental vein, it has been suggested that aggression is the crime with which Vladimir Putin and other Russian leaders can most straightforwardly be attributed (albeit that some of those leaders may also be attributable with other crimes, as exemplified by the ICC's initial arrest warrants in the Ukraine situation). Within the specific context of Russia’s aggression against Ukraine, these ways of motivating accountability for aggression are, in a sense, descriptively correct. However, they do not offer the most compelling reasons for pursuing criminal accountability for aggressive war (generally or in the specific context of Ukraine). They fail to recognize the status of aggression as an atrocity in its own right (not because war crimes follow, but regardless of whether they do) and miss the sense in which the ban on aggression is one of the rules most worthy of preservation even in a transformed legal order, rather than a prohibition whose normative weight is contingent on its contribution to the current legal order. The better rationale focuses instead on the way that the criminality of aggression expresses and affirms the wrongfulness of all of the violence entailed in the unlawful resort to force, including particularly that which is otherwise at risk of being sanitized by compliance with international humanitarian law. Clarifying the nature of the wrong (and thus the accountability imperative) ought to draw the normative focus to those who are suffering the atrocity of aggression, thus specifying the powerful imperative to realize their right to accountability. At the same time, the full vindication of that right requires structuring any institution through which accountability might be pursued in a way that protects against the taint of hypocrisy and preserves the moral standing of the tribunal in question.