Justified Uses of Force and the Crime of Aggression

Abstract

This article argues that the crime of aggression should not have been codified in the Rome Statute of the International Criminal Court. The crime of aggression is an outlier in the Rome Statute, and not as fundamentally morally wrong as the humanitarian crimes. Aggression is instead a political crime, which yields an abstract harm. The decision by states to use force is itself political, and should be subject to political sanctions rather than criminal ones. It should also be the providence of states, through changes in custom particularly, to determine which uses of force are legitimate and which are not. More than this, the article disputes that the concept of "aggression" is a good one to distinguish positive and negative uses of force. Whether a use of force is also an incursion into sovereign territory is not as important as whether the use of force is committed for a just purpose or not. The article lists several examples of uses of aggressive force that show that penalization of aggression may be undesirable: humanitarian intervention, anticipatory self-defense, defense against non-state actors, prevention of conflict escalation, and intervention in favor of self-determination or democratic governance. The article thus concludes that uses of force by states should be decriminalized and further evaluated.