INTRODUCTION

When and under what conditions States may lawfully employ force currently preoccupies government decision makers, academics, journalists, and policy makers. As war in Syria rages, the seemingly endless conflicts in Afghanistan and Iraq metastasize into new forms of violence, North Korea threatens Seoul and the United States by launching and testing nuclear-armed missiles, the 45th U.S. President threatens “fire and fury like the world has never seen” in response, ISIS-affiliated individuals launch deadly attacks against civilians in European capitals, increasing number of incidents involving naval forces are taking place in the South China Sea, and Russia invades and annexes portions of Ukraine, there is growing concern that the Post–World War II international legal order is under terrible stress.

This unease is exacerbated by positions taken by the United States government and many in the academy, where distinguished scholars have announced the “death” of Article 2(4) of the U.N. Charter prohibiting the use of force, and war-talk has become so normalized that prominent academics like Rosa Brooks have suggested that human rights lawyers insisting upon clear distinctions between war and peace (under the jus ad bellum) and well-established applications of the laws of war (the jus in bello), are “wast[ing] time and energy” and engaging in “self-deception” because “events march inexorably on.” Instead, she suggests that we should “develop laws, politics, and institutions premised on the assumption that we will forever remain unable to draw sharp boundaries between war and peace, and that we will frequently find ourselves in the space between.” A space between that allegedly constitutes the new normal – a normality based upon the Colossus that is the American military and its “war” against terror, which, in the views of some, is unlikely to diminish over time.

This thesis, and the assumptions that underlie it, causes others to believe that the “greatest threat to world peace today is Washington's imperial power.” And this power is formidable. The United States spent close to 36 percent of the global total of military spending, and in terms of arsenal, has more nuclear weapons, aircraft carriers, and intelligence capabilities than the rest of the world combined.

An elementary principle of law and justice holds that those responsible for the illegal use of force should be brought to personal account in a court of law. The learned contributors to this book have noted that what is right is not always or easily attainable. The world continues to be awash with massive killings of innocent people while perpetrators remain immune. Important treaties remain ignored as “scraps of paper.” We have not yet found a satisfactory way to deter such crimes and convince the public that it is in their own self-interest to behave toward others in a more peaceful and humane way. Perfectionists say: “It can't be done, so why bother trying?” Others insist that peace is mandatory or all life on Planet Earth may be destroyed. It was the hope of the Nuremberg trials that the force of law might replace the law of force. Without effective accountability, law loses its power and meaning. As the sole surviving Nuremberg war crimes prosecutor, having spent most of my ninety-seven years trying to prevent crimes against humanity, allow me to share some personal experiences and views that may enlighten the distant horizon.

The war crimes trials following World War II marked a significant step forward in the evolution of international criminal law. The judicial determination by highly respected jurists was that illegal war-making described as a “crime against peace” was punishable by an international tribunal. It would be unjust to allow the leading perpetrators to go unpunished. The fairness of the open trials gave credence to the fact that deeds which had been hailed in the past as heroic patriotism would in the future be condemned as “the supreme international crime.” As a U.S. combat soldier in World War II (awarded battle stars for not having been killed or wounded in five major battles), I can testify of my personal knowledge that war becomes the breeding ground for every possible atrocity. There has never been a war without genocide, massive rapes, torture, and similar crimes against humanity.

The ancient aspiration that the peoples of the earth might someday renounce war-making and ‘beat their swords into plowshares’ seemed to get rather a significant boost with the establishment in 1945 of the UN system. Not long thereafter, the judgment of the International Military Tribunal at Nuremberg made clear that leaders responsible for crimes against peace, war crimes, and crimes against humanity could be criminally prosecuted in their individual capacities for such crimes. Consistent with the UN Charter's determination ‘to save succeeding generations from the scourge of war’, the General Assembly, in its first session, affirmed the principles of international law recognised by the Nuremberg Charter and judgment and called for their formulation within an International Criminal Code, to be developed for later adoption and implementation.

The Cold War had a chilling effect, and it would be half a century before an international criminal code would finally emerge as the Rome Statute of the International Criminal Court. The Conference of Plenipotentiaries which met in Rome in the summer of 1998 was able to agree on granting the Court active jurisdiction over war crimes, crimes against humanity, and genocide – but not over the crime of aggression. Left unresolved in Rome were issues relating to the definition of aggression as well as whether acts of aggression ought to be determined judicially, by an independent Court, rather than by the Security Council. As a compromise, aggression was included within the Court's jurisdiction, but the Court would not be able to exercise its aggression jurisdiction until further hurdles were overcome.

The showdown on this issue would come in May and June of 2010, at a Review Conference of the Rome Statute of the International Criminal Court held in Kampala, Uganda. There, members of the Assembly of States Parties met to consider the adoption of provisions on aggression that, if made effective, would statutorily define the crime and allow the Court to exercise its jurisdiction over it. The Conference succeeded in amending the Statute so as to include a definition of aggression, but activation of the Court's jurisdiction over that particular crime was once again deferred.

The definition adopted in Kampala largely relied on a list of enumerated acts constituting aggression, as set forth in a consensus definition which had been approved by the UN General Assembly in 1974.