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The Crime of Aggression: Committed By Western Powers, Omitted From Judicial Scrutiny"

The Crime of Aggression: Committed By Western Powers, Omitted From Judicial Scrutiny"

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An essay for the 2011 Undergraduate Awards Competition by Nicola Carlos. Originally submitted for International Criminal Law at Trinity College, Dublin, with lecturer Professor Michael Mandel in the category of Law
An essay for the 2011 Undergraduate Awards Competition by Nicola Carlos. Originally submitted for International Criminal Law at Trinity College, Dublin, with lecturer Professor Michael Mandel in the category of Law

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Published by: Undergraduate Awards on Aug 29, 2012
Copyright:Attribution Non-commercial

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11/14/2013

 
T
ITLE
: “T
HE
 
CRIME
 
OF
 
AGGRESSION
:
COMMITTED
 
BY
 
WESTERN
 
POWERS
,
OMITTED
 
FROM
 
JUDICIAL
 
SCRUTINY
 
‘T
HE
C
RIME
 
OF
A
GGRESSION
-C
OMMITTED
 
BY
W
ESTERN
 P
OWERS
, O
MITTED
 
FROM
J
UDICIAL
S
CRUTINY
“E
XCLUDING
 
AGGRESSION
 
FROM
 
INTERNATIONAL
 
JUDICIAL
 
SCRUTINY
 
IS
 
TO
 
GRANT
 
IMMUNITY
 
TO
 
THOSE
 
RESPONSIBLE
 
FOR 
 
THE
SUPREME
 
INTERNATIONAL
 
CRIME
’-
OMISSION
 
ENCOURAGES
 
WAR 
 
RATHER 
 
THAN
 
PEACE
1
.Since depicted and prosecuted as the “supreme international crime” at the Nuremberg Trials, en-forcement of the crime of aggression has been sporadic. “A dual system”, Zolo writes, of interna-tional criminal justice has taken shape slowly
2
. Jus in bello offenses have been the focus of inter-national prosecution. But aggression, the “soil”
3
on which these jus in bello offenses grow, has been ignored and left outside the jurisdictional framework of many international institutions,most notably by the International Criminal Tribunal for the Former Yugoslavia and, practicallyspeaking, by the International Criminal Court. In effect, a “loophole” has formed in the fabric of 
1
Address by Benjamin B. Ferencz, Pace Peace Center, <http://www.un.org/icc/speeches/616ppc.htm>, last ac-cessed April 13 2011.
2
Danilo Zolo, “Who is Afraid of Punishing Aggressors? On the Double- Track Approach to International CriminalJustice”, Journal of International Criminal Justice 5 (2007), p 799.
3
Address by Benjamin B. Ferencz, Pace Peace Center, <http://www.un.org/icc/speeches/616ppc.htm>, last ac-cessed April 13 2011.
 
international criminal law
4
. The fact is that the crime of aggression exists in international lawwhether it is being enforced or not, and has been committed time and time again since the Nuremberg Trials. This paper purports to trace and examine the elements of illegal aggressivewars, and to demonstrate how this supreme international crime has been committed by theworld’s superpowers in Iraq, Afghanistan and Kosovo. And yet in the midst of the death and de-struction that follows war, these powers have slipped neatly into the “loophole” of the law andonto a plane of immunity for their ‘supremely criminal actions’. The ultimate criticism of this pa- per is that since there are no war crimes without war, there is something inherently fallacious, il-logical and indeed, as Mandel observes, suspect with prosecuting and punishing these war crimeswhile “excluding aggression from international judicial scrutiny”
5
. It was hoped that this loop-hole could be mended by the proposal drafted by the Assembly of States Parties of the Interna-tional Criminal Court in Kampala last summer. As will be argued however, the jurisdictionalregime envisioned by this proposal is simply not comprehensive enough to pierce the screen be-tween aggressors and prosecution.
 Nuremberg, the “Supreme International Crime”, and its place inInternational Law.
4
Michael Mandel, “How America Gets Away With Murder”, 2004, p 7.
5
Michael Mandel, “How America Gets Away With Murder”, 2004, see generally.

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