The international crime of aggression in the context of the global 'war on terror': some legal and ethical perspectives

Bachmann, Sascha and Kemp, Gerhard (2010) The international crime of aggression in the context of the global 'war on terror': some legal and ethical perspectives. Journal of South African Law (JSAL/TSAR), 2 . pp. 309-330. ISSN 0257–7747

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Abstract

The attacks on the United States of America, executed by mostly Saudi-born terrorists on 11 September 2001, led to the present so-called ‘war on terror’ by the United States of America and its allies. The magnitude of the 9/11 attacks caused some confusion among legal scholars in terms of the categorization of the attacks: were these attacks to be treated as acts of terrorism (that warranted a domestic criminal justice response ), or were they to be treated as crimes under international law? Some publicists suggested that the scope and nature of the 9/11 attacks amounted to crimes against humanity. Gill points out that the scale and magnitude of the terrorist attacks of 9/11 warranted its categorization as an “armed attack by conventional means” on the USA while Dinstein does not leave any doubt that 9/11 falls within the ambit of armed conflict by denouncing the terrorist actions as “a flagrant breach of the law of armed conflict” as such. While the legal categorization of the 9/11 attacks was the subject of debate, the response of the United States was unequivocal: War. The initial military response to the attacks led to a wider campaign under the rhetorical banner ‘war on terror’.
The ‘war on terror’ has seen two controversial military campaigns of doubtful lawfulness under international law: ‘Operation Enduring Freedom’ in 2001, in terms of which Afghanistan was invaded to rid that country of the Taliban-regime, was followed by ‘Operation Iraqi Freedom’ in 2003. The invasion of Iraq and subsequent ‘regime-change’ by the American-led coalition, in particular, created much debate and animosity. While international lawyers debated the legality of the invasion (which was neither explicitly authorised by the security council, nor an apparent act of self-defence under Article 51 of the UN Charter), people all over the world (including people in Britain and the United States) voiced their opposition to the invasion.
From an international law perspective the legality of the invasion of Iraq will be debated for some time to come. However, for the time being there seems to be no real possibility that any (international) criminal law action will be taken against any individuals relating to the invasion of Iraq, and in particular the question whether any individuals can be held liable for the crime of aggression. This legal situation must also be seen in political perspective: By May 2003 the security council accepted the reality of the occupation and subsequent regime change in Iraq. With resolution 1483 the security council reaffirmed the sovereignty and territorial integrity of Iraq, but at the same time also accepted the presence and role of the American and other coalition forces in Iraq.
This article presents the argument that the legal uncertainty surrounding the crime of aggression in a time of ‘war on terror’ causes not only problems in terms of individual criminal liability, but also considerable ethical dilemmas for soldiers participating in armed operations. The well-developed jus in bello (rules governing the conduct of soldiers in times of war) provides for the normative paradigm which ultimately help soldiers to keep to the ideals of a more humane kind of warfare. However, the jus ad bellum in flux – a state of international affairs to which the ‘war on terror’ contributed considerably – bring about moral dilemmas for soldiers. Some case studies are discussed below. It is argued that the process to define the crime of aggression for inclusion in the (Rome) statute of the international criminal court provides an opportunity to bring about more legal certainty. While aggression should be regarded as a leadership crime par excellence, legal certainty in this context will provide for better moral guidance to soldiers on the ground in times of war – including, and especially, in times of the ambiguous ‘war on terror’. The rhetorical justification(s) for the invasion of Iraq in 2003 and the concomitant moral, political and legal debates that followed, explain our choice of this conflict as our main point of reference in the discussion that follows. This should not be seen as a significant academic pronouncement on the legality of the invasion of Afghanistan (the first theatre in the present ‘war on terror’). We chose Iraq to be our focus, because in many ways it illustrates the many (and difficult) angles to a morally, politically and legally controversial conflict. Ultimately this conflict, perhaps more so than the Afghanistan conflict, illustrates the ethical dilemmas faced by soldiers in the 21st century.

Item Type:Article
Additional Information:The attacks on the United States of America, executed by mostly Saudi-born terrorists on 11 September 2001, led to the present so-called ‘war on terror’ by the United States of America and its allies. The magnitude of the 9/11 attacks caused some confusion among legal scholars in terms of the categorization of the attacks: were these attacks to be treated as acts of terrorism (that warranted a domestic criminal justice response ), or were they to be treated as crimes under international law? Some publicists suggested that the scope and nature of the 9/11 attacks amounted to crimes against humanity. Gill points out that the scale and magnitude of the terrorist attacks of 9/11 warranted its categorization as an “armed attack by conventional means” on the USA while Dinstein does not leave any doubt that 9/11 falls within the ambit of armed conflict by denouncing the terrorist actions as “a flagrant breach of the law of armed conflict” as such. While the legal categorization of the 9/11 attacks was the subject of debate, the response of the United States was unequivocal: War. The initial military response to the attacks led to a wider campaign under the rhetorical banner ‘war on terror’. The ‘war on terror’ has seen two controversial military campaigns of doubtful lawfulness under international law: ‘Operation Enduring Freedom’ in 2001, in terms of which Afghanistan was invaded to rid that country of the Taliban-regime, was followed by ‘Operation Iraqi Freedom’ in 2003. The invasion of Iraq and subsequent ‘regime-change’ by the American-led coalition, in particular, created much debate and animosity. While international lawyers debated the legality of the invasion (which was neither explicitly authorised by the security council, nor an apparent act of self-defence under Article 51 of the UN Charter), people all over the world (including people in Britain and the United States) voiced their opposition to the invasion. From an international law perspective the legality of the invasion of Iraq will be debated for some time to come. However, for the time being there seems to be no real possibility that any (international) criminal law action will be taken against any individuals relating to the invasion of Iraq, and in particular the question whether any individuals can be held liable for the crime of aggression. This legal situation must also be seen in political perspective: By May 2003 the security council accepted the reality of the occupation and subsequent regime change in Iraq. With resolution 1483 the security council reaffirmed the sovereignty and territorial integrity of Iraq, but at the same time also accepted the presence and role of the American and other coalition forces in Iraq. This article presents the argument that the legal uncertainty surrounding the crime of aggression in a time of ‘war on terror’ causes not only problems in terms of individual criminal liability, but also considerable ethical dilemmas for soldiers participating in armed operations. The well-developed jus in bello (rules governing the conduct of soldiers in times of war) provides for the normative paradigm which ultimately help soldiers to keep to the ideals of a more humane kind of warfare. However, the jus ad bellum in flux – a state of international affairs to which the ‘war on terror’ contributed considerably – bring about moral dilemmas for soldiers. Some case studies are discussed below. It is argued that the process to define the crime of aggression for inclusion in the (Rome) statute of the international criminal court provides an opportunity to bring about more legal certainty. While aggression should be regarded as a leadership crime par excellence, legal certainty in this context will provide for better moral guidance to soldiers on the ground in times of war – including, and especially, in times of the ambiguous ‘war on terror’. The rhetorical justification(s) for the invasion of Iraq in 2003 and the concomitant moral, political and legal debates that followed, explain our choice of this conflict as our main point of reference in the discussion that follows. This should not be seen as a significant academic pronouncement on the legality of the invasion of Afghanistan (the first theatre in the present ‘war on terror’). We chose Iraq to be our focus, because in many ways it illustrates the many (and difficult) angles to a morally, politically and legally controversial conflict. Ultimately this conflict, perhaps more so than the Afghanistan conflict, illustrates the ethical dilemmas faced by soldiers in the 21st century.
Keywords:war on terrorism, Terrorism, Afghanistan, Iraq, Operation Enduring Freedom, Operation Iraqi Freedom, War and Morals, 9/11
Subjects:M Law > M130 Public International Law
Divisions:College of Social Science > Lincoln Law School
ID Code:6350
Deposited By:INVALID USER
Deposited On:28 Sep 2012 09:59
Last Modified:13 Mar 2013 09:15

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