The Crime of Aggression, Selectivity, and the Legal Academy
November 22, 2022 by Digital Editor
By Md. Rizwanul Islam
Russian aggression against Ukraine, by flouting the law of the use of force, has been widely condemned by the international community. Although the condemnation is overwhelming, the actions taken to pursue justice are varied. Some of the crimes that Russian perpetrators are being tried for raise grave moral questions and expose the extent of the role that selectivity plays in international law. Russian conduct in Ukraine presents an opportunity to rethink this selectivity, especially in the context of states failing to pay enough attention to the act of Russian aggression in favor of focusing on the crimes that have since followed it.
The initial act of Russian aggression against Ukraine demonstrates the hypocrisy of many actors who seek to respond to the outcome of aggression rather than the wrongful act of initial aggression itself. In doing this, the actors focus not on outlawing war itself but on a less-important question of conducting war in a legal or ‘humane’ way. Emphasis on the compliance of jus in bello with scant regard to jus ad bellum is not humane. The international legal academy should be more assertive in condemning aggression for what it is – a grotesque violation of contemporary international law.
Selectivity and Its Consequences
Many Western leaders have labeled the events in Ukraine as “war crimes” or “crimes against humanity” and vowed to ensure the accountability of the perpetrators. For instance, United States President Joseph Biden said that, “[Putin] is a war criminal, but we have to gather the information…We have to gather all the detail so [there] can be an actual  war crime trial.” In this quote, President Biden does not mention the word “aggression,” due to a possible ceasefire negotiation at the time between Russian and American leadership. But he does not identify Russia’s most brazen violation of international law: the aggression against Ukraine, for which there is little evidentiary burden. There is so little burden required, in fact, that international lawyer Philippe Sands commented that the case would be a “slam dunk.” And just as difficult as it may be to ensure Russia’s accountability for aggression, nearly the same challenges apply to war crimes or crimes against humanity. Thus, the impracticability of holding Russia accountable for its initial act of aggression is unlikely to have driven President Biden’s choice of word. Rather, it is plausible that his real reason for the omission was to follow the practice of some former U.S. and allied regimes which have, as Professor Muthucumaraswamy Sornarajah points out, “progressively dismantled the prohibition on the use of force and arrived at a doctrine of preventive war which gives it the license to use force almost without limit.” It is possible that President Biden was not willing to set a new precedent.
Even when there is a call for trial for aggression in particular, it is often accompanied by a call for a special tribunal, which increases the chance for selectivity. There have been far more calls for a war crimes trial than for the crime of aggression. This is exactly where the legal academy needs to reinforce that, irrespective of the place and interests involved, aggression is aggression and the leaders who perpetrate it need to be condemned and held legally accountable. With the shrinking and limited scope for legal use of force by one state against another, waging war should be illegal, giving less powerful states some hope of protection from the aggression of their more powerful counterparts.
The Role of Legal Academy in the Face of a Selective Approach to Aggression
Due to the ruptured international community and state-centric international legal order in which we live, it is nearly impossible that the leaders of the “great powers” would be subject to accountability in international courts in the near future. However, the improbability of establishing legal accountability does not excuse academic obliviousness to the true origin of the horrific events in Ukraine. That is, of course, not to imply that the scholarly community is monolithic but to emphasize that scholars tend to be opinionated depending on the subject matter at stake.
Thus, scholars should unequivocally condemn aggression through their works. Publication of these opinions should not only be placed in the traditional scholarly outlets, which tend to have a readership limited to the scholarly community but in popular outlets with a much wider readership. These writings should be persuasive to a broader audience and nimble so that any non-specialist may decipher them.
There is nothing wrong with the fact that scholars pursue academic accolades, tenure, and promotions through their writing. While such gains are generally absent in non-scholarly writings, they still contribute to the events in the world beyond academia, which legal academia cannot do on a routine basis. Although it is difficult to maintain academic rigor and still be accessible to laypersons, the international legal academy has proven this to be an attainable standard through the increasing number of blogs and opinion essays regularly involving international legal academics.
One could argue that a war-mongering despotic regime would not be affected by scholarly criticism. But even such regimes may not be entirely oblivious to legal or scholarly condemnation. This may partially explain why Russia denied launching any war against Ukraine; its official line has been that it has only launched a special military operation as pre-emptive self-defense to protect ethnic Russians in Ukraine and does not have the intention to occupy Ukrainian territory. Even if one, arguendo, buys this Russian claim, it is still devoid of any legal basis in contemporary international law. International law does not authorize any state to launch a military operation in another state except in self-defense or with authorization from the UN Security Council or the government of the state in which the military force is sent. The ICJ in Nicaragua appears to have laid to rest the option of legally using force on this flimsy ground by observing that “[T]he Court cannot contemplate the creation of a new rule opening up a right of intervention by one State against another on the ground that the latter has opted for some particular ideology or political system.” [Para 263]
The role of academics could be to force a trial in the public court of opinion to encourage a response from the electorates, which could affect the actions of the aggressor and their allies, who may be beholden to the aggressor for economic or strategic reasons. The stigmatization of a grave international crime cannot be devoid of value. Even though scholars in autocracies or fledgling democracies like Russia may be forced to conform to the official state narrative, scholars from other states do not face the same barriers to calling out aggression and advocating for prosecution of these crimes. If good-faith academic endeavors for establishing accountability for Russian aggression fail, scholars may take solace in thinking that an academic “is able only to set forth the norms which govern, or ought to govern, social organization. The practical establishment of these norms is a function of statesmen, of legislators.”
If independent international legal scholars can choose to be international lawyers and stand up to aggressors without being “nationalist” or “lawyers for the state,” they would benefit not only international law but also humanity.t Academics, or their individual works, may not change the world, but they can be a part of making it better. If the law is considered a weapon of war in the contemporary world, academic writings can be a weapon of persistent condemnation. Scholars armed with international law should not be hesitant to call out aggression. Meanwhile, scholars employing the more convenient option of focusing on “war crimes” or “crimes against humanity” could further dent public confidence in the force of international law.
Md. Rizwanul Islam is a Professor of Law and Member, Center for Peace Studies at North South University.