Uneasy Lies the Head: Toward Greater Coherence on Ethical Intervention and Aggression

Introduction

International statecraft and foreign policy decision-making are ethical minefields. International law—particularly international criminal law—is designed to attach concrete punishments to the gravest and most flagrant violations of global values, and in doing so, reinforces ethical action in the conduct of international affairs. In the case of aggression and humanitarian intervention, however, contradictions in the law may have the opposite effect. By making the crime of aggression cognizable before the International Criminal Court (ICC) without clearly distinguishing humanitarian intervention, the international community presents state leaders capable of intervening in imminent international crises with a grave dilemma: act when innocent lives can be saved, as required by the basic principles of ethical conduct, or fail to act, and thereby avoid the threat of criminal prosecution for humanitarian intervention. Because international criminal law should lighten the adverse consequences for proponents of moral action in the international arena, the current tension between humanitarian intervention and the crime of aggression requires attention from both the ICC Prosecutor and the United Nations (UN). At the same time, the recent rise in threats calling for humanitarian intervention argues strongly for world leaders who are willing to engage all available means to prevent the most serious international crimes from occurring. Because the UN Security Council (UNSC) serves as an important arbiter of international legal norms, despite contestation among permanent members striving to assert great power status, the role of the UN in helping to resolve the tension surrounding humanitarian intervention remains salient.

International Law and Foreign Policy Ethics

The complex terrain of international politics is fraught with ethical challenges. Some practitioners speak of a “fundamental tension” between interests and ideals in foreign policy.¹ Others contrast between alliances of values and alliances of interest.² Scholars and think-tanks parse policy along similar lines.³ In any case, responsibility for charting the proper moral course for the ship of state is, it seems fair to say, an often unenviable task.

In the past seventy-five years, the emergent acceptance of individual criminal responsibility in international law has added to the ethical complexity facing national leaders. Shortly following the Second World War, the International Military Tribunal at Nuremberg (and its analogue in the Pacific theater, the International Military Tribunal for the Far East) established that leaders of a state can be held criminally liable as individuals for their role in crafting and implementing state policy. In the relatively little time since, this recognition of individual liability has experienced a remarkable proliferation, giving rise to a series of international criminal tribunals and a robust body of scholarship. Most strikingly—and in the last 20 years alone—global acceptance of the principle of individual criminal responsibility led directly to the establishment of a permanent international criminal tribunal, the ICC in The Hague. For the first time in history, a fixed international court now exists to judge leaders for crimes committed under their command in violation of the law of nations.

For advocates of international law as a constraining force on the unethical excesses of unchecked state power, these developments are welcome. Even proponents of international law, however, must consider cases in which the law itself increases the likelihood of unethical outcomes. Such is the current tension surrounding the criminalization of aggression and, with it, the possibility of individual criminal responsibility for humanitarian interventions.

The Complex Status of Aggression

Aggression, the unjustified use of force against another sovereign state, is the newest international crime cognizable before (i.e., within the jurisdiction of) the ICC. Since the entry into force of the so-called Kampala Amendments in 2018, the ICC possesses jurisdiction over leaders directing acts of aggression which, by their “character, gravity, and scale” constitute a “manifest violation of the UN Charter.”⁴,⁵ While this articulation of the crime is relatively novel, criminalizing aggression itself is not. At least since the Nuremberg Military Tribunals established “crimes against peace” as internationally cognizable violations of the gravest nature, a framework existed for holding the heads of states engaging in aggression individually responsible for...