Evolutions of the Jus Ad Bellum: The Crime of Aggression

Article excerpt

This panel was convened at 9:00 a.m., Saturday, March 28, by its moderator, Davis Brown of the University of Virginia, who introduced the panelists: Larry May of Vanderbilt University; Noah Weisbord of Duke Law School; Jutta Bertram-Nothnagel, Permanent Representative of the Union Internationale des Avocats to the United Nations; Yoram Dinstein of Tel Aviv University; and Elizabeth Wilmshurst of the Royal Institute of International Affairs at Chatham House.

INTRODUCTORY REMARKS BY DAVIS BROWN *

Well, good morning, everyone. I want to salute everyone in this room--the panelists, and especially all of you, for being here at this ungodly hour on this last day of the conference where I know a lot of people like to take off a little early. So, I salute all of you for being interested enough to be here this morning at, ouch, 9 a.m. I'm still rubbing the sleepers out of my eyes.

My name is Davis Brown and I'm with the University of Virginia. I'm kind of our crossover--well, one of our cross-over people here--because I'm a lawyer, and yet I'm also getting a Ph.D. in international relations.

I'll be moderating this roundtable, and it will not be a traditional panel format. It will be very much more of a roundtable format. Our topic is the movement to codify the crime of aggression in the International Criminal Court (ICC). This was a development that was contemplated when the Rome Statute was originally drafted, but it was a can of worms that the Rome Convention decided to leave for another day.

Well, that day is very nearly upon us. So, we have a group of distinguished scholars and practitioners here to work through some of the issues presented by the new crime of aggression.

On my far left, Yoram Dinstein, who almost needs no introduction, is with Tel Aviv University. He is the author of War, Aggression and Self-Defence, which I believe is in its fourth edition now.

And to my immediate left is Jutta Bertram-Nothnagel, who is with the Union Internationale des Avocats and has been following the work of the Special Working Group of the Crime of Aggression very closely. She knows the details in and out--almost nauseatingly so. She and I argue often, and she just runs circles around me.

To my immediate right is Elizabeth Wilmshurst from Chatham House. Next to my right is Noah Weisbord, an S.J.D. candidate at Harvard Law School and a visiting assistant professor at Duke Law School, who has also been following the Special Working Group very closely. On my far right is Larry May, a professor of Philosophy at Washington University in St. Louis but who also has a law degree and has authored a number of works on the just war tradition and aggression.

At Larry's request, we are going to start the roundtable with his comments. Larry will provide us with a more extended discussion on aggression in its historical context so that we can better understand the current developments related to the crime of aggression.

So, Larry, I'll turn over the floor to you for now. Thank you.

* PhD Candidate, University of Virginia.

REMARKS BY LARRY MAY *

Thanks, Davis.

I have just finished a four-volume work on the normative foundations of international criminal law which takes as its inspiration the just war tradition. The third volume, which is called Aggression and Crimes Against Peace, is what I will be basing some of my remarks on. In that book, I provided an analysis of aggression in the context of historical debates about the jus ad bellum principle of just cause. I am especially interested in the moral principles that might ground a conception of aggression and an understanding of humanitarian intervention.

Today, as we debate whether the crime of aggression should be under the jurisdiction of the International Criminal Court, the discussion focuses, as does the title of our panel, on jus ad bellum. The term, "jus ad helium," does not refer to individual prosecution but rather to the principles for establishing when war has been initiated for just cause and when it has been an aggressive war. …