The Sadly Neutered Crime of Aggression

"I’ve long supported providing the ICC with jurisdiction over the crime of aggression.  Call me old-fashioned, but I believe there is a great deal of truth to the IMT’s insistence that “[t]o initiate a war of aggression… is not only an international crime; it is the supreme international crime differing only from other war crimes in that it contains within itself the accumulated evil of the whole.”  We cannot collapse the distinction between the jus ad bellum and the jus in bello, but it is no doubt true that war crimes and crimes against humanity are particularly likely to be committed in the context of an illegal war.  (See, e.g., Iraq.)  Prevent the illegal war, you prevent the subsequent crimes.

The good news: the Review Conference has adopted a definition of aggression. The bad news: the conditions governing the exercise of jurisdiction make it very unlikely that any significant act of aggression will ever be prosecuted"