There's been a huge change in international law, with global and far-reaching implications: learn about the crime of aggression from the man who literally wrote the book on the subject: Noah Weisbord, a Queen's Law professor and the designer/instructor of the International Law module in Law 201/701: Introduction to Canadian Law.
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00:03 Matt Shepherd: Welcome to Fundamentals of Canadian law. I'm Matt Shepherd. No matter where in the world you live, you should know that something has changed in international law, something big. For the first time since World War Two, the international legal community can find individuals, like heads of state, and military officials, responsible for crimes of aggression. What does that mean, and why is this such a big deal?
00:29 MS: Noah Weisbord is a professor at Queens Law, and the creator and instructor of the international law module, in law 201/701 Introduction to Canadian Law. He knows a bit about the crime of aggression, in fact he's written a whole book about it, which is topping Amazon sales charts and receiving accolades across the globe. We're having our own book launch event for the crime of aggression on November 11th, following events in Montreal, New York, and elsewhere. Noah sat down with me to talk about the crime of aggression. What it means and how the term is being updated from a modern world where drones and cyber attacks are creating new ways of waging war.
01:07 MS: This podcast is not legal advice and is being presented for informational purposes only. Fundamentals of Canadian law is brought to you by The Queen's Certificate in Law, the only online certificate in law offered by a law faculty in Canada. You can find out more at takelaw.ca.
01:36 MS: How has the book done since its launch?
01:38 Noah Weisbord: I've been really kind of surprised and delighted. So the book was Amazon US, number one New Release. Philip Sans who's one of my favorite authors, he wrote a book called East-West Street on the origins of genocide and crimes against humanity, it was a best seller everywhere, called it a book of singular importance intelligence and insight on a subjective of enduring significance. I'm feeling good about how it's doing. I hope that people pay attention. I think that this is one of the most important issues of our times. The shift towards authoritarian rule, mixed with lower barriers on aggression, against other states. I'm very concerned about this, the transformation of warfare and the move towards authoritarianism, and this book deals with those two themes.
02:31 MS: And I think a lot of people can be nervous about reading, writing by academics, 'cause I think it's gonna be very academic writing, but there's been some reviews that have said you kind of hopped the barrier, that the book is, it's accessible.
02:42 NW: Yeah, it's supposed to be kind of a series of stories, a history, it's got characters. It's got villains it's got heroes. So I think it's accessible to someone who's interested in these issues, and hopefully a broader audience will become interested in it as well. It's a story, really, it's more of a story than a theory. And the concept is an old one, it tracks 100 years of diplomatic negotiations over this holy grail of international law. Holy grail of international law is to hold an individual leader like a president or a prince responsible for waging an illegal war.
03:27 NW: So this started as a discussion around World War One, there was an attempt to create a prohibition where the Caesar who is supposedly responsible for World War One according to a lot of people, would be held accountable for the war itself, would be prosecuted by an international tribunal held accountable. Then in World War Two, afterwards, there was the trial of the Nazis for the invasions of Poland, Czechoslovakia, and number of other countries. So individual Nazis, Hermann Göring and others were held accountable for those invasions. And then basically this idea went into a deep sleep throughout the Cold War, because the Americans and the Soviets couldn't agree on a definition. But this is the holy grail of international law, because it would mean that the prohibition on the use of force would be individualized and these leaders could be captured and tried.
04:27 MS: Right. And so what you're saying is, for a long time, basically the US and the Soviet Union were such power players, that if they couldn't agree on this, then it couldn't happen.
04:37 NW: Absolutely, 'cause it needed to be established by a treaty that all of the states, or at least a great many states would agree to. And very difficult to come up with a definition of an illegal war, which individuals are gonna be held accountable, is it just gonna be the president or is it gonna be the minister of defense, the generals? How far down does it go? But I need to add something. Is that until very recently, until December, 2017, when the new law was actually activated over this 100 year attempt to define it, gets activated in 2017. What existed at the time when it came to prohibiting force, was that there was no prohibition on force prior to World War One, there was no blanket prohibition, states, presidents, princes could wage war as they please, they were free to do as they pleased when it came to...
05:32 NW: It was like a form of law enforcement. If another state wronged you, you could go and invade them and force them to make it right. World War One happened then, empires crumbled, states went to war. Tens of millions of people were killed in this war. And then states tried to build an international system collective security. But it wasn't individuals that were regulated under the system, it was states. And there was no prohibition on war, they could wage war as they please, so long as they first tried through the League of Nations to resolve their dispute peacefully. So there were procedural steps to try to resolve the dispute, and if those didn't work, then the state could wage war against the other state. That system collapsed in the 1930s with Hitler. And with the end of World War Two, two important things happened. First, the creation of the United Nations. It was like the league, but strengthened, but more robust enforcement system of the Security Council, the great powers in charge of enforcing international law.
06:42 NW: In parallel with that, the Nuremberg trial, where the Nazis were tried for crimes against peace, which is now called the crime of aggression, that's the subject of my book. Crimes against humanity, which are widespread attacks on the civilian population of genocide, was a category of crimes against humanity at the time. And war crimes, violations of the laws and customs of war, shooting prisoners of war, using prohibited weapons like poisonous gas, things like that. So at Nuremberg, these individuals were held accountable but the prohibition on force who was created by the United Nations, only prohibited states from invading other states, that's collective responsibility.
07:26 MS: Right.
07:28 NW: My regret, and the regret of Benjamin Ferencz, the Nuremberg prosecutor who kind of championed this idea, he was one of the key players in the drafting of this new crime. The biggest regret was that the UN Charter and the Nuremberg idea that individual leaders would be held accountable, weren't combined at the time. That would have made it so that it would be easier to enforce international law, 'cause it would be just against an individual, not against an entire state, a collective.
08:01 MS: But why is it so important that individuals be held responsible? 'Cause I mean, it takes a village, right? It takes a whole state to go to war, there's a lot of people there. So why is it so important that an individual be singled out as responsible?
08:15 NW: Okay, so this is the central question. Basically the root of this whole discussion is, whether wars are caused by abstract forces, you know, a state competition, economic inequalities, or whether they're caused by individuals that decide to bring their nation to war. And I think that this debate has been playing out for the last 100 years, underlying the discussions over the crime of aggression. And I think we're starting to realize now, since 2016, we've realized how much power the leaders of states, for example, the American leader, and leaders in Europe, and autocratic leaders in Turkey, Venezuela, we're starting to really realize that the social and historical forces can be in place for war, the competition can be in place, but what's required is pyromaniacs to light the world ablaze.
09:07 MS: Right. And this has been raised before on sort of domestic grounds. I remember when Obama assumed the presidency, and people said, "Well, you should prosecute George W. Bush for war crimes." And he was like, "What's done is done." So is there a reasonable hope that this will happen or is there just gonna be a general political leavening of things where people will be like, "Well technically we could do this but why stir the pot?"
09:34 NW: We know that autocratic-leaning leaders are scared, we know this because they're exerting a great deal of effort attacking all the international justice institutions and all of the post-World War Two checks on their power now. In my entire life, I've never seen such an onslaught on the rule of international law as I have since 2016. And I'd say the highest point, the most aggressive point of this onslaught was John Bolton being appointed National Security Advisor to Donald Trump. This is a man who said that the best thing that could happen to international law is that the top, I forget, maybe top 10 stories of the United Nations be wiped off the face of the planet. He said that International Criminal Court is dead to us in his first speech after being appointed by Trump. Basically, rather than focusing on preventing autocratic leaders from torturing and targeting their populations from waging terrible wars, from stealing the money of their people, he focused on attacking the institutions that would prevent these kinds of abuses. And we knew then and there that something was happening, that there was a certain defensiveness that came of this, and that means that now is not the time to let off on the institutions. Now is not the time to let off on the United Nations, the International Criminal Court, and any other emerging institutions to hold leaders accountable. You gotta put on the gas now.
11:08 MS: Right. Your read of it is, is this aggression towards the institutions as people being nervous about the institutions?
11:16 NW: I think that John Bolton, potentially, could be the first defendant at the International Criminal Court for the crime of aggression potentially. The crime of aggression is the planning, preparation, initiation or execution of manifest violation of the United Nations Charter, which is a big mouthful. But basically there's a list of acts that amount to acts of aggression, bombardment, blockade, attacking the Armed Forces of another state, sending armed bands to attack another state. These are lists that came out of negotiations, since 1933, this list was in place. And so it's one thing that this law does, is it is the clearest most specific prohibition on illegal war that's ever been. And it's been accepted by consensus, by 123 states in the world after a long series of negotiations.
12:17 NW: Second thing that it does, is it doesn't just give the International Criminal Court another crime that it may or may not be capable of prosecuting, depending on how much leverage it has politically at the time. It hands this crime to 123 states parties, regional courts that can try leaders for aggression, the domestic courts of Russia, Germany, approximately 40 states having their domestic criminal codes the crime of aggression. Right next to manslaughter, murder, theft. It creates a international justice ecosystem, with the capacity to result in accountability for these aggressors. So okay, is it gonna work? Not sure. My prediction is that the first aggression cases will be self-referrals, like the first genocide and crimes against humanity cases. So, a successor regime, just imagine the United States, would hand over, imagine Bernie Sanders or Elizabeth Warren or Kamala Harris president coming in, and deciding that accountability was important, the rule of law has been eroded under the last president, and we're going to refer our own situation to the International Criminal Court for prosecution. Meaning that John Bolton or some other Trump administration officials implicated in some sort of illegal wars would be tried in The Hague with the consent of the United States.
13:50 MS: So this is a national self-referral. Does the nation refer itself, or does the nation put forth the individual? Would the United States say, "Donald Trump, this guy, this is the guy, you got to prosecute this guy, we're the United States but we still think he's gotta be prosecuted." Or would they say, "We think the United States is engaged in crimes of aggression. We need you to find the individuals responsible."
14:16 NW: There's a number of ways. The United States could say nothing about aggression, they could just say, "We refer our situation in relation to Afghanistan or in relation to Syria, to the International Criminal Court." And leave it to the court to find crimes within the jurisdiction, in its jurisdiction. The United States might or might not hand over its own people. It could hand over John Bolton or John Bolton could travel to an ICC state party, 123 of them, required to arrest him under the agreement. So he flies to Canada, Canada decides John Bolton private citizen should be surrendered to the International Criminal Court for prosecution. So it is a kind of an enforcement system that's complex and disaggregated, and it doesn't just rely on the ICC that has no army of its own to arrest. Every state that's a member of the ICC should participate, and civil society can help as well. There's even been private military contractors, mercenaries they have arrested in the past. And as long as those arrest don't result in egregious circumstances like torture, then you can still trial people that have been arrested by mercenaries in international courts.
15:42 MS: Hey, it's Matt. A quick note that at the time this airs, you've got just over a month until November 30th, 2019, to enrol in our certificate in law program for January 2020, start. You can learn more about international law from Noah Weisbord, and our Introduction to Canadian Law course. And even take a really deep dive with law 207/707 International Law, created by Queens Laws PhD, Chris Waters. If you start in January and take just one online course a semester, you could earn your certificate in law from Queen's Law, one of the best recognized law schools in Canada, by the summer of 2021. In a complicated world, it's important to know what's happening behind the headlines, and in a competitive world, showing you understand the law can help you to stand out. You can find out more about the program at takelaw.ca or drop us a line at email@example.com. Back to Noah.
16:40 MS: You said way back when this was basically stalled for decades because the USA and the USSR couldn't agree on things, and they could hold up the process 'cause they were so powerful. Since the dissolution of the USSR, the US is the world power, if they're so upset about it, why can't they just stop it?
17:02 NW: You mean stop the court from being able to function? Stop the prosecution of the crime of aggression?
17:08 MS: Yeah, if they could stop it from sort of being formalized in the first place. Can't they take it apart now?
17:13 NW: Well, now it's become a swarm. So the law itself has become so disaggregated that even if the United States blew up the international criminal court, then the crime still exist in the legal system of 123 states, and some regional organizations, the African Court of Justice and Human Rights. And it's basically become law that permeates all of these different level, institutional levels.
17:45 MS: Right.
17:46 NW: So, okay, maybe the swarm is not gonna be able to take down President Donald Trump while he's in power, for example. But certainly when the leader gets politically marginalized, geographically isolated, that's when the leader, it has been shown in past arrests, becomes vulnerable to arrest and prosecution.
18:09 MS: Right. So what constitutes a crime of aggression today? In 2019? Maybe 2020 soon. What is a crime of aggression?
18:17 NW: Well, that's exactly now the scope of which an advisory group established by the Liechtenstein mission to the United Nations is trying to figure out. So we have the traditional list of acts that are defined in the crime, Article 8 BIS of the International Criminal Court treaty sets out those acts, bombardment blockage, attacking the armed forces of another state. There's I think eight of them, seven or eight different acts. But the definition of the law itself allows for other sorts of armed attacks to amount to aggression. So the question becomes, do cyber attacks amount to crime of aggression? What about some little pinprick drone strike, occurring in Pakistan without authorization of the Pakistanis, so an illegal use of force in Pakistan may be falling below a de minimis threshold, is that amount to an act of aggression? So these are the things that need to be worked out, and quickly. Because imagine if the right of self-defense would kick in on the part of Pakistan, after a single drone strike, just across the border with Afghanistan, imagine if Pakistan could respond defensively against the United States in that case. It could open the flood gates.
19:42 NW: So there's a debate about what is going to amount to aggression. Cyber attacks affecting an election, is that an armed attack under international law these days? So there's gonna be a group of expert advisors, convening for the next number of months. First meeting is the 30th of October in New York City, where these world experts are gonna try to figure out the scope of acts of aggression and what can be prosecuted.
20:14 MS: And this will then become law once they've decided?
20:18 NW: It's going to become kind of a proposal to states. The states are gonna get involved in these discussions, and then hopefully it will generate a certain amount of momentum and will clarify what states already want to have clarified, which is when they can respond with armed force, for example. When they can prosecute somebody for a cyber attack causing massive damage to their state, things like this.
20:44 MS: Right. I mean after this it's, what is the practical implementation of this? If the international community decides that there has been a crime of aggression, you literally arrest the individual somewhere and bring them to Geneva to stand trial?
21:03 NW: Well, the hope would be that this clarification of the law will pervade every level of decision-making about cyber attacks. So when a state's trying to decide, for example, whether to send a drone or a bot to another country to cause damage in that other country, that they will have a clear line about when they know when the person making the decision can be criminally accountable. If a Canadian leader orders this criminally accountable in Canada, criminally accountable in a regional court, criminally accountable in the court of another State, Germany, Russia, Belgian. Criminally accountable at the International Criminal Court, and the whole system is disaggregated. So, the question about whether leaders, whether Vladimir Putin could be held accountable for the hacking of the US election? That would be good to know. Also the United States' leaders need to know whether if they respond with armed force to that, whether they themselves are committing the crime of aggression.
22:07 MS: Right.
22:08 NW: So it's a setting out of clarification of the loins, of The New Rules of War in relation to this evolution of warfare.
22:17 MS: And what you just said suggests that it's retroactive, as well.
22:20 NW: I won't be able to go... The interpretation itself is retroactive to the point of when the crime of aggression became activated.
22:33 MS: Okay.
22:33 NW: So, when the crime of aggression in 2018, became active for prosecution, these interpretations of what the meaning of the terms are can be applied to that. But the crime of aggression itself cannot be applied to the 2003 invasion of Iraq, it wasn't the law at the time. So aggression wasn't a crime for individuals in 2003 when the United States invaded Iraq, so it would violate the principle of legality, and not be permissible under criminal law to do that.
23:07 MS: Right. And you start thinking obviously of, you know, here is the rule, what's on the fringes of that rule, how do we sort of test this? This is just international. You can't have a crime of aggression against yourself. I'm thinking of Hong Kong right now.
23:20 NW: Oh, I see what you mean, yeah, yeah, no. It's the use of force by a state against the political independence or territorial integrity of another state. So there could be another crime though, for example, a cyber attack by the government of China against individuals in Hong Kong, there could be a way that that would amount to an international crime. So if it caused widespread destruction to a civilian population somehow, then it could be a crime against humanity.
23:52 MS: Okay. And what if a non-state actor commits aggression? I'm thinking, Mark Zuckerberg goes nuts and Facebook just is all about how much everyone should destroy Liechtenstein. He's not the state, he's not under orders from any one, he's an independent actor running a private company. But is that something that's also kind of notionally a crime of aggression?
24:14 NW: So this was debated in the negotiations, 2003 on, about whether Bin Laden could be held accountable for the attack on the World Trade Center in the United States. And the states decided that probably not, they decided that they were gonna tailor the crime to be as close as could be to customary international law and the use of force. So only the political or military leaders, or economic leaders of a state, with control of the policy of that state could be held accountable. So this is, imagine for a moment that the leader is using the state as a weapon. So the leader is pulling the trigger of the state and launching the attack, that's how the crime was designed. What I have been suggesting in these negotiations over the years that I've participated and in a number of law review articles, is that perhaps incrementally, the notion of a state can expand. The notion of the state hasn't remained stable. It's had various evolutions, and maybe one day state-like entities, like the Islamic State, the leaders of those entities could be held accountable on the crime of aggression. Evolving, evolving, like the common law does incrementally over time, so that finally individuals could be held accountable that are not connected to an organization like that, for committing acts of aggression against another state.
25:46 MS: Right. And I mean clearly, you've written the book on the subject, which is available now, but that was written at a fixed moment in time. If people wanna sort of keep up with this issue, where would they turn to? How would you sort of stay abreast of what's happening here?
26:01 NW: So there's a number of discussions going on, especially on a few websites that I really like. I love the contributions to just security. There's constant talk about cyber attacks and the use of force. There's a great piece by my German colleague, Claus Cress, that just came up. It's one of the finest pieces in the last number of years, about the evolution of the prohibition on the use of force on just security. I like lawfare, that's another site that I follow closely. And of course, the American Society of international law. So, people are speaking about this. My book was intended to be a scenario kind of futuristic scenario planning book. So the first part of the book is about the evolution of this idea, the second is about how it could evolve over time. So I'm kind of keen to see what other people think when it comes to what war is gonna look like in the future, and what law is gonna look like in the future as well.
27:06 MS: Well, thanks so much, Noah.
27:07 NW: Thank you very much Matt.
27:11 MS: Thanks to Noah Weisbord. Noah covers the fundamentals of international law, in his module for law 201/701 Introduction to Canadian Law. If you wanna dive right into international law in depth, you can also take law 207/707 International Law, created and taught by Queens PhD, Chris Waters. Fundamentals of Canadian law is recorded at Queen's University, situated on traditional Anishinaabe and Haudenosaunee territory. Our theme music is by Megan Hamilton who is also a staff member here at Queens Law. You can find out more about her music at MeganHamiltonmusic.wordpress.com. Original illustrations for this podcast are by Valerie Desrochers you can find her work at vdesrochers.com. Thanks for listening.