Sovereign State Impunity: The Crime of Aggression

A brief discussion examining how the international crime of aggression has been routinely exercised with impunity by political states.

The Battle of Fontenoy by Pierre L’Enfant. Oil on canvas.

By: Ian L. Courts

INTRODUCTION

I begin by taking. I shall find scholars later to demonstrate my perfect right.” The preceding quote was uttered by Frederick the Great, King of Prussia concerning his use of military prowess to achieve his ultimate diplomatic goals i.e. a powerful Prussian state. Moreover, Frederick of Prussia’s quote highlights the fact that many states view war, and military incursions as their sovereign right.[1] States routinely used war as a means to exercise their military power and dominate and/or subjugate states around them. Essentially war was the sovereign state’s right of impunity upon other states. However, as humanity has progressed, and a functioning view of the international rule of law developed, impunity by states especially regarding the use of military might against other states has changed. The most salient example of this shift is the codification of the crime of aggression in the Rome Statute of the International Criminal Court. The Rome Statute of the International Criminal Court defines the crime of aggression as “the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations.” Rome Statute Article 8 bis 2(a). Subsection 2(a) further defines aggression as “the invasion or attack by the armed forces of a State of the territory of another State, or any military occupation, however temporary, resulting from such invasion or attack, or any annexation by the use of force of the territory of another State or part thereof;” Id. at (a). This discussion will briefly examine two historical examples of state aggression, namely, the war of Austrian Succession, the Japanese Invasion of China, and one modern example the Russian invasion of Ukraine. Each of the preceding examples of aggression demonstrates that states view it has their sovereign right of impunity to commit aggressive acts. Moreover, I seek to make the point that international criminal law and accountability require that powerful nations, be held accountable for their aggressive actions against other states.

[1] See Right of War Indemnity, The, 6 Ass’n Reform & Codification L. Nations Rep. Conf. 85,86 (1878) (“The property of a nation at war, lying within the territory of the enemy, by the old law of Nations was subjected, like other booty, to the right of appropriation by seizure.”)

Prussia’s Invasion of Austria: The War of Austrian Succession

The War of Austrian Succession is a salient example of aggression, the burgeoning power of Prussia under the leadership of Frederick the Great invaded Silesia, an Austrian territory of the new empress Maria Theresa of Austria. Frederick the Great’s intent behind invading Austria was mere “my troops and I are quite ready for anything; if I do not make use of this good fortune, I fail to use an instrument which is actually in my hand.”[1] Frederick the Great merely wanted to exercise his military power over a perceived weaker state, while expanding the territorial reach of his state. Prussia’s invasion of the Austrian empire was instigated merely because Frederick wanted to exercise his war machine. The result of Frederick the Great’s invasion of Silesian-Austria was approximately 8-years of war, 450,000 people dead, and 300,000 wounded. The War of Austrian Succession was one of Europe’s deadliest wars, instigated because one state — Prussia wanted to exercise aggression against a neighboring state — Austria.[2] Accordingly, the War shifted the power dynamics among Europe’s states, while cementing Prussia as a rising power within the continent. The War of Austrian Succession serves as a striking case of state aggression because it demonstrates the danger of unchecked state sovereignty, especially regarding the right of a state to unilaterally exercise military force against another state unjustifiably.[3]

The Japanese Invasion of China: World War II

Another example of state aggression against another state for the mere purpose of exercising military might is the Japanese invasion of China in the Second World War. The Empire of Japan sought to expand its territory into China, thus gaining Chinese resources that Japan needed to continue its war efforts. Years prior to the invasion of China, the Japanese had been expanding their imperial holdings. A battle known to history as the “Marco Polo Bridge Incident” between the Chinese army, and Japanese forces resulted in a full-scale invasion of China by Japan. [4] The international community was outraged, and viewed Japan’s military actions as lawless and “aggressive.” [5] Japan’s invasion of China resulted in 8-years of war, and approximately 15,000,000 to 22,000,000 casualties. [6] The Japanese invasion of China was done for the purpose of expanding imperial Japan’s power at the expense of its Chinese neighbor. The crime of aggression if left unchecked will continue to allow states to unilateral execute military expansions at the cost of global instability and significant death and hardship on civilians.

The Russian Invasion of Ukraine: The Russo-NATO War

Nothing has rocked the year 2022, more than Russia’s invasion of Ukraine. Russia’s pretext for its invasion of Ukraine was to stop an alleged genocide of pro-Russian Ukrainian separatists in eastern Ukraine. [7] However, the reality is that Russia fears the growing influence of the North Atlantic Trade Organization, and a powerful Western Europe encroaching within its fear of diplomatic influence. Russia has reportedly bombed Ukrainian cities, and military bases, and has advanced troops within the country seeking to “maintain order and control.” Russia’s actions are evidence of Putin’s aggressive instincts because without a valid pretext he has invaded a sovereign country for the purpose of expanding Russia’s borders and subjugating Ukraine to Russia’s will. The global community has largely condemned Russia’s actions and rightfully called them out as “aggressive” and criminal. [8] Moreover, the International Criminal Court is formally investigating Russia’s actions under the Rome Statute’s Article 8 anti-aggression provisions. [9] Russia’s invasion of Ukraine as of April 29, 2022, has resulted in thousands of civilian deaths.[10] Moreover, Russia's invasion of Ukraine evidences the need for unilateral aggressive actions by states to be curtailed, and those leaders who initiate them are held accountable.

CONCLUSION

Each of the aforementioned examples underscores the importance of holding powerful states accountable for their aggressive actions. The codification of the crime of aggression under the Rome Statute provides the legal basis for holding aggressive states and their leaders accountable, while also signaling those aggressive actions will not be tolerated. As I stated in a self-published Op-ed:

The Rome Statute is not the perfect instrument of international accountability namely because it is powerless against powerful nations such as Russia, the USA, the UK, China, and the other UN Security Council members. But its existence evidences humanity’s collective determination that actions that target and exact extreme violence on humanity are illegal and should face justice. Russia’s criminal invasion should challenge the global community to reexamine its commitment to justice and to hold the powerful accountable for their criminal actions.[11]

[1] See Goldstone, Nancy. In the Shadow of the Empress, Little Brown and Company (2021).

[2] See Clodfelter, Micheal (2002). Warfare and Armed Conflicts: A Statistical Reference to Casualty and Other Figures 1500–1999 (2017 ed.)

[3] Frederick the Great’s stated pretext for his invasion was a convoluted “ancient claim” to Silesia, however this was not his genuine intent. See Goldstone, Nancy. In the Shadow of the Empress, Little Brown and Company, 47 (2021).

[4] Britannica, T. Editors of Encyclopaedia (2021, June 30). Marco Polo Bridge Incident. Encyclopedia Britannica. https://www.britannica.com/event/Marco-Polo-Bridge-Incident.

[5] See Sino-Japanese Conflict, 19 League of Nations O. J. 1133,1138 (1938) (“Recent events in Europe, [and Asia] and our determined commitment resistance have shown aggression arrestable if common will be made strongly manifest in only terms the aggressors understand…Japanese aggression demand positive action to halt aggression.”

[6] Clodfelter, Micheal “Warfare and Armed Conflicts: A Statistical Reference”, Vol. 2, pp. 956. Includes civilians who died due to famine and other environmental disasters caused by the war. Only includes the ‘regular’ Chinese army; does NOT include guerrillas and does not include Chinese casualties in Manchuria or Burma.

[7] See Hodge, Nathan, Is Russian President Vladimir Putin Creating a Pretext for War (2022) web access: https://www.cnn.com/2022/02/16/europe/putin-pretext-war-hodge-analysis-intl/index.html

[8] See “UN resolution against Ukraine invasion: Full text”. Al Jazeera. 2 March 2022. Retrieved 25 March 2022. The General Assembly … [d]eplores in the strongest terms the aggression by the Russian Federation against Ukraine in violation of Article 2 (4) of the Charter

[9] Corder, Mike (3 March 2022). “ICC prosecutor launches Ukraine war crimes investigation”. Associated Press. Retrieved 19 March 2022.

[10] Neta C. Crawford, Professor of Political Science and Department Chair. “Reliable Death Tolls from the Ukraine War Are Hard to Come by — the Result of Undercounts and Manipulation.” The Conversation, 26 Apr. 2022, https://theconversation.com/reliable-death-tolls-from-the-ukraine-war-are-hard-to-come-by-the-result-of-undercounts-and-manipulation-179905#:~:text=Ukraine%20officials%20suggest%20the%20true,suffering%20wounds%20in%20the%20fighting.

[11] See Courts, Ian, “The Case Against Russia Concerning Its Invasion of Ukraine”, Medium (2022).

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Ian Courts

Attorney, Young Black Voice, Law & Politics Observer. HBCU Law Alumnus, and Fur dad!