While many States around the world are actively working on the ratification and implementation of the crime of aggression amendments, some scholars and experts are also encouraging the legal community, in particular domestic and international prosecutors and judges, to have another look at their laws and statutes as they existed prior to the 2010 Kampala consensus. While the effective criminalization of the illegal use of force as a crime of aggression may be a new development for the ICC and for some States (while some other already had the crime of aggression in domestic law, see our page on why and how to implement), a good argument can be made that some instances of the illegal use of force, whether committed by State or non-State actors, could also be qualified as crimes against humanity.
Benjamin Ferencz, Prosecutor of the Einsatzgruppen trial at Nuremberg, has been at the forefront of this concept. In an article to be published in the Duke Law Review, Ben Ferencz calls upon all States Parties, as a first step, to ratify the Kampala amendments. But he also argues that States should provide an additional avenue for accountability, by recognizing and condemning the illegal use of force as a crime against humanity. The basis for such a step is Article 7, para. 1 of the Rome Statute, which contains a list of acts that can constitute crimes against humanity, and which includes “(k) other inhumane acts of similar character intentionally causing great suffering, or serious injury to body or to mental or physical health”.
Ben Ferencz argues that “Any person responsible for the illegal use of armed force in violation of the United Nations Charter, which unavoidably and inevitably results in the death of large numbers of civilians”, should be subject to punishment for crimes against humanity. This may require some States to adapt their respective legislation to this effect, or the prosecutors and judges – either domestic or international – to adopt such an interpretation of the definition of crimes of humanity.
Ferencz: “The precise character of ‘other inhumane acts’ as crimes against humanity was left to interpretation by courts and judges. The door was deliberately left open to possible inclusion of other unforeseeable major inhumanities that might otherwise have escaped judicial scrutiny. Nuremberg correctly condemned aggression as ‘the supreme international crime’ because it included all the other crimes. Even if the appellation ‘aggression’ is not used, the consequences of the illegal use of armed force may be equally reprehensible and should not be allowed to escape criminalization because of nomenclature.”
This topic was also the subject of an essay contest organized by the Whitney R. Harris World Law Institute at Washington University Law School. The contest was won by “The Fog of War: Prosecuting Illegal Uses of Force as Crimes Against Humanity” by Manuel J. Ventura and Matthew Gillett. The article will be published in a forthcoming issue of the Washington University Global Studies Law Review.