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War Crimes and Related Law (Canada)
(February 2008)

Chapter 13 - "The Crime of Aggression"

  1. Overview
  2. The Present Legal Status of "War"
  3. Prosecutorial Implications
  4. "Aggression" as State Terrorism

1. Overview

So what about that 'old standard' of international crimes: war?

The Rome Statute at Art.5 lists "the crime of aggression" along with the other main war crimes within its jurisdiction. It then states:
Art 5.2:
The Court shall exercise jurisdiction over the crime of aggression once a provision is adopted in accordance with articles 121 and 123 defining the crime and setting out the conditions under which the Court shall exercise jurisdiction with respect to this crime. Such a provision shall be consistent with the relevant provisions of the Charter of the United Nations.
Articles 121 and 123 reference the Rome Statute-mandated review and amendment oppourtunities triggered at seven years after the treaty comes into force on 01 July 2002.

In effect, the issue was politically-deferred until that time, although a UN committee has been working on the issue in preparation for the review in 2009:

Rome Statute "Crime of Aggression" Proceedings

2. The Present Legal Status of "War"

While we have no Rome Statute definition of "crime of aggression" to parse, it is not hard to envision it as (minimally and eventually) encompassing the classic situation of the use of force by one state against another, in other words: "war". That said, unjustified "war" has already been rendered substantively "illegal" (albeit without robust legal remedies) by virtue of Art 2.4 of the UN Charter:
All members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.
This rule is subject to two exceptions which legitimize the use of force: self-defence [UN Charter, s.51] and Security Council authorization (the so-called "Chapter VII mandate") [UN Charter, s.41].

It is worth noting that Art.103 of the UN Charter confirms the paramountcy of that treaty over any others that its members may be party to, irregardless of when those competing obligations came about.

3. Prosecutorial Implications

(a) Overview

While it is ironic and disheartening that the world's best effort-to-date to robustly criminalize "war crimes" has not yet defined its most definitive form, the implications of this shortfall may be limited. To appreciate this point, one must put oneself into the position of a prosecutor.

Narrowly viewed, the only implication of the failure to criminalize "aggression" is the inability to prosecute THAT specific crime (ie. aggression), in THAT forum (ie. the ICC system). It certainly does not mean that the enterprise of war is legal, just that the remedial framework to address that specific crime is unfortunately limited.

To make this point, consider the activity of war from a conventional criminal prosecution perspective. This will soon become a daunting task, for "war" is not like a single gunshot or knife-thrust, or even a prolonged and calculated assassination project - it is a military, logistical and administrative project of vast proportions, involving typically thousands of people, and spreading over months if not years. It necessarily involves thousands of individual, discrete acts and omissions ranging from dropping bombs to voting on annual military budget expropriations - all of which are available for analysis for "legality".

(b) The "Included Offences" of War

Notwithstanding the broad potency of the subordinate's Nuremberg Defence ("only following orders") as discussed in Ch.10 "Defences", much then turns on the issue of the illegality of the entire war venture. To draw it back to the conventional criminal law analysis, within the larger "crime of aggression" are necessarily buried hundreds and thousands of individual "smaller" crimes - or "included offences" if you will - which in domestic practice Crowns typically do not charge or withdraw once they are content that they can make out the higher offence. But where the higher offence is not available, no Crown is hesitant to get the best that they can. Thus they trade murder down to manslaughter, manslaughter down to criminal negligence causing death - and that all the way down to interference with a dead body if they have to.

It is a pessimist's approach to think that because one cannot prosecute war (as such) that all its "contained" offences are thereby legitimate. Once a war endeavour is stripped of its "legitimacy" by absence of self-defence or Security Council authorization, it is simply mass-scale organized violence indistinguishable from "genocide", being the intentional destruction of a group of people (the definition has no requirement that the group be civilian) in whole or part (in its many manifestations).

Further, to the extent that it results in violence to civilians (which its constituent acts will "naturally result in", thus satisfying the mens rea requirement), it also necessarily constitutes "crimes against humanity" (once again, in its numerous manifestations).

Further, the constituent individual "acts of war" involved in such a vast enterprise, to the extent their status as "war crimes" might have been excepted by 'military necessity' or similar concept (as many of the forms of war crimes are), loses that exception when the larger war endeavour is illegal. To make the criminal law analogy again: how can one argue "reasonable force" in evicting someone from a home - when it is in fact their home and you are the trespasser? Such logic is tortured beyond acceptability.

In conclusion, the many acts and omissions necessary to conduct a "war" are the "included offences" of the "crime of aggression", and they ARE governed under the Rome Statute and the CAHWCA regime.

(c) The Ancillary Offences of War

For that matter, CAHWCA law admits of prosecution of all of the conventional ancillary offences to the main war crimes: counselling, conspiracy, aiding and abetting, accessory after the fact, and attempt (see Ch.7 "Ancillary Offences") - even when the "target" offence (as in attempt, conspiracy or counselling) is planned for outside of Canada, or the "primary" offence (as in accessory or aiding and abetting) is committed outside of Canada [CAHWCA s.6(1.1); CCC s.21(1)(b)(c)].

To take some apt Canadian examples alone (of course, given universal jurisdiction there is no need to restrict consideration to Canadian examples):
  • Are we to imagine that Canadian corporations, in their widespread international arms dealings, have not sold (aided and abetted) war supplies to other countries knowing them to be destined for use in "illegal" wars?

  • Have Canadian citizen ever expressed support and encouragement (counselling) for the commencement or continuation of an "illegal" war?

  • Has no Canadian convention centre ever knowingly and openly offered its facilities to arms and military professionals in preference to those located in other countries which more vigourously prosecute international crimes (accessory after the fact)?

4. "Aggression" as State Terrorism

As discussed in Ch.14, s.3: "Terrorism: Terrorism and International Crimes Compared", the exemption of "aggression" from coverage under international criminal law may have unexpected and fortuitous prosecutorial consequences under Canadian "terrorism" law.

The definition of "terrorist activity" contained in the Criminal Code [CC s.83.01(1)] as a result of the Anti-Terrorism Act (2001) provides an exception for "activities undertaken by military forces of a state in the exercise of their official duties, to the extent that those activities are governed by other rules of international law" [my emphasis].

Now of course "the crime of aggression" is not yet covered under the CAHWCA primarily because "defining" that crime was expressly deferred under the Rome Statute to later amendment by the Assembly of State Parties. This leaves the logical conundrum of alleging that something is NOT covered by international law, when it is not yet defined. That said, the meaning of "aggression" is not without political and historical context, not to mention plain meaning. Further, we know from the UN Charter (s.2 above) that war is "illegal" unless it is either in self-defence or authorized by the Security Council under Chapter VII of the UN Charter. It is thus a reasonable proposition that "aggression" is roughly equivalent with "illegal war".

While the individual acts committed DURING [CAHWCA s.4(3),6(3)] an "armed conflict" or war (legal or illegal) will still be governed under conventional international criminal "war crimes" law (and thus exempt from the application of terror law as being "governed by other rules of international law"), the commencement of an illegal war (ie. the first "act of war") - as such - may be open to prosecution as a "terrorist activity".


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