Speaker: Professor David Luban

In this webinar, Professor David Luban will explore four puzzles about the crime of aggression. First, what specifically is the evil that brings aggression into the pantheon of core crimes, alongside war crimes, crimes against humanity, and genocide? The evils of the other core crimes need little explanation – but aggression seems like a crime against states rather than against people. Second, who can be tried for the crime of aggression? Presumably, it will be the leaders who planned and launched the aggression, not the foot soldiers who carried it out. But which leaders? How far down the “food chain” should the law draw the line? Third, under international law apex leaders (paradigmatically, the head of state or head of government) are immune from prosecution in the courts of other states. The International Criminal Court has no jurisdiction over the crime of aggression committed by non-members like the Russian Federation. Does that mean that the only people who can be tried for aggression are the people immune from prosecution in courts that have jurisdiction? I call this the paradox of immunity. The fourth puzzle is closely related to the third. An alternative to ICC prosecution and domestic-court prosecution would be an international aggression tribunal. Could some group of states – the EU, for example – create such a tribunal? That proposal has been on the table for two years, and under customary international law there are no immunities in international tribunals.

The puzzle is what entitles a group of states to create a tribunal, declare it international, and grant it the power to bring a foreign sovereign to trial for aggression. How can a small group of states proclaim itself the authentic representative of the international community? The ICC makes the claim to be an international tribunal, despite being a creature of treaty – but the ICC has 124 members from all the inhabited continents, and membership is open to all states.In answer to these questions, I will argue for four propositions: first, that aggression is a crime against people, not against states. Second, that the circle of leadership who can be held accountable for aggression is wider than many suppose. Third, and contrary to generally received opinion, there is no customary rule of immunity for the crime of aggression, and there never has been. That means that victim states are fully entitled to prosecute the leaders of a state that aggresses against them. And fourth, if there is no customary-law immunity for aggression, the only legitimacy requirement for a multilateral tribunal created by treaty is its fairness and adherence to the principles of natural justice.

Note: This event is open to the public and free to attend live online (via Microsoft Teams). Click here to register.

About the speaker:

David Luban is Distinguished University Professor at Georgetown University Law Center (Washington, DC), and holds the Distinguished Chair in Ethics at the Stockdale Center for Ethical Leadership, United States Naval Academy. He is a scholar of ethics, philosophy, and international criminal law. A member of the American Academy of Arts and Sciences, he is also Distinguished Senior Fellow at the National Institute for Military Justice, and recipient of the M.C. Bassiouni Justice Award for outstanding service to the study of core international crimes. His 2014 book Torture, Power, and Law (Cambridge) won the American Publishers' Award for scholarly excellence in philosophy. He is co-author of the textbook International and Transnational Criminal Law (Aspen).

Chair: Dr Maria Varaki

Dr Maria Varaki is a Lecturer in International Law in the War Studies Department at King's College London. Before moving to London, she held research positions at the Erik Castrén Institute of International Law and Human Rights in Helsinki and at the Law Faculty of Hebrew University in Jerusalem. She was also an Assistant Professor of International Law at Kadir Has University in Istanbul.

Maria holds a PhD in International Law from the Irish Centre for Human Rights in Galway, Ireland, and two LLM degrees in International and Comparative Law from Tulane University and New York University School of Law. She is currently a Research Associate on the Three Generations of Digital Human Rights ERC project (2023-2028) at Hebrew University’s Faculty of Law.