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OpEdNews Op Eds    H3'ed 4/6/22

Crime of aggression

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The Nuremberg War Crimes Trials, 1946, by Dame Laura Knight
The Nuremberg War Crimes Trials, 1946, by Dame Laura Knight
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"To initiate a war of aggression is not only an international crime - it is the supreme international crime, differing only from other war crimes in that it contains within itself the accumulative evil of the whole".

Judges of the International Military Tribunal at the Nuremberg Trials

WHEN it comes to the legal use of force between states, it is considered to be an unimpeachable fact that, in accordance with the intent of the United Nations Charter to ban all conflict, there are only two acceptable exceptions.

One is an enforcement action to maintain international peace and security authorised by a Security Council resolution passed under Chapter VII of the Charter, which permits the use of force.

The other is the inherent right of individual and collective self-defence, as enshrined in Article 51 of the Charter, which reads as follows:

'Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security.

Measures taken by members in the exercise of this right of self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security.'

A plain-language reading of Article 51 makes it clear that the trigger necessary for invocation of the right of self-defence is the occurrence of an actual armed attack - the notion of an open-ended threat to security does not, by itself, suffice.

Prior to the adoption of the UN Charter, the customary international law interpretation of the role of pre-emption as applied to the principle of self-defence was Hugo Grotius, the 17th century Dutch legal scholar who, in his book De Jure Belli Ac Pacis - On the Law of War and Peace - declared that 'war in defence of life is permissible only when the danger is immediate and certain, not when it is merely assumed,' adding that 'the danger must be immediate and imminent in point in time.'

Grotius formed the core of the so-called 'Caroline Standard' of 1842, named after a US ship of that name which had been attacked by the British navy after aiding Canadian rebels back in 1837, drafted by the then US secretary of state Daniel Webster. It supported the right of pre-emption or anticipatory self-defence only under extreme circumstances and within clearly defined boundaries.

'Undoubtedly,' Webster wrote, 'it is just that, while it is admitted that exceptions growing out of the great law of self-defence do exist, those exceptions should be confined to eases in which the "necessity of that self-defence is instant, overwhelming, and leaving no choice of means, and no moment for deliberation."'

Until the adoption of the UN Charter in 1945, Webster's criteria, borrowing heavily from Grotius, had become Black Letter Law regarding anticipatory action in international law. However, once the United Nations was established and the UN Charter sanctified as international law, the concept of pre-emption or anticipatory self defence lost favour in customary international law.

George Ball, deputy under-secretary of state for president John F Kennedy, made the following famous remark about the possibility of a US attack on Cuba in response to the deployment of Soviet nuclear-armed missiles on Cuban territory in 1962. As it was being discussed in the White House Situation Room, Ball said: "A course of action where we strike without warning is like Pearl Harbour. "It's the kind of conduct that's such that one might expect of the Soviet Union. It is not conduct that one expects of the United States."

The Ball standard guided the administration of president Ronald Reagan when, in 1983, Israel bombed the Osirak nuclear reactor in Iraq. Israel claimed that 'in removing this terrible nuclear threat to its existence, Israel was only exercising its legitimate right of self-defence within the meaning of this term in international law and as preserved under the UN Charter.'

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Scott Ritter served as a former Marine Corps officer from 1984 until 1991, and as a UN weapons inspector in Iraq from 1991 until 1998. He is the author of several books, including "Iraq Confidential" (Nation Books, 2005) and "Target Iran" (more...)

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