NOTES

APPLYING THE CRIME OF AGGRESSION TO THE FIRST WORLD WAR: LEGAL LIABILITY VS. MORAL RESPONSIBILITY ZACHARY NICHOLS* ABSTRACT This Article addresses two interrelated questions. First, under the crime of aggression, applied retrospectively, who is liable for starting the First World War? Second, does the law’s ascription of responsibility in this regard comport with our contemporary assessment of moral and historical responsibility for that armed conflict? The answer to the first question will satisfy many (Germany and Austria-Hungary), because it largely comports with what we have all been taught since grammar school. The answer to the second question, however, is counterintuitive to the point of consternation. Prevailing scholarly judgment among contemporary historians is that the leaders of several states were responsible for starting the First World War. Can international criminal law accommodate this empirical fact, i.e., can we interpret the law to fit the causal realities of such wars? If not, then there is only limited overlap between the class of those historically and morally responsible for events like the First World War and that class of those potentially liable for the crime of aggression, as currently defined and interpreted. This is no mere antiquarian curiosity, but has considerable relevance to a number of highly complex, multi-party wars, especially those in Africa’s Great Lakes region extending over the last generation. The Article proposes several practical solutions to the problem, which we may understand as a challenge involving the simultaneous over- and under-inclusiveness of the crime of aggression in relation to the reality of causally complicated wars. I. II. III. IV.

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . THE CRIME OF AGGRESSION . . . . . . . . . . . . . . . . . . . . . . . . . . THE FIRST WORLD WAR: FACTS AND HISTORY . . . . . . . . . . . . . LEGAL LIABILITY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A. The First Element: Act of Aggression . . . . . . . . . . . . . . . . B. The Second Element: Threshold Requirements . . . . . . . . . . C. Scope of Applicability: Can a Single War Contain Multiple Crimes of Aggression? . . . . . . . . . . . . . . . . . . . . . . . . . . D. Determining Individual Criminal Liability . . . . . . . . . . . E. Defenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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* Law student, University of Iowa, JD. 2016, Jacobs University-Universita¨t Bremen, MA. 2012.

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V.

VI. VII.

VIII.

F. Conclusions on Legal Liability . . . . . . . . . . . . . . . . . . . . MORAL RESPONSIBILITY FOR THE FIRST WORLD WAR . . . . . . . . A. The Austro-Hungarian Empire . . . . . . . . . . . . . . . . . . . . B. France . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . C. Germany . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . D. Russia . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . E. Serbia. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F. United Kingdom . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . G. Concluding Remarks on Moral Responsibility . . . . . . . . . . THE RELATIONSHIP BETWEEN MORAL RESPONSIBILITY AND LEGAL LIABILITY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . SOLUTIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A. Eliminating the Crime of Aggression from International Criminal Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . B. Maintaining the Status Quo. . . . . . . . . . . . . . . . . . . . . . C. Enforcing the International Legal Prohibition of “Threats of Force”: A New International Crime of “Instigation” . . . . D. Conspiracy to Commit a Crime of Aggression . . . . . . . . . . E. Consideration of Mitigating Factors in Aggression Prosecutions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F. Considering All Actors Involved in the Outbreak of a War Criminally Liable: A Several Criminal Liability Approach . . . CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A. The Shortcomings of the Crime of Aggression in Contemporary Warfare . . . . . . . . . . . . . . . . . . . . . . . . . . B. Concluding Remarks . . . . . . . . . . . . . . . . . . . . . . . . . . . I.

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INTRODUCTION

Statesmen, social scientists, and historians have argued over where to assign blame for the First World War (WWI) for the past century. Their conclusions on just who should be considered responsible for one of the deadliest conflicts in human history—which states and which individuals— have varied over the years, across disciplines, eras, and locations.1 Curiously, lawyers have largely steered clear of this discussion, despite the fact that criminal law is specifically designed to determine who should be held responsible when something reprehen-

1. See World War One: 10 Interpretations of Who Started WW1, BBC NEWS MAG. (Feb. 12, 2014), http://www.bbc.com/news/magazine-26048324 [hereinafter BBC] for a variety of conclusions historians have reached on who to blame for the First World War.

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sible happens, and international criminal law already has an approach to answer the question of which individuals are liable for starting an armed international conflict, the “crime of aggression.”2 This crime is relatively new, and in its present form entirely untested.3 Therefore, in an effort to both test the effectiveness of the current definition of the crime of aggression, and to see how the legal results compare to the determinations made by the various other disciplines, this Article will apply the criminal statute outlawing aggression to the facts of the First World War. In undertaking this project, this Article will attempt to answer two primary questions: first, under the crime of aggression, who is culpable for starting the First World War? And second, does this legal notion of criminal liability coincide with our contemporary conceptions of justice and moral responsibility? This analysis will require consideration of a third (unexpected) question: whether a single war can maintain multiple crimes of aggression. The answer for the first question will be satisfying to many, but the answer to the second question may not. Although the law would hold both Germany and Austria-Hungary responsible (demonstrating that a single war can contain multiple crimes of aggression), a longer list of states deserve to be held morally responsible. After determining that there is a substantial gap between those morally responsible for the First World War and those whom the crime of aggression could find criminally liable, the Article will propose a series of solutions to the potential over and under inclusivity of the crime of aggression under international law. In Part II, this Article will begin by examining the evolution of the crime of aggression, along with its present definition in the International Criminal Court (ICC). Part III considers the facts and history of WWI, while Section IV will apply the law of the crime of aggression to the conflict. Part V discusses the broader moral responsibility for starting WWI, separate from any established law. Part VI will contrast the concepts of legal liability and moral responsibility, and Part VII presents a series of proposals designed to rectify that divide. Part VIII will conclude the article by demonstrating that the same inconsistency between legal liability and morality responsibility present in the case of

2. Amendments to the Rome Statute of the International Criminal Court, art. 8 bis ¶ 1, June 11, 2010, A-38544 U.N.T.S., https://treaties.un.org/doc/Treaties/2010/06/20100611%2005-56% 20PM/CN.651.2010.pdf [hereinafter Rome Statute Amendements]. 3. See id. As the ICC’s jurisdiction over the crime of aggression is not yet fully in force, the Court has not yet been able to use the definition in actual criminal case.

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WWI continues to exist in more contemporary conflicts, namely the Second Congo War. II.

THE CRIME OF AGGRESSION

Individual criminal liability and the crime of aggression are both relatively recent revelations in international criminal law. The first determinations of individual criminal liability based on the actions of a state initiating aggressive war came in the aftermath of the Second World War.4 The International Military Tribunals in Nuremberg and Tokyo were convened immediately following the conclusion of each theater of the war, and convicted a number of individuals from the leadership of both Nazi Germany and the Empire of Japan for “crimes against peace,” the era’s name for the contemporary crime of aggression.5 The charges for crimes against peace at the two International Military Tribunals included both conspiracy to wage an aggressive war, and waging an aggressive war.6 These tribunals were also the last time the crime was prosecuted under international law. The ICC agreed on a definition of aggression in Kampala, Uganda in 2010.7 The agreement was the result of more than fifty years of work.8 Although the definition is not yet fully in place for use by the Court,9 it is the most fully developed definition produced to date, and thus the best available definition for application to the events of WWI. It is also the most likely definition to be used at any point in the near future. The amended Rome Statute of the International Criminal Court (Rome Statute) provides the definition for the crime of aggression in Article 8 bis (1). The article limits liability for aggression to persons “in a position effectively to exercise control over or to direct the political or military action of a state.”10 The same article defines the “crime

4. Claus Kress & Leonie von Holtzendorff, The Kampala Compromise on the Crime of Aggression, 8 J. INT’L CRIM. JUST. 1180 (2010). 5. AHMED M. RIFAAT, INTERNATIONAL AGGRESSION 149-64 (1979). 6. Id. In Nuremberg, for example, eight individuals were convicted of both conspiring to wage an aggressive war and waging an aggressive war, and three others were convicted of waging an aggressive war without conspiring to do so. Roger S. Clark, Nuremberg and the Crime Against Peace, 6 WASH. U. GLOBAL STUD. L. REV. 527, 544 (2007). 7. See Kress & von Holtzendorff, supra note 4, at 1179 for an analysis of the agreement reached in Kampala and the evolution of the crime of aggression under international law. 8. Id. 9. Rome Statute Amendements, supra note 2, at art. 15 bis ¶ 3. 10. Id. at art. 8 bis ¶1.

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aggression” as the “planning, preparation, initiation or execution . . . of an act of aggression which, by its character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations.”11 Article 8 bis (2) proceeds to define an “act 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” regardless of any declaration of war.12 Finally, the article describes a series of seven acts that would qualify as aggression: invasion, bombardment, blockade, the attack of sea or air forces, the use of forces legally located within another state for purposes outside of those provided in the agreement allowing their presence, allowing territory to be used for aggressive purposes by a third state, and using irregular forces against another state.13 This definition presents a few points worth reiterating. First, not all “acts of aggression” amount to “crimes of aggression.” In order for an “act of aggression” to breach the “crime of aggression” threshold, it must be constitute a manifest14 violation of the U.N. Charter in terms of its character, gravity, and scale.15 Second, the list of individuals who could potentially be held liable for aggression should be quite small in most cases, restricted to only those “in a position effectively to exercise control over or to direct the political or military action of a state.”16 Thus, common enlisted soldiers and even officers operating at a level below a level of major policy and grand tactical formation cannot be found guilty of the crime in the ICC, even if they actively participated in the act or crime of aggression in question.17 Based on these factors, a short three-part test can be put forward to determine whether an individual can be held liable for the crime of

11. Id. 12. Id. at art. 8 bis ¶2. 13. Id. at art. 8 bis ¶¶2)(a)-(g). These are the same seven acts included in G.A. Res. 3314/29, U.N. Doc. A/Res/3314/29 (Dec. 14, 1974). 14. The term “manifest” was not defined in Kampala and resulted as a compromise between states that wanted to restrict ICC jurisdiction to only the most flagrant acts of aggression and states that wanted to allow for the prosecution of any violation of the definition. See Beth Van Schaack, Negotiating at the Interface of Power and Law: The Crime of Aggression, 49 COLUM. J. TRANSNAT’L L. 507, 522 (2011). This lack of a definition of “manifest” proves to be the most difficult element in any case study testing a potential crime of aggression. 15. Rome Statute Amendments, supra note 2, at art. 8 bis ¶1. 16. Id. 17. Beth Van Schaack, “The Grass that Gets Trampled When Elephants Fight”: Will the Codification of the Crime of Aggression Protect Women?, 15 UCLA J. INTL L. & FOR. AFF. 327, 370 (2010).

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aggression: (1) did an act of aggression occur; (2) did that act of aggression constitute a crime of aggression; and (3) did the individual in question exercise the level of authority necessary to be held liable? The list of examples of acts of aggression18 should be consulted in step one. Step two will analyze whether the “character, gravity, and scale” of the act constitute a “manifest violation” of the U.N. Charter.19 The final step analyzes whether the individual in question was “in a position effectively to exercise control over or to direct the political or military action of a state.”20 At first blush this all seems relatively clear,21 and even somewhat intuitive—if an act of aggression occurred, and that act was significant enough to warrant major international attention, the individuals responsible for planning and ordering it will be held liable. Understanding that the crime of aggression requires an act of aggression, the question to keep in mind during the next section is what would, and what should happen to those individuals who orchestrate a war, while also ensuring that it will occur without their side actually carrying out an aggressive attack? III.

THE FIRST WORLD WAR: FACTS AND HISTORY

The buildup to the First World War, and even its early days, were extremely complex. Because of this complexity, it is essential to lay out and clarify all of the key facts before moving on. Without this background clear and fresh in mind, it will not be possible to accurately understand the context for the breakout of the war. This background also illustrates why a complex definition of aggression is necessary, and why opinions on who is to blame differ so greatly.22 Without this thorough understanding of the outbreak of the conflict, it will not be possible to fairly determine who is legally liable and morally responsible. School children learn that WWI began when Gavrilo Princip assassinated Archduke Franz Ferdinand of the Austrian-Hungarian Empire in

18. Rome Statute Amendments, supra note 2, at art 8 bis (2)(a) – 8 bis (2)(g). 19. Id. art. 8 bis (1). 20. Id. 21. However, it is not entirely clear how a manifest violation of the UN Charter is to be determined relative to some less than manifest violation. For further consideration of this debate, see Keith A. Petty, Criminalizing Force: Resolving the Threshold Question for the Crime of Aggression in the Context of Modern Conflict, 33 SEATTLE U. L. REV. 105 (2009). 22. See BBC, supra note 1 for a sampling of the variety of opinions from prominent historians as to which states are to blame for the First World War.

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Sarajevo on June 28, 2014.23 Princip was a Bosnian Serb and an associate of the Black Hand, a Serbian ultranationalist terrorist organization intent on ejecting the Austro-Hungarian Empire from the Balkans.24 The Serbian government was aware of the plot, and though they did not aid Princip, they did not genuinely intervene either.25 The Archduke was the presumptive heir to the throne of the AustroHungarian Empire, which at the time held a considerable amount of territory in the Balkans and along the Adriatic Sea.26 This is the popular story, and it is all true, but the origins of the war can be traced well before the events of the summer of 1914. Various historians and political scientists have identified particular themes and events as key precursors to the First World War, aside from particular political decisions. The years leading up to 1914 also saw a massive and widespread arms race. By 1914, every major power involved in the upcoming war, but particularly those in Europe, had been using a far greater proportion of their budget on military spending than they had in any of the past three decades.27 This arms race was especially intense in the area of shipbuilding. A naval rivalry was brewing between Germany and the United Kingdom, with Germany challenging Britain’s traditional role as the global maritime superpower.28 Nationalism, and Serbian nationalism in particular, has also been cited as a driving force for the war,29 and grew out of an age when a small number of diverse and territorially massive (by European standards) states spread across the continent, encompassing a variety of different national groups. The imperial nature of European powers during this period,

23. See SEAN MCMEEKIN, JULY 1914: COUNTDOWN TO WAR 20 (2013). See id. at 1-20 for a thorough buildup to the assassination. 24. Id. at 7; Philip J. Cohen, The Ideology and Historical Continuity of Serbia’s Anti-Muslim Policy, 36 ISLAMIC STUD. 361, 363-64 (1997). The Balkan Peninsula, the location of Serbia and Bosnia, is in the southeast corner of Europe, bordering the Adriatic, Mediterranean, Black, Ionian, and Aegean Seas. In 1914 just before the outbreak of the war, Serbia was newly independent, while Bosnia (and Sarajevo) were within the Austro-Hungarian Empire. 25. MCMEEKIN, supra note 23, at 391. 26. Ronald C. Monticone, Nationalities Problems in the Austro-Hungarian Empire, 13 POLISH REV. 110, 123 (1968); John Deak, The Great War and the Forgotten Realm: The Habsburg Monarchy and the First World War, 86 J. MOD. HIST. 336, 336, (2014) (noting the Archduke as ‘presumptive heir’, rather than ‘heir’ outright. Franz Ferdinand was the nephew of Emperor Franz Joseph I, if Franz Joseph had another son, that son would have jumped Franz Ferdinand in the line of succession). 27. Paul M. Kennedy, The First World War and the International Power System, 9 INT’L SEC. 7, 7-8 (1984). 28. John H. Maurer, Arms Control and the Anglo-German Naval Race before World War I: Lessons for Today?, 112 POL. SCI. Q. 285, 285 (1997). 29. SIDNEY BRADSHAW FAY, THE ORIGINS OF THE WORLD WAR 557-58 (2d. 1930).

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and the concentration of imperial holdings within a small number of states, has also been regarded as a cause of the war.30 Finally, the wide-reaching web of alliances that predated the war also undoubtedly facilitated its growth from a Balkan conflict to a global war.31 However, none of these factors brought Europe into a massive conflict until the summer of 1914. The First World War did not begin immediately after Franz Ferdinand’s assassination in Sarajevo, or even shortly thereafter. A busy month passed between the assassination of the archduke and actual combat.32 Following the assassination, Austria-Hungary quickly looked to its strongest ally, Germany, for support. On July 5th and 6th, roughly a week after Franz Ferdinand’s death, Germany responded to AustriaHungary with what has come to be known as “the blank check”—a guarantee of unqualified German support for Austria-Hungary against Serbia going forward.33 Austria-Hungary interpreted the “blank check” as a German desire for a large-scale war, and thus permission to act as provocatively as it pleased.34 This was an enormous misunderstanding that would quickly snowball.35 Germany did not actually want the Archduke’s assassination to lead to a large-scale war, only to assure its closest ally of its unflinching support.36 On July 23th, 1914, Austria-Hungry responded to Serbia by issuing a series of ten demands that have come to be known as the “July Ultimatum.”37 Scholars have concluded that Austria-Hungry intentionally made these demands so outrageous that Serbia would have no genuine option to accept them, therefore providing Austria-Hungary with acceptable grounds for war.38 Among other things, Austria-Hungary demanded a role in the investigation into the assassination, a point

30. See, e.g., David E. Kaiser, Germany and the Origins of the First World War, 55 J. MOD. HIST. 442, 442-74 (1983); see generally FRITZ FISCHER, GERMANY’S AIMS IN THE FIRST WORLD WAR (1968) for the popular narrative of the German desire to expand its colonial holdings through the war. 31. Jack S. Levy, Alliance Formation and War Behavior: An Analysis of the Great Powers, 1495-1975, 25 J. CONFLICT RESOLUTION, 581, 608 (1981). 32. See generally MCMEEKIN, supra note 23. 33. Frank C. Zagare, After Sarajevo: Explaining the Blank Check, 35 INT’L INTERACTIONS, 106, 121 (2009). 34. MCKEEKIN, supra note 23, at 394. 35. Id. 36. Id. at 390. 37. The Austro-Hungarian Ultimatum to Serbia (English Translation) (July 23, 1913), BRIGHAM YOUNG UNIV. LIBRARY, http://wwi.lib.byu.edu/index.php/The_Austro-Hungarian_ Ultimatum_to_Serbia_(English_translation). 38. See, e.g., Zagare, supra note 33, at 113-14.

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Serbia was unwilling to accept both as infringement on its sovereignty and knowing full well such an investigation would implicate members of their own military and government.39 The next day, even before Serbia had officially replied to the Austro-Hungarian ultimatum, Russia began to mobilize its military in support of Serbia, making it the first state to do so.40 Russia’s mobilization came after receiving its own “blank check” from France, an assurance of French support should the Russian support for Serbia escalate which effectively guaranteed that Germany would face a two-front war.41 Serbia began mobilizing its own military on July 25th, and later that day notified Austria-Hungary that it would accept only nine out of the ten points.42 That same day, Austria-Hungary broke off relations with Serbia and began to mobilize its military.43 On the following day, July 26th, Russia instituted a formal “Period Preparatory to War,” which included mobilization of additional troops, and the calling up of three classes of reserves.44 The first official declaration of war was made by Austria-Hungary against Serbia on July 28th, 1914.45 Later that same day AustriaHungary initiated the first aggressive act of the war, using its small ships in the Danube River to bombard Belgrade, the Serbian capital.46 In the following days, Russia officially directed its mobilization, first against Austria-Hungary, and then against Germany.47 In response, Germany

39. Samuel R. Williamson, The Origins of World War I, 18 J. INTERDISCIPLINARY HISTORY, no. 4, 795, 811-12 (1988). 40. SEAN MCMEEKIN, THE RUSSIAN ORIGINS OF THE FIRST WORLD WAR, 59 (2011). This Russian mobilization was not public, or official, but it was massive, including more than one million soldiers and sailors. Id. As part of the effort Russia mobilized forces that could not reasonably be deployed to a Balkan conflict, such as the Russian Baltic and Black Sea naval fleets. Id. Russia was clearly preparing for a war that would stretch far beyond the Balkans, before any state had declared war. See generally id. 41. See MCMEEKIN, supra note 23, at 55-57. 42. Robert W. Brown, The July 1914 Crisis: Chronology of Events, UNIVERSITY OF NORTH CAROLINA AT PEMBROKE, http://www2.uncp.edu/home/rwb/July_Crisis_1914_Chronology.htm (last visited Apr. 1, 2015). 43. Id.; DAVID STEVENSON, CATACLYSM: THE FIRST WORLD WAR AS POLITICAL TRAGEDY 9 (2004). 44. MCMEEKIN, supra note 40, at 60. 45. See Brown, supra note 42. 46. James M. B. Lyon, “A Peasant Mob”: The Serbian Army on the Eve of the Great War, 61 J. MIL. HIST. 481, 501 (1997). The very slight coverage of this event across a variety of different sources suggests that the impact of the shelling of Belgrade was ultimately quite limited. See also Rome Statute Amendments, supra note 2, at art. 8 bis, para. 2(b) for bombardment as an act of aggression (though not necessarily a crime of aggression). 47. MCMEEKIN, supra note 23, at 397.

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issued ultimatums to both Russia48 and Russia’s ally France,49 insisting that Russia halt of mobilization and France make a declaration of neutrality. Germany’s last-ditch efforts to “wiggle out” of the war had failed.50 On August 1st, Germany mobilized its forces and declared war against Russia.51 The initial breakout of substantial combat is not disputed. On August 2nd, 1914, Germany invaded Luxembourg, which had remained neutral to that point.52 The following day Germany officially declared war against France.53 On August 4th, after Belgium refused to allow the German army to pass through its territory en route to France, Germany entered Belgium by force,54 marking the first major action of the war. Germany accurately anticipated that the coming war would be fought on two fronts against a pair of allies: France in the west, and Russia in the east. To overcome this challenge Germany strategized to quickly defeat France, pushing through the French north and sweeping across to France’s southeast, solidifying its western border and freeing up a maximum number of troops to square off with Russia in the east.55 What followed the German invasions to its west had been almost completely pre-determined. The United Kingdom intervened based on a treaty obligation guaranteeing the protection of Belgium.56 France naturally fought to defend itself. In the east, the Russians attacked the Germans as they had been preparing to do for weeks.57 Serbia and Russia were able to repel Austria-Hungary’s attacks in the east.58 The Ottomans allied with Germany and Austria-Hungary against Russia.59 Bulgaria and Romania would join the Central Powers and the Entente

48. Id. at xvii. 49. Brown, supra note 42 (July 31). 50. MCMEEKIN, supra note 23, at 404. 51. Id. at xviii. 52. Id. at 354. 53. Id. at xviii. 54. Id. at 373. 55. CATACLYSM, supra note 43, at 38-39 (analyzing the German “Schlieffen Plan,” which required an aggressive attack of France via Belgium in order to rapidly neutralize the western front while maintaining a defensive position in the east). 56. The United Kingdom also had guaranteed support of Luxembourg before the war, but as Luxembourg offered little strategic importance to British interests, Britain did not become involved until Belgium, with its ports along the North Sea, was invaded, MCMEEKIN, supra note 23, at 355. 57. CATACLYSM, supra note 43, at 54-55. 58. Id. at 57-59. 59. Id. at 81.

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respectively.60 Outside of Europe, troops from Australia and New Zealand attacked and occupied German colonies in the Pacific.61 The British encouraged and facilitated an Arab uprising against the Ottomans.62 British and French forces battled the Germans across their African colonies.63 The Ottomans attacked Russia in the Caucasus, as well as the United Kingdom and France in the Middle East.64 The Japanese attacked German possessions in the Pacific.65 Perhaps the lone surprise was Italy’s decision to side with the Allies. Italy had originally been a member of the Triple Alliance along with Austria-Hungary and Germany.66 Instead, in 1915, Italy entered the war of the side of the Allies hoping to replace Austria-Hungary’s influence in the Balkans with its own.67 The First World War was truly a world war. After the Russian revolutions of 1917, the country pulled out of the war.68 Fortunately for the Allies, the Russian exit from the war closely coincided with the United States’ entrance.69 The influx of American troops and resources helped push the weary Germans into retreat, and on November 11th, 1918, the two sides entered into an armistice.70 The war was formally finished with the signing of the Treaty of Versailles in 1919.71 The treaty included a German acceptance of responsibility for the war, and a sum of punitive debt that would take more than ninety years to pay off.72

60. Id. at 82-83. The Central Powers was comprised of Germany, Austria-Hungary, the Ottoman Empire and Bulgaria. The Entente Powers was originally comprised of Russia, France, and the United Kingdom. A number of other states would also ally with the Entente Powers, including the United States. 61. Id. at 100. 62. Id. at 101. 63. Id. at 100-01. 64. Id. at 94. 65. See generally FREDERICK R. DICKINSON, WAR AND NATIONAL REINVENTION: JAPAN IN THE GREAT WAR, 1914-1919 (1999). 66. Brown, supra note 42. 67. CATACLYSM, supra note 43, at 128. 68. MCMEEKIN, supra note 40, at 235. 69. CATACLYSM, supra note 43, at 243. 70. MCMEEKIN, supra note 40, at 235. 71. Olivia Lang, Why Has Germany Taken so Long to Pay Off its WW1 Debt?, BBC NEWS (Oct. 2, 2010), http://www.bbc.com/news/world-europe-11442892. 72. Id.

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IV.

LEGAL LIABILITY

The complex conditions that brought about WWI offer an ideal test for the ICC’s definition of aggression, which has yet to be applied in court. In fact, it is not yet even fully in force.73 Further, aggression has not actually been prosecuted since the International Military Tribunals in Nuremberg and Tokyo just after the Second World War, which stood on very precarious foundations.74 Because of this short history there is very little in the way of actual judgments to guide the theoretical application of the law in this instance. Still, the law as it appears in the Rome Statute seems to establish a clear test for the crime of aggression.75 The following section will apply the definition of the crime of aggression to the facts of the First World War.76 This will be done by first determining which actions could qualify as acts of aggression, and then by determining which of those could qualify as crimes of aggression. This analysis will demonstrate that a singe war can contain multiple crimes of aggression. The section will conclude by considering potential defenses to accusations of criminal aggression. A.

The First Element: Act of Aggression

The first element of the test for aggression is determining whether an “act of aggression occurred.”77 In the case of the First World War, this question does not require intense analysis. Rather, the bigger question is, which act constituted the act of aggression? There are three events that could reasonably qualify as the act of aggression that triggered the war: the assassination of Archduke Franz Ferdinand in Sarajevo, the German invasions of Luxembourg and Belgium (on August 2 and August 4, respectively) en route to northern France, and the July 28 Austro-Hungary shelling of the Serbian capital Belgrade. The first event can be eliminated from consideration immediately because the Rome Statute’s list of factors constituting acts of aggression

73. Rome Statute Amendments, supra note 2, at art. 15 bis ¶3. 74. There was no international agreement assigning individual criminal liability prior to the International Military Tribunals, as the Kellogg-Briand Pact only applied to states. Further, the war’s victors did were not charged with the crime even though in many instances evidence of their guilt was just as strong (such as the Soviet invasion of Finland, Estonia, Latvia, and Lithuania—and total annexation of the latter three). 75. Rome Statute Amendments, supra note 2. 76. In doing this it will be necessary to briefly develop certain details of the historical record that could constitute the crime of aggression more thoroughly (such as particular battles) than in the pervious section’s wider overview of the events. 77. Rome Statute Amendments, supra note 2, at art. 8 bis ¶¶2(a)-(h).

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does not include assassination.78 The closest clause matching the events of the assassination is Article 8 bis (2)(g): “The sending by or on behalf of a State of armed bands, groups, irregulars or mercenaries, which carry out acts of armed force against another State of such gravity as to amount to the acts listed above, or its substantial involvement therein.”79 Princip’s attack was armed force, and the Black Hand was something of a group of military irregulars, but he was not sent by a state.80 Though some members of the Black Hand also held positions in the Serbian government,81 Black Hand policy was distinct from, and far more radical than, state policy.82 No government was directly involved in the attack.83 The definition of the crime of aggression requires state involvement, specifically “planning, preparation, initiation or execution, by a person in a position effectively to exercise control over or to direct the political or military action of a State.”84 Without state involvement,85 there can be no crime of aggression under the current law,86 and thus the assassination of Archduke Franz Ferdinand could not constitute the crime of aggression.87

78. Id. 79. Id. at art. 8 bis ¶2(g). 80. See MCMEEKIN, supra note 40, at 42. 81. For example, the Black Hand was led by Dragutin Dimitrijevic´, the Serbian head of military intelligence. Id. 82. Williamson, supra note 39, at 804-05 (noting the Serbian government’s inability to control the Black Hand). 83. See MCMEEKIN, supra note 40, at 42. See also Joachim Remak, 1914 —The Third Balkan War: Origins Reconsidered, 43 J. MODERN HIST. 353, 363 (1971) (noting that involvement in planning the attack was not part of Dimitrijevic´’s government duties, and that neither the prime minister or his ministers were involved in planning the attack). 84. Rome Statute Amendments, supra note 2, at art. 8 bis ¶1. 85. It is worth clarifying that while there were individuals in the government with ties to the Black Hand, see note 81, the Rome Statute Amendments require a “person in a position effectively to exercise control over or to direct the political or military action of a State” and the Black Hand was not under the control of the state, on the contrary the state was unable to control it. Rome Statute Amendments, supra note 2, at art. 8 bis ¶ 1. Instead, the Black Hand merely included members who were state-officials with ulterior motives distinct from state policy. See Williamson, supra note 39, at 804-05. 86. See, e.g., Mark A. Drumbl, The International Criminal Court and the Crime of Aggression: The Push to Criminalize Aggression: Something Lost Amid the Gains?, CASE W. RES. J. INT’L L. 291, 306-07 (2009). 87. An interesting analogy can be drawn here between the assignation of the Archduke and the September 11, 2001 attack on the United States. In both cases a non-state armed group (with some level of complicity from a state government) undertook a violent action directed against a state which the actors must have anticipated would lead to significant further conflict. After each attack the target state responded with a severe ultimatum, which was predictably rejected. These

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However, both the Austro-Hungarian shelling of Belgrade and the German invasions of Luxembourg and Belgium fit within the Rome Statute’s description of an act of aggression. Under Article 8 bis (2), invasion or attack by armed forces of a state of the territory of another state,88 and bombardment by the military of one state against the territory of another state both constitute acts of aggression.89 Thus, although the assassination of Archduke Ferdinand does not fall within the Rome Statute’s definition, both the German invasion of Luxembourg and Belgium, and the Austro-Hungarian attack on Belgrade amount to an act of aggression within the terms of the statute. B.

The Second Element: Threshold Requirements

The next step of the crime of aggression analysis is determining whether the “act of aggression” in question was significant enough to qualify as a “crime of aggression.”90 An “act of aggression” satisfies the requirements for “the crime of aggression” if, “by its character, gravity, and scale [it] constitutes a manifest violation of the Charter of the United Nations.”91 This presents the first roadblock in the analysis because there is no official direction on how to analyze an act of aggression’s character, gravity, or scale, or what makes such an act a “manifest” violation of the U.N. Charter. The best option available is to defer to academic work on the meaning of these terms. A few factors of the act versus crime of aggression threshold are clear. In analyzing the character, gravity, and scale requirements, the aggressive act must be a violation of each component; no act of aggression can become a crime of aggression simply by satisfying one of the components, no matter how profoundly it does so.92 In analyzing the character, gravity, and scale requirements, the aggressive act needs to violate each component individually. For example, the high profile alleged 2014 Russian abduction of an Estonian intelligence officer in Estonian territory93 would presumably not constitute a crime of aggression

similarities clearly illustrate the reality that international conflict brought about by the conduct of non-state actors, and conflicts that are prefaced by stern ultimatums are neither new nor extinct. 88. Rome Statute Amendments, supra note 2, at 8 bis ¶2(a). 89. Id. at art. 8 bis ¶2b). 90. Rome Statute Amendments, supra note 2. 91. Rome Statute Amendments, supra note 2, at art. 8 bis ¶1. 92. Noah Weisbord, Judging Aggression, 50 COLUM. J. TRANSNAT’L L. 82, 90 (2011). 93. David M. Herszenhorn, Russia and Estonia Differ over Detention, N.Y. TIMES (Sept. 5, 2014), http://www.nytimes.com/2014/09/06/world/europe/russia-detains-estonian-officer-raisingtensions.html.

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because of its small “gravity” and “scale.” Similarly, U.S. military support of Yazidi civilians besieged by ISIS in 2014,94 even if done without the permission of the Iraqi government, would presumably not constitute a crime of aggression because of its humanitarian “character” alone. However, though it is clear that each component is necessary in order to constitute a “manifest violation,”95 and thus a crime of aggression, Beth van Schaak makes the point that there is little agreement, even among those who took part in the negotiations in Kampala, about what exactly the term “manifest” means, or even what it applies to.96 Some negotiators have argued that the term applies only to the clarity of the illegality of the action, others have argued that it applies to the magnitude of the act, while still others argue that it applies to both.97 Because of the inclusion of the components “gravity” and “scale” as elements that influence the “manifestness” of an act, the term “manifest” should require an act to be of a substantial magnitude in order to as qualify crime. Applying “manifest” to the clarity of the crime alone would seem to ignore part of the directions for understanding the term that are provided in the statute. Although illegal “clarity” may also be required, it is not reasonable that it be the only criteria distinguishing between an act of aggression and the crime of aggression. If “manifest” requires only that an action be clearly illegal, the bombardment of the Serbian capital by the Austro-Hungarian navy98 seems like a perfectly clear act of aggression. However, if the magnitude of the act must also be considered (as seems more appropriate considering the “character and scale” language), then the sparse literature on the July 28 Austro-Hungarian navel bombardment of Belgrade,99 coupled with the fact that for days afterwards no state acted aggressively,100 suggest that the shelling was not especially large or destructive. Therefore, the July 28 Austro-Hungarian naval bombardment of Belgrade would likely not satisfy the threshold requirements needed for an act of aggression to qualify as a crime of aggression under the Rome Statute.

94. Alan Taylor, Desperate Iraqi Minorities Flee ISIS Attacks, ATLANTIC (Aug. 12, 2014), http:// www.theatlantic.com/photo/2014/08/desperate-iraqi-minorities-flee-isis-attacks/100792/. 95. Rome Statute Amendments, supra note 2, at art. 8 bis ¶ 1. 96. See Van Schaack, supra note 14, at 522-23. 97. Id. 98. Lyon, supra note 46. 99. Id. 100. See generally Brown, supra note 42 (at “July 31”).

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Conversely, the German invasion of Luxembourg and Belgium en route to France on August 2 and 4 clearly satisfies all of the elements for a prima facie crime of aggression.101 The character of the invasion was sufficiently aggressive; it ultimately allowed for a strategic advantage against France in what was clearly becoming a large-scale continental war,102 and there was no mitigating humanitarian objective related to Germany’s aggression towards the Low Countries. Although the government of Luxembourg formally protested against the German invasion, they did not contest it militarily.103 As such, information about the gravity and scale of the German military operation in Luxembourg are not entirely clear. However, the German invasion of Belgium alone would undeniably satisfy the character, gravity, and scale requirements. As for the scale of the action, the initial German invasion of Belgium consisted of six infantry brigades, and three divisions of cavalry.104 With regards to the gravity of the invasion, between the German invasion of Belgium on August 4 and August 25 the Belgian army lost 30,000 men while the German army lost an additional 2,000.105 The German invasion of Belgium (not to mention Luxembourg) also led to the killing of an additional 6,000 Belgian civilians and made 1.5 million Belgians (twenty percent of the country’s entire population at the time) refugees in less than one month.106 Based on the well-developed German battle plans for the Western Front, the size of the German force that entered Belgium, and the magnitude of casualties the action produced, the German invasion of Belgium would unquestionably satisfy the “manifest” violation threshold through the character, gravity, and scale requirements.107 Establishing that the German invasion of Belgium constituted the crime of aggression does not end the analysis of whether a crime of aggression occurred. Although Germany’s military advances in the early days of August constituted aggression towards Luxembourg, Belgium, and, soon after, France, the German military did not make any initial aggressive movements on what would become the Eastern

101. MCMEEKIN, supra note 23, at xviii, 354, 373. 102. CATACLYSM, supra note 43, at 38-39. 103. MCMEEKIN, supra note 23, at 354. Considering the relative sides of the two countries, it is unlikely Luxembourg actually had the capacity to challenge the German invaders militarily. 104. Id. at 373. 105. Saul David, The First World War: A Complete Timeline, TELEGRAPH (July 25, 2014, 7:00 AM), http://www.telegraph.co.uk/history/world-war-one/inside-first-world-war/part-two/10353083/ first-world-war-timeline.html. 106. JEFF LIPKES, REHEARSAL: THE GERMAN ARMY IN BELGIUM, AUGUST 1914 13 (2007). 107. See Rome Statute Amendments, supra note 2, at art. 8 bis ¶1.

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Front.108 In the east, beginning on August 16, the Austro-Hungarian army was defeated at the Battle of Cer Mountain, part of their invasion of Serbia.109 This was the first substantial military action on the Eastern Front. On August 17, the Russian army entered German territory, where it would lose to the Germans at the Battle of Stallupo¨nen, in East Prussia,110 in present day Kaliningrad.111 The next section will consider whether events could constitute the crime of aggression. C.

Scope of Applicability: Can a Single War Contain Multiple Crimes of Aggression?

The two-front nature of WWI presents an interesting question about the crime of aggression: can a single war contain multiple unique crimes of aggression? This section will consider whether the attacks along the Eastern Front, which occurred more than a week after the initial attacks on the Western Front, hundreds of miles away, and in some cases (for example, the Austro-Hungarian invasion of Serbia) included entirely different sets of states, could also be considered crimes of aggression. Outside of Europe things are even less clear. Shortly after the German invasion of France, the French and British militaries joined forces to invade the German colony of Togoland in western Africa.112 It could certainly be argued that this action was not in any way related to collective self-defense, rather that France and the United Kingdom simply saw the opportunity to expand their colonial influence, and did so. The alternative would be that all these events are merely other phases of the war Germany started when it invaded Luxembourg and Belgium two weeks before. Germany had not acted aggressively towards Russia, or any other state along its eastern border before Russia invaded.113 The U.N.

108. CATACLYSM, supra note 43, at 54-55. 109. Id. at 60. 110. 2 RUSSIA AT WAR: FROM THE MONGOL CONQUEST TO AFGHANISTAN, CHECHNYA, AND BEYOND 823 (Timothy C. Dowling ed., 2015). 111. These early actions by the German and Austro-Hungarian militaries also present questions of legality based anticipatory self-defense which are considered in depth in infra Part III. 112. Dennis Laumann, A Historiography of German Togoland, or the Rise and Fall of a “Model Colony,” 30 HIST. AFR. 195, 196 (2003). The use of force corresponding to a claim of self-defense must be within the bounds of what is necessary and proportionate to defend the state. See Christopher Greenwood, Self-Defence, in MAX PLANCK ENCYCLOPEDIA OF PUBLIC INTERNATIONAL LAW (2011), http://opil.ouplaw.com/view/10.1093/law:epil/9780199231690/law-9780199231690e401?prd⫽EPIL. 113. See David, supra note 105 (noting that the first battle of the Eastern Front occurred after the Russian invasion of East Prussia).

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Charter permits states to engage in self-defense and collective selfdefense.114 Russia was allied with France even before the war,115 and the Russian invasion of Germany could constitute an exercise of collective self-defense. If Russia could demonstrate that its action was necessary in order to divide the Germany army and prevent France from being overrun, which in hindsight seems entirely reasonable, a claim of collective self-defense should hold up.116 After rejecting Austria-Hungary’s demands, Serbia had not taken a military action before Austria-Hungary invaded.117 At the time of the invasion, Austria-Hungary had not yet been attacked by any other state, nor had any of its allies. Therefore, unlike Russia, Austria-Hungary has no argument for collective self-defense justifying its invasion. This scenario raises the question of whether acts of aggression committed after a war is already underway could still constitute crimes of aggression. Although allowing multiple crimes of aggression in a single conflict, including acts committed well after a war had been declared and initiated, might seem counterintuitive, it does not appear to be precluded by law. The Austro-Hungarian invasion of Serbia still represents an act of aggression of the character, gravity, and scale to constitute a manifest violation of the U.N. Charter, for which there were undoubtedly persons with effective political and military control who participated in its planning, preparation, initiation, or execution.118 Such an understanding is supported by the fact that states almost exclusively declared war on one other state at a time, not against a state and its allies simultaneously.119 Additionally, the language of Article 8 bis of the Rome Statute expressly references states, and never considers any relevance of a conflict as a whole.120 Each act that satisfies

114. U.N. Charter art. 51. 115. See MCMEEKIN, supra note 23, at 55-57. 116. This conclusion is supported by recent history. In the aftermath of the September 11, 2001 attacks on the United States the Security Council recognized the right of individual and collective self-defense without explicitly authorizing a military intervention in Afghanistan. The international community then gave its approval of the war through accepting the reconstruction plans that were set forward after the Taliban was removed from power. John Yoo, Using Force, 71 U. CHI. L. REV. 729, 790 (2004). If this use of collective self-defense was legal, despite arising from a more ambiguous situation in which an attack was orchestrated from an entity that was not the formal military of a state, a clearer situation like Russians attack on Germany in 1914 would certainly be as well. 117. See Brown, supra note 42. 118. See Rome Statute Amendments, supra note 2, at art. 8 bis (2)(a), 8 bis (1). 119. See generally Brown, supra note 42. 120. See Rome Statute Amendments, supra note 2, at art. 8 bis.

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the threshold for the crime of aggression committed against a state that has not yet involved itself in the conflict ought to constitute an independently prosecutable case of the crime of aggression. Once a state becomes involved with another’s conflict, however, self-defense should become a viable defense to an allegation of aggression. The ICC should adopt this understanding as it does not appear that AustroHungarian leadership could be found liable for the initial German aggression.121 D.

Determining Individual Criminal Liability

The final part of the test for the crime of aggression is determining which individuals are to blame. Under the Rome Statute, aggression is a crime of individual and not state liability.122 Thus, unlike the treatment of Germany in the Versailles Treaty, Germany would not be liable as a whole; rather, its leaders would be liable. In the case of Germany’s leaders, this would likely include Chancellor Theobald von Bethman Hollweg, Chief of Staff of the German army Helmuth von Moltke, Kaiser Wilhem II, and Undersecretary of State Arthur Zimmerman.123 In the case of Austria-Hungary, the list liable individuals would likely begin with Foreign Minister Count Leopold von Berchtold, Army Chief of Staff Franz Conrad von Ho¨tzendorf, and Emperor Franz Joseph.124

121. It is certainly possible to imagine a scenario where the leadership of two states plan and conspire together to commit the crime of aggression with a plot that would require only one state’s military to actually undertake the aggressive act. Suppose State A’s leadership was in effective political control of State A’s military, planned and prepared an act of aggression with state B, which could by its character, gravity, and scale constitute a crime of aggression. However, State B, rather than State A undertook the initial aggressive act (a popular Cold War era proxy state scenario). This does not seem to protect state A’s leadership from liability for the action. This liberal understanding must be the one intended by the drafters. Imagine a slight variation on the circumstances in the First World War, where after agreeing to go to war together, Austro-Hungarian forces defended German territory, exclusively from within Germany and with German permission, while German forces invaded their neighbors. If the law required that the planning and physical action be taken by the same state, then Austria-Hungary could escape criminal liability despite taking part in planning, and even encouraging the attack, and in the military maneuvers the plan required. This could not have been the intent of the statute’s drafters. While the question warrants further consideration, the outbreak of the First World War does not fit because Germany and Austria-Hungarian had not integrated their strategies to such a degree. See MCMEEKIN, supra note 23, at 401. 122. Rome Statute of the International Criminal Court art. 35, ¶ 1, opened for signature July 17, 1998, 2187 U.N.T.S. 90. 123. See generally id. List of potentially liable individuals not exclusive. 124. Id. This list of potentially liable individuals is not exclusive.

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Based on the timeline of the early days of WWI and the character, gravity, and scale of the military operations it appears that the German invasion of Belgium and Luxembourg constituted a crime of aggression on the Western Front, while the Austro-Hungarian invasion of Serbia constituted a crime of aggression on the Eastern Front. Civilian and military leaders in both countries could be held individually criminally liable for the attacks. The next section will consider what arguments these individuals might submit in their defense. E.

Defenses

The Rome Statute does not explicitly provide any defenses to states accused of the crime of aggression.125 Absent any claim of humanitarian intervention, which was clearly not the case during the outbreak of the First World War, the best (and perhaps only) defense available to an allegation of the crime of aggression is some manner of self-defense. Self-defense is a long standing right under customary international law.126 It has also been included in the U.N. Charter.127 There are three clear subsets of self-defense claims: (1) individual self-defense; (2) collective self-defense; and (3) anticipatory self-defense.128 Belgium would be a clear example of individual self-defense in its efforts to defend itself militarily after the German invasion. Neither Germany nor Austria-Hungary would have a case for individual self-defense as neither state had yet been the victim of an attack when they initiated military actions against their neighbors.129 The collective-self defense claim is a reasonable one for Russia for its incursions west in the early days of the war. Russia was allied with both France and Serbia, each of which had already been attacked by Germany and Austria-Hungary respectively, giving Russia the legal right to resort to the use of force in their defense.130 For Germany and Austria-Hungary however, the only

125. See Rome Statute Amendments, supra note 2. 126. Greenwood, supra note 112. 127. U.N. Charter art. 51. 128. Greenwood, supra note 112. 129. Id.; Brown, supra note 42. 130. See Greenwood, supra note 112, for an analysis of the law of collective self-defense; see David, supra note 105 (noting the Battle of the Frontiers and the Battle of Cer Mountain before the Russian attack on Germany); see also The Great War and the Shaping of the 20th Century: WWI Timeline: 1914, PUB. BROAD. SERVS., http://www.pbs.org/greatwar/timeline/time_1914.html (last visited Jan. 2, 2016) (clarifying the location of the Battle of the Frontiers as between Paris and the German border).

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possible defense to a crime of aggression charge would be anticipatory self-defense. Germany and Austria-Hungary would likely both argue that their military actions were necessary exercises in anticipatory self-defense, but as a legal defense these claims would almost certainly fail. Anticipatory self-defense is such a contentious issue in international law that international courts and organizations have on a number of occasions expressly stated that they will not be engaging the debate.131 The language of the U.N. Charter does not expressly allow for a legal right to anticipatory self-defense.132 However, customary international law has recognized the principle at least since The Caroline Case almost 200 years ago,133 and the right was reaffirmed in the International Military Tribunals after the Second World War.134 Determining whether or not the right to anticipatory self-defense exists135 is not the topic of this Article. Still, testing the German and Austro-Hungarian cases for the defense is necessary in order to fully understand the breadth of the applicability of the crime of aggression. The legitimacy of the use of force for self-defense (anticipatory or otherwise) under international law is analyzed under three criteria: (1) necessity, (2) proportionality, and (3) imminence.136 Similarly, the test for anticipatory self-defense laid out in The Caroline Case requires a threat be “instant, overwhelming, leaving no choice of means and no moment for deliberation.”137 Necessity requires that all reasonable

131. See Greenwood, supra note 112, for a list including the International Court of Justice in the Nicaragua Case and multiple United Nations General Assembly Resolutions. 132. Id.; see generally U.N. Charter. 133. The Caroline Test derives from an 1837 situation in which anti-British Canadian rebels fled to the United States to join with American sympathizers (despite official U.S. neutrality) and develop a force capable of continuing the Canadian rebellion. When that forced swelled to 1,000 men the British military entered American territory and seized The Caroline by night, set her ablaze, and cast her over Niagara Falls in an effort to limit the mobility of the potential invasion force. The British claimed the action was necessary self-defense, though the force had not yet launched its attack. Louis-Phillippe Rouillard, Caroline Case: Anticipatory Self-Defence in Contemporary International Law 1(2) MISKOLC J. INT’L L. 104, 106-111 (2004). 134. Greenwood, supra note 112. 135. See generally Sean D. Murphy, The Doctrine of Preemptive Self-Defense, 50 VILL. L. REV. 699 (2005). The early part of the article breaks down the popular approaches to the consideration of anticipatory self-defense into categories including: strict constructionist school; imminent-threat school; qualitative-threat school; and the “Charter-Is-Dead” school. Id. at 706-21. 136. Michael N. Schmitt, Preemptive Strategies in International Law, 24 MICH. J. INT’L L, 513, 530 (2003). 137. Id. at 530-31. It is worth noting that the understanding on “imminence” has matured since the days of The Caroline Case due to the massive increase in weapons technology, such as

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alternatives to force be exhausted.138 Proportional use of force in anticipatory self-defense is limited in scope to what is necessary to preempt or deter the future attack.139 Immediacy requires that the force be used at the last possible moment before the enemy attack is about to occur.140 Short of imminent attack, mere threats to peace that do not satisfy each of the criteria for the legal use of force in anticipatory self-defense should be addressed in other ways, such as referral to an international institution or sanctions.141 Neither Germany nor Austria-Hungary’s use of force in the outbreak of the First World War would satisfy all three of the criteria necessary for legal use of force in anticipatory self-defense. First, there is no indication that either Germany or Austria-Hungary had exhausted all alternatives prior to using force. Multiple scholars have persuasively argued that the standard for determining whether all alternatives have been exhausted prior to a resort to force in anticipatory self-defense should be “beyond a reasonable doubt,” as anything less would simply legalize speculative defensive attacks, quickly eroding the entire prohibition of the use of aggressive force.142 This is a difficult standard to overcome. In 1914, Germany and Austria-Hungary still had time for further negotiations or mediation before resorting to the use of force. Tensions in the Balkans had flared up on a number of occasions prior to 1914, and on each occasion were subdued with far less than a world war.143 There is no logical reason why this could not have been possible again. However, Germany and Austria-Hungary’s actions likely satisfy the second requirement of anticipatory self-defense—proportionality. The principle of proportionality does not necessarily limit the size of the use

intercontinental ballistic missiles capable of carrying nuclear warheads capable of annihilating entire cities instantly. See Greenwood, supra note 112. It is no longer understood in exclusively temporal terms. Id. However, in 1914 the weaponry was more similar to that available in the Caroline era than it is to today. As such, imminence analysis will proceed under the traditional understanding of the term. 138. Schmitt, supra note 136, at 530. 139. Id. at 532. See also Laumann, supra note 112 and associated text on the Entente invasion and capture of German colonies including Togoland to consider potential British and French aggression. 140. Schmitt, supra note 136, at 533-34. 141. Id. at 531. 142. Id. at 531; see also YORAM DINSTEIN, WAR, AGGRESSION, AND SELF-DEFENSE 168 (3d ed. 2001). 143. See MCMEEKIN, supra note 23, at 384.

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of force to one that mirrors the threat.144 Instead, the limit on proportionality is what is necessary to deter a future attack.145 Moreover, the use of legitimate force in an anticipatory attack is not limited to attacks on enemy forces that one side anticipates receiving an attack from; destroying other assets may be more influential in deterring the future attack,146 so long as those assets are legal military objectives.147 Germany and Austria-Hungary’s actions in the first days of the war should satisfy these flexible criteria. In the case of a pending full-scale war, it is reasonable to conclude that the use of force necessary to deter a future attack is the same force that is necessary to win the war. Both Germany and Austria-Hungary believed that they would be a target for attack by the Entente states in a large-scale war, and that the only way to eliminate this threat was to defeat the enemy, force them to surrender, and win the war. For the purposes of proportionality, it is legally irrelevant that the enemies chosen as the target for the preemptive attack (Luxembourg, Belgium, France, and Serbia) may not have been as likely as Russian forces to mount an attack themselves. Which lawful targets to engage is a question of military strategy, not international criminal law. The final criterion to consider in an anticipatory self-defense claim is imminence. Neither Germany nor Austria-Hungary would be able to demonstrate that they were under an imminent threat of attack. In the era of the First World War, in order for an attack to be imminent, the enemy forces would need to be mounted and mobilized in a position to attack at any moment— effectively overlooking the border.148 No Serbian attack against Austria-Hungary was imminent.149 Neither was

144. Schmitt, supra note 136, at 532 (Limiting the use of legal force in this way would likely prolong wars unnecessarily, resulting in greater death and destruction over the long run. If one state is considerably stronger and capable of winning a war quickly through the use of overwhelming force, it should do so). 145. Id. at 533. 146. Id. 147. This is not to suggest that there were no objectives or targets that were not legal, merely that the overarching military strategy employed does not appear illegal on the grounds of proportionality. 148. See Greenwood, supra note 112; see generally Murphy supra note 135. 149. Greenwood, supra note 112. This is where the assassination of the Archduke and the events of September eleventh diverge considerably. See Williamson, supra note 39. Despite the assassination of Archduke, there was no clear indication that Austria-Hungary needed to further defend itself from Serbia or the Black Hand. Surely, the assassination of the presumptive heir to the Austro-Hungarian Empire disrupted the states internal affairs and future prospects considerably, but there was no indication that the Black Hand could continue to damage Austria-Hungary, or that it even cared to do so outside of the Balkans. The differences in technology in 1914 and

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there an imminent threat of attack by Luxembourg, Belgium, or France towards Germany.150 Russia was more capable of mounting an attack against Germany or Austria-Hungary as its military had been mobilized for more than a week.151 Still, there is no evidence that Russian troops were in a position to attack at the moment the Germans did.152 This conclusion is further supported by the fact that the Russian army did not attack for almost two weeks after Germany entered Belgium.153 Therefore, nothing suggests that Germany or AustriaHungary were under any imminent threat, and thus this prong of the test cannot be satisfied. Consequently, it is clear that neither Germany nor Austria-Hungary can satisfy the necessity or imminence requirement of anticipatory self-defense. Although making the first attack may have been strategically necessary to allow the Central Powers a chance to win the war, it was not legally necessary under the law of self-defense. Similarly, while attacking when they did may have made victory more likely for Germany and Austria-Hungary, such strategic considerations fall outside of the scope of the imminence test for anticipatory self-defense. There is no reason to believe that Germany or Austria-Hungary were under an imminent threat of attack from any of the Entente Powers. As such, both Germany and Austria-Hungary would fail in their claims of anticipatory self-defense. F.

Conclusions on Legal Liability

Despite the intricacies of the definition of the crime of aggression, after weeding out any potential small-scale violence, liability for the crime appears to simply reduce to whichever side fired the first shot. Thus, strictly legally speaking, Germany and Austria-Hungary, and only Germany and Austria-Hungary, appear legally liable for starting the First World War.

2001 and Al Qaeda’s demonstrated commitment to attacking the United States on its own territory presented a far more tenable claim to American self-defense against Al Qaeda and the state of Afghanistan which harbored them. 150. Williamson, supra note 39. 151. See MCMEEKIN, supra note 40, at 59. 152. Given Russia’s massive landmass it is entirely reasonable to imagine that it could Russia considerably longer to mobilize than any of the states to its west. 153. David, supra note 105.

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V.

MORAL RESPONSIBILITY FOR THE FIRST WORLD WAR

The criminal law concept of liability is not necessarily equal to the common understanding of responsibility. Here, moral responsibility will be understood broadly as a state being deserving of blame for bringing about the war because its own intentional decisions and actions. This section will demonstrate that moral responsibility, as opposed to legal liability, allows for a broader understanding of where to allocate blame, one less confined by minutia or technicalities. Some parties responsible for initiating the First World War may not necessarily be criminally liable for doing so. Naturally, historians and politicians have been debating which states and individuals were responsible for the First World War since its occurrence. This debate continues today. In 2014, the British Broadcasting Corporation (BBC) conducted an international poll of ten prominent First World War experts posing the question of who started the war.154 Germany was the most popular answer, but by no means the only one.155 Many of those polled responded with more than one state: Germany appeared in nine of the responses, Austria-Hungary in seven, Russia in three, Serbia in three, and France and the United Kingdom each in two.156 This diversity in how the experts allocated blame demonstrates the difficulty of assigning even non-legal responsibility for starting the First World War. The following section will examine the case of each major early participant’s157 moral responsibility for starting the war.158 A.

The Austro-Hungarian Empire

Austria-Hungary deserves a substantial amount of moral blame for starting the war. The Austro-Hungarian Empire was the first state to declare war against another in the First World War.159 It was also the

154. BBC, supra note 1. 155. See id. 156. Id. 157. This section will consider each state’s moral responsibility in alphabetical order as part of an effort to provide a neutral analysis. Only those states cited in the poll will be considered, as the other participants in the war did not enter until after it had clearly begun. 158. While the liability for the crime of aggression falls with the individual actor and not the state under international law, the historical discussion of the question has largely revolved around state responsibility. As the ICC’s definition requires an act of aggression by the state in order to trigger liability from those in control of the state, this distinction does not pose much of a problem— under law the individuals in control of the state would simply be held liable rather than the state itself. Rome Statute Amendments, supra note 2, at art. 8 bis. 159. See Brown, supra note 42.

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first state to make an aggressive action against another state in the war,160 and the first state to make an act of aggression substantial enough to be considered a crime of aggression on the Eastern Front.161 When Austria-Hungary sent its ultimatum to Serbia, the Empire’s Foreign Minister, Count Leopold Berchtold, went so far as to lie to the German ambassador, telling him the document was not yet finished after it had already been dispatched to Belgrade, ensuring that Berlin would not have the opportunity to mince Vienna’s words.162 Though much is made of the “blank check” Germany offered to AustriaHungary, it was still Austria-Hungary that cashed the check when it sent its ultimatum to Serbia, knowing full well what the most likely response would be.163 However, despite clear evidence Austria-Hungary wanted to crush Serbia (even before the Archduke’s assassination),164 it never wanted to fight Russia, let alone start a continental war with France and the United Kingdom as well.165 Thus, although Austria-Hungary is well deserving of moral blame for making a war inevitable, the war that occurred was certainly not the one that Vienna wanted. B.

France

France deserves limited blame for starting the war. Arguments in support of French responsibility for starting the First World War are not terribly common, and generally come in the form of a widespread joint responsibility with the other early powers to join the war.166 France also sought to regain the Alsace-Lorraine territory it had lost to Germany only a generation before.167 Still, the best argument in support of French moral responsibility for starting the war comes from the fact that the French offered Russia its own “blank check” for support, similar to the one offered by Germany to Austria-Hungary.168 With the guarantee of French support against Germany (and later British support as well) Russia had the two-front war against Germany

160. See Lyon, supra note 46 at 501. 161. CATACLYSM, supra note 43, at 60. 162. MCMEEKIN, supra note 23, at 394. 163. See Zagare, supra note 33, at 121; MCMEEKIN, supra note 23, at 43. 164. Id. at 386. 165. Id. at 391-93. 166. Id. at 390. 167. Joachim Remak, 1914 —The Third Balkan War: Origins Reconsidered, 43(3) J. MOD. HIST. 353, 355 (1971). 168. BBC, supra note 1 (McMeekin section); MCMEEKIN, supra note 40, at 56; Remak, supra note 167, at 355.

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that it wanted, and the opportunity to turn the pending war from a localized Balkan conflict, to a continental, and eventually a world war.169 If France had refused to involve itself in a war for any reason other than its own self-defense, it is possible that Russia, and ultimately Serbia, would not have been as bold due to a diminished likelihood of winning the war, and thus Germany and Austria-Hungary would not have been driven to aggression. C.

Germany

Germany is deserving of a good deal of the moral blame typically assigned to them for starting the war. The most obvious argument supporting German responsibility for starting the First World War is that they actually admitted as much. In signing the Versailles Treaty that ended the First World War, Germany accepted blame for starting it, and agreed to pay reparations to the states on the other side.170 However, accepting this blame was a simple political necessity. Germany accepted the terms and conditions of the Versailles Treaty in order to end a war it could not win. Agreeing at Versailles was the humane thing to do, and not a conclusive indication of actual German responsibility. Therefore, the German acceptance of responsibility at Versailles should by no means prevent further consideration of the question. The most well known academic case in favor of German responsibility came in 1961 when Fritz Fischer, himself a former solider in the German army in the Second World War, published Germany’s Aims in the First World War.171 In multiple works Fischer argued that blame for the war should rest with Germany.172 Fischer posited that Germany intentionally manipulated the July Crisis that resulted from the assassination of Franz Ferdinand to instigate the war and justify its preexisting desire and plans to annex parts of France and Russia, in order to expand its influence in Europe, and across the globe.173 Fischer believed that this German ambition resulted from considerable political and societal pressure from groups within Germany that wanted to

169. MCMEEKIN, supra note 40, at 56. 170. Lang, supra note 71. 171. James Joll, The 1914 Debate Continues: Fritz Fischer, in THE ORIGINS OF THE FIRST WORLD WAR: GREAT POWER RIVALRY AND GERMAN WAR AIMS 13-14 (H.W. Koch ed., 1972); see generally FISCHER, supra note 30. 172. FRITZ FISCHER, THE ORIGINS OF THE FIRST WORLD WAR: GREAT POWER RIVALRY AND GERMAN WAR AIMS 79-80 (H.W. Koch ed., 1972) [hereinafter THE ORIGINS OF THE FIRST WORLD WAR]. 173. See id. at 121-28, 143-44.

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see their country become more of a global power, with influence and prestige consistent with its Western European counterparts.174 Fischer’s thesis became the dominant storyline explaining why the First World War took place, and remained in that position for decades.175 However, there are a number of serious deficiencies in Fischer’s explanation. In considering Fischer’s line of argument, it is key to remember the context from which it emerged. Fischer undertook his primary source research and developed his thesis in the immediate aftermath of the Second World War—a period in which the idea of German responsibility for massive wrongs was not at all controversial. By the time Fischer was able to release his work to the public, that public was already highly receptive to the idea of German aggression. The old adage that suggests that history is written by the victors need only to adapted slightly to account for the widespread success of Fisher’s thesis. Here, Fischer’s history is one written for the victors. The fact that largely the same group of victors had emerged from both World Wars within the adult lifespan of a single generation only made that narrative that much easier to accept. The contemporary trend among historians is to dismiss Fischer’s analysis as an oversimplification.176 Still, many contemporary historians continue to assign Germany the lion’s share of the blame for starting the First World War. In fact, among leading historians today it appears Germany is still the preferred party to blame for starting the war.177 This blame generally centers around the “blank check” Germany offered to Austria-Hungary. Such a conclusion is severely logically flawed. Germany may be guilty of behaving recklessly and pursuing bad policy, but Germany cannot be the proximate cause for the conflict, as it deferred to Austria-Hungary. Regardless of Germany guaranteeing its support for Austria-Hungary, it was still Austria-Hungary’s decision to pursue a course of action that would require German support. While Germany wrote the check, Austria-Hungary cashed it. Austria-Hungary was so concerned with losing German support that it intentionally kept Germany in the dark with regards to the precise ultimatum it planned to present to Serbia.178 The fact that Austria-Hungary would likely not have acted as it did towards Serbia if not for Germany’s guaranty of

174. 175. 176. 177. 178.

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See id. at 121-28. MCMEEKIN, supra note 40, at 1. BBC, supra note 1 (Hirschfeld section). See id. MCMEEKIN, supra note 23, at 394.

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assistance cannot make Germany the sole, or even primary cause of the war. German involvement still hinged on the Austro-Hungarian decision to involve them in the first place. This approach gives AustriaHungary an unexplained free pass for choosing to take advantage of the support Germany promised. The true German mistake was in not mandating that Austria-Hungary follow a particular course of action in return for German support.179 As with Austria-Hungary, although Germany wanted a war, they did not want the war they received. Even as war crept closer, Germany never expected the war to include Russia180 or the United Kingdom;181 “in 1914 France and Russia were far more eager to fight than was Germany.”182 In the final moments before the war, it was Germany that tried to “wiggle out” and not the Entente Powers.183 Germany was the first state to violate the territorial integrity of another, but it did so only out of desperation.184 With massive enemies on its eastern and western borders, and the United Kingdom looming across the channel, Germany believed its only chance of a victory would be a quick knockout blow to France.185 Germany was the legal aggressor, but only because German leadership believed if it was not, they would surely lose. German aggression ultimately stemmed from a summer of poor policy and diplomatic execution up until the point that war seemed inevitable, and the only chance of winning would be strike first. “So far from ‘willing the war,’ the Germans went into it kicking and screaming as the Austrian noose snapped shut around their necks.”186 Germany deserves some blame for the outbreak of the war, but it is unfair to blame Germany for their attack without blaming the other states that created a situation where that attack looked like the best option. D.

Russia

Russia deserves considerable moral blame for starting the war. Russia had serious imperial ambitions towards Ottoman held territory, particularly securing access to the Black Sea, and this motivation drove Russian

179. 180. 181. 182. 183. 184. 185. 186.

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policy in the lead up to the First World War.187 These ambitions were especially intense in the wake of Russia’s embarrassing defeat in the Russo-Japanese War (1904-1905), and had Russia planning a war against the Ottoman Empire in order to revive its prestige well ahead of 1914.188 Even without the assassination of the Archduke and the events that unfolded in response, Russia would still have likely fought the Ottomans for control over the maritime access to the Black Sea.189 Russia was also the first state to mobilize its military,190 and did so against both Germany and Austria-Hungary well before either had mobilized or declared war against any other states.191 The Russian mobilization also vastly exceeded what was necessary to defend Serbia from Austria-Hungary, and involved forces (such as the Baltic and Black Sea naval fleets) that could not reasonably be used in such a conflict.192 Further, when Russia chose to mobilize, the AustrianHungarian army was on leave, with soldiers home to help with the harvest, and could not hope to assemble an aggressive force for weeks.193 There was plenty of time to continue negotiations. Moreover, just as Germany had offered a “blank check” to AustriaHungary, and France to Russia, Russia had also offered its own guarantee of support for Serbia.194 This support was strengthened further by the feeling of Slavic kinship between Russia and Serbia, at a time when feelings of Pan-Slavism were running especially high.195 It is abundantly clear that Russia wanted a war, and it was perfectly willing to shape the opportunity before them into the war it wanted. While leaders in Vienna and Berlin sought to localize the pending conflict, Russia sought (through its own “blank check” from France) to escalate the conflict into one that would span the entire continent.196 E.

Serbia

Serbia deserves a fair amount of moral blame for starting the war. Serbian nationalism was fueling expansionist ambitions that were

187. 188. 189. 190. 191. 192. 193. 194. 195. 196.

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See generally MCMEEKIN, supra note 40. Id. at 16. MCMEEKIN, supra note 23, at 388. MCMEEKIN, supra note 40, at 59. MCMEEKIN, supra note 23, at 397. MCMEEKIN, supra note 40, at 59. See discussion supra note 38. MCMEEKIN, supra note 23, at 115. Remak, supra note 167, at 355, 359. Id. at 358-59. BBC, supra note 1 (McMeekin section).

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destabilizing the Balkans in the early part of the twentieth century.197 Although the Serbian government did not plan or carry out the assassination of Franz Ferdinand in Sarajevo, it was undeniably complicit198 because the Serbian government knew about the plot, and made no effort to thwart it.199 The assassination of Franz Ferdinand was the only thing that differentiated the summer of the 1914 from the numerous other seasons of high tension that had popped up regularly in Eastern Europe in the early years of the twentieth century, and were resolved short of a world war.200 Without the assassination, various other domestic concerns would have captured the attention of the European powers that summer, and war would almost certainly not have broken out.201 Without Serbia’s tacit approval, the assassination would almost certainly not have occurred. The Serbian state’s role as a cause of the war in fact is clear. F.

United Kingdom

The United Kingdom should be saddled with the least moral blame for starting the First World War. The United Kingdom failed to mediate the conflict as it had done successfully with previous flare-ups in the Balkans.202 Perhaps an earlier, clearer signal to the Germans that the United Kingdom would intervene on the side of the Entente Powers may have been able to deter the German westward attacks. Even more so than in the case of Germany, the United Kingdom’s fault was in poor policy execution, and not the result of wicked intent. Ultimately “Britain’s role in unleashing the First World War was one born of blindness and blundering, not malice.”203 G.

Concluding Remarks on Moral Responsibility

As decades have passed since both World Wars, and a long list of unpopular and controversial wars have been fought by all of the major 197. BBC, supra note 1 (Evans section). 198. To what degree the Serbian government supported the efforts of national extremists like the Black Hand versus simply allowing them to do as they pleased out of fear is unclear (nationalists within Serbia had assassinated their own monarchy in 1903 because of the family’s cooperation with the Austro-Hungarian Empire). See Cohen, supra note 24, at 363. 199. MCMEEKIN, supra note 23, at 391. 200. Id. at 385. 201. Id. at 385-87. 202. BBC, supra note 1 (Evans section). 203. MCMEEKIN, supra note 23, at 403.

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victors, the narrative of continuous and unprovoked German aggression has become much easier to consider objectively. Although many historians continue to blame Germany, many if not most assert Germany’s blame in concert with other states, or preface Germany as “the most” blameworthy among a collection of states bearing some level of moral responsibility.204 A strong case can be made for a level of responsibility for each of the states considered above, and a high level of responsibility for Austria-Hungary, Russia, and Serbia (at least), in addition to Germany. Prior to the war, the German military’s desire for a preemptive war with Russia and expanded global influence, and the Austro-Hungarian desire to suppress Serbia were no different than the French talk of retaking Alsace-Lorraine205 or the Russian conferences on taking Constantinople.206 In the end, Germany and Austria-Hungary lost, and then started and lost another larger, more destructive war two decades later. At that point, blaming Germany (and to a lesser extent AustriaHungary) for World War I was easy, and not entirely wrong. However, it is not entirely right either. At least six states did or did not do things that could have prevented the war. Serbia knowingly sat idly by while its nationalists killed the man who had blocked an Austro-Hungarian war twenty-five times in the previous year alone.207 Without Franz Ferdinand in the picture, a war between Serbia and Austria-Hungary was overwhelmingly likely, and Serbia allowed it to happen. Germany offered Austria-Hungary a “blank check” in support for war against Serbia, and Austria-Hungary cashed it. Both states did so fully knowing of Serbia’s alliance with Russia, and Russia’s alliance with France. Russia mobilized its military before it or Serbia had even replied to Austria-Hungary’s ultimatum.208 Russia also worked to escalate a regional conflict into a continental war, with the hope of achieving some of its own geopolitical objectives in the process. France offered Russia its own “blank check,” ensuring Russia’s ability to make that continental war happen. Britain failed in mediating the crisis, a role it had succeeded in a number of times before. In hindsight, each state could have likely ensured that the assassination of Franz Ferdinand did not escalate into a world war, but none did. After being pushed into in a

204. 205. 206. 207. 208.

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corner by its enemies, its allies, and to some degree itself, Germany responded predictably—with force. VI.

THE RELATIONSHIP BETWEEN MORAL RESPONSIBILITY AND LEGAL LIABILITY

Of course, historians do not pursue precisely the same task as lawyers, and a historian’s conclusions should not be interpreted as tantamount to legal judgments.209 However, the tasks of law and history are related—a court cannot render a judgment without first establishing a history of the situation at hand, and a historian is not truly retelling history without striving to present it justly.210 Law and history have their own strengths and limitations for treating history en route to its just accounting. Criminal courts (at least officially) have processes in place for avoiding unfair bias, and sifting through evidence to exclude, when necessary, items that might unfairly prejudice the history presented by the defendant, as he or she is the party with the most to lose should the process get the history wrong. Historians are not necessarily bound by preexisting procedures for limiting bias like a court, but they also are not bound by any burden of proof requirements, and thus can simply present the most likely story of what happened. A wide sampling of historical work from different regions, eras, and theoretical traditions can offer a range of useful insight beyond what could be presented in a criminal court. It is also true that historians are not always in the business of determining moral blame, but neither is a court. Under the current crime of aggression law, even if all parties agreed that a state other than Germany and Austria-Hungary was deserving of moral blame, a perfectly operating court would be entirely unable to assign that state with legal liability. While purely equating historical accounts to moral determinations generally may sound like bad policy, in the case at hand it is entirely reasonable for three central reasons. First, the facts of the case are incredibly complex, and historians specializing in the field have a more complete grasp of them in their appropriate context than anyone else. Second, the question of who is responsible for the First

209. MARK OSIEL, MASS ATROCITY, COLLECTIVE MEMORY, AND THE LAW 79-80 (1997) (quoting Charles Maier, Doing Justice, Doing History: Political Purges and National Narratives after 1945 and 1989 14-15 (paper presented at “In Memory: Revisiting Nazi Atrocities in Post-Cold War Europe: International Conference to Commemorate the Fiftieth Anniversary of the 1944 Massacres around Arezzo”)). 210. Id.

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World War has already been confronted directly by a long list of historical experts.211 Finally, the idea of “moral responsibility” involved is intentionally broad and open for non-legal interpretation in order to compare with legal determination of liability. Surely, some states (and thus their leaders) bear a heftier moral blame than others, but none are blameless. Is it right that law makes them so? Allowing a single war to contain multiple crimes of aggression, including crimes committed by multiple states, is a good tool to this end, but it does not solve the problem entirely. For example, Russia did not commit an act of aggression due to the timeline of their attack, and therefore its leaders cannot be liable for the crime of aggression, but it is still regularly assigned considerable moral blame for the war. Restricting the reach of the crime of aggression to effectively the side that fires the first shot— or even the first shot on a given front— drastically over simplifies a conflict, and allows leaders with a high degree of moral blame (in this case the leaders of Russia and Serbia) to evade any legal liability. The crime of aggression as it is presently proposed is both unfair and inadequate. It is unfair because it allows full legal liability to be assigned to leaders who share moral responsibility for the crimes evenly with others. It is inadequate because it completely absolves leaders of legal liability despite their clearly being morally responsible. The following section will consider a number of different approaches to rectify this inconsistency between legal liability and moral responsibility. VII.

SOLUTIONS

It is clear that the international crime of aggression is flawed. Guilty parties can be punished in considerable excess of their moral culpability, while morally responsible parties can escape legal consequences entirely. What then can be done to improve the current law? The following section will consider a series of changes or alternatives to the present approach to the crime of aggression in international law. A.

Eliminating the Crime of Aggression from International Criminal Law

The easiest thing to do when something is broken is usually to throw it out, and if desirable, get a new one. However, that is often not the most logical or the most efficient approach. This is certainly the case when it comes to international laws, especially those falling under the

211. See, e.g., BBC, supra note 1.

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jurisdiction of an international judicial body. At present, the ICC has jurisdiction over only three crimes, with a fourth, the crime of aggression, pending.212 This is not for a lack of interest in bringing international criminal jurisdiction to a more extensive list of crimes.213 It took decades, and the Holocaust, for the crime of genocide to be incorporated into international law.214 If something is morally reprehensible, and the international community has agreed to place the conduct under the jurisdiction of an international court, it should not be dismissed lightly, because there is no telling when the opportunity to reincorporate it will come. There is little debate that starting wars is morally wrong. The controversy comes in determining who is at fault for starting the war. Given the general acceptance that starting wars is wrong, and the logistical challenges related to actually vesting jurisdiction over this wrong through an international court, possibilities for better determining who is liable should be exhausted before considering eliminating the crime from standing international law. B.

Maintaining the Status Quo

The circumstances driving the outbreak of the First World War were admittedly unusually complex, and as the adage goes “hard cases make bad law”; as it is presently, the crime of aggression would almost certainly reach a more satisfactory conclusion with most other wars, consisting of more clear-cut fact patterns.215 If the only options available were to eliminate the crime entirely, or to maintain the status quo, it would certainly be better to maintain the capacity to prosecute some aggressors under international law, especially the most flagrant ones like those of the Second World War. However, there is no reason that

212. Rome Statute Amendements, supra note 2, at art. 15, ¶ 6. 213. See, e.g., Alexander K.A. Greenawalt, International Criminal Law for Retributivists, 35 U. PA. J. INT’L L. 969, 1035 (2014) (noting that crimes such as drug smuggling, terrorism, apartheid, human trafficking, and piracy have all been discussed as potential additions to international criminal jurisdiction). 214. Rafael Lemkin first proposed that international law adopt the concept of genocide in 1933, eighteen years before the adoption of the Genocide Convention in 1951. Perry S. Bechky, Lemkin’s Situation: Toward a Rhetorical Understanding of Genocide, 77 BROOK. L. REV. 551, 551-52, 558, 603-04 (2012). 215. For example, consider the Japanese attack on Pearl Harbor, and the German annexation of Austria, Czechoslovakia, and eventual invasion of Poland during the Second World War. The current conception of crimes of aggression would also likely allow for Soviet leaders to be prosecuted for the invasions of Poland, the Baltic States (Estonia, Latvia, and Lithuania) and Finland—which the Nuremburg Tribunals did not address.

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these should be the only two options. The success of the law in some situations does not need to be forfeited in order to address more complex situations in a more satisfactory manner. The following sections will explore means of improving the crime of aggression’s capacity to address conflicts that emerge from complicated fact patterns, without sacrificing competence in clear cases of aggression. C. Enforcing the International Legal Prohibition of “Threats of Force”: A New International Crime of “Instigation” Article 2(4) of the U.N. Charter outlaws the threat of force inconsistent with the purposes of the United Nations.216 The prohibition of threats of force ends there. The international legal community has never defined a “threat of force,” and states regularly attempt to intimidate one another, whether through rhetoric,217 demonstrations of force in the form of moving military equipment up to another state’s border, or regularly violating its air or maritime space with military vehicles218 without any legal repercussions. Criminalizing intentional threats of force, especially those that instigate a conflict, could actually defuse situations before they spiral into conflict, and would at least allow for the prosecution of a greater number of the individuals responsible for starting a war— even opposite the side that fired the first shot. Such an approach could build off of the “planning and

216. U.N. Charter art. 2(4). 217. North Korea threatens foreign states (most typically South Korea and the United States) so often that a running tally exists. See John Hudson, A Running List of North Korea’s Near-Daily Threats (updated), FOREIGN POL’Y (Mar. 21, 2013, 7:00 PM), http://foreignpolicy.com/2013/03/ 21/a-running-list-of-north-koreas-near-daily-threats-updated/. In 2005, Iran’s president suggested Israel “must be wiped off the map.” See, e.g., Nazila Fathi, Iran’s New President Says Israel ‘Must Be Wiped Off the Map,’ N.Y. TIMES (Oct. 27, 2005), http://www.nytimes.com/2005/10/27/world/ middleeast/irans-new-president-says-israel-must-be-wiped-off-the-map.html?_r⫽0. Russian recently also threatened that Denmark will become a nuclear target if it cooperates with the United States in the European missile defense shield. See, e.g., Justin Huggler, Europe Faces a ‘Real Threat’ from Russia, Warns US Army Commander, TELEGRAPH (Apr. 18, 2015, 3:18 PM), http://www.telegraph. co.uk/news/worldnews/europe/russia/11547247/Europe-faces-a-real-threat-from-Russia-warnsUS-army-commander.html. 218. See, e.g., Peter Apps & Aija Krutaine, U.S. Sends ‘Ironhorse’ Tanks to NATO’s Nervous Baltic Front Line, REUTERS (Oct. 1, 2014), http://www.reuters.com/article/2014/10/01/us-ukraine-crisisbaltic-usa-idUSKCN0HQ33720141001; Charles Duxbury et al., Baltic Neighbors Gird Against Russia, WALL ST. J. (Apr. 29, 2015), http://www.wsj.com/articles/baltic-neighbors-gird-against-russia1430280062.

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preparation” language in the definition of the Rome Statute,219 without requiring an actual act of aggression.220 Under this proposal, Germany and Austria-Hungary would still be guilty of the crime of aggression, but the leaders of Russia, and perhaps France and Serbia could also be punished for the roles that they played in bringing about the war. D.

Conspiracy to Commit a Crime of Aggression

The “planning and preparation” language in the Rome Statute can also be used to address conspiracy to wage a war of aggression. While the Rome Statute does not expressly mention conspiracy to wage a war of aggression,221 a cooperative plan to commit a crime of aggression could be understood as a violation, even if troops from only one state actually commit the physical act.222 Understanding conspiracy to wage a war of aggression as an autonomous crime would also be constant with the International Military Tribunals in Nuremburg and Tokyo after the Second World War.223 Although the facts of the outbreak of the First World War do not clearly demonstrate that a conspiracy existed between Germany and Austria-Hungary to commit a crime of aggression,224 understanding the statute to include the crime of conspiracy could be an effective tool for assigning blame to deserving states and actors in the future.225

219. The definition of the crime of aggression includes “planning and preparation . . . by a person in a position effectively to exercise control over or to direct the political or military action of a State, of an act of aggression.” Rome Statute Amendments, supra note 2, at art. 8 bis (1). 220. Id. 221. See generally id. 222. Id. at art. 8 bis. See note 121 for a thorough discussion of how and why such an interpretation of the clause is necessary. 223. Charter of the International Military Tribunal art. 6(a), Aug. 8, 1945, 58 Stat. 1544, 82 U.N.T.S. 279; Charter of the International Military Tribunal for the Far East art. 5(a), Apr. 26, 1946, T.I.A.S. No. 1587, 4 Bevans 21. 224. MCMEEKIN, supra note 23. 225. The crime of aggression, and the Rome Statute generally do not make any express provisions for accessorial liability. Rome Statute Amendments, supra note 2. This could also be a valuable tool for attaching liability to blameworthy actors who were not directly responsible for the commission of a physical act of aggression.

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E.

Consideration of Mitigating Factors in Aggression Prosecutions

Because of the surrounding circumstances, some criminal acts of aggression are more morally reprehensible than others.226 Why not, then, instruct judges to consider these circumstances in the sentencing phase of a trial for the crime of aggression? Aggression in response to a threat seems less morally reprehensible than unprovoked aggression, and premeditated crimes are punished more harshly than impulsive overreactions. It is then both entirely logical and morally acceptable to reduce the punishment for parties that act aggressively in response to reasonably serious external provocation. However, this is only a very partial fix to the current crime of aggression system. Though this approach may bring the defendant’s legal liability more closely in line with the international community’s sense of moral responsibility, it does nothing to address the lack of legal liability under the current regime for the morally responsible parties that did not ultimately initiate the aggression as it is presently defined. Under this approach, German and Austro-Hungarian leadership could see their punishments reduced as a result of the circumstances that surrounded the outbreak of the war, but leaders of other morally responsible states (like Russia and Serbia) could not be punished. Nonetheless, this would be fairer to German and Austro-Hungarian leadership than not considering these factors. However, it would not necessarily be any better for the international community at large, which would still be unable to punish national leaders who acted intentionally (or at the very least recklessly) to bring about a massive war. F. Considering All Actors Involved in the Outbreak of a War Criminally Liable: A Several Criminal Liability Approach Because of the case study at hand, this Article has only discussed the crime of aggression in the context of the initiation of a war, but this need not be the case. At least in theory, the crime of aggression could occur without being followed by a war,227 and it is also possible that a

226. Compare, for example, NATO’s 1999 intervention in Kosovo (Serbia) in an effort to halt the ethnic cleansing of ethnic Albanians, to Germany’s invasion of Poland at the outbreak of the Second World War that enabled the spread of genocidal policies to a new state. 227. For an example, see Operation Praying Mantis by the United States in 1988, in which U.S. forces destroyed multiple Iranian ships and oil platforms, after an Iranian mine damaged a U.S. ship. E. Thomas Sullivan, The Doctrine of Proportionality in a Time of War, 16 MINN. J. INT’L L 457, 466 (2007). The International Court of Justice determined that U.S. actions were not a legal

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war could occur without being triggered by a crime of aggression.228 If the international community’s intent behind criminalizing aggression is to criminalize starting wars,229 the crime of aggression is an imperfect vehicle. To punish starting wars, the war should be looked at in its entirety, and not reduced to a single act as a trigger. Then, legal liability should be determined in proportion to the level of responsibility for each party. Domestic torts law does this though the principle of “several liability.”230 This concept can be adapted for application to criminal law in order to more justly distribute blame conflicts. Joint liability and several liability are torts concepts in common law jurisdictions like the United States.231 Joint liability allows all liable parties to be held liable for the entirety of the damage.232 Several liability allows parties to be held liable only for the proportion of the damage they caused.233 Combined, joint and several liability allows a claimant to pursue the entire recovery from any liable party, leaving it up to the liable parties to portion out the liability among themselves.234 A principle based on joint liability (including joint and several liability) would allow for a wider spread of the blame for a war, but it would also allow for parties to accumulate liability disproportionate to their wrongdoing, which is one of the major flaws of the current system. For this reason, a criminal principle based on the concept of several liability would be better suited to addressing crimes of aggression. The principle of several liability recognizes that harm is often the result of multiple actor’s conduct, and that each actor’s legal liability ought to

exercise of the principle of self-defense, but no war broke out between the two countries. Id; see also Jens David Ohlin, The Doctrine of Legitimate Defense, 91 INT’L L. STUS. 119, 152 (2015). Russia annexed Crimea in 2014 (prior to Russian intervention in the eastern Ukrainian mainland), to which Ukraine did not respond militarily. 228. The crime of aggression does not account for non-state armed actors, or untraditional warfare such as cyber attacks. Rome Statute Amendments, supra note 2, at art. 8 bis. An attack in response to such a threat based in another state could be justified via the principle of self-defense, but trigger a war in the state the original threat was based in, without a clear nexus to the crime of aggression. 229. See Andreas L. Paulus, Peace Through Justice: The Future of the Crime of Aggression In a Time of Crisis, 50 WAYNE L. REV. 1, 2-3 (2004). 230. See RESTATEMENT (THIRD) OF TORTS § D19(a) (AM. LAW INST. 2000). 231. The principle has also been adopted in civil law jurisdictions, particularly in the field of subcontractor liability in the European Union. See, e.g., MIJKE HOUWERZIJL & SASKIA PETERS, LIABILITY IN SUBCONTRACTING PROCESSES IN THE EUROPEAN CONSTRUCTION SECTOR (2008), http:// www.eurofound.europa.eu/sites/default/files/ef_ files/ pubdocs /2008/94/en/1/ EF0894EN.pdf. 232. See RESTATEMENT (THIRD) OF TORTS §§ 16-17 (AM. LAW INST. 2000). 233. See id. 234. See id. § 10.

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be proportionate to his or her fault in causing the harm. Under this approach, it would be possible to examine the outbreak of a war in its entirety, and upon determining liability for the start of the war, distribute criminal liability in proportion to the wrong done by each party—from either side.235 However, the Tort law concept of several liability should not be adopted to a criminal context in its entirety. Typically determining percentages of liability is not as important for criminal law as it is in civil law, where damages need to be determined. Instead, several liability should merely serve as a basis for an approach to considering the outbreak of a war cognizant of the fact that multiple actors may have contributed, and without looking for a single criminal act as a trigger. This approach would also be helpful in determining the truth about what actually happened behind closed doors before a state decided to go to war. A several liability-based approach would encourage parties to testify and provide evidence as to the behavior of other involved parties in an effort to mitigate their own liability through blame shifting. With all of this information released to the court, those damaged by the war could have the opportunity to learn about what really happened and progress in their healing process. In the case of the First World War, this approach would allow for the leaders of Germany and Austria-Hungary to be punished, as would the current crime of aggression. However, it could also apply criminal liability to Serbian leadership for knowing about the Black Hand’s plan to assassinate the Archduke, and not making the minor effort necessary to stop a handful of men with handguns and grenades.236 Additionally, it could apply to Russian leadership for drastically escalating the scale of the pending conflict as well.237 This approach would also allow the judges to apply low levels of criminal liability (similar to a lower grade of offense, such as aggression in the second or third degree) to French and British leadership if they saw fit. A criminal liability approach for starting war based on a theory of several liability for the resulting conflict is the only way to ensure that all parties that contributed to the outbreak of the war are punished. Consequently, this approach ensures that the guilty parties are punished based on the proportion of blame they deserve. Firing the first shot is likely something worth punishing, but it is not the only thing.

235. In Tort law a determination of liability for negligence that includes a portion of liability for the Plaintiff is also known as comparative negligence. See generally id. 236. MCMEEKIN, supra note 23, at 391. 237. BBC, supra note 1 (McMeekin section).

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Of course, pursuing any of the policy prescriptions introduced above should not mandate that all of the others necessarily be rejected. Rather, a hybrid approach would be ideal in order to address as many of the current regime’s flaws as possible. There is no reason that a combination of: enforcing the prohibition on threats of force, considering mitigating factors, a liberal understanding of an international conspiracy to commit a crime of aggression as a unique crime, or implementing several liability for all actors involved in the outbreak of a war could not be employed simultaneously to improve the international regime for prosecuting the crime of aggression. VIII.

CONCLUSION

The focus of the crime of aggression should be deterring war, and when necessary, punishing leaders who start them. Examining individual acts of aggression distracts from this more important goal, and facilitates the application of unfair and morally unsatisfying law. The crime of aggression would be adequate if all wars started with an attack like Pearl Harbor, but Pearl Harbor is so famous because its fact pattern is so rare. The First World War illustrates the reality that wars seldom have one villain, or one cause. A law that expects otherwise is bound to leave the international legal community wanting. The beginning of the First World War was admittedly more complex than many other international conflicts, such as the Second World War. In the Second World War, German and Japanese ambition led to the Germans and Japanese invading their neighbors.238 The First World War came about through the contrary ambitions of at least five states: Germany wanted to expand its empire; Austria-Hungary wanted to crush Serbia; Russia wanted control over access to the Black Sea; France wanted Alsace-Lorraine;239 and Serbia wanted to drive AustriaHungary out of the Balkans.240 The First World War’s web of alliances was also more extensive than the Second’s. However, this does not mean that complex international conflicts are a thing of the past.

238. See, e.g., Detlev F. Vagts, International Law in the Period of the Third Reich, 84 AM. J. INT’L L. 661, 689 (1990) (explaining the concept of lebensraum (living space), an idea embraced by the Nazis that insisted that Germans, as a biologically superior race, were entitled to expand territorially as they pleased); see also Kenneth L. Port, Article 9 of the Japanese Constitution and the Rule of Law, 13 CARDOZO J. INT’L & COMP. L. 127, 136 (2005) (discussing Japanese imperial ambitions via the so called Greater East Asia Co-Prosperity Sphere). 239. MCMEEKIN, supra note 23, at 387-88. 240. BBC, supra note 1 (Evans section).

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A.

The Shortcomings of the Crime of Aggression in Contemporary Warfare

With the rise of the relevance of armed non-state actors, confusion over where to assign blame for the outbreak of a conflict is only going to increase from the situation of the First World War examined here. By maintaining an inflexible understanding of the crime of aggression based on past experiences (the predominance of interstate wars), the international criminal legal community will find it increasingly difficult to actually adjudicate the crime of aggression. A consideration of more contemporary conflicts demonstrates that a more dynamic and forwardlooking approach to the crime of aggression is necessary. The Second Congo War is a perfect illustration of this necessity. The turn of the 21st century saw one of the most complicated conflicts in history explode in central Africa. The Second Congo War, also known as Africa’s World War, lasted from 1998 until 2003 (smaller scale violence related to the war continues even today), and was responsible for more than 5 million deaths.241 By 2007, the International Rescue Committee, a prominent international nongovernmental organization, calculated the Second Congo War had been the deadliest conflict in the more than sixty years since the end of the Second World War.242 Susan Rice, now U.S. National Security Advisor, previously Ambassador to the United Nations, and Assistant Secretary of State for African Affairs at the time of the conflict, considered the conflict Africa’s First World War.243 Clear parallels between the Second Congo War and WWI are evident as both wars grew out of a security dilemma that encouraged the growth networks of alliances.244 The Second Congo War grew out of the immediate remnants of the First Congo War, which was itself largely a response to the Rwandan Genocide.245 In the wake of the Rwandan Genocide, members of the Hutu population fled Rwanda to camps in the Congo.246 From those camps they began to attack Congolese Tutsis.247 Eventually, the Congo-

241. Jeffrey Gentleman, The World’s Worst War, N.Y. TIMES (Dec. 15, 2012), http://www.nytimes. com/2012/12/16/sunday-review/congos-never-ending-war.html?_r⫽0. 242. Benjamin Coghlan, et. al, Mortality in the Democratic Republic of the Congo: an Ongoing Crisis ii (Int’l Rescue Committee 2007). 243. Christopher Williams, Explaining the Great War in Africa: How Conflict in the Congo Became a Continental Crisis, 37 FLETCHER F. WORLD AFF. 81, 81 (2013). 244. Id. at 82. 245. Guy Fiti Sinclair, The Ghosts of Colonialism in Africa: Silences and Shortcomings in the ICJS 2005 Armed Activities Decision, 14 ILSA J. INT’L COMP. L. 121, 131-32 (2007). 246. Id. at 131. 247. Id.

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lese Tutsis, with the support of Rwanda, Uganda, and Burundi attacked the Hutu camps, and eventually continued on to the capital Kinshasa, where they replaced president Mobutu Sese Seko with Laurent-Desire Kabila in 1997.248 Kabila struggled to solidify his power and lost the support of the foreign states that had brought him to power.249 This led to the Second Congo War, which began in 1998. The war was triggered when Kabila began to distance himself from the foreign powers that first put him in place.250 Kabila did this by aligning with traditional Ugandan adversary Sudan, along with some of the rebels his allies had fought to destroy less than two years earlier.251 On August 2, 1998 Kabila requested that the Rwandan troops that had put him in power leave Kinshasa, causing Congolese troops to begin to defect, and Rwanda to invade.252 Uganda and Burundi, the same states that had put Kabila in power along with Rwanda, soon turned against him and the war was on.253 Eventually the Second Congo War would see the militaries of at least nine African states fighting in the Congo,254 along with at least forty different rebel groups.255 Because of the large number of actors, relative shortage of detailed and comprehensive history of the war, and the role of actors outside of the reach of the law, a precise analysis of prima facie crimes of aggression is even more difficult than in the case of the First World War. Professor Guy Fiti Sinclair described the shifting alliances in the conflict as so complex as to make determining which actors were liable for which crimes nearly impossible.256 Specific to the language of the crime of aggression, determining which rebel groups could be considered under effective control of a state, thus falling into subheading (g) of the Rome Statute’s list of acts of aggression, only complicates the task further.257 Determining moral responsibility for the Second Congo War is an equally difficult task. Who is at fault when a coalition of states invade their neighbor to destroy rebel groups that continue to attack from

248. Id. 249. Williams, supra note 243, at 87-88. 250. Id. 251. Id. 252. Id. 253. Id. at 89. 254. Sinclair, supra note 245, at 132. 255. Armed Groups, RAISE HOPE FOR CONGO, http://www.raisehopeforcongo.org/content/ armed-groups (last visited May 5, 2015). 256. Sinclair, supra note 245, at 132. 257. Rome Statute Amendments, supra note 2, at art. 8 bis ¶2(g).

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across the border and eventually install a new government (due to prior inability to control genocidaires), which then turns on them two years later? Rwanda, Uganda, and Burundi entered Congo without permission (or rather, refused to leave), but only after the less than legitimately installed leader,258 who himself took power through a previous invasion, abandoned their coalition. Kabila thought he had to abandon his foreign allies in order to appease the Congolese population, and he seemed to know full well that this could lead to fighting, considering that before he did it, he secured the largest and most reliable mercenaries available.259 This all goes without mentioning the other five states and forty rebel groups who came to be involved in war. Professor Sinclair also specifically argues for moral responsibility (at least) for western states that were involved in bringing about the war, even if they were not involved in the fighting on the ground.260 If he is right, this is only another example of the same problem that occurs when the crime of aggression is applied to the First World War, a disconnect between moral responsibility and legal liability. B.

Concluding Remarks

Ultimately, when the crime of aggression is considered in the context of the facts of the Second Congo War, it shows the same shortcomings as when it is applied to the First World War: legal responsibility for aggression is deeply inconsistent with moral responsibility for starting the war. In the end, although war has changed enormously in the past hundred years, the international legal system’s laws for punishing them are no better suited for modern conflicts than it is for those that began a century ago. The answer to addressing this complexity is to consider the larger picture, and not to try to mine single attacks out of years’ worth of events relevant to bringing about the resulting war. When a law unfairly burdens one party, it is simple enough to relax it. When a law lacks the reach to apply to parties deserving of liability, it is easy enough to broaden it. When a law is both overly harsh towards some parties, and limited in its applicability towards others, it requires a more thorough change. In criminal law, difficult lines need to be drawn sometimes, but they ought to be drawn in the best interests of justice, not convenience.

258. See Williams, supra note 243, at 87. 259. Id. at 88. 260. Sinclair, supra note 245, at 133.

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Although the law would place blame with Germany and AustriaHungary, an analysis of moral responsibility shows that not only Germany and Austria-Hungary, but also Russia, Serbia, and to a lesser extent France and perhaps even the United Kingdom are deserving of blame. As such, Germany and Austria-Hungary do not deserve sole legal liability for starting the First World War, and Russia and Serbia do not deserve to be absolved. The law should not treat leaders that provoke war with their neighbors as a step in pursuit of their own geopolitical objectives as victims of aggression. But that is precisely what the present law does. A more just, and more useful crime of aggression would consider the entirety of a conflict and the events that brought it about, and assign liability based on that responsibility.

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