There is a problematic overlap between bona fide humanitarian intervention and the crime of aggression. Under international law, the crime of aggression is defined so vaguely that it potentially could be applied to try leaders who seek to stop documented mass atrocities with armed force. This Note seeks a resolution to that overlap: a path that would allow those who would plan and engage in bona fide humanitarian intervention to be exempt from prosecution for aggression. The Note first examines the genealogy of the crime of aggression. It then analyzes several possible solutions to policing aggression without unduly deterring humanitarian intervention. Finally, this Note concludes that the existing imbalance can be corrected by: (1) granting the International Criminal Court exclusive jurisdiction to investigate and prosecute the crime of aggression, (2) modifying the current regulations to bar the U.N. Security Council in prosecuting the crime of aggression, and (3) developing an affirmative defense to the crime of aggression that would allow indicted leaders to use either a high or low evidentiary standard depending on whether their state acted alone or through a multilateral organization.
Alexander H. McCabe,
Balancing “Aggression” and Compassion in International Law: The Crime of Aggression and Humanitarian Intervention,
83 Fordham L. Rev. 991
Available at: https://ir.lawnet.fordham.edu/flr/vol83/iss2/20