The Criminalization of Aggression and Soldiers’ Rights

This article identifies the core wrong of criminal aggression to be the entailed legally unjustified killing and human violence and not the violation of sovereignty or states’ rights. Its core contribution is to elaborate two implications of that normative account of the crime. First, soldiers have a right to refuse to fight in criminal wars and they must be recognized as refugees when they flee punishment for engaging in such refusal. Second, those killed or harmed by an aggressor force are the core victims of the crime. As such, they, and not the attacked state, have the primary claim to judicial participation as victims at the International Criminal Court and to the reparations that follow. Those who adhere to the orthodox notion of aggression as a crime against states miss both of these implications. Soldiers seeking asylum when they refuse to fight in aggressive wars are denied on the grounds that, if they were to fight, they would be far removed from the macro wrong against a foreign state, and so should have no difficulty “washing their hands of guilt.” This is misguided. Although there are good reasons for the “leadership element” that protects them from criminal liability for aggression, soldiers perpetrate directly the constituent wrongs of the criminal action and the reasons not to punish them for doing so are not reasons to deny them the right to disobey. Similarly, adherents to the traditional account would grant states the right to participate as victims and claim reparations in aggression prosecutions. This, too, is a mistake. The victims of the wrong that renders aggressive war criminally condemnable are soldiers killed or harmed fighting an aggressor force and collaterally killed or harmed civilians. These are the class members eligible for judicial participation and reparations.