Why Prosecuting Aggression in Ukraine as a Crime Against Humanity Might Make Sense

Abstract

The idea that aggression can and maybe should be prosecuted in some instances as a crime against humanity is a marginal one that has nonetheless been floated for a while. This article revisits the idea in the context of efforts to prosecute the leaders of the Russian aggression in Ukraine. It argues that the case that aggression is a crime against humanity has been framed along excessively reductionist lines focusing on ‘other inhumane acts’ as a predicate offence. Instead, the article suggests that there can be a deep overlap between the notion of an armed attack against a state as defining aggression, and the notion of a ‘widespread or systematic attack against a civilian population’ as the chapeau of crimes against humanity. Working at this intersection, it is suggested, makes sense of the special place of aggression as an offence generative of many others, as well as the particular sovereign deliberateness involved in launching an attack. The article explores some of the concerns that such a prosecution might trigger, including that it misses the opportunity to prosecute aggression as such, is in bad faith, or does not cover significant portions of what is rightly considered wrong about aggression. The article concludes in favor of an imaginative take on the substantive law resources that are there rather than the search for new jurisdictional solutions.