Crime (of Aggression) and Justice: Interview with Oona Hathaway

Crime (of Aggression) and Justice: Interview with Oona Hathaway

. 8 min read

Oona A. Hathaway is the Gerard C. and Bernice Latrobe Smith Professor of International Law at Yale Law School, Professor of International Law and Area Studies at the Yale University MacMillan Center, Professor of the Yale University Department of Political Science, and Director of the Yale Law School Center for Global Legal Challenges. She has been a member of the Advisory Committee on International Law for the Legal Adviser at the United States Department of State and the Council on Foreign Relations. She writes often for popular publications such as The Washington Post, New York Times, The Atlantic, and Foreign Affairs.

I’d like to begin by discussing your book “The Internationalists,” which focuses on the legacy of the Kellogg-Briand Pact. What inspired you to focus on a pact that had been so often deemed a failure?

Like a lot of research projects, this was not at all what I intended to study at the time I set out.

Scott, my co-author, and I were interested in understanding how international law changed from historically being enforced through physical force or war.  Of course, in the modern era that's not true. Using war to enforce treaties or international obligations is illegal, unless the Security Council authorizes it under Chapter Seven.

One obvious answer as to when that changed would be the United Nations Charter, but we were interested in whether it was really the charter that was the cause of that change. Was there any kind of precursor to the charter before [it] was put in place after World War II?

So we went digging and came across the fact that the Stimson Doctrine, which had been issued after Japan invaded Manchuria, provided that the United States would not recognize the conquest of Manchuria by Japan, which became known as the non-recognition principle. And it's generally regarded as the first time that had happened. We wondered why he decided non-recognition was the right way to respond and found that in the note that he issued to Japan and to China, he referenced the “Pact of Paris.” When I looked it up, I realized it was Kellogg-Briand! Like everybody else, I had learned the Kellogg-Briand Pact was completely ridiculous—an example of the hubris of international lawyers, the weakness of international law, and the failure of international law to actually prevent violence. The fact that it was mentioned in the note that Stimson had issued to Japan and China and was the foundation of non-recognition of conquest struck me as really interesting. And so that is how we realized it was so much more important than anybody had really appreciated.

Do you see any current international agreements carrying the same ability to establish legal precedent of the same magnitude within the realm of human rights law?

I think what was distinctive about the Kellogg Briand-Pact, which was then reinforced by the UN Charter, was that it was taking [on] the core foundational norm of the international legal system that had been in place for hundreds of years, which was that if one state wrongs another state, the state that was wronged can use force as legal recourse. And what was so distinctive and important about the Kellogg-Briand Pact is it said the new rule is the exact opposite of that: you can't use force to enforce your legal rights and might doesn't make right anymore. That was just a complete and utter reversal of the basic fundamental norm of the system, and I don't see something like that happening right now.

I do think one question right now is how robust this shift that started with the Kellogg-Briand Pact [is], and if that's going to survive the current moment. The Ukraine war is an example that challenges that transformation that we described in the book. I think the question of our era, or at least one of the questions of our era, is whether the international legal order is going to continue to exist in that form.

There is also a lot of development now [though] regarding what role sanctions are going to play in maintaining the system and enforcing international legal obligations. We’re seeing the emergence of economic sanctions as the alternative to war and as the way in which international legal rules [are] enforced. But the rules have not been entirely clear. I think we're in the middle of a leap forward in the massive use of economic sanctions. [For example,] against Russia. The attempt to discipline a nuclear powered state with economic sanctions and close it off from the global economy is a potentially significant evolution in the international system.

Speaking of Russia and Ukraine, you’ve written about establishing a new international court to try Russian leaders for their “war of aggression” in Ukraine. How could this court work in tandem with the International Criminal Court’s existing investigations in the region?

It may be helpful to understand why we need a new court to try the crime of aggression. The reason is that the International Criminal Court (ICC) has jurisdiction over four different crimes: genocide, crimes against humanity, war crimes, and the crime of aggression. But the jurisdiction for the crime of aggression is narrower than those of the other crimes—it can only be held over states that are party to the Rome Statute. And, of course, Russia is not a party to the Rome Statute. So while the ICC has jurisdiction over war crimes, crimes against humanity, and genocide being committed in Ukraine (because Ukraine has given jurisdiction to the court through special agreements) it can’t give jurisdiction over the crime of aggression. The crime of aggression is also the core crime of waging an illegal war, from which all the other crimes like crimes against humanity and genocide stem. Pretty much every international lawyer agrees that Russia's invasion of Ukraine is a manifest violation of the United Nations Charter; it meets the definition of a crime of aggression.

There’s a lot of different proposals on the table to try the crime of aggression, but the one that I think is the best is a vote of the United Nations General Assembly to recommend that the United Nations enter into an agreement with Ukraine to create a new special tribunal. That would give the Secretary General of the United Nations power to negotiate an agreement with Ukraine. Ukraine would consent to this new court, and they would create a court that would narrowly focus just on the crime of aggression. And the recommendation that I have supported is not only to do that through the UN, but to establish that court in the Hague to make it easier for this new court to coordinate with the ICC. This is because the people that are responsible for planning and ordering this illegal war are likely going to be prosecuted by the ICC for other crimes. A memorandum of understanding, a kind of informal agreement of coordination between the prosecutors at the new court and the ICC, would probably be required if and when this new court is established.

More broadly, how can international legal institutions better incentivize powerful countries like the United States to internally prioritize policies that protect human rights globally?

The first thing that the United States could do is to get out of its defensive crouch and think about how to strengthen international norms in a way that benefits everyone. It's true that there may be some investigations of US actions. And frankly, some of those investigations may be deserved. There [are] lots of reports that persons held at the Bagram Air Base were tortured and we know that persons held at CIA black sites in states that are parties to the Rome Statute were tortured. So we can’t say we haven't done anything wrong. The question is, have we provided adequate accountability domestically for those wrongs? The Rome Statute says that if the state provides adequate accountability, then the ICC is not going to step in—this is called complementarity provision. The ICC will only come in if the state is either unwilling or unable to do the investigation itself. So in the case of the ICC’s investigations into US actions in Afghanistan and CIA black sites in countries that are parties to the Rome Statute, a reasoned response would be to show the ways [in which] we have provided accountability, instead of stonewalling the ICC, refusing to participate, and going after individual judges and prosecutors with sanctions. Doing so would set the right kind of example, as opposed to attacking an international institution that really can do a lot of good in the world, simply because it has turned its sights on us.

We’re headed in the right direction now. There’s been an announcement that the US is going to cooperate with the ICC’s investigations into war crimes, crimes against humanity, and genocide in Ukraine by providing assistance with evidence collection, and that’s a really important first step. I hope that that collaboration will continue because I think it's in the United States’ long term best interest for an institution like this to be available and to work.

On the international scale, how can we work towards more comprehensive and globally-recognized human rights protections without alienating powerful countries that fear prosecution?

In general, the challenge that human rights lawyers and activists face is that international treaties on human rights face a real conundrum. If the treaty is strong and effective, and actually impacts states’ behavior, then states with bad human rights records might be reluctant to join. Why would they join an agreement that is just going to [result in their] being litigated against all the time when there are no clear benefits? The most effective human rights agreements at the international level have been aware of that challenge and have either created systems that work together with the state to try to collaboratively bring them into compliance with international law or have attached membership in the human rights agreement/organization/court to something else that states want. [For example], you can’t be a member of the [Council of Europe] unless you are also a member of the European Convention on Human Rights. And if you're a member of the European Convention on Human Rights, you have to submit to the jurisdiction of the European Court of Human Rights. So being a party to the European Court of Human Rights or being subject to its jurisdiction is the gateway to accessing the [Council of Europe]. I think that’s one of the reasons why the European Court of Human Rights is one of the most successful international courts. States have a reason to be part of this international agreement that entails some costs because they get a lot of benefits out of it. I think human rights activists need to think more about how to harness states’ self interest to make international human rights agreements work more effectively.

The second thing I will say is that a lot of the real work of human rights law happens at the domestic level. We tend to think of human rights enforcement as something that happens at the international level. But the truth is that the vast majority of human rights enforcement is happening through domestic courts, politics, and institutions. There, a lot of the work that needs to be done is providing support for rule of law institutions, local activists, effective and independent courts, and people who want to litigate domestically, but who might be subject to harassment. Providing them with some international connections may make those who want to attack them think twice before they do. I think that thinking about how to strengthen domestic enforcement, institutions, and tools for human rights enforcement is really important because ultimately, that's where we're likely to be most effective in the long term.

Yarlagadda spoke with Professor Hathaway on July 27th, 2022. The interview has been lightly edited for length and clarity.