Aggressor Status and Its Impact on International Criminal Law Case Selection

The laws of war apply equally to all parties to a conflict; thus, a party that violates international law by launching a war is granted the same international humanitarian law rights as a party that is required to defend against the illegal war. This doctrine—known as the equal application doctrine—has been sharply critiqued, particularly by philosophers, who claim the doctrine to be morally indefensible. Lawyers and legal academics, by contrast, defend the equal application doctrine because they reasonably fear that applying different rules to different warring parties will sharply reduce states' willingness to comply with the international humanitarian law system as a whole. In the two works on which this symposium contribution is based, I have sought to bridge this divide by shifting focus from the application of international humanitarian law rules to the enforcement of those rules. In particular, I developed "the unequal enforcement doctrine," which would retain the equal application doctrine but would reduce its unfairness by disproportionately prosecuting international criminal offenders from aggressor states. I have developed and defended that doctrine in two full length law review articles, and I have applied the doctrine retrospectively to prosecutorial decisions made in the International Criminal Court ("ICC") situations. As a result of this analysis, I maintain that although ICC prosecutors did not expressly consider the aggressor status of parties to the conflict when selecting cases, that status has likely been influencing prosecutorial decisions all along, sub silentio. The analysis thus supports my claim that who started a war matters intuitively and profoundly and that the answer to that question has significantly impacted international criminal prosecutions. This piece summarizes my two law review articles.