Why Do International Criminal Tribunals Rarely Prosecute the Crime of Aggression?

The establishment of the United Nations in 1945 and the jus contra bellum regime gave rise to a body of law which outlawed the process of going to war in all conditions other than the generally-accepted self-defense. International criminal tribunals, the most modern incarnation of which is the International Criminal Court, have always adhered to the same vision of an international community, where even statesmen may be held accountable and seemingly ineluctable impunity for atrocities ended. However, the crime of aggression stands out. This paper examines why aggression, once deemed the supreme international crime and ipso facto the most fundamental trangression of the United Nations Charter, is now the least prosecuted international crime despite its normative significance. Through analysis of four case studies, it will be demonstrated that great powers, who are always the winners of conflicts if not often outright the aggressors, are able to systematically obstruct prosecution, with obstacles like vague definitions being not merely technical barriers but mechanisms reflecting and preserving power disparity. Justice under the current framework may only be had by the victors.