Dear readers,

I wanted to share with you a new article published at the International Journal of Transitional Justice earlier this year: “‘Global South’ Voices Are Muted in Debates over the Crime of Aggression: What Three Books on Illegal War Tell Us About Why”.

The article explores the sticky question of why it appears that so many states in the “Global South” (an utterly imperfect short-hand that I explore a bit in the article) remain ambivalent about prosecuting the crime of aggression in Ukraine. Rather than focus on more immediate debates on the subject and especially those that have taken place since Russia’s 2022 invasion of Ukraine, I reviewed books on the crime of aggression from three eminent experts – Carrie McDougall, Tom Dannenbaum, and Noah Weisbord – to try to understand where such ambivalence derived from. I therefore explore how previous debates and negotiations over the crime of aggression under the Rome Statute of the International Criminal Court as well as conversations about the purpose and goals of international criminal law more generally have contributed to a less-than-enthusiastic engagement among many States outside of Europe and North America in efforts to hold Russian authorities for the crime of aggression. A recent trip to Kenya to engage with international human rights and accountability advocates confirmed that this antipathy remains strong and is something that advocates must reckon with if we hope to convince a greater number of communities that Russian aggression must be prosecuted.

Here is an excerpt of the article:

Political and legal efforts to criminalize illegal warfare have received a tremendous amount of attention since the 2002 establishment of the International Criminal Court (ICC). At no point have discussions on the crime of aggression reached such feverish levels as they did following the 2022 invasion of Ukraine by Russian forces. Ongoing debate over how to investigate and prosecute the invasion, alongside the relatively muted response of the “Global South” to a proposed specialized tribunal to prosecute Russian leaders for the crime of aggression, is symptomatic of how diplomats have crafted the crime over the past two decades.

Those negotiations – their reasoning, political contours, historicity and consequences – have been studiously covered by Carrie McDougall, Tom Dannenbaum and Noah Weisbord in their respective books on the crime of aggression. Theirs are persuasive volumes written by thoughtful and diligent scholars of international criminal law (ICL). The books offer detailed assessments of what the crime is, its historical trajectory, its adoption and particular jurisdictional shape under the Rome Statute, as well as the role it might play in moderating international relations’ most devastating excess: war. Each author speaks to the politics of law and, to put it crudely, how the proverbial sausage – international law in this case – is made. The books articulate with laudable finesse how the crime of aggression came to be what it is today. This is, at times, a grim task, and the disappointment of the authors at the neutered version of the crime of aggression included under the Rome Statute is apparent. At the same time, these volumes, which also offer much hope, include lessons for the law student, diplomat and negotiator on how negotiations capture particular cross-sections in time and politics…

The diligent observer and academic would do well to consume all three books, even if they are left with the inevitable sense that the more they know about the crime of aggression, the more they know what they do not know. Rather than distil their findings any further, I thought it would be of greater interest to readers to use the balance of this review essay to enquire into what pertinent sections of these volumes tell us about Global South attitudes to the crime of aggression.

I ask this question not because it is esoteric, but because Global South voices, both state and scholarly, appear relatively muted in discussions regarding the crime of aggression in comparison to their global North and Western colleagues. At the 2022 ASP of the ICC conference, an ambassador from an African state told me that discussions around aggression were a ‘plaything of imperial powers.’ Another African diplomat said that the ASP used to be concerned with Africa, but now has turned almost entirely towards issues in Ukraine. Of course, this is not to say that Global South voices have been absent in debates on aggression; numerous scholars have opined on the crime of aggression in recent years. Moreover, the crime of aggression was included in the Malabo Protocol, which, if it eventually enters into force, would permit an African Court of Justice and Human Rights to investigate and prosecute the crime in Africa, alongside 14 other international crimes. Still, debates on the subject continue to play out on uneven terrain.

Global South voices are arguably louder in ICL today than ever before but are often less heard in a field that has long been criticized for not listening to, let alone emphasizing, non-Western voices and viewpoints. A cursory search of book-length treatments of the crime of aggression indicates that they have been almost exclusively penned by Western scholars. A recent series of contributions on a popular international law blog on the crime of aggression in Ukraine has not one Global South voice. In discussions around prosecuting the Russian leadership for the 2022 invasion of Ukraine, this inequality of attention is even more apparent. While Global South states condemned Russian aggression, they have appeared less emphatic about Russian authorities being prosecuted for the crime of aggression.

Is the crime of aggression of global concern or is it largely a matter of consensus for the Global North? What might these three books tell us about the Global South and its relation- ship to crafting and carving the crime of aggression under ICL? To answer these questions and structure what follows, I ask three additional questions and look at what each book might tell us in response: Does the Nuremberg legacy continue to resonate? What impact has the com- mission of illegal warfare by Western states had on the crime of aggression’s moral and legal purchase? To what extent do debates over the crime of aggression include and reflect global South perspectives?

Before proceeding, it is important to stress that ICL practice and scholarship are generally dominated by Western voices (my own included), and some of the questions in this essay should be asked of the field as a whole and not only of debates on aggression. I do not pretend to speak for the Global South, nor do I imagine it to be a coherent entity with a singular voice. As a Canadian of Polish descent, I likewise understand that Eastern Europe is not necessarily Western or Global South. My views and questions are shaped by my work with colleagues in Africa. At the core are concerns about power and inequality, as much as geography. What follows stems from a curiosity and certain anxiety over how international ICL is and a solidarity with those interested in decolonizing, levelling and diversifying the field of international law.

For those interested in reading the article, it can be found here. As always, I welcome your feedback and constructive criticisms. Should anyone experience difficulty in accessing the piece, feel free to reach out to m

Thanks as always for reading!

Mark