Dateline: Serbia and Montenegro, September 1993. I’d landed in the first of the “CNN wars” — prequel to Operation Iraqi Freedom’s video game cinematography, to atrocities as media bait, to mass murder via technology “because we can” — set against medieval enmities and Balkan hyperinflation at an impossible level. In the parlance of the day, but before the Facebook-era neologism “weaponized,” the legal, ethical, and moral equivalencies in the West were often muddled and opaque because of the rise of “advocacy journalism.” (You could count on one hand the number of Serbo-Croatian-speaking foreign journalists on the ground in former Yugoslavia.)
Everybody — every last journalist — was a target for spin. A few weeks later, I came home with a knapsack full of expensively printed propaganda books and two high-quality posters, their production bankrolled by émigré Serb and Croat sponsors. That their subject matter was a genocidal race war against the Bosnian Muslims certainly took the edge off their overheated prose.
That autumn, Biljana Plavšić was a nationally known plant biologist and vice-president of the Republika Srpska, the Serb third of shattered Bosnia-Herzegovina. Though marinated in a racism of perverted science, which inspired her to casually term, in my hearing, all Bosnian Muslims “untermenschen,” Plavšić at least understood there might be a bottom to the carnage, a point all sides might agree was unacceptable. Together, she and the Canadian NATO general Lewis MacKenzie managed to save lives amid the free-fire zone that was Sarajevo. (Plavšić later recanted her wartime views, in apparent expiation. Then, while in prison, she reversed herself again and claimed her plea bargain with the International Criminal Tribunal for Yugoslavia had been tactical, to avoid the charge of genocide and the prospect of spending the rest of her life behind bars.)
Saving lives appealed less to Milan Lukic, leader of the White Eagles paramilitary group, who taught me his highly successful blackjack method in a deserted casino a few nights after I met Plavšić. Lukic specialized in retail mass murder: his handiwork was the natural downstream consequence of Plavšić’s “they shall not live” rationalizations. A bull-necked charmer who drove a pristine red VW GTI (whose Muslim owner he’d shot dead in cold blood — one of his lesser homicides, as things turned out), Lukic would soon be subject to an international arrest warrant seeking to bring him to trial at The Hague. He fled to Buenos Aires — like more than a few Nazi war crimes suspects five decades earlier.
That long-ago fall, after cooling my heels in Vienna while vainly attempting to interview Simon Wiesenthal (who rightly condemned Canada’s refusal to take in Jewish refugees from Nazi Germany and refused to meet with the Canadian press), I was investigating the war crimes of a Canadian Serb in Nazi-occupied Belgrade, Radislav Grujicic. The case was then at the pretrial stage in Windsor, Ontario. I was living a kind of recurrent history, the mass murders of 1942–44 set against the ongoing madness of a racial and religious civil war boiling out of control along many of the same fault lines fifty years on: a Groundhog Day of the worst kind.
No matter. Today, in the age of drones and “endless war” and weapons sales as grist for the GDP, the crimes of 1993 seem of a different age, closer to the Nuremberg and Tokyo trials or the prosecution of Adolf Eichmann, administrator of the industrialized death machinery of the Holocaust and its prime mover at SS headquarters.
The takeaway? There are clear and evident patterns to emergent genocides and the lesser crimes of mass murder, forced migration, and epic theft and cultural depredations. From the looting of art to the destruction of libraries and religious sites, the motivation arises from nothing but sheer spite, the urge to obliterate for intolerance’s sake.
What is the law to do in the face of undeclared wars leading to the deaths of countless innocent civilians in post-war occupations like that of Iraq? Or in Syria, or Yemen? Then there’s the moral vacuum of the assassination drone and the poisoning of digital media via state-sponsored maskirovka or dezinformatsiya — take your pick of terms. Either way is as deliberate an aggression as was the blitzkrieg of September 1939 or Pearl Harbor’s destruction by the carrier aircraft of the Imperial Japanese fleet.
And now there’s a superbly assembled book that captures the legal wranglings around such considerations — and they are Byzantine. In a remarkably clear fashion, it breaks down the behind-the-scenes story of what may well be one of the most important judicial advances since Nuremberg: when the world decided, in December 2017, to make individual aggression a prosecutable crime.
Noah Weisbord has written as masterful an account of the century of legal toil dedicated to corralling the human urge to wage war as has yet found two covers. He’s contrived to take the reader backstage (Weisbord himself was in the room as a member of the International Criminal Court working group that shaped the legal language that “designed the crime” of aggression) to show the knotted evolution of the project and the often unedifying attempts to water down or, in the case of the United States, to evade entirely a law of universal jurisdiction that criminalizes pre-emptive, undeclared war.
Weisbord’s book, in Princeton University Press’s impressive Human Rights and Crimes against Humanity series, brings to life generations of sheer legal slogging that has, against the grain of history since Sarajevo in 1914, at last defined the crime of aggression and engineered legal teeth to make manifest both the jurisdiction over and sanctions against a head of state or government who incites it.
Weisbord’s work is that rarest of writings on legal matters: a kind of Decameron, a thoughtfully interconnected set of what might well be abstruse concepts, but told as a series of parables, aperçus, and case studies. And the thinking is as clear as Weisbord’s prose, all in aid of tracking the delicate dance to embody the legal principle of “no legal pre-emptive war” and have that legal principle become accepted international practice. One doesn’t want to detail the book overmuch, because, even for the layman, it’s a superb read. There’s little upside in spoiling time well spent, even if the topic is among the least attractive of human qualities: aggression and the taking of something — whether property, truth on a digital network, or life itself — without provocation.
The word “aggression” itself — in the sense of “an attack” — dates from the early seventeenth century, late in the Shakespearean-era explosion of the English language, derived from the Latin root gradi, meaning, poetically, step. An aggression is implicitly, it would seem, “taking the first step,” clearly of legal importance when considering who did what first in a violent incident. As any good courts journalist knows, one cannot consent to one’s own assault — and, more subtly, an assault can happen in law without actual contact. Both these aspects of aggression have implications for the anatomy of law and lived experience that Weisbord details: namely, the legal threshold for the commission of such an act.
Weisbord’s guide throughout the book is an elderly Hungarian-American Jewish litigator, a veteran of the Nuremberg trials, Benjamin Ferencz, still alive and no doubt working at the age of ninety-nine. Ferencz is an improbable but beguiling link to the grainy newsreel days when Schacht and Göring and Frank and Seyss-Inquart were in the dock in Nuremberg, in custody and arraigned before the International Military Tribunal. Ferencz, barely twenty-five at the time, was charged with prosecuting the Einsatzgruppen accused: the cohort of mass murderers, mainly “police units,” responsible for shooting millions of Jews in the Pale of Settlement, the Baltics, the Balkans, Poland, and the Soviet Union — this well before the niceties of the gas vans and industrial-scale gas chambers of Sobibor, Belzec, Treblinka, Auschwitz-Birkenau, and Majdanek. Ferencz is, simply, an original — a gift to a legal scholar. Weisbord makes the most of his gift.
Ferencz’s conversations with Weisbord are for all the marbles. Ferencz, whose son Daniel is also a distinguished legal scholar, is well aware of what he’s accomplished in his own life’s work since Nuremberg and knows how many of the chat-show rationalizings of the likes of National Security Adviser John Bolton are a hair’s breadth from criminality by the ICC standard. Ferencz made waves in 2006 when he, very publicly, called for the indictment of President George W. Bush, for initiating an act of war without the permission of the UN Security Council. What, Ferencz asked, distinguished Bush’s undeclared warmaking from Saddam Hussein’s in the eyes of the law? The ensuing silence was deafening. The same reaction greeted Ferencz’s condemnation of the extrajudicial killing of Osama bin Laden, which, he said, opened the door to assassination by decree, anywhere, anytime — and now the practice is a fact of life in the Middle East.
In Yiddish folklore, there’s a stock character called Moritz the Explainer; Ferencz is Weisbord’s extraordinary Moritz, entering and enlivening his narrative. The book opens with a deft reading of the manifold failures of the League of Nations and continues through Nuremberg, the Balkans, and the rise of technologies that distance complicity and agency — the drones, to which Weisbord and his colleagues have given much thought, particularly as their capabilities and ubiquity have given rise to “targeted assassinations” and more in Afghanistan, Pakistan, Yemen, and Syria.
Drones, easily made and programmed, perfect vehicles for guidance by artificial intelligence, are far from impossibly high-tech. Weisbord observes there may well come a day when “asymmetrical warfare” sees a “terrorist” drone with a nuclear warhead — a poor man’s ICBM — attempt horrific things. Whatever we invent, as many a past imperium has discovered, can and will be used against us by those sufficiently aggrieved to act.
Weisbord, himself a veteran of the Gacaca courts of post-genocide Rwanda and of the ICC itself, parses the law of aggression, whose formalization drew on Nuremberg and, much more recently, the Russian invasion of Crimea. As Weisbord drily relates, Vladimir Putin appealed to the rule of law — a fig leaf, given Russian permanent membership at the UN Security Council — while sending in the tanks and battle cruisers. Putin’s actions belied the legal gloss he sought: his was a war of aggression, pure and simple, its way paved by maskirovka, the disinformation strategies first perfected by the czarist Okhrana — the Imperial Russian secret political police — over a century ago.
The world did little to constrain Putin directly, save economic sanctions designed to pain his oligarch associates, even after the mid-air destruction of Malaysian airliner MH‑17 in 2014, which was caused by pro-Russian “separatists,” as a German investigation demonstrated. On Putin’s role in the cyberattacks and election hacks that enabled Donald Trump’s election, Weisbord writes: “The plain language of the definition of the crime of aggression limits its scope to ‘a person in a position effectively to exercise control over or to direct the political or military action of a State.’ ” That seventeen US intelligence agencies fingered Putin as the prime mover of the cyberattacks underscores Weisbord’s notion of the “postmodern criminal.”
The great powers, having survived the “forever war” of the global fight against terrorism, now seem poised to get down to business yet again, this time with networked weapons, both software and hardware. (Government-sponsored arms sales, which one might construe as a predicate to the crime of aggression, are little mentioned by Weisbord.) The proxies have been neutered, at least temporarily, perhaps — but what comes next, now that there’s a clear line of sight to the actual opponent?
By 2017, Weisbord explains, the ICC was in grave danger of irrelevance, on par with the League of Nations’ impotence when Hitler seized the Rhineland in 1936. Into this legal vacuum came a small group of lawyers who “designed the crime,” which applies to all those who wage aggressive war, with all the complexities of illegality committed at a distance, through a chain of command. The question of immunities is central: the troika of heads of state, heads of governments, and foreign ministers, who enjoy domestic immunity from domestic prosecution, would enjoy none from an international court, as the law has had it, if they initiate or participate in an act of aggression. This is the beating heart of the statute: What to do with a would-be autocrat — say a US president — should he order an act of aggression?
“The crucial decision to activate ICC jurisdiction over individuals for the crime of aggression was scheduled for December 2017,” Weisbord writes. But, at the last moment, six countries, including Canada, France, and the United Kingdom (the U.S. is conspicuous by its absence from the ICC), nearly stopped the process in its tracks, arguing that individuals from non-ratified states could not be prosecuted without UN resolutions.
This proposal, Weisbord relates, was a stalking horse: the “ratified” countries were seeking to insulate themselves from aggression investigations. Ferencz, relentless, advocated for domiciling aggression as a crime against humanity, at once expanding the ICC’s reach and rendering vulnerable “non-party” states — read Russia and the U.S. — that might attack states that had ratified the language of the crime of aggression.
“The ICC is dead to us,” quoth John Bolton. We shall see. Henry Kissinger, for one, isn’t free to travel wherever he wishes — Dick Cheney’s another, David Petraeus a third. But one doubts Kissinger is losing much sleep over imminent arrest for his alleged role in war crimes, crimes against humanity, and murders while he had carriage of U.S. foreign policy, from Cambodia to Chile.
Dateline: Warsaw, April 1993. I wouldn’t have missed the fiftieth anniversary of the Warsaw Ghetto Uprising for love nor money — Leon Uris’s Mila 18 was one of the formative readings of my Irish Catholic boyhood. I met Marek Edelman, the last of the living leaders of the Warsaw Ghetto fighters, in the media scrum at the end of the ceremonies. Frail and wise, with a leprechaun’s quick eye, he exchanged a few words with me; we’d been introduced by a Solidarity leader whom Edelman, still a practising cardiologist, had cared for while imprisoned under martial law in 1983.
I asked Edelman through my interpreter if he’d seen any evidence that mankind might not repeat, yet again, what the Jews of Warsaw had suffered. He blinked at me, deadpan, and hesitated — scanning the crowd, I thought — but then he spoke. “South, yes?” he asked, pointing in the correct direction, then nodding toward Belgrade. “Well, it’s happening again.” He raised his eyebrows to emphasize the brutal point as his minders whispered among themselves, readying his exit. Edelman disappeared into the respectful throng, toward the limousines.
Like Edelman, we know what we’re up against, unless we’re willfully blind. On a spring morning when the news features an American president musing in public about pardoning convicted U.S. war criminals basically for the hell of it, even as his national security adviser is baldly attempting to sabotage the rule of law for such crimes, one can still hope — and act. Barbarism is barbarism.