Collateral Damage from Criminalizing Aggression? Lawfare through aggression accusations in the Nagorno Karabakh conflict

Abstract

The regulation of war through the prohibition and criminalization of the act of aggression has provided a common legal language for denouncing an opponent for committing aggressive war that is used between warring sides and is understood globally. Nevertheless, due to the indeterminate nature of aggression, different actors may invoke different interpretations and conceptual frameworks related to the legality of war to accuse the other of aggression. This article asserts that the notion of aggression can be used as a weapon of lawfare because the laws of war can be interpreted differently by different actors. The article explores how this is done by analyzing the Nagorno Karabakh conflict as a case study. A deconstruction of both sides’ arguments where they accuse each other of committing aggressive war shows that even though both sides speak the same ‘language’ of law, they rely on contradictory underlying assumptions, both in their internal argumentative structure as well as between both sides’ legal argumentations. The article furthermore asserts that, strengthened by the criminalization of aggression, the indeterminacy of the notion of aggression provides conflicting parties with another weapon to battle with, and another battlefield to fight on. Despite its aim to monopolize and prevent war, the regulation of war and criminalization of aggression thereby provides new ways to continue a conflict, allows law to be used as a strategic tool of lawfare, and creates false presumptions of the ability of law to resolve fundamental disagreement.