Here is some Panglossian hogwash that only makes sense against the totally unsupported epistemic and psychological assumptions that Thucydides rejects. Recall that the Thucydidean worldview is characterized by, inter alia, “(a) no presumption against the widespread prevalence of unsavory motivations [and] (b) no presumption that a life of knowledge and virtue is a good life”. Now turn to KJH’s cri de coeur (just about everything he writes is a cri de coeur).
1. As opposed to (a), we have KJH’s “it is no doubt true that war crimes and crimes against humanity are particularly likely to be committed in the context of an illegal war (see, e.g., Iraq).” His perfunctory effort to supply evidence serves only to show that he doesn’t really think evidence is needed. One explanation for this – and the “no doubt” – is that KJH is in the grips of an ideology that loads the dice in favor of this kind of implausible optimism. It is optimism because it implies that there is a definite, isolable, “criminal class” to which unsavory motives are restricted. The rest of us, those who don’t initiate illegal wars, are decent enough. It is implausible because, especially by KJH’s standards, America committed both war crimes (firebombing, Nagasaki and Hiroshima) and crimes against humanity (internment) during its most legitimate war.
2. As opposed to (b), KJH notices that a proposal for setting limits on the ICC’s jurisdiction over crimes of aggression implies that the ICC has jurisdiction if a State Party (A) to the Rome Statute who declines aggression-jurisdiction gets attacked by a State Party (B) who has not declined aggression-jurisdiction, but does not have jurisdiction if A attacks B. “If anyone can think of a principled rationale for such asymmetry, let me know.”
There is, of course, an obvious rational for the asymmetry: it is the only politically feasible proposal out there. There would be insufficient support for a regime that disallowed State Parties from opt-out of being prosecuted for aggression.
This rationale is obvious, so I assume KJH thought of it. It thus must not pass the test for counting as a principled rationale. Lurking here is a presumption that we should care about principled rationales – that these elegant constructs are relevant. In other words, that knowledge of “principled rationales” is good for us.
I express no opinion on the ICC or empowering it to try acts of aggression. As far as I’m concerned, it’s an open question whether both are good things. But, as a general rule, pro-ICC theoreticians do not persuade.