CYIL Vol. 6, 2015

VERONIKA BÍLKOVÁ

CYIL 6 ȍ2015Ȏ

1. Introduction Since the establishment of the post-WWII military tribunals, the crime of aggression has regularly featured among serious international crimes giving rise to individual criminal responsibility. For at least as long a period of time, this qualification has been virulently contested by those who believe that aggression, though certainly not condonable, fails to meet some, if not all, of the requirements making an act into an international crime. This paper sides with the first view arguing that, while the crime of aggression might exhibit certain particularities when compared to other international crimes, this does not, at the current stage of the development of international criminal law, prevent it from qualifying as one of those crimes. At the same time, there is no sound reason why the crime of aggression should be considered the supreme international crime, in the famous dictum of the Nuremberg Tribunal, provided that international crimes do not stand in any hierarchical order. 2. Is Aggression an International Crime? – Positions There is quite a bit of support at the international scene in favor of the view that aggression counts as an international crime. This qualification appears in international instruments and is backed by scholarly writings. It is true that the sources are not always easy to interpret. This is largely due to the fact that the terminology lacks uniformity. As Bassiouni rightly notes, “the literature contains various /…/ terms, such as crimes under international law, international crimes, international crimes largo sensu, international crimes stricto sensu , transnational crimes, international delicts , jus cogens crimes, jus cogens international crimes, and even a further subdivision of international crimes referred to as “core crimes” /…/”. 1 The terms, moreover, remain often undefined in the sources, stirring doubts as to whether they refer to the same concept or not. It is nonetheless interesting to note that whatever the term used, the category denoted by it mostly includes aggression. This rule however is not without exceptions. There are dissenters both among States and among scholars who, for various reasons, contest that aggression could qualify as an international crime. 2.1 Yes, Aggression Is An International Crime Since the mid-20 th century, various international instruments have qualified the crime of aggression or, in the original term, crimes against peace, as an international crime. The first instrument to do so was the Charter of the Nuremberg International Military Tribunal adopted on 8 August 1945 as an annex to the London Agreement concluded by the Allied powers. The Charter lists three “crimes /…/ for which there shall be individual responsibility” (Article 6). Among them, besides war crimes and 1 BASSIOUNI, M. Ch.: International Crimes: The Ratione Materie of International Criminal Law, in BASSIOUNI, M. Ch. (ed.): International Criminal Law, Vol. I – Sources, Subjects, and Contents, Third Edition, Martinus Nijhoff Publishers, Leiden, 2008 , p. 133.

6