CYIL Vol. 6, 2015

AGGRESSION ȃ THE SUPREME INTERNATIONAL CRIME OR NOT A CRIME AT ALL? crimes against humanity, are crimes against peace. These are to consist in “planning, preparation, initiation or waging of a war of aggression, or a war in violation of international treaties, agreements or assurances, or participation in a common plan or conspiracy for the accomplishment of any of the foregoing” (Article 6(a)). A similar formulation was included in the Charter of the Tokyo International Military Tribunal, adopted on 19 January 1946. The sole difference related to the underlying act of aggression, which was defined as “a declared or undeclared war of aggression, or a war in violation of international law, treaties, agreements or assurances” (Article 5(a)). In its jurisprudence, the two international military tribunals repeatedly confirmed that crimes against peace were committed by the major German and Japanese criminals 2 and that they were crimes of utmost gravity. 3 In its main judgment, the Nuremberg Tribunal held: “To initiate a war of aggression, /…/ is not only an international crime; it is the supreme international crime differing only from other war crimes in that it contains within itself the accumulated evil of the whole.” 4 Responding to the argument put forward by the defence that crimes against peace could not give rise to individual criminal responsibility, the Tokyo Tribunal asserted that “aggressive war had been a crime at international law long prior to the date of the Declaration of Potsdam”. 5 Following on this case-law, one of the tribunals established under Control Council Law No. 10 for the prosecution of German war criminals other than the major ones prosecuted in Nuremberg, stated that the aggression against Norway “was without lawful justification or excuse and is a crime under international law”. 6 In 1946, the UN General Assembly asked the newly established UN International Law Commission (hereafter the ILC) to formulate “the principles recognized in the Charter of the Nurnberg Tribunal and in the judgment of the Tribunal” . 7 In 1950, the ILC adopted a set of such principles. 8 Principle I confirms that “any person who commits an act which constitutes a crime under international law is responsible therefor and liable to punishment”. The list of such crimes, included in Principle VI, begins with crimes against peace, which are defined identically as in the Nuremberg Charter. In its comment to Principle VI, the ILC referred to the judgment of the Nuremberg 2 Twelve defendants were found guilty of crimes against peace by the Nuremberg Tribunal and 23 by the Tokyo Tribunal. 3 See also SELLARS, K.: ‘Crimes against Peace’ and International Law, Cambridge University Press, Cambridge, 2013. 4 Cit. in Historical Review of Developments relating to Aggression, United Nations, New York, 2003, p. 8. 5 Ibid., p. 170. 6 Ibid., p. 108. 7 UN Doc. A/RES/1/95, Affirmation of the Principles of International Law recognized by the Charter of the Nurnberg Tribunal, 11 December 1946. 8 UN Doc. A/1316, Report of the International Law Commission Covering its Second Session, 5 June-29 July 1950 , July 1950, pp. 374-378.

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