CYIL Vol. 6, 2015

AGGRESSION ȃ THE SUPREME INTERNATIONAL CRIME OR NOT A CRIME AT ALL? include the prohibitions of aggression, genocide, slavery, racial discrimination, crimes against humanity and torture, and the right to self-determination”. 64 The prohibition of aggression gives rise to obligations erga omnes, in whose protection all States can be deemed to have a legal interest, as the International Court of Justice confirmed in the Barcelona Traction Case. 65 Most of the instruments which have been quoted in this subsection focus on the act of aggression, as an act of state. The question therefore arises whether the rule prohibiting aggression applies solely to states or whether it entails individual criminal responsibility as well. The objection arose already in the context of the post-WWII trials. In responding to the general claimof the defense that international law is concerned with the actions of sovereign states and provides no punishment for individuals, the Nuremberg Tribunal held that “crimes against International Law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of International Law be enforced” . 66 It further added that “that International Law imposes duties and liabilities upon individuals as well as upon States has long been recognized”. 67 In another famous dictum, the Tribunal noted that “the Charter is not an arbitrary exercise of power on the part of the victorious nations, but /…/ it is the expression of International Law existing at the time of its creation; and to that extent is itself a contribution to International Law”. 68 Dealing specifically with crimes against peace, the Nuremberg Tribunal observed that to prosecute individuals responsible for these crimes was both just and lawful. It was just because “to assert that it is unjust to punish those who in defiance of treaties and assurances have attacked neighbouring States without warning is obviously untrue, for in such circumstances the attacker must know that he is doing wrong, and so far from it being unjust to punish him, it would be unjust if his wrong were allowed to go unpunished”. 69 It was lawful, because “the solemn renunciation of war as an instrument of national policy necessarily involves the proposition that such a war is illegal in International Law; and /…/ those who plan and wage such a war, with its inevitable and terrible consequences, are committing a crime in so doing”. 70 This view was challenged by legal experts, including Carl Schmitt, William O. Douglas or Charles E. Wyzanski. All of them claimed that there was no rule on individual criminal responsibility in international

64 Ibid., p. 85 (commentary to Article 26). 65 ICJ, Barcelona Traction, Light and Power Company, Limited (Belgium v. Spain), Judgment, 5 February 1970, par. 33-34. 66 International Military Tribunal (Nuremberg), Judgment, op. cit., p. 447.

67 Ibid., p. 446. 68 Ibid., p. 444. 69 Ibid . 70 Ibid., p. 445.

17