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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.