CYIL 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

and that they were crimes of utmost gravity.

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.”

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”.

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”.

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”

In 1950, the

ILC adopted a set of such principles.

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

Twelve defendants were found guilty of crimes against peace by the Nuremberg Tribunal and 23 by the

Tokyo Tribunal.