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VERONIKA BÍLKOVÁ
CYIL 6 ȍ2015Ȏ
be viewed as a
“paradigmatic crime”
not only with respect to States
24
but also at the
individual level.
2.2 No, Aggression Is Not An International Crime
The cohort of those who are not persuaded that aggression should qualify as
an international crime is, however, quite numerous too. It includes several States
as well as various scholars. Disagreements with the criminalization of aggression
made themselves heard already at the time at the
post-WWII trials.
The Tokyo
Tribunal in its judgment listed four main arguments that the defense raised against
the jurisdiction of the Tribunal over crimes against peace. The arguments postulated
that: the Allied Powers had no authority to include in the Charter and designate as
justiciable crimes against peace; aggressive war was not per se illegal; war was the act
of a nation for which there is no individual responsibility under international law;
and the provisions of the Charter were “
ex post facto
” legislation and therefore illegal.
25
The Tribunal rejected all these grounds by referring to the Nuremberg judgment
which stated that
“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
that those who plan and wage such a war, with its inevitable and terrible consequences,
are committing a crime in so doing”.
26
Yet, the doubts about the inclusion of crimes against peace into the Charters of
the two military tribunals were shared by various scholars including some of those
coming from the Allied countries. Thus, during the drafting of the Nuremberg
Charter, the French expert André Gros noted:
“When you say that a state which
launches a war has committed a crime, you do not imply that the members of that state
are criminals.”
27
The imposition of individual criminal responsibility for crimes
against peace in his view might be morally and politically desirable, but it was
“not
international law”.
28
This view was echoed by the US-based lawyer Franz Schick,
who stated that
“
de lege ferenda,
the judgment of the International Military Tribunal,
according to which recourse to illegal war constitutes the commission of a crime for which
its perpetrators are individually responsible, is of far-reaching importance.
De lege lata,
the judgment does not correspond with the rules of general international law”.
29
In a
24
Aggression was labelled as
“the paradigmatic crime of State”
by the Special Rapporteur James Crawford
on the responsibility of States for internationally wrongful acts. Cit. in MCGOLDRICK, D.,
ROWE, P. J., DONNELLY, E.:
The Permanent International Criminal Court: Legal and Policy Issues.
Hart Publishing, Oxford, 2004, p. 112.
25
Cit. in
Historical Review of Developments relating to Aggression, op. cit.,
p. 170.
26
International Military Tribunal (Nuremberg),
Judgment of 1 October 1946,
p. 445.
27
DraftArticleonDefinitionof“Crimes”,SubmittedbyFrenchDelegation, July 19, 1945, in JACKSON, R.H.:
Report of the United States Representative to the International Conference on Military Trials,
1945, p. 293.
28
Ibid.,
p. 297
29
SCHICK, F. R.: Crimes against Peace,
Journal of Criminal Law and Criminology,
1947-1948, Vol. 38,
No. 5, p. 456.