31 / 464
17
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.