CYIL 2015

VERONIKA BÍLKOVÁ

CYIL 6 ȍ2015Ȏ

is in fact logical provided that the four generally recognized international crimes

(aggression, genocide, crimes against humanity, war crimes) all belong among

“the

most serious crime of international concern”

(Article 1 of the Rome Statute), and it is

their concrete instances rather than the crimes as such that can be subject to any

meaningful comparison. Even then, the comparison – done for purposes other than

those of determining the sentence etc. – could be problematic, provided that various

forms of human evil are not easily commensurate with each other. Was starting

World War II more or less grave a crime than committing the holocaust or killing

hundreds of thousands of prisoners of war? This question has no clear answer and it

is in fact highly dubious whether it should be asked at all.

No plausible reasons exist why the crime of aggression should be considered

the supreme international crime. This, however, does not mean that this crime does

not reveal

certain particularities

that set it somewhat apart from other international

crimes. The main particularity relates to the inherently political nature of the crime

of aggression. This nature manifests itself in three ways. First, prosecution at the

individual level is linked to, and conditioned by, the determination of the responsibility

of the state. Under Article 8

bis

of the Rome Statute, the

crime

of aggression means the

planning, preparation, initiation or execution /…/ of an

act

of aggression. An act of

aggression is defined in accordance with the UN General Assembly Resolution 3314,

adopted in 1974, as

“the use of armed force by a State against the sovereignty, territorial

integrity or political independence of another State, or in any other manner inconsistent

with the Charter of the United Nations”.

No conviction for a crime of aggression can

therefore take place without the determination that an act of aggression in violation

of international law was committed by a state.

Secondly, the crime of aggression is more political than other international crimes

due to the fact that it often involves individuals in the highest positions of power.

The 2010 Kampala definition requires that the crime of aggression be committed by

“a person in a position effectively to exercise control over or to direct the political or military

action of a State”

(Article 8

bis

), thus limiting the circle of potential perpetrators of this

crime to the top leaders of a country (heads of states, chiefs of the general staff etc.). It

might be that this so called leadership clause is not an element of the definition of the

crime of aggression as such but simply a condition narrowing down the jurisdiction

of the ICC, provided that the Nuremberg Charter and also several national legal

orders condemn aggression without including the clause.

In the High Command

Case, the Nuremberg Tribunal explicitly held that

“anybody who is on the policy level

and participates in the war policy is liable to punishment”.

The same tribunal, however,

See Article 6(a) of the Nuremberg Charter; Section 498 (Crimes under International Law) in the US

Army’s Law of Land Warfare (Field Manual 27-10).

UNWCC,

Law Reports of

Trials of War Criminals,

Vol. XII. The High German Command Trial,

London, 1949, p. 69. See also HELLER, K. J.: Retreat from Nuremberg: The Leadership Requirement

in the Crime of Aggression,

European Journal of International Law,

2007, Vol. 18, No. 3, pp. 477-497.