CYIL 2015

ALLA TYMOFEYEVA

CYIL 6 ȍ2015Ȏ

under Count Two, the tribunal named a number of the acts of aggression concerning

certain European states

without any delineation.

We will obtain no any further information regarding the specifics of the

crimes against peace in the notion of Article 6 of the Charter. The IMT or the

other international body did not elaborate any explanatory notes comparable to

the Elements of Crimes

of the International Criminal Court (hereinafter also

the ‘ICC’). Nevertheless, it is possible to derive them from the Judgment and the

Charter. If we have a look at the explanation given in the ICC’s Elements of Crimes

in respect of Article 8

bis

(crime of aggression), which could be called ‘modern’ crime

against peace, we may find some similarities. There are six main elements,

and the

first of them is actually identical to Count One of the indictment of the Trial. As to

the second element, there is a requirement of the status of the perpetrator allowing

him/her effectively to exercise control over the political or military action. The Trial

and documents related to it did not directly envisage this condition. However, its

title spoke of the major criminals, which can be understood as similar in position.

All the other elements of the crime of aggression deal with the Charter of the

United Nations. As far as the United Nations and the IMT were established almost

simultaneously, no reference to this document is found at the Judgment of the IMT’s

Charter. Nonetheless, the content of these elements has been known in the theory of

Acts under Count Two against Poland, 1 September 1939; against the United Kingdom and France,

3 September 1939; against Denmark and Norway, 9 April 1940; against Belgium, the Netherlands, and

Luxembourg, 10 May 1940; against Yugoslavia and Greece, 6 April 1941; against the U.S.S.R., 22 June

1941; and against the United States of America, 11 December 1941.

Nuremberg Trial Proceedings Vol. 1. Indictment: Count Two. URL:

<http://avalon.law.yale.edu/imt/

count2.asp> [cit. 2015-08-10].

The Elements of Crimes are reproduced from the Official Records of the Assembly of States Parties

to the Rome Statute of the International Criminal Court, First session, New York, 3-10 September

2002 (United Nations publication, Sales No. E.03.V.2 and corrigendum), part II.B. The Elements of

Crimes adopted at the 2010 Review Conference are replicated from the Official Records of the Review

Conference of the Rome Statute of the International Criminal Court, Kampala, 31 May – 11 June 2010

(International Criminal Court publication, RC/11).

Elements of the Crime of aggression (Article 8 bis):

1. The perpetrator planned, prepared, initiated or executed an act of aggression.

2. The perpetrator was a person in a position effectively to exercise control over or to direct the political

or military action of the State which committed the act of aggression.

3. The act of aggression – 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 – was committed.

4. The perpetrator was aware of the factual circumstances that established that such a use of armed force

was inconsistent with the Charter of the United Nations.

5. The act of aggression, by its character, gravity and scale, constituted a manifest violation of the

Charter of the United Nations.

6. The perpetrator was aware of the factual circumstances that established such a manifest violation of

the Charter of the United Nations.