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ČESTMÍR ČEPELKA CYIL 7 ȍ2016Ȏ
a decree, although issued by the Occupying Power;25 only Judges and Prosecutors
were international.26
The generalization of the post-war trial is contained only in the text of the
provision dedicated to the satisfaction (Art. 45) of the Draft articles on state
responsibility adopted by the ILC on its first reading in 1996.27 The final version of
2001 mentions the punishment of guilty individuals only in the commentary to the
provision of satisfaction (Art. 37).28
4. Relevant provisions concerning aggression in the UN Charter
The prohibition on having recourse to force is the single peremptory norm that has
a written form of presentation, that in Article 2(4) of the United Nations Charter.29
And it is this Charter that specifies legal consequences in case of a breach of the rule
in question, namely according to its Chapter VII (Action with respect to threats to
the peace, breaches of the peace, and acts of aggression).30 However, two exceptions
were made: firstly, individual or collective self-defense by states involving the use of
force is authorized by Article 51 of the Charter and, secondly, the use of force can
be authorized by the UN Security Council as under Article 42 of the UN Charter.
25 See The International Military Tribunal for the Far
East Charter (IMTFE Charter), also known as the Tokyo Charter, was the decree issued by General
Douglas MacArthur, Supreme Commander for the Allied Powers in Allied-occupied Japan, on 19
January 1946 that set down the laws and procedures by which the Tokyo Trials were to be conducted.
Modeled after the Nuremberg Charter. Also in Germany on December 20, 1945, the Control Council
for Germany enacted Law No. 10 to establish a “uniform legal basis in Germany for the prosecution
of war criminals and other similar offenders other than those dealt with by the International Military
Tribunal” (Subsequent Nuremberg Proceedings).
26 See
27 Report of the International Law Commission on the work of its forty-eighth session 1996, A/51/10,
Draft articles on state responsibility with commentaries thereto adopted by the international law
commission on first reading Article 45 Satisfaction (…) (d) in cases where the internationally wrongful
act arose from the serious misconduct of officials or from criminal conduct of officials or private parties,
disciplinary action against, or punishment of, those responsible.
28 Report of the ILC on the work of the fifty-third session (2001), Chapter IV: STATE RESPONSIBILITY,
p. 106, para 5: “(…) The appropriate form of satisfaction will depend on the circumstances and cannot
be prescribed in advance. Many possibilities exist, including (…) penal action against the individuals
whose conduct caused the internationally wrongful act”.
29 Article 2 (4) – “All Members shall refrain in their international relations from the threat or use of
force against the territorial integrity or political independence of any state, or in any other manner
inconsistent with the Purposes of the United Nations.”
30 According to this Chapter the Security Council may even accede to military actions as follows
from subsequent wording of Article 42: “Should the Security Council consider that measures (not
involving the use of armed forces) provided for in Article 41 would be inadequate or have proved to
be inadequate, it may take such action by air, sea, or land forces as may be necessary to maintain or
restore international peace and security. Such action may include demonstrations, blockade, and other
operations by air, sea, or land forces of Members of the United Nations”.