Crime of aggression

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Crime against peace
)

Stalingrad
in ruins, December 1942

A crime of aggression or crime against peace is the planning, initiation, or execution of a large-scale and serious act of aggression using state military force. The definition and scope of the crime is controversial. The Rome Statute contains an exhaustive list of acts of aggression that can give rise to individual criminal responsibility, which include invasion, military occupation, annexation by the use of force, bombardment, and military blockade of ports. In general, committing an act of aggression is a leadership crime that can only be committed by those with the power to shape a state's policy of aggression, as opposed to those who discharge it.

The philosophical basis for the wrongness of aggression is found in

Tokyo trial
. No one has been prosecuted for aggression either before or since the 1940s.

It is generally accepted that the crime of aggression exists in

statute law of some countries, and can be prosecuted under universal jurisdiction
.

Aggression is one of the core crimes in

International Military Tribunal ruled that aggression was "the supreme international crime" because "it contains within itself the accumulated evil of the whole".[1]
The standard view is that aggression is a crime against the state that is attacked, but it can also be considered a crime against individuals who are killed or harmed as a result of war.

Background

Just war theory

Law of Nations".[9]

World War I and interwar

The loss of life and harms of war are cited as a reason for the illegality of aggression. Pictured: aerial view of the ruins of Vaux, France, 1918.

After

Wilhelm II for aggression was proposed by the United Kingdom and France.[10] In a speech on 11 November 1918, British Prime Minister David Lloyd George cited the loss of "the lives of millions of the best young men in Europe" and "the outrage upon international law which is involved in invading the territory of an independent country without its consent" as a crime for which someone should be held responsible.[11] The proposed prosecution met with disapproval from the judiciary[11] and was rejected by the United States.[10]

Instead, the

international customary law.[14] Although the 1928 Kellogg–Briand Pact did not contain any suggestion that war was criminal,[15] it was cited as a precedent for the prosecution of German and Japanese leaders for waging aggressive wars after World War II.[16]

World War II

Invasions during

governments-in-exile represented in the London International Assembly lobbied for a formal international tribunal with jurisdiction over acts of aggression.[20] In 1944, Trainin proposed that the Nazi leaders could be dealt with either with a tribunal or by "the political verdict of the victorious democratic States".[21] At the time, the Soviet Union still perceived itself as vulnerable to international aggression, which motivated its interest in criminalizing aggression.[22]

Although there was not much in the way of

German–Soviet pact, and Western countries, which had planned an invasion of Norway, were aware that they could also be accused of acts of aggression and so they limited the definition of crimes against peace to the actions of their defeated enemies during World War II.[25][26]

Case law

Almost all the trials for crimes against peace took place between November 1945 and November 1948,[27] though in some cases such as Romania they extended into 1949;[28] no one has been prosecuted for aggression before or since.[29] The courts faced the challenge, first of proving the criminality of acts of aggression, and secondly in tying such acts to individuals.[30]

War-responsibility trials in Finland

Main article: War-responsibility trials in Finland

In 1939,

hard labor.[37] The convicts were treated leniently in prison and all were released by 1949.[38]

International Military Tribunal

Chief prosecutor Robert H. Jackson (on the pulpit)

The

Nuremberg Charter defined crimes against peace as[39]

planning, preparation, initiation or waging of a war of aggression

, or a war in violation of international treaties, agreements or assurances, or participation in a common plan or conspiracy for the accomplishment of any of the foregoing.

The International Military Tribunal agreed with the prosecution that aggression was the gravest charge against the accused, stating in its judgement that because war in general is evil, "To initiate a war of aggression, therefore, is not only an international crime; it is the supreme international crime differing only from other war crimes in that it contains within itself the accumulated evil of the whole."

Greater Germany beyond the frontiers of 1914".[40]

The planning of aggression was traced to Hitler's 1925 book

Japanese aggression against the United States.[48] Although the court did not rule on acts of aggression short of war, it does not preclude the criminality of aggression for less large-scale actions than World War II.[49]

All 22 defendants were charged with crimes against peace, and 12 were convicted: Hermann Göring, Rudolf Hess, Joachim von Ribbentrop, Wilhelm Keitel, Alfred Rosenberg, Wilhelm Frick, Walther Funk, Karl Dönitz, Erich Raeder, Alfred Jodl, Arthur Seyss-Inquart, and Konstantin von Neurath.[41] The Nuremberg verdict was groundbreaking, establishing international criminal law and rejecting that act of state doctrine granted immunity for such serious crimes. The defendants were prosecuted even for acts that were legal under domestic law.[50] Opinion on the Nuremberg trials was divided. While some heralded it as a breakthrough in international law, crimes against peace specifically were subject to criticism as ex post facto law.[9][51]

Nuremberg Military Tribunals

Main article:
Nuremberg Military Tribunals
Ministries trial
, giving evidence for aggression

The

Nuremberg Military Tribunals were based on Law No. 10, which defined aggression as follows:[52]

Initiation of invasions of other countries and wars of aggression in violation of international laws and treaties, including but not limited to planning, preparation, initiation or waging a war of aggression, or a war of violation of international treaties, agreements or assurances, or participation in a common plan or conspiracy for the accomplishment of any of the foregoing.

The main Nuremberg trial only considered the conspiracy to commit crimes against peace against Austria and Czechoslovakia, ruling that these relatively bloodless invasions were not wars of aggression. The slightly different wording of the offense in Law No. 10 allowed the invasions of these countries to be counted as substantive crimes against peace, and ultimately two defendants were convicted for their role in these invasions.

Ministries trial.[52] Of 66 defendants charged with aggression, only three were convicted (Hans Lammers, Wilhelm Keppler, and Paul Koerner), all of them during the Ministries trial.[54] Nevertheless, the trials helped clarify the scope of aggression as a criminal offense, defining its four necessary elements as "a state act of aggression; sufficient authority to satisfy the leadership requirement; participation in the planning, preparing, initiating or waging of the aggressive act; and mens rea".[55]

International Military Tribunal for the Far East

Main article: International Military Tribunal for the Far East

The Tokyo Charter defined crimes against peace as[39]

the planning, preparation, initiation or waging of a declared or undeclared war of aggression, or a war in violation of international law, treaties, agreements or assurances, or participation in a common plan or conspiracy for the accomplishment of any of the foregoing.

The charge of aggression was central to the trial; 36 out of 55 counts were for crimes against peace.

conspiracy to file more charges as each member of a conspiracy was held responsible for all others acting in the same conspiracy.[59] All of the conspiracy charges related to crimes against peace alleged that the conspiracy sought to "secure military, naval, political and economic domination of East Asia and of the Pacific and Indian Oceans, and of all countries and islands therein and bordering thereon" by "wag[ing] declared or undeclared war or wars of aggression, and war or wars in violation of international law, treaties, agreements and assurances, against any country or countries which might oppose that purpose."[60] The conspiracy charges were partly successful as the judges accepted that there was a joint conspiracy to wage aggressive war from 1928 to 1945.[61]

The judgement summarizes the rise of Japanese militarism in the 1930s[62] leading up to the Conference of 11 August 1936 in which an expansionist policy was decided.[63] In 1937, Japan invaded China and in 1938–1939 it prepared for war with the Soviet Union.[64]

Romania

The 1947 treaty of peace with Romania obliged the country to apprehend and bring to trial people accused of "war crimes and crimes against peace and humanity".[65] Consequently, on 18 August 1947, Romania issued its "Law for the Prosecution and Punishment of Those Guilty of War Crimes or Crimes against Peace or Humanity".[66] At least 8 members of the wartime government of Ion Antonescu were sentenced in 1949 for crimes against peace, although one of them was rehabilitated by the Romanian Supreme Court on 26 October 1998. Another Romanian sentenced for crimes against peace - Gheron Netta, Ion Antonescu's last finance minister (1 April to 23 August, 1944) - was rehabilitated by the Supreme Court on 17 January 2000.[67][68]

Other trials

Warthegau region annexed from Poland, was tried and convicted by a Polish court in 1946 for aggression among other charges.[69] Historian Catherine Epstein states that the evidence that Greiser had participated in a conspiracy to wage aggressive war is weak or nonexistent.[70] According to Mark A. Drumbl, he would probably not be convicted according to the Rome Statute definition of aggression.[71]

In 1946, former Japanese general Takashi Sakai was tried by a Chinese court for aggression, convicted, and executed.[72] Sakai appears to have been responsible for carrying out policies designed by others, which would put him outside the Rome Statute definition of aggression. According to jurist Roger S. Clark, he probably would not have been convicted for crimes against peace if tried at the Tokyo trial.[73]

Development in the United Nations

On 11 December 1946, the United Nations General Assembly passed a resolution affirming the criminality of "waging aggressive war" and stating that it was not just the aggression of the Axis powers that was a crime, but aggression in general.[74] Crimes against peace, devised by the Allies as a temporary solution, soon exhausted their usefulness and were abandoned by 1950. In the early 1950s, attempts to codify the crime of aggression in a "Code of Offences Against the Peace and Security of Mankind" stalled.[51] After the 1940s, other crimes against international law, especially genocide and crimes against humanity, took priority over aggression.[7]

Maintenance of international peace and stability is a major function of the international order, and the Charter of the United Nations prohibits acts of aggression against other states. The prohibition of aggression is considered a peremptory norm in customary law, such that it is binding on states that are not members of the United Nations.[75] The most important provision in the UN Charter is 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."[76] "Force" refers to armed or military force, defined broadly: it can refer to conventional armies or irregular forces.[77] Although not explicitly stated in the UN Charter, the conventional view is that only state actors can commit aggression.[78] Although self-defense is an exception to the prohibition of force, claims of preventative and pre-emptive self-defense is largely rejected.[79]

On 14 December 1974, United Nations General Assembly Resolution 3314 elaborated on the prohibition of the use of force in the UN Charter. Although not legally binding, it influenced the Rome Statute's definition of aggression.[80] Resolution 3314 generally defines aggression 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, as set out in this Definition."[81] It includes an incomplete list of acts of aggression and confirms that aggression are committed by one state against another, excluding non-state actors.[82] The resolution also refers to "crime of aggression" and makes it clear that there is individual criminal liability for aggression.[81]

Customary law

It is generally agreed by scholars of

international customary law, but there is no agreement on the exact scope of aggression that is covered in customary law. This threshold is probably high, in order to distinguish criminal aggression from other acts of aggression.[83] According to Antonio Cassese, the customary criminalization of aggression covers "planning, or organizing, or preparing, or participating in the first use of armed force by a State against the territorial integrity and political independence of another State in contravention of the UN Charter, provided the acts of aggression concerned have large-scale and serious consequences".[84] Gerhard Werle and Florian Jessberger argue that wars of aggression are criminalized under customary law, but not acts of aggression falling short of war.[85] Others argue for a broader conception, including other acts of aggression that have broad-ranging and severe consequences.[86]

Aggression requires both a mens rea and actus reus.[87] In terms of mens rea, Israeli jurist Yoram Dinstein argues that aggression can only be committed by a few high state officials who decide to wage aggressive war, and any subordinates who know in advance that their plans will be used to wage an aggressive war. Other jurists require a special intent, in the form of seeking to "achieve territorial gains, or to obtain economic advantages, or to interfere with the internal affairs" of the state that is aggressed.[88]

National law

After 1948, many states passed

statute law criminalizing aggression,[89] with different variations in prohibited conduct.[90] Dinstein has argued that national prosecutions for aggression are undesirable as "the nature of crimes against peace is such that no domestic proceedings can conceivably dispel doubts regarding the impartiality of the judges."[90] Aggression can be tried under universal jurisdiction.[91]

Rome Statute

In 1998, at the Rome Conference that adopted the

war crimes.[93]

Rome Statute definition of aggression

Under the Rome Statute, as amended in the 2010 Kampala Review Conference, the crime of aggression "means the planning, preparation, initiation or execution, by a person in a position effectively to exercise control over or to direct the political or military action of a State, of an act of aggression which, by its character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations".[94][95] The criminal prosecution of aggression is limited to the most serious acts of state aggression;[96] non-state aggression, an even more disputed concept, is excluded.[97] The Rome Statute also restricts the crime of aggression to leaders of a state who have the power to determine a state's policy, excluding even high-ranking officials or generals who carry out a war of aggression.[96][98]

Thus, the crime of aggression is distinguished from the act of aggression, defined in the Rome Statute by the amendments of the 2010 Kampala Review Conference as follows:[94][95]

2. For the purpose of paragraph 1, "act of aggression" means the use of

political independence of another State, or in any other manner inconsistent with the Charter of the United Nations. Any of the following acts, regardless of a declaration of war, shall, in accordance with United Nations General Assembly resolution 3314
(XXIX) of 14 December 1974, qualify as an act of aggression:

(a) The
territory of another State, or any military occupation, however temporary, resulting from such invasion or attack, or any annexation by the use of force
of the territory of another State or part thereof;
(b)
weapons
by a State against the territory of another State;
(c) The
armed forces
of another State;
(d) An attack by the armed forces of a State on the land, sea or air forces, or marine and air fleets of another State;
(e) The use of armed forces of one State which are within the territory of another State with the agreement of the receiving State, in contravention of the conditions provided for in the agreement or any extension of their presence in such territory beyond the termination of the agreement;
(f) The action of a State in allowing its territory, which it has placed at the disposal of another State, to be used by that other State for perpetrating an act of aggression against a third State;
(g) The sending by or on behalf of a State of armed bands, groups, irregulars or
mercenaries, which carry out acts of armed force against another State of such gravity as to amount to the acts listed above, or its substantial involvement therein.
— Kampala Review Conference, 11 June 2010[94]

The list of prohibited acts is exhaustive.[99]

Jurisdiction

The International Criminal Court may only prosecute an act of aggression if the aggressing state has accepted its jurisdiction over the crime of aggression, or following a referral from the

Security Council.[100] Critics argue that the ICC should not prosecute aggression; a prominent criticism is that justified war is a political determination, and the involvement of a court in such a matter could compromise its legitimacy.[97] A prosecution by the ICC is unlikely because of the narrow scope of the crime and limited jurisdiction.[101]

The ICC's jurisdiction over aggression was activated on 17 July 2018 after a decision by two-thirds of states parties.[96] As of 17 March 2022, 43 State Parties have ratified or acceded to the amendments on the crime of aggression to the Rome Statute.[102]

State- versus human-rights-centric approaches to aggression

Wars of aggression entail "legally unjustified killing that is otherwise anomalously non-criminal at both the international and national levels: the killing of combatants and proportionate collateral civilians through a manifestly illegal use of international force".

foreign electoral interference aiming at regime change) are not criminalized as aggression, while lesser infringements involving military force can be criminalized.[107] It is debatable whether prohibiting aggression protects state sovereignty or circumscribes it.[103] Others see aggression as a crime primarily against individuals who are killed or harmed as a result of war.[8][104]

Philosopher Larry May maintains that serious aggressions, entailing loss of life, can be subsumed under the category of crimes against humanity. Conversely, a war cannot be justified by a minor violation of territorial integrity, and a violation of territorial integrity that does not involve serious human rights violations cannot be considered a criminal act of aggression. This conception of aggression could also allow for humanitarian intervention.[108]

The traditional view is that only decision-makers can be held criminally responsible for aggression, rather than lower-level military personnel and ordinary soldiers.[109] In recent times, however, there has been consideration as to whether soldiers who knowingly participate in a war of aggression incur moral or should incur legal liability.[110] Soldiers have a right and a responsibility to refuse to commit war crimes, but in general the right to refuse to fight an illegal war is not recognized.[111] International law scholar Tom Dannenbaum argues that soldiers should have a right not to fight in illegal wars, and those who refuse to do so should be recognized as refugees.[112]

One controversial issue is whether waging aggressive war inherently violates the right to life guaranteed in international human rights law. In 2019, the United Nations Human Rights Committee ruled that "States parties engaged in acts of aggression as defined in international law, resulting in deprivation of life, violate ipso facto article 6 [the right to life] of the" International Covenant on Civil and Political Rights.[113]

See also

References

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  113. ISBN 978-1-108-49478-6
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Sources

Further reading

External links
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