![RIAN archive 2251 Destroyed Stalingrad does not give up](https://upload.wikimedia.org/wikipedia/commons/6/60/RIAN_archive_2251_Destroyed_Stalingrad_does_not_give_up.jpg)
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
The Rome Statute of the International Criminal Court is the treaty that established the International Criminal Court (ICC). It was adopted at a diplomatic conference in Rome, Italy on 17 July 1998Michael P. Scharf (August 1998)''Results of the R ...
contains an exhaustive list of acts of aggression that can give rise to individual criminal responsibility, which include
invasion
An invasion is a military offensive in which large numbers of combatants of one geopolitical entity aggressively enter territory owned by another such entity, generally with the objective of either: conquering; liberating or re-establishing con ...
,
military occupation
Military occupation, also known as belligerent occupation or simply occupation, is the effective military control by a ruling power over a territory that is outside of that power's sovereign territory.Eyāl Benveniśtî. The international law ...
,
annexation
Annexation (Latin ''ad'', to, and ''nexus'', joining), in international law, is the forcible acquisition of one state's territory by another state, usually following military occupation of the territory. It is generally held to be an illegal act ...
by the use of force,
bombardment
A bombardment is an attack by artillery fire or by dropping bombs from aircraft on fortifications, combatants, or towns and buildings.
Prior to World War I, the term was only applied to the bombardment of defenseless or undefended objects, ...
, and military
blockade
A blockade is the act of actively preventing a country or region from receiving or sending out food, supplies, weapons, or communications, and sometimes people, by military force.
A blockade differs from an embargo or sanction, which are le ...
of ports. Aggression is generally a leadership crime that can only be committed by those with the power to shape a state's policy of aggression, rather than those who carry it out.
The philosophical basis for the wrongness of aggression is found in
just war theory
The just war theory ( la, bellum iustum) is a doctrine, also referred to as a tradition, of military ethics which is studied by military leaders, theologians, ethicists and policy makers. The purpose of the doctrine is to ensure that a war is m ...
, in which waging a
war without a just cause for self-defense is unjust. In the wake of the
German invasion of the Soviet Union
Operation Barbarossa (german: link=no, Unternehmen Barbarossa; ) was the invasion of the Soviet Union by Nazi Germany and many of its Axis allies, starting on Sunday, 22 June 1941, during the Second World War. The operation, code-named after ...
during
World War II
World War II or the Second World War, often abbreviated as WWII or WW2, was a world war that lasted from 1939 to 1945. It involved the vast majority of the world's countries—including all of the great powers—forming two opposin ...
, Soviet jurist
Aron Trainin made the first successful proposal to criminalize aggression. The
Charter of the International Military Tribunal
The Charter of the International Military Tribunal – Annex to the Agreement for the prosecution and punishment of the major war criminals of the European Axis (usually referred to as the Nuremberg Charter or London Charter) was the decree issue ...
provided criminal liability for waging aggressive war, which was the main focus of the
Nuremberg trial
The Nuremberg trials were held by the Allies against representatives of the defeated Nazi Germany, for plotting and carrying out invasions of other countries, and other crimes, in World War II.
Between 1939 and 1945, Nazi Germany invaded m ...
. Other participants in World War II were tried for aggression
in Finland, Poland, China, the
subsequent Nuremberg trials
The subsequent Nuremberg trials were a series of 12 military tribunals for war crimes against members of the leadership of Nazi Germany between December 1946 and April 1949. They followed the first and best-known Nuremberg trial before the Int ...
, and the
Tokyo trial
The International Military Tribunal for the Far East (IMTFE), also known as the Tokyo Trial or the Tokyo War Crimes Tribunal, was a military trial convened on April 29, 1946 to try leaders of the Empire of Japan for crimes against peace, conven ...
. No one has been prosecuted for aggression either before or since the 1940s.
It is generally accepted that the crime of aggression exists in
international customary law
Customary international law is an aspect of international law involving the principle of custom. Along with general principles of law and treaties, custom is considered by the International Court of Justice, jurists, the United Nations, and its ...
. The definitions and the conditions for the exercise of
jurisdiction
Jurisdiction (from Latin 'law' + 'declaration') is the legal term for the legal authority granted to a legal entity to enact justice. In federations like the United States, areas of jurisdiction apply to local, state, and federal levels.
Jur ...
over this crime by the
International Criminal Court
The International Criminal Court (ICC or ICCt) is an intergovernmental organization and international tribunal seated in The Hague, Netherlands. It is the first and only permanent international court with jurisdiction to prosecute individuals ...
were adopted in 2010 at the
Kampala Review Conference A Review Conference of the Rome Statute took place from 31 May to 11 June 2010, in Kampala, Uganda to consider amendments to the Rome Statute of the International Criminal Court. The Rome Statute established the International Criminal Court in 2002 ...
by the
states parties to the court. Aggression is criminalized according to the
statute law
Statutory law or statute law is written law passed by a body of legislature. This is opposed to Oral law, oral or customary law; or regulatory law promulgated by the Executive (government), executive or common law of the judiciary. Statutes may or ...
of some countries, and can be prosecuted under
universal jurisdiction
Universal jurisdiction is a legal principle that allows states or international organizations to claim criminal jurisdiction over an accused person regardless of where the alleged crime was committed, and regardless of the accused's nationality, ...
.
Aggression is one of the core crimes in
international criminal law
International criminal law (ICL) is a body of public international law designed to prohibit certain categories of conduct commonly viewed as serious atrocities and to make perpetrators of such conduct criminally accountable for their perpetrati ...
, alongside
genocide
Genocide is the intentional destruction of a people—usually defined as an ethnic, national, racial, or religious group—in whole or in part. Raphael Lemkin coined the term in 1944, combining the Greek word (, "race, people") with the Latin ...
,
crimes against humanity
Crimes against humanity are widespread or systemic acts committed by or on behalf of a ''de facto'' authority, usually a state, that grossly violate human rights. Unlike war crimes, crimes against humanity do not have to take place within the ...
, and
war crimes. In 1946, the
International Military Tribunal
International is an adjective (also used as a noun) meaning "between nations".
International may also refer to:
Music Albums
* ''International'' (Kevin Michael album), 2011
* ''International'' (New Order album), 2002
* ''International'' (The T ...
ruled that aggression was "the supreme international crime" because "it contains within itself the accumulated evil of the whole". 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
Warfare
War is an intense armed conflict between states, governments, societies, or paramilitary groups such as mercenaries, insurgents, and militias. It is generally characterized by extreme violence, destruction, and mortality, using regular ...
has been part of human experience since the beginning of human history. The criminalization of aggression is of recent origin, dating to after
World War II
World War II or the Second World War, often abbreviated as WWII or WW2, was a world war that lasted from 1939 to 1945. It involved the vast majority of the world's countries—including all of the great powers—forming two opposin ...
, but the idea of aggression as a grave moral transgression and violation of the
international order
In international relations, international order refers to patterned or structured relationships between actors on the international level.
Definition
David Lake, Lisa Martin and Thomas Risse define "order" as "patterned or structured relati ...
dates back much farther.
Just war theory
The just war theory ( la, bellum iustum) is a doctrine, also referred to as a tradition, of military ethics which is studied by military leaders, theologians, ethicists and policy makers. The purpose of the doctrine is to ensure that a war is m ...
, over the centuries, held that a war fought for territorial aggrandizement was unjust, and that just wars are fought only for self-defense or in defense of allies. The philosophical basis for the criminalization of aggression derives from eighteenth-century theorist
Emer de Vattel
Emer (Emmerich) de Vattel ( 25 April 171428 December 1767) was an international lawyer. He was born in Couvet in the Principality of Neuchâtel (now a canton part of Switzerland but part of Prussia at the time) in 1714 and died in 1767. He was l ...
, although Vattel did not envision formal trials for aggression, simply the execution of wrongdoers. Early modern just war theorists conceived aggression as the first wrong committed against another country, rather than the first military strike.
Hugo Grotius
Hugo Grotius (; 10 April 1583 – 28 August 1645), also known as Huig de Groot () and Hugo de Groot (), was a Dutch humanist, diplomat, lawyer, theologian, jurist, poet and playwright.
A teenage intellectual prodigy, he was born in Delft ...
, often considered the founder of
international law
International law (also known as public international law and the law of nations) is the set of rules, norms, and standards generally recognized as binding between states. It establishes normative guidelines and a common conceptual framework for ...
, saw the principle wrong in aggression in the violation of individual rights. In 1815,
Napoleon
Napoleon Bonaparte ; it, Napoleone Bonaparte, ; co, Napulione Buonaparte. (born Napoleone Buonaparte; 15 August 1769 – 5 May 1821), later known by his regnal name Napoleon I, was a French military commander and political leader who ...
was outlawed "as an Enemy and Disturber of the tranquillity of the World" in what was considered an "Exception to general rules of the
Law of Nations
International law (also known as public international law and the law of nations) is the set of rules, norms, and standards generally recognized as binding between states. It establishes normative guidelines and a common conceptual framework for ...
".
World War I and interwar
After
World War I
World War I (28 July 1914 11 November 1918), often abbreviated as WWI, was one of the deadliest global conflicts in history. Belligerents included much of Europe, the Russian Empire, the United States, and the Ottoman Empire, with fightin ...
, the prosecution of
Kaiser Wilhelm II
Wilhelm II (Friedrich Wilhelm Viktor Albert; 27 January 18594 June 1941) was the last German Emperor (german: Kaiser) and List of monarchs of Prussia, King of Prussia, reigning from 15 June 1888 until Abdication of Wilhelm II, his abdication on 9 ...
for aggression was proposed by the United Kingdom and France. In a speech on
11 November 1918, British prime minister
David Lloyd George
David Lloyd George, 1st Earl Lloyd-George of Dwyfor, (17 January 1863 – 26 March 1945) was Prime Minister of the United Kingdom from 1916 to 1922. He was a Liberal Party politician from Wales, known for leading the United Kingdom during t ...
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. The proposed prosecution met with disapproval from the judiciary and was rejected by the United States.
Instead, the
League of Nations
The League of Nations (french: link=no, Société des Nations ) was the first worldwide intergovernmental organisation whose principal mission was to maintain world peace. It was founded on 10 January 1920 by the Paris Peace Conference that ...
had the mandate of maintaining international peace. Interwar treaties criminalizing aggression were proposed but not ratified; there was no progress towards the criminalization of aggression. Aggressive war became progressively delegitimized, but was not considered illegal under
international customary law
Customary international law is an aspect of international law involving the principle of custom. Along with general principles of law and treaties, custom is considered by the International Court of Justice, jurists, the United Nations, and its ...
. Although the 1928
Kellogg–Briand Pact
The Kellogg–Briand Pact or Pact of Paris – officially the General Treaty for Renunciation of War as an Instrument of National Policy – is a 1928 international agreement on peace in which signatory states promised not to use war to ...
did not contain any suggestion that war was criminal, it was cited as a precedent for the prosecution of German and Japanese leaders for waging aggressive wars after World War II.
World War II
Invasions during
World War II
World War II or the Second World War, often abbreviated as WWII or WW2, was a world war that lasted from 1939 to 1945. It involved the vast majority of the world's countries—including all of the great powers—forming two opposin ...
led to new thinking on aggression.
Soviet
The Soviet Union,. officially the Union of Soviet Socialist Republics. (USSR),. was a List of former transcontinental countries#Since 1700, transcontinental country that spanned much of Eurasia from 1922 to 1991. A flagship communist state, ...
criminologist
Aron Naumovich Trainin developed the ideas that were used to criminalize aggressive war, although he did not attract international attention until 1943. Others making similar proposals included
Hersch Lauterpacht
Sir Hersch Lauterpacht (16 August 1897 – 8 May 1960) was a British international lawyer, human rights activist, and judge at the International Court of Justice.
Biography
Hersh Lauterpacht was born on 16 August 1897 to a Jewish family in t ...
,
Marcel de Baer, and . Trainin argued that although material and political responsibility rested with the state, criminal responsibility for aggressive war was vested in the individuals exercising authority. He blamed
Adolf Hitler
Adolf Hitler (; 20 April 188930 April 1945) was an Austrian-born German politician who was dictator of Nazi Germany, Germany from 1933 until Death of Adolf Hitler, his death in 1945. Adolf Hitler's rise to power, He rose to power as the le ...
,
his cabinet, government officials, the
Nazi Party
The Nazi Party, officially the National Socialist German Workers' Party (german: Nationalsozialistische Deutsche Arbeiterpartei or NSDAP), was a far-right politics, far-right political party in Germany active between 1920 and 1945 that crea ...
, and German industrialists for acts of aggression against the Soviet Union, which he described as "the most heinous crime". The
governments-in-exile
A government in exile (abbreviated as GiE) is a political group that claims to be a country or semi-sovereign state's legitimate government, but is unable to exercise legal power and instead resides in a foreign country. Governments in exile u ...
represented in the
London International Assembly
London is the capital and largest city of England and the United Kingdom, with a population of just under 9 million. It stands on the River Thames in south-east England at the head of a estuary down to the North Sea, and has been a major se ...
lobbied for a formal international tribunal with jurisdiction over acts of aggression. 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". At this time, the Soviet Union still perceived itself as vulnerable to international aggression, motivating its interest in criminalizing aggression.
Although there was not much in the way of
international criminal law
International criminal law (ICL) is a body of public international law designed to prohibit certain categories of conduct commonly viewed as serious atrocities and to make perpetrators of such conduct criminally accountable for their perpetrati ...
to work from, in ten months the
United States Department of War
The United States Department of War, also called the War Department (and occasionally War Office in the early years), was the United States Cabinet department originally responsible for the operation and maintenance of the United States Army, a ...
put together the legal framework for the
Nuremberg trials
The Nuremberg trials were held by the Allies of World War II, Allies against representatives of the defeated Nazi Germany, for plotting and carrying out invasions of other countries, and other crimes, in World War II.
Between 1939 and 1945 ...
. Some prominent United States policymakers thought that execution without trial compromised the principles of the Allies, and that formal trials before an international court would lend legitimacy. At the 1945
London Conference, the victorious
Allies
An alliance is a relationship among people, groups, or states that have joined together for mutual benefit or to achieve some common purpose, whether or not explicit agreement has been worked out among them. Members of an alliance are called ...
decided to criminalize aggression and try their vanquished enemies, although at the conference doubts were raised that wars of aggression were illegal under customary law. Both the Soviet Union, which invaded the Baltic States and Poland according to the secret protocols of the
German–Soviet pact, and Western countries that had
planned an invasion of Norway were aware that they could also be accused of acts of aggression, so they limited the definition of crimes against peace to the actions of their defeated enemies during World War II.
Case law
Almost all the trials for crimes against peace took place between November 1945 and November 1948, though in some cases such as
Romania
Romania ( ; ro, România ) is a country located at the crossroads of Central Europe, Central, Eastern Europe, Eastern, and Southeast Europe, Southeastern Europe. It borders Bulgaria to the south, Ukraine to the north, Hungary to the west, S ...
they extended into 1949; no one has been prosecuted for aggression before or since. The courts faced the challenge, first of proving the criminality of acts of aggression, and secondly in tying such acts to individuals.
War-responsibility trials in Finland
In 1939,
the Soviet Union invaded Finland, leading to a peace treaty on
unfavorable terms in 1940. In 1941,
Finland attacked the Soviet Union, retaking the ceded territory and occupying parts of the Soviet Union that had never been part of Finland. In 1944, the war turned against Finland, which signed
an armistice on even less favorable terms. The
Allied Control Commission
Following the termination of hostilities in World War II, the Allies were in control of the defeated Axis countries. Anticipating the defeat of Germany and Japan, they had already set up the European Advisory Commission and a proposed Far Easter ...
in Finland insisted on holding trials for aggression during the second war, as the armistice had required Finnish cooperation in trying those accused of war crimes. The law establishing the tribunal established criminal responsibility for those who "in a significant manner contributed in Finland's engagement in the war...or prevented peace" between 1941 and 1944. Eight men were tried; wartime president
Risto Ryti
Risto Heikki Ryti (; 3 February 1889 – 25 October 1956) served as the fifth president of Finland from 1940 to 1944. Ryti started his career as a politician in the field of economics and as a political background figure during the interwar perio ...
, six members of the cabinet, and the Finnish ambassador to Germany, but not any generals. Unlike other specifications of the crimes against peace, the Finnish trials charged those who joined the government after 1941 and rejected peace offers from the Soviet Union. Initially seven were convicted and the ambassador was acquitted; the judgement was revised to convict all the defendants with harsher penalties, up to ten years imprisonment with
hard labor. The convicts were treated leniently in prison and all were released by 1949.
International Military Tribunal
![Prosecutor_Robert_Jackson_at_Nuremberg_Trials](https://upload.wikimedia.org/wikipedia/commons/7/7f/Prosecutor_Robert_Jackson_at_Nuremberg_Trials.jpg)
The
Nuremberg Charter
The Charter of the International Military Tribunal – Annex to the Agreement for the prosecution and punishment of the major war criminals of the European Axis (usually referred to as the Nuremberg Charter or London Charter) was the decree issue ...
defined crimes against peace as
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." These words, originally written in a letter by British judge
Robert Wright, have been widely quoted. The judgement found that there was a premeditated conspiracy to commit crimes against peace, whose goals were "the disruption of the European order as it had existed since the
Treaty of Versailles
The Treaty of Versailles (french: Traité de Versailles; german: Versailler Vertrag, ) was the most important of the peace treaties of World War I. It ended the state of war between Germany and the Allied Powers. It was signed on 28 June ...
" and "the creation of a
Greater Germany
Pan-Germanism (german: Pangermanismus or '), also occasionally known as Pan-Germanicism, is a pan-nationalist political idea. Pan-Germanists originally sought to unify all the German-speaking people – and possibly also Germanic-speaking ...
beyond
the frontiers of 1914".
The planning of aggression was traced to Hitler's 1925 book ''
Mein Kampf
(; ''My Struggle'' or ''My Battle'') is a 1925 autobiographical manifesto by Nazi Party leader Adolf Hitler. The work describes the process by which Hitler became antisemitic and outlines his political ideology and future plans for Germ ...
'' and specific secret meetings held on
5 November 1937, 23 May 1939,
22 August 1939, and 23 November 1939. The court considered the planning of acts of aggression
against Austria and
Czechoslovakia
, rue, Чеськословеньско, , yi, טשעכאסלאוואקיי,
, common_name = Czechoslovakia
, life_span = 1918–19391945–1992
, p1 = Austria-Hungary
, image_p1 ...
, as well as wars of aggressions against
Poland
Poland, officially the Republic of Poland, is a country in Central Europe. It is divided into 16 administrative provinces called voivodeships, covering an area of . Poland has a population of over 38 million and is the fifth-most populous ...
,
Denmark and Norway,
Belgium
Belgium, ; french: Belgique ; german: Belgien officially the Kingdom of Belgium, is a country in Northwestern Europe. The country is bordered by the Netherlands to the north, Germany to the east, Luxembourg to the southeast, France to th ...
,
the Netherlands
)
, anthem = ( en, "William of Nassau")
, image_map =
, map_caption =
, subdivision_type = Sovereign state
, subdivision_name = Kingdom of the Netherlands
, established_title = Before independence
, established_date = Spanish Netherl ...
and
Luxembourg
Luxembourg ( ; lb, Lëtzebuerg ; french: link=no, Luxembourg; german: link=no, Luxemburg), officially the Grand Duchy of Luxembourg, ; french: link=no, Grand-Duché de Luxembourg ; german: link=no, Großherzogtum Luxemburg is a small lan ...
,
Yugoslavia
Yugoslavia (; sh-Latn-Cyrl, separator=" / ", Jugoslavija, Југославија ; sl, Jugoslavija ; mk, Југославија ;; rup, Iugoslavia; hu, Jugoszlávia; rue, label=Pannonian Rusyn, Югославия, translit=Juhoslavija ...
,
Greece
Greece,, or , romanized: ', officially the Hellenic Republic, is a country in Southeast Europe. It is situated on the southern tip of the Balkans, and is located at the crossroads of Europe, Asia, and Africa. Greece shares land borders with ...
, and
the Soviet Union
The Soviet Union,. officially the Union of Soviet Socialist Republics. (USSR),. was a transcontinental country that spanned much of Eurasia from 1922 to 1991. A flagship communist state, it was nominally a federal union of fifteen nationa ...
, as well as the
declaration of war on the United States and prior encouragement of
Japanese aggression against the United States. 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.
All 22 defendants were charged with crimes against peace, and 12 were convicted:
Hermann Göring
Hermann Wilhelm Göring (or Goering; ; 12 January 1893 – 15 October 1946) was a German politician, military leader and convicted war criminal. He was one of the most powerful figures in the Nazi Party, which ruled Germany from 1933 to 1 ...
,
Rudolf Hess
Rudolf Walter Richard Hess (Heß in German; 26 April 1894 – 17 August 1987) was a German politician and a leading member of the Nazi Party in Nazi Germany. Appointed Deputy Führer to Adolf Hitler in 1933, Hess held that position unt ...
,
Joachim von Ribbentrop
Ulrich Friedrich Wilhelm Joachim von Ribbentrop (; 30 April 1893 – 16 October 1946) was a German politician and diplomat who served as Minister of Foreign Affairs of Nazi Germany from 1938 to 1945.
Ribbentrop first came to Adolf Hitler's not ...
,
Wilhelm Keitel
Wilhelm Bodewin Johann Gustav Keitel (; 22 September 188216 October 1946) was a German field marshal and war criminal who held office as chief of the '' Oberkommando der Wehrmacht'' (OKW), the high command of Nazi Germany's Armed Forces, duri ...
,
Alfred Rosenberg
Alfred Ernst Rosenberg ( – 16 October 1946) was a Baltic German Nazi theorist and ideologue. Rosenberg was first introduced to Adolf Hitler by Dietrich Eckart and he held several important posts in the Nazi government. He was the head of ...
,
Wilhelm Frick
Wilhelm Frick (12 March 1877 – 16 October 1946) was a prominent German politician of the Nazi Party (NSDAP), who served as Reich Minister of the Interior in Adolf Hitler's cabinet from 1933 to 1943 and as the last governor of the Protectorate ...
,
Walther Funk
Walther Funk (18 August 1890 – 31 May 1960) was a German economist and Nazi official who served as Reich Minister for Economic Affairs (1938–1945) and president of Reichsbank (1939–1945). During his incumbency, he oversaw the mobili ...
,
Karl Dönitz
Karl Dönitz (sometimes spelled Doenitz; ; 16 September 1891 24 December 1980) was a German admiral who briefly succeeded Adolf Hitler as head of state in May 1945, holding the position until the dissolution of the Flensburg Government follo ...
,
Erich Raeder
Erich Johann Albert Raeder (24 April 1876 – 6 November 1960) was a German admiral who played a major role in the naval history of World War II. Raeder attained the highest possible naval rank, that of grand admiral, in 1939, becoming the fir ...
,
Alfred Jodl
Alfred Josef Ferdinand Jodl (; 10 May 1890 – 16 October 1946) was a German ''Generaloberst'' who served as the chief of the Operations Staff of the '' Oberkommando der Wehrmacht'' – the German Armed Forces High Command – throughout World ...
,
Arthur Seyss-Inquart
Arthur Seyss-Inquart (German: Seyß-Inquart, ; 22 July 1892 16 October 1946) was an Austrian Austrian National Socialism, Nazi politician who served as Chancellor of Austria in 1938 for two days before the ''Anschluss''. His positions in Nazi Ge ...
, and
Konstantin von Neurath
Konstantin Hermann Karl Freiherr von Neurath (2 February 1873 – 14 August 1956) was a German diplomat and Nazi war criminal who served as Foreign Minister of Germany between 1932 and 1938.
Born to a Swabian noble family, Neurath began his di ...
. The Nuremberg verdict was groundbreaking, establishing international criminal law and rejecting that
act of state doctrine
The act-of-state doctrine or federal act of state doctrine is a principle of federal common law in the United States which states, in circumstances where it applies, that courts in the United States will not rule on the validity of another governm ...
granted immunity for such serious crimes. The defendants were prosecuted even for acts that were legal under domestic law. 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.
Nuremberg Military Tribunals
![Theodor von Hornbostel testifies for the prosecution during the Ministries Trial](https://upload.wikimedia.org/wikipedia/commons/5/5b/Theodor_von_Hornbostel_testifies_for_the_prosecution_during_the_Ministries_Trial.jpg)
The
Nuremberg Military Tribunals
The subsequent Nuremberg trials were a series of 12 military tribunals for war crimes against members of the leadership of Nazi Germany between December 1946 and April 1949. They followed the first and best-known Nuremberg trial before the Inte ...
were based on
Law No. 10
Law is a set of rules that are created and are law enforcement, enforceable by social or governmental institutions to regulate behavior,Robertson, ''Crimes against humanity'', 90. with its precise definition a matter of longstanding debate. ...
, which defined aggression as follows:
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. Chief prosecutor
Telford Taylor
Telford Taylor (February 24, 1908 – May 23, 1998) was an American lawyer and professor. Taylor was known for his role as lead counsel in the prosecution of war criminals after World War II, his opposition to McCarthyism in the 1950s, and his o ...
was skeptical about prosecuting aggression, but ultimately charged defendants in four of the
subsequent Nuremberg trials
The subsequent Nuremberg trials were a series of 12 military tribunals for war crimes against members of the leadership of Nazi Germany between December 1946 and April 1949. They followed the first and best-known Nuremberg trial before the Int ...
: the
IG Farben trial
''The United States of America vs. Carl Krauch, et al.'', also known as the IG Farben Trial, was the sixth of the twelve trials for war crimes the U.S. authorities held in their occupation zone in Germany (Nuremberg) after the end of World War ...
,
Krupp trial,
High Command trial, and
Ministries trial
__NOTOC__
The Ministries Trial (or, officially, the ''United States of America vs. Ernst von Weizsäcker, et al.'') was the eleventh of the twelve trials for war crimes the U.S. authorities held in their occupation zone in Germany in Nuremberg af ...
. Of 66 defendants charged with aggression, only three were convicted (
Hans Lammers
Hans Heinrich Lammers (27 May 1879 – 4 January 1962) was a German jurist and prominent Nazi politician. From 1933 until 1945 he served as Chief of the Reich Chancellery under Adolf Hitler. During the 1948–1949 Ministries Trial, Lammers was f ...
,
Wilhelm Keppler
Wilhelm Karl Keppler (14 December 1882 – 13 June 1960) was a German businessman and one of Adolf Hitler's early financial backers. Introduced to Hitler by Heinrich Himmler, Keppler helped to finance the Nazi Party and later served as one of Hi ...
, and
Paul Koerner
Paul may refer to:
*Paul (given name), a given name (includes a list of people with that name)
*Paul (surname), a list of people
People
Christianity
*Paul the Apostle (AD c.5–c.64/65), also known as Saul of Tarsus or Saint Paul, early Chris ...
), all of them during the Ministries trial. 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
In criminal law, (; Law Latin for "guilty mind") is the mental element of a person's intention to commit a crime; or knowledge that one's action (or lack of action) would cause a crime to be committed. It is considered a necessary element ...
''".
International Military Tribunal for the Far East
The
Tokyo Charter
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 January ...
defined crimes against peace as
The charge of aggression was central to the trial; 36 out of 55 counts were for crimes against peace. The judgement in the Tokyo Trial was three times longer than the Nuremberg judgement, making it a valuable source of case law on aggression. The majority of the judges followed the Nuremberg interpretation of crimes against peace, but two judges—
Radhabinod Pal
Radhabinod Pal (27 January 1886 – 10 January 1967) was an Indian jurist who was a member of the United Nations' International Law Commission from 1952 to 1966. He was one of three Asian judges appointed to the International Military Tribunal ...
from India and
Bert Röling
Bernard Victor Aloysius "Bert" Röling (26 December 1906 – 16 March 1985) was a Dutch jurist and founding father of polemology in the Netherlands. Between 1946 and 1948 he acted as the Dutch representative for the International Military Tribu ...
of the Netherlands—dissented against the prosecution of crimes against peace. The prosecution used
conspiracy
A conspiracy, also known as a plot, is a secret plan or agreement between persons (called conspirers or conspirators) for an unlawful or harmful purpose, such as murder or treason, especially with political motivation, while keeping their agree ...
to file more charges as each member of a conspiracy was held responsible for all others acting in the same conspiracy. 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
ngdeclared 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." The conspiracy charges were partly successful as the judges accepted that there was a joint conspiracy to wage aggressive war from 1928 to 1945.
The judgement summarizes the rise of
Japanese militarism
refers to the ideology in the Empire of Japan which advocates the belief that militarism should dominate the political and social life of the nation, and the belief that the strength of the military is equal to the strength of a nation.
Histo ...
in the 1930s leading up to the
Conference of 11 August 1936
A conference is a meeting of two or more Expert, experts to discuss and exchange opinions or new information about a particular topic.
Conferences can be used as a form of group decision-making, although discussion, not always decisions, are the ...
in which an expansionist policy was decided. In 1937,
Japan invaded China and in 1938–1939 it prepared with war with the Soviet Union.
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". 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". At least 8 members of the wartime government of
Ion Antonescu
Ion Antonescu (; ; – 1 June 1946) was a Romanian military officer and marshal who presided over two successive wartime dictatorships as Prime Minister and ''Conducător'' during most of World War II.
A Romanian Army career officer who made ...
were sentenced in 1949 for crimes against peace, although
one of them was rehabilitated by the Romanian Supreme Court on 26 October 1998.
Other trials
Arthur Greiser
Arthur Karl Greiser (22 January 1897 – 21 July 1946) was a Nazi German politician, SS-''Obergruppenführer'', ''Gauleiter'' and ''Reichsstatthalter'' (Reich Governor) of the German-occupied territory of ''Wartheland''. He was one of the perso ...
, a Nazi leader in
Danzig and later
Gauleiter
A ''Gauleiter'' () was a regional leader of the Nazi Party (NSDAP) who served as the head of a ''Administrative divisions of Nazi Germany, Gau'' or ''Reichsgau''. ''Gauleiter'' was the third-highest Ranks and insignia of the Nazi Party, rank in ...
in the
Warthegau
The ''Reichsgau Wartheland'' (initially ''Reichsgau Posen'', also: ''Warthegau'') was a Nazi German ''Reichsgau'' formed from parts of Polish territory annexed in 1939 during World War II. It comprised the region of Greater Poland and adjacent ...
region annexed from Poland, was tried and convicted by a Polish court in 1946 for aggression among other charges. Historian
Catherine Epstein states that the evidence that Greiser had participated in a conspiracy to wage aggressive war is weak or nonexistent. According to
Mark A. Drumbl
Mark A. Drumbl is a scholar of international law and Class of 1975 Alumni Professor at Washington and Lee University School of Law.
Works
*
*
References
{{DEFAULTSORT:Drumbl, Mark A.
International law scholars
Living people
Washington and L ...
, he would probably not be convicted according to the
Rome Statute
The Rome Statute of the International Criminal Court is the treaty that established the International Criminal Court (ICC). It was adopted at a diplomatic conference in Rome, Italy on 17 July 1998Michael P. Scharf (August 1998)''Results of the R ...
definition of aggression.
In 1946, former Japanese general
Takashi Sakai
was a lieutenant general in the Imperial Japanese Army during World War II, known for his role as Governor of Hong Kong under Japanese occupation.
Biography
Sakai was born in Kamo District, Hiroshima, now part of Hiroshima city. He was educ ...
was tried by a Chinese court for aggression, convicted, and executed. 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.
Development in the United Nations
On 11 December 1946, the
United Nations General Assembly
The United Nations General Assembly (UNGA or GA; french: link=no, Assemblée générale, AG) is one of the six principal organs of the United Nations (UN), serving as the main deliberative, policymaking, and representative organ of the UN. Curr ...
passed a resolution affirming the criminality of "waging aggressive war" and stating that it was not just the aggression of the
Axis powers
The Axis powers, ; it, Potenze dell'Asse ; ja, 枢軸国 ''Sūjikukoku'', group=nb originally called the Rome–Berlin Axis, was a military coalition that initiated World War II and fought against the Allies. Its principal members were ...
that was a crime, but aggression in general. 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. After the 1940s, other crimes against international law, especially
genocide
Genocide is the intentional destruction of a people—usually defined as an ethnic, national, racial, or religious group—in whole or in part. Raphael Lemkin coined the term in 1944, combining the Greek word (, "race, people") with the Latin ...
and
crimes against humanity
Crimes against humanity are widespread or systemic acts committed by or on behalf of a ''de facto'' authority, usually a state, that grossly violate human rights. Unlike war crimes, crimes against humanity do not have to take place within the ...
, took priority over aggression.
Maintenance of international peace and stability is a major function of the international order, and the
Charter of the United Nations
The Charter of the United Nations (UN) is the foundational treaty of the UN, an intergovernmental organization. It establishes the purposes, governing structure, and overall framework of the UN system, including its six principal organs: the ...
prohibits acts of aggression against other states. The prohibition of aggression is considered a
peremptory norm
A peremptory norm (also called or ' ; Latin for "compelling law") is a fundamental principle of international law that is accepted by the international community of states as a norm from which no derogation is permitted.
There is no universal a ...
in customary law, such that it is binding on states that are not members of the United Nations. 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." "Force" refers to armed or military force, defined broadly: it can refer to conventional armies or irregular forces. Although not explicitly stated in the UN Charter, the conventional view is that only state actors can commit aggression. Although self-defense is an exception to the prohibition of force, claims of preventative and pre-emptive self-defense is largely rejected.
On 14 December 1974,
United Nations General Assembly Resolution 3314
United Nations General Assembly Resolution 3314 (XXIX) (Definition of Aggression) was adopted by the United Nations General Assembly on December 14, 1974 as a non-binding recommendation to the United Nations Security Council on the definition it ...
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. 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." It includes an incomplete list of acts of aggression and confirms that aggression are committed by one state against another, excluding non-state actors. The resolution also refers to "crime of aggression" and makes it clear that there is individual criminal liability for aggression.
Customary law
It is generally agreed by scholars of
international criminal law
International criminal law (ICL) is a body of public international law designed to prohibit certain categories of conduct commonly viewed as serious atrocities and to make perpetrators of such conduct criminally accountable for their perpetrati ...
that the crime of aggression is part of
international customary law
Customary international law is an aspect of international law involving the principle of custom. Along with general principles of law and treaties, custom is considered by the International Court of Justice, jurists, the United Nations, and its ...
, 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. According to
Antonio Cassese
Antonio Cassese (1 January 1937 – 21 October 2011) was an Italian jurist who specialized in public international law. He was the first President of the International Criminal Tribunal for the former Yugoslavia and the first President of the Sp ...
, 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". Gerhard Werle and Florian Jessberger argue that wars of aggression are criminalized under customary law, but not acts of aggression falling short of war. Others argue for a broader conception, including other acts of aggression that have broad-ranging and severe consequences.
Aggression requires both a ''
mens rea
In criminal law, (; Law Latin for "guilty mind") is the mental element of a person's intention to commit a crime; or knowledge that one's action (or lack of action) would cause a crime to be committed. It is considered a necessary element ...
'' and ''
actus reus
(), sometimes called the external element or the objective element of a crime, is the Law Latin term for the "guilty act" which, when proved beyond a reasonable doubt in combination with the ("guilty mind"), produces criminal liability in th ...
''. In terms of ''mens rea'', Israeli jurist
Yoram Dinstein
Yoram Dinstein (יורם דינשטיין; born January 2, 1936) is an Israeli scholar and Professor Emeritus at Tel Aviv University. He is a specialist on international law, and a prominent authority on the laws of war. He served as President of ...
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.
National law
After 1948, many states passed
statute law
Statutory law or statute law is written law passed by a body of legislature. This is opposed to Oral law, oral or customary law; or regulatory law promulgated by the Executive (government), executive or common law of the judiciary. Statutes may or ...
criminalizing aggression, with different variations in prohibited conduct. 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." Aggression can be tried under
universal jurisdiction
Universal jurisdiction is a legal principle that allows states or international organizations to claim criminal jurisdiction over an accused person regardless of where the alleged crime was committed, and regardless of the accused's nationality, ...
.
Rome Statute
In 1998, at the Rome Conference that adopted the
Rome Statute of the International Criminal Court
The Rome Statute of the International Criminal Court is the treaty that established the International Criminal Court (ICC). It was adopted at a diplomatic conference in Rome, Italy on 17 July 1998Michael P. Scharf (August 1998)''Results of the R ...
("the Statute"), the crime was included as one of the crimes within the jurisdiction of the Court (Article 5.1) and over which any State that becomes party to the Statute accepts the Court's jurisdiction (Article 12.1). However, participants to the Rome Conference could not agree on the definition of the crime nor on further conditions for the Court's exercise of jurisdiction; the Statute did not allow the Court to exercise such jurisdiction until these outstanding issues were solved (Article 5.2). At the 2010
Review Conference ("the Conference"), States Parties agreed by consensus to adopt resolution RC/Res.6 accepting the amendments to the Statute adding the definition of the crime and the conditions for the exercise of jurisdiction over this crime. Aggression is one of the core crimes in
international criminal law
International criminal law (ICL) is a body of public international law designed to prohibit certain categories of conduct commonly viewed as serious atrocities and to make perpetrators of such conduct criminally accountable for their perpetrati ...
, alongside
genocide
Genocide is the intentional destruction of a people—usually defined as an ethnic, national, racial, or religious group—in whole or in part. Raphael Lemkin coined the term in 1944, combining the Greek word (, "race, people") with the Latin ...
,
crimes against humanity
Crimes against humanity are widespread or systemic acts committed by or on behalf of a ''de facto'' authority, usually a state, that grossly violate human rights. Unlike war crimes, crimes against humanity do not have to take place within the ...
, and
war crimes.
Rome Statute definition of aggression
Under the Rome Statute, as amended in the 2010
Kampala Review Conference A Review Conference of the Rome Statute took place from 31 May to 11 June 2010, in Kampala, Uganda to consider amendments to the Rome Statute of the International Criminal Court. The Rome Statute established the International Criminal Court in 2002 ...
, 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".
The criminal prosecution of aggression is limited to the most serious acts of state aggression; non-state aggression, an even more disputed concept, is excluded. 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.
Thus, the crime of aggression is distinguished from the act of aggression, defined in the
Rome Statute
The Rome Statute of the International Criminal Court is the treaty that established the International Criminal Court (ICC). It was adopted at a diplomatic conference in Rome, Italy on 17 July 1998Michael P. Scharf (August 1998)''Results of the R ...
by the amendments of the 2010
Kampala Review Conference A Review Conference of the Rome Statute took place from 31 May to 11 June 2010, in Kampala, Uganda to consider amendments to the Rome Statute of the International Criminal Court. The Rome Statute established the International Criminal Court in 2002 ...
as follows:
The list of prohibited acts is exhaustive.
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
The United Nations Security Council (UNSC) is one of the six principal organs of the United Nations (UN) and is charged with ensuring international peace and security, recommending the admission of new UN members to the General Assembly, and ...
. 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. A prosecution by the ICC is unlikely because of the narrow scope of the crime and limited jurisdiction.
The ICC's jurisdiction over aggression was activated on 17 July 2018 after a decision by two-thirds of states parties. As of 17 March 2022, 43 State Parties have ratified or acceded to the amendments on the crime of aggression to the Rome Statute.
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". The standard view is that aggression is a crime against the state that is attacked. The Rome Statute definition of aggression does not technically require harm to individuals, but the relatively bloodless invasion of the
Czech lands
The Czech lands or the Bohemian lands ( cs, České země ) are the three historical regions of Bohemia, Moravia, and Czech Silesia. Together the three have formed the Czech part of Czechoslovakia since 1918, the Czech Socialist Republic since 1 ...
in 1939 was not prosecuted at Nuremberg. Some severe violations of state sovereignty (such as
foreign electoral interference
Foreign electoral interventions are attempts by governments, covertly or overtly, to influence elections in another country.
Academic studies Intervention measurements
Theoretical and empirical research on the effect of foreign electoral inte ...
aiming at
regime change
Regime change is the partly forcible or coercive replacement of one government regime with another. Regime change may replace all or part of the state's most critical leadership system, administrative apparatus, or bureaucracy. Regime change may ...
) are not criminalized as aggression, while lesser infringements involving military force can be criminalized. It is debatable whether prohibiting aggression protects state sovereignty or circumscribes it. Others see aggression as a crime primarily against individuals who are killed or harmed as a result of war.
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
Humanitarian intervention is the use or threat of military force by a state (or states) across borders with the intent of ending severe and widespread human rights violations in a state which has not given permission for the use of force. Humani ...
.
The traditional view is that only decision-makers can be held criminally responsible for aggression, rather than lower-level military personnel and ordinary soldiers. 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. 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. International law scholar
Tom Dannenbaum argues that soldiers should have a right not to fight in illegal wars, and those who refuse to should be recognized as refugees.
One controversial issue is whether waging aggressive war inherently violates the
right to life
The right to life is the belief that a being has the right to live and, in particular, should not be killed by another entity. The concept of a right to life arises in debates on issues including capital punishment, with some people seeing it as ...
guaranteed in
international human rights law
International human rights law (IHRL) is the body of international law designed to promote human rights on social, regional, and domestic levels. As a form of international law, international human rights law are primarily made up of treaties, ag ...
. In 2019, the
United Nations Human Rights Committee
The United Nations Human Rights Committee is a treaty body composed of 18 experts, established by a 1966 human rights treaty, the International Covenant on Civil and Political Rights (ICCPR). The Committee meets for three four-week sessions per y ...
ruled that "States parties engaged in acts of aggression as defined in international law, resulting in deprivation of life, violate ipso facto article 6
he right to lifeof the"
International Covenant on Civil and Political Rights
The International Covenant on Civil and Political Rights (ICCPR) is a multilateral treaty that commits nations to respect the civil and political rights of individuals, including the right to life, freedom of religion, freedom of speech, freedo ...
.
References
Sources
*
*
*
*
*
*
*
*
*
*
*
Further reading
*
*
*
*
*
*
External links
Resolution RC/Res.6- Amendments to the Rome Statute of the International Criminal Court on the crime of aggression
Review Conference- Official Site of the Assembly of States Parties
Crime of Aggression- Official Site of the Assembly of States Parties
*UN Treaty Collection (UTC) - Status of Acceptance, Ratification
*
10 .a Amendment to article 8 of the Rome Statute of the International Criminal Court*
10 .b Amendments on the crime of aggression to the Rome Statute of the International Criminal Court.
{{Authority control
Aggression
Aggression is overt or covert, often harmful, social interaction with the intention of inflicting damage or other harm upon another individual; although it can be channeled into creative and practical outlets for some. It may occur either reacti ...
Military law
International criminal law
State crime