AD‐MMTO 0‐1 AIP DE MEXICO
5. COMPARACIÓN ENTRE LO NECESARIO Y LO REQUERIDO
The judgment at Nuremberg, and the subsequent judgments at Tokyo and other tribunals, affirmed the criminalisation of aggression and the individual liability attached to this international crime. In order to assess the legal developments post-Nuremberg, it is necessary to briefly contextualize the collective security regime that emerged in the wake of the Second World War, and as identified in Chapters 1 and 2 above.
The provisions of the UN Charter on the use of force do not in themselves criminalise aggression, but they do reflect the development of principles that already took shape in the last part of the Second World War and in the immediate post-Second World War era. This must be viewed in light of the general prohibition of the use of force - jus contra bellum - that developed after the First World War. But these provisions also reflect a deliberate attempt away from the constraints or anomalies of the League of Nations era. Thus, while the Charter of the League of Nations prohibited resort to ‘war’, the UN Charter prohibits the ‘threat or use of force against the territorial integrity or political independence of any state’378.
While the UN Charter in this respect provides for a more realistic legal regime in the context of the use of force by states, the Charter provisions can be criticised when considering the strides made at Nuremberg to criminalise international aggression. The problem seems to lie in the fact that Article 2(4), read with Article 39 of the UN Charter, does not contain a definition or explanation of the elements of aggression. It is essentially left to the political processes at the Security Council where the existence of acts of aggression, threats to peace and breaches of peace are determined379. Cherif Bassiouni and Benjamin Ferencz described the problem as follows:
‘The text of Article 39 left the term “aggression” undefined and gave equal weight to the “threat to the peace, breach of the peace, or act of aggression.” It was hoped that Article 2(4) would satisfactorily prohibit a use of force unless it was “consistent with the purposes of the United Nations.” Should a “threat to the peace, breach of the peace, or act of aggression” take place, it is left in the hands of the Security Council to determine its existence and what sanctions should be used to end it. When the Charter was drafted, it was felt that (1) no definition of aggression could be established that could cover every possible case and (2) it was best to let the Security Council decide what had happened and what actions to take. Both reasons fall short of their objective.’380
While it is true that the UN Charter contains this apparent weakness because of the lack of any definition of aggression, one should also be mindful of the historical processes that led to the drafting of the Charter. Regarding aggression, it is clear that the Charter could never be a codification of the law as it was interpreted and developed at Nuremberg and the subsequent trials. The drafting of the Charter was 379 See discussion of Ch VII powers of the SC in Ch 1 par 1.4.2 supra.
380 M Cherif Bassiouni and Benjamin B Ferencz ‘The crime against peace’ in Cherif Bassiouni International
of course a process quite independent from the conferences that lead to the Nuremberg and Tokyo Charters. The judicial processes at Nuremberg and the other post-Second World War trials (all of which were completed after the adoption of the UN Charter in 1945) were furthermore linked to the particular political situation at the end of the war and the dynamics of the peace settlement in Europe and eventually the Far East. The trials can in a certain respect be regarded as ‘victor’s justice’, set in a particular political context.381
Having said the above, it is also clear that the international community had the desire to preserve the legacy of Nuremberg, if not in terms of a permanent international criminal court than at least suggestive of the desire to create such an institution with jurisdiction to hold individuals accountable for crimes under international law. Thus, the General Assembly of the UN adopted a number of resolutions aimed at consolidating and preserving the principles of individual criminal liability for certain international crimes.382
The International Law Commission (ILC)383, established in terms of Article 13 of the UN Charter, acted on a request by the General Assembly to ‘formulate the principles of international law recognized in the Charter of the Nürnberg Tribunal and in the Judgment of the Tribunal’.384 The Nuremberg Principles385 were adopted
381 See comments on ‘victors’ justice’ by Christine Van den Wyngaert Ch 3 par 3.4 supra.
382 See Herman von Hebel ‘An International Criminal Court – A historical perspective’ in Herman von Hebel,
Johan Lammers and Jolien Schukking (eds) Reflections on the International Criminal Court – Essays in Honour
of Adriaan Bos (1999) TMC Asser Press, The Hague, 22 – 23.
383 The ILC was established in 1947 in terms of Art 13 of the UN Charter. The first session of the ILC opened on
12 April 1949. For an historical overview of the ILC, see Sir Arthur Watts The International Law Commission
1949 – 1998 Vol I (1999) Oxford University Press, Oxford, 1 – 20.
384 GA Res 177 (II), of 21 Nov 1947. See also Arthur Watts (International Law Commission Vol III) (supra) 1657. 385 Nuremberg Principles, Geneva, 19 Jul 1950, UNGAOR, 5th Session, Supp No 12, UN Doc A/1316 (1950),
in 1950, and were, generally speaking, more than just an attempt to preserve the jurisprudential legacy of Nuremberg.386 In many ways the work of the ILC in this regard served as an impetus to keep many of the ideals of international criminal law alive; most important of which was the ideal of a permanent International Criminal Court with jurisdiction over the core international crimes.387 Principle VI
provides as follows:
‘The crimes hereinafter set out are punishable as crimes under international law: (a) Crimes Against Peace:
(i) Planning, preparation, initiation or waging of a war of aggression or a war in violation of international treaties, agreements or assurances; (ii) Participation in a common plan or conspiracy for the accomplishment
of any of the acts mentioned under (i).
(b) War Crimes: Violations of the laws or customs of war which include, but are not limited to, murder, ill-treatment or deportation to slave labour of for any other purpose of civilian population of or in occupied territory, murder or ill-treatment or prisoners of war, of persons on the seas, killing of hostages, plunder of public or private property, wanton destruction of cities, towns, or villages, or devastation not justified by military necessity.
(c) Crimes Against Humanity: Murder, extermination, enslavement, deportation and other inhuman acts done against any civilian population, or persecutions on political, racial or religious grounds, when such acts are done or such persecutions are carried on in execution of or in connection with any crime against peace or any war crime.’
386 For a discussion of the impact of the Nuremberg Principles in various domestic legal contexts (mainly in
American jurisprudence), see Gary Komarow ‘Individual responsibility under International law: The Nuremberg Principles in Domestic legal systems’ 29(1) ICLQ (1980) 21 – 37.
The ILC neither analysed nor commented in much detail on the Principles crystallised from the Charter and judgment of the Nuremberg Tribunal. The ILC confirmed that, as far as the crime of aggression was concerned, the IMT at Nuremberg could not rely on any definition in the Nuremberg Charter, and the IMT also did not provide its own definition of ‘aggression’ or ‘war of aggression’. The ILC noted the following:
‘It was by reviewing the historical events before and during the war that it [the Nuremberg Tribunal] found that certain of the defendants planned and waged aggressive wars against twelve nations and were therefore guilty of a series of crimes.’388
One important clarification that the ILC included in their commentary on the Nuremberg Principles, was on the meaning of the words ‘waging of a war of aggression’. It was noted that some members of the ILC regarded this to extend criminal liability for ‘waging’ a war of aggression to all persons (in uniform) who fought in the war in question. However, the ILC interpreted the judgment at Nuremberg to limit responsibility for ‘waging’ a war of aggression to senior military officers and personnel and senior State officials.389
The language of Principle VI (a) affirms (with some measure of clarification) the criminality of international aggression, but does not provide for a definition of aggression. The desirability of an international criminal code and/or court with jurisdiction over aggression was thus clear. To affirm the jurisprudential legacy of Nuremberg was not enough; a clear definition of aggression (which could be applied beyond the political settlement of the Second World War) was needed,
388 Arthur Watts (International Law Commission Vol III (supra) 1665. 389 Arthur Watts (International Law Commission Vol III) (supra) 1665.
together with a tribunal to enforce this aspect of international criminal law. With the formulation of the Nuremberg Principles the ILC completed the first important part of the comprehensive project to preserve the legacy of Nuremberg. The second leg of this important project was to make the principles more concrete and relevant for future generations. Thus, a first draft Code of Offences against the Peace and Security of Mankind was finalised in 1954. Following on that, a number of further draft Codes were authored between 1954 and 1996. Sir Arthur Watts noted that one can in this regard distinguish between two phases, namely the draft Codes of the period 1947 to 1954; and the period 1982 to 1996.390 It is clear, however, that the Nuremberg Principles were the foundational work from which the ILC draft codes cannot be separated.391
4.2.2 Building on the Nuremberg Principles: The further work of the