A war of aggression is a military conflict waged without the justification of self-defense. Waging such a war of aggression is a war crime under the customary international law. It is generally agreed by scholars in international law that the military actions of the Nazi regime in World War II in its search for so-called "Lebensraum" are characteristic of a war of aggression.
Wars without international legality (e.g. not out of self-defense nor sanctioned by the United Nations Security Council) can be considered wars of aggression; however, this alone usually does not constitute the definition of a war of aggression; certain wars may be unlawful but not aggressive (a war to settle a boundary dispute where the initiator has a reasonable claim, and limited aims, is one example).
The International Military Tribunal at Nuremberg, which followed World War II, called the waging of aggressive war "essentially an evil thing...to initiate a war of aggression...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."[1] Article 39 of the United Nations Charter provides that the UN Security Council shall determine the existence of any act of aggression and "shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security".
The Rome Statute of the International Criminal Court refers to the crime of aggression as one of the “most serious crimes of concern to the international community”, and provides that the crime falls within the jurisdiction of the International Criminal Court (ICC). However, the Rome Statute stipulates that the ICC may not exercise its jurisdiction over the crime of aggression until such time as the states parties agree on a definition of the crime and set out the conditions under which it may be prosecuted.
Contents |
On July 3, 1933, the first convention that defined aggression was signed in London by representatives of Romania, Estonia, Latvia, Poland, Turkey, USSR, Iran and Afghanistan. It was initiated by Soviet Foreign Minister Maxim Litvinov in response to threats of use of force by the German government following Hitler's rise to power.[2] The government of Finland acceded to the convention on January 31, 1934. The convention defined an act of aggression as follows:
The convention became operative on October 16, 1933. It was registered in League of Nations Treaty Series on March 29, 1934.[3]
This convention served as the basis for further discussions on defining aggression.
Another convention repeating the same definition was signed on July 4, 1933 by representatives of the Soviet Union, Romania, Czechoslovakia, Turkey and Yugoslavia. It became effective on February 17, 1934 and was registered in League of Nations Treaty Series on April 26, 1934.[4]
A separate convention to the same effect was concluded between the governments of the Soviet Union and Lithuania, since the Lithuanian government refused to accede to any protocol on which the government of Poland was signed, since the Polish government kept the Vilna area which was a disputed region between Poland and Lithuania, and Lithuanian authorities treated Polish rule over Vilna as a military occupation of its constitutional capital. The separate Soviet-Lithuanian convention was signed on July 5, 1933. Ratifications were exchanged in Moscow on December 14, 1933, and the convention went into effect on the same day. It was registered in League of Nations Treaty Series on April 16, 1934.[5] It repeated the definitions of the previous conventions.
The League prerogative under that convention to expel a League member found guilty of aggression was used by the League Assembly only once, against the Soviet government itself, on December 14, 1939, following the Soviet invasion of Finland.[6] [7]
In 1945, the London Charter of the International Military Tribunal defined three categories of crimes, including crimes against peace. This definition was first used by Finland to prosecute the political leadership in the war-responsibility trials in Finland. The principles were later known as the Nuremberg Principles.
In 1950, the Nuremberg Tribunal defined Crimes against Peace, in Principle 6, specifically Principle VI(a), submitted to the United Nations General Assembly, as:[8][9]
See: Nuremberg Trials: "The legal basis for the jurisdiction of the court was that defined by the Instrument of Surrender of Germany, political authority for Germany had been transferred to the Allied Control Council, which having sovereign power over Germany could choose to punish violations of international law and the laws of war. Because the court was limited to violations of the laws of war, it did not have jurisdiction over crimes that took place before the outbreak of war on September 1, 1939."
For committing this crime, the Nuremberg Tribunal sentenced a number of persons responsible for starting World War II. One consequence of this is that nations who are starting an armed conflict must now argue that they are either exercising the right of self-defense, the right of collective defense, or - it seems - the enforcement of the criminal law of jus cogens. It has made formal declaration of war uncommon after 1945.
During the trial, the chief American prosecutor, Robert H. Jackson, stated:
Associate Supreme Court Justice William O. Douglas charged that the Allies were guilty of "substituting power for principle" at Nuremberg. "I thought at the time and still think that the Nuremberg trials were unprincipled.", he wrote. "Law was created ex post facto to suit the passion and clamor of the time."[10]
The relevant provisions of the Charter of the United Nations mentioned in the RSICC article 5.2 were framed to include the Nuremberg Principles. The specific principle is Principle VI.a "Crimes against peace", which was based on the provisions of the London Charter of the International Military Tribunal that was issued in 1945 and formed the basis for the post World War II war crime trials. The Charters provisions based on the Nuremberg Principle VI.a are:
On December 14, 1974, the United Nations General Assembly adopted Resolution 3314, which defined the crime of aggression. This definition is not binding under international law, but it is often cited in opposition to military actions.
This definition makes a distinction between aggression (which "gives rise to international responsibility") and war of aggression (which is "a crime against international peace"). Acts of aggression are defined as armed invasions or attacks, bombardments, blockades, armed violations of territory, permitting other states to use one's own territory to perpetrate acts of aggression and the employment of armed irregulars or mercenaries to carry out acts of aggression. A war of aggression is a series of acts committed with a sustained intent. The definition's distinction between an act of aggression and a war of aggression make it clear that not every act of aggression would constitute a crime against peace; only war of aggression does. States would nonetheless be held responsible for acts of aggression.
The wording of the definition has been criticised by many commentators. Its clauses on the use of armed irregulars are notably vague, as it is unclear what level of "involvement" would entail state responsibility. It is also highly state-centric, in that it deems states to be the only actors liable for acts of aggression. Domestic or transnational insurgent groups, such as those that took part in the Sierra Leone Civil War and the Yugoslav Wars, were key players in their respective conflicts despite being non-state parties; they would not have come within the scope of the definition.
The Definition of Aggression also does not cover acts by international organisations. The two key military alliances at the time of the definition's adoption, NATO and the Warsaw Pact, were non-state parties and thus were outside the scope of the definition.[12] Moreover, the definition does not deal with the responsibilities of individuals for acts of aggression. It is widely perceived as an insufficient basis on which to ground individual criminal prosecutions.[13]
Although this Definition of Aggression has often been cited by opponents of conflicts such as the 1999 Kosovo War and the 2003 Iraq War, it has no binding force in international law. The doctrine of Nulla poena sine lege means that, in the absence of binding international law on the subject of aggression, no penalty exists for committing acts in contravention of the definition. It is only recently that heads of state have been indicted over acts committed in wartime, in the cases of Slobodan Milošević of Serbia and Charles Taylor of Liberia. However, both were charged with war crimes, i.e. violations of the laws of war, rather than with the broader offence of "a crime against international peace" as envisaged by the Definition of Aggression.
The definition is not binding on the Security Council. The United Nations Charter empowers the General Assembly to make recommendations to the United Nations Security Council but the Assembly may not dictate to the Council. The resolution accompanying the definition states that it is intended to provide guidance to the Security Council to aid it "in determining, in accordance with the Charter, the existence of an act of aggression".[14] The Security Council may apply or disregard this guidance as it sees fit. Legal commentators argue that the Definition of Aggression has had "no visible impact" on the deliberations of the Security Council.[15]
The Rome Statute of the International Criminal Court lists the crime of aggression as one of the most serious crimes of concern to the international community, and provides that the crime falls within the jurisdiction of the International Criminal Court (ICC).
However, Article 5.2 of the Rome Statute states that "The Court shall exercise jurisdiction over the crime of aggression once a provision is adopted in accordance with articles 121 and 123 defining the crime and setting out the conditions under which the Court shall exercise jurisdiction with respect to this crime. Such a provision shall be consistent with the relevant provisions of the Charter of the United Nations."[16] The Assembly of States Parties of the ICC adopted such a definition at a review conference in May 2010.[17]
A United Nations factsheet on the ICC states:
List of reference documents (alphabetical by author):
|
|||||||||||||||||