chapter 7 Mens Rea and the of Aggression

7.1 Introduction

With the establishment of the Nuremberg Tribunal individuals for the first time could incur criminal responsibility for against , the prede- cessor of the icc , which is one of the four core crimes in the Rome Statute. Since the cessation of the Second World trials, no crimi- nal prosecutions for the crime of aggression have taken place.1 Criminal in- tent is a constitutive element of the crime of aggression. The Judgments of the Nuremberg and Tokyo Tribunals delineated the contours of the requisite level of mens rea for the crime of aggression. These judgments, as well as the judg- ments of the subsequent conducted under Control Council Law No. 10, were attributive to the legislative developments that have resulted in the criminalization of aggression in the Rome Statute, as well as in several national .2 This chapter discerns the mens rea element for aggression. Before delving into this topic, the predecessor of the crime of aggression is analyzed. During the Nuremberg trials, individuals could incur criminal responsibility for acts of aggression of the state. At that time, this novelty was challenged by defense counsels in their pleadings. Before turning to these issues, the crimes against peace and accompanying levels of mens rea at the International Tri- bunal (imt) will be discussed.

7.2 Mens Rea for Crimes against Peace at the imt

Prior to discerning what the mens rea prerequisites for the newly established crime of aggression are, it is instructive to assess the mens rea concept for the predecessor of said crime (i.e. crimes against peace). Crimes against peace were defined in Article 6 of the imt Charter as:

1 Sergey Sayapin, The Crime of Aggression in International . Historical Develop- ment, Comparative Analysis and Present State (The Hague: Asser Press, 2014), 200. 2 Ibid.

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mens rea and the crime of aggression 149

the planning, preparation, initiation or waging of a , 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.

In order to incur criminal responsibility for crimes against peace within the context of the Nuremberg trial, the accused’s criminal intent could either be derived from his active participation in the preparation or execution of the plan to wage an aggressive war, or, from the accused’s knowledge of the plan and the fact that he took some sort of action in furtherance of the implementation of the plan. Two categories of crimes against peace could be derived from the imt Charter, which were reflected in the first two counts of the imt-indictment:

1. Participation in a common plan or conspiracy for the accomplishment of “any of the foregoing”; or 2. The planning, preparation, initiation or waging of a war of aggression, or a war in violation of international treaties, agreements or assurances.3

The imt did not elaborate at length on the extent to which the aggressive were also “in violation of international treaties, agreements or assurances”, as all Germany’s wars, from the attack on Poland onwards, were found to be “ag- gressive wars”.4 Examining whether these aggressive wars also violated inter- national treaties would thus have been superfluous.5 Yet, such examination would have illuminated some important questions that could arise before the icc if a present-day prosecution for the crime of aggression takes place. What if, for example, the un Security Council determines that an act of aggression took place and refers the situation to the icc, are the judges imbued with dis- cretion to deviate from this conclusion or is this already a fait accompli? Are ag- gressive wars distinct from violations of international treaties, and, if so, what are the distinguishing factors? The mens rea test for crimes against peace was whether the accused had knowledge of the plan to wage an aggressive war. If the accused did not possess such knowledge, regardless of his actions or even contribution to the “plan”, he could not incur criminal responsibility for crimes against peace. This is

3 Article 6 imt Charter; Indictment of the International Military Tribunal; count 3 and 4 were respectively war crimes and . 4 – General Assembly, The charter and judgment of the Nürnberg Tribunal. His- tory and Analysis (New York, 1949), 50. 5 Ibid.