Washington University Global Studies Law Review Volume 6 Issue 3 Symposium—Judgment at Nuremberg January 2007 Enabling the International Criminal Court to Punish Aggression Benjamin B. Ferencz Nuremberg International Military Tribunal Follow this and additional works at: https://openscholarship.wustl.edu/law_globalstudies Part of the Human Rights Law Commons, and the International Law Commons Recommended Citation Benjamin B. Ferencz, Enabling the International Criminal Court to Punish Aggression, 6 WASH. U. GLOBAL STUD. L. REV. 551 (2007), https://openscholarship.wustl.edu/law_globalstudies/vol6/iss3/7 This Symposium is brought to you for free and open access by the Law School at Washington University Open Scholarship. It has been accepted for inclusion in Washington University Global Studies Law Review by an authorized administrator of Washington University Open Scholarship. For more information, please contact [email protected]. ENABLING THE INTERNATIONAL CRIMINAL COURT TO PUNISH AGGRESSION BENJAMIN B. FERENCZ∗ According to Article Five of the Rome Statute, the International Criminal Court (ICC) cannot exercise its jurisdiction over the crime of aggression until amendments are adopted: (1) defining the crime; and (2) setting out the conditions, consistent with the United Nations (U.N.) Charter, under which the ICC is to act.1 This Essay analyzes the problems posed by these stipulated requirements, and suggests solutions to fulfill them. I. DEFINING THE CRIME OF AGGRESSION A. Brief Historical Review 1. The Nuremberg Precedents On August 8, 1945, after intensive negotiations, the victorious powers of World War II, “acting in the interests of all the United Nations,”2 drew up a constitution for an International Military Tribunal (IMT) “for the just and prompt trial and punishment of major war criminals of the European Axis.”3 The IMT Charter was endorsed by twenty-one nations with diverse systems of jurisprudence. The first offense within the Court’s jurisdiction was described as: Crimes against Peace: namely, planning, preparation, initiation or waging of wars 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.4 Justice Robert H. Jackson, on leave from the U.S. Supreme Court and designated by President Harry Truman to be Chief Prosecutor for the United States, was the principle architect of the trial. Influenced by the ∗ J.D. (1943), Harvard Law School; Former prosecutor at the Nuremberg war crimes trials; Contact information: [email protected]. For additional sources, see www.benferencz.org. 1. Rome Statute of the International Criminal Court art. 5, July 17, 1998, 2187 U.N.T.S. 90 [hereinafter Rome Statute]. 2. Charter of the International Military Tribunal pmbl., Aug. 8, 1945, 59 Stat. 1544, 82 U.N.T.S. 279. 3. Id. art. 1. 4. Id. art. 6. 551 Washington University Open Scholarship p 551 Ferenz book pages.doc10/29/2007 552 WASHINGTON UNIVERSITY GLOBAL STUDIES LAW REVIEW [VOL. 6:551 historical record and existing treaties such as the 1928 Kellogg Pact (outlawing the use of force), Jackson became convinced that “[n]o political, military or other considerations” excuse going to war.5 According to Jackson, “[w]hatever grievances a nation may have, . warfare is an illegal means for settling those grievances.”6 After debating several drafts, Jackson concluded that, rather than listing the several treaties prohibiting the use of force, it would be more expedient to leave it to judges to consult their sources. Professor Andre Gros, who represented France at the trial, noted that “there are plenty of documents in actual international law defining aggression.”7 The British, eager to avoid political debate, were hesitant. The Soviets argued that the side that fired the first shot should obviously be considered the aggressor and should be punished accordingly. The final text was the best compromise possible. In his opening statement to the IMT, Jackson emphasized: “We must never forget that the record on which we judge these defendants today is the record on which history will judge us tomorrow. To pass these defendants a poisoned chalice is to put it to our own lips as well.”8 In its final and comprehensive Judgment of October 1946, the Nuremburg Tribunal held that to initiate a war of aggression “is not only an international crime; it is the supreme international crime . It contains within itself the accumulated evil of the whole.”9 Rejecting the defense’s argument that it was applying ex post facto law, the Tribunal held that the IMT Charter was not an arbitrary exercise of power by victorious nations, but “the expression of international law existing at the time of its creation.”10 There was nothing unfair about not having a more precise definition of the crime of aggression; to allow the accused to remain immune would have been unfair. “Crimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international 5. Robert Jackson, Opening Statement for the Prosecution at Nuremburg (Nov. 21, 1945), available at http://www.yale.edu/lawweb/avalon/imt/proc/11-21-45.htm [hereinafter Jackson Opening Statement]. 6. Id. 7. Minutes of Conference Session of July 19, 1945, Int’l Conference on Military Trials, http://www.yale.edu.lawweb/Avalon/lmt/Jackson/jack37. 8. Jackson Opening Statement, supra note 5. 9. Judgment of the International Military Tribunal for the Trial of German Major War Criminals: The Nazi Regime in Germany, available at http://www.yale.edu/lawweb/avalon/imt/proc/ judnazi.htm#common. 10. Judgment of the International Military Tribunal for the Trial of German Major War Criminals: The Law of the Charter, available at http://www.yale.edu/lawweb/avalon/imt/proc/ judlawch.htm (last visited Oct. 19, 2007). https://openscholarship.wustl.edu/law_globalstudies/vol6/iss3/7 p 551 Ferenz book pages.doc10/29/2007 2007] ENABLING THE ICC TO PUNISH AGGRESSION 553 law be enforced.”11 Leading German officials were found guilty of planning and waging aggressive war against ten nations. Five of the twenty-two defendants were sentenced to death. Jackson reported to his President: “[A]t long last the law is now unequivocal in classifying armed aggression as an international crime instead of a national right.”12 The legal principles of the IMT Charter and Judgment—including the brief definition of aggression—became the foundation for later trials by the Allied Powers in Japan and other countries. The quadripartite Control Council Laws authorized several “subsequent proceedings.” These proceedings borrowed the IMT definition of Crimes against Peace, but inserted one additional illustration: “Initiation of invasions of other countries.”13 The 1946 Charter of the Military Tribunal for the Far East adopted the exact wording of the IMT Charter regarding aggression, adding only a clarifying clause explaining that a war of aggression could be “declared or undeclared.”14 The Tokyo Judgment of November 1948, which found the defendants guilty of the crime of aggressive war, conformed completely with the definitions laid down at Nuremberg. Nations were beginning to live up to Jackson’s hope that a firmer enforcement of the laws of international conduct would “make war less attractive to those who have governments and the destiny of peoples in their power.”15 2. The U.N. Searches for a Consensus Definition of Aggression At its first session, held on December 11, 1946, the General Assembly of the United Nations established Committees for the Progressive Development of International Law and its Codification, as required by the U.N. Charter. It also affirmed the principles of international law recognized by the IMT Charter and Judgment. As “a matter of primary 11. Id. 12. REPORT OF ROBERT H. JACKSON, U.S. REPRESENTATIVE TO THE INT’L CONFERENCE ON MILITARY TRIALS: LONDON, 1945, reprinted in CONFERENCE ON MILITARY TRIALS, DEPARTMENT OF STATE PUBLICATION 3080 (Government Printing Office) (1949), available at http://www.yale.edu/ lawweb/avalon/imt/jackson/jackson.htm. 13. Control Council Law No. 10, Punishment of Persons Guilty of War Crimes, Crimes Against Peace and Against Humanity art. 2, Dec. 20, 1945, 3 Official Gazette Control Council for Germany 50–55 (1946). 14. Charter of the International Military Tribunal for the Far East art. 5(a), Jan. 19, 1946, amended Apr. 26, 1946, TIAS No. 1589, 4 Bevans 20. 15. ROBERT JACKSON, REPORT TO THE PRESIDENT ON ATROCITIES AND WAR CRIMES, JUNE 7, 1945, reprinted in UNITED STATES DEPARTMENT OF STATE BULLETIN (Government Printing Office) (1945), available at http://www.yale.edu/lawweb/avalon/imt/jack01.htm. Washington University Open Scholarship p 551 Ferenz book pages.doc10/29/2007 554 WASHINGTON UNIVERSITY GLOBAL STUDIES LAW REVIEW [VOL. 6:551 importance,”16 the General Assembly called for the formulation of a general Code of Offenses against the Peace and Security of Mankind, or of an International Criminal Code, based on the precedent of Nuremberg. In addition, genocide, on any grounds, was affirmed as a crime under international law for which both principals and accomplices would be punishable. After considerable discussion by U.N. Delegates (but little progress), the dual problems of drafting the Criminal Code and creating the related Criminal Court were referred to an International Law Commission (ILC) composed of legal experts from different parts of the world. In 1950, the ILC formulated the Nuremberg Principles while noting the absence of a precise definition for a “war of aggression.” In 1952, a Special Committee on the Question of Defining Aggression was formed by the General Assembly. Until there was a definition, the Criminal Code would be incomplete, and without a Code, the Court could not function. Definition, Code, and Court were made dependent upon each other. The problems were interconnected, but opinions on how to resolve them remained sharply divided.