CYIL 2015

VERONIKA BÍLKOVÁ CYIL 6 ȍ2015Ȏ is in fact logical provided that the four generally recognized international crimes (aggression, genocide, crimes against humanity, war crimes) all belong among “the most serious crime of international concern” (Article 1 of the Rome Statute), and it is their concrete instances rather than the crimes as such that can be subject to any meaningful comparison. Even then, the comparison – done for purposes other than those of determining the sentence etc. – could be problematic, provided that various forms of human evil are not easily commensurate with each other. Was starting World War II more or less grave a crime than committing the holocaust or killing hundreds of thousands of prisoners of war? This question has no clear answer and it is in fact highly dubious whether it should be asked at all. No plausible reasons exist why the crime of aggression should be considered the supreme international crime. This, however, does not mean that this crime does not reveal certain particularities that set it somewhat apart from other international crimes. The main particularity relates to the inherently political nature of the crime of aggression. This nature manifests itself in three ways. First, prosecution at the individual level is linked to, and conditioned by, the determination of the responsibility of the state. Under Article 8 bis of the Rome Statute, the crime of aggression means the planning, preparation, initiation or execution /…/ of an act of aggression. An act of aggression is defined in accordance with the UN General Assembly Resolution 3314, adopted in 1974, 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”. No conviction for a crime of aggression can therefore take place without the determination that an act of aggression in violation of international law was committed by a state. Secondly, the crime of aggression is more political than other international crimes due to the fact that it often involves individuals in the highest positions of power. The 2010 Kampala definition requires that the crime of aggression be committed by “a person in a position effectively to exercise control over or to direct the political or military action of a State” (Article 8 bis ), thus limiting the circle of potential perpetrators of this crime to the top leaders of a country (heads of states, chiefs of the general staff etc.). It might be that this so called leadership clause is not an element of the definition of the crime of aggression as such but simply a condition narrowing down the jurisdiction of the ICC, provided that the Nuremberg Charter and also several national legal orders condemn aggression without including the clause. 93 In the High Command Case, the Nuremberg Tribunal explicitly held that “anybody who is on the policy level and participates in the war policy is liable to punishment”. 94 The same tribunal, however, 93 See Article 6(a) of the Nuremberg Charter; Section 498 (Crimes under International Law) in the US Army’s Law of Land Warfare (Field Manual 27-10). 94 UNWCC, Law Reports of Trials of War Criminals, Vol. XII. The High German Command Trial, London, 1949, p. 69. See also HELLER, K. J.: Retreat from Nuremberg: The Leadership Requirement in the Crime of Aggression, European Journal of International Law, 2007, Vol. 18, No. 3, pp. 477-497.

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