CYIL vol. 12 (2021)

CYIL 12 (2021) THE NUREMBERG PRINCIPLES AS THE BASIS OF INTERNATIONAL CRIMINAL Law disclosure obligation from the Office of the Prosecutor also includes disclosure of evidence showing innocence and mitigating factors, 87 and the right to silence not only in relation to the position of the accused, 88 not forgetting that the trial has to be conducted in a language that is not only understood but also spoken by the accused. 89 The fifth Nuremberg principle is probably the most elaborated principle if compared to the Rome Statute framework. The spirit of this principle is the same, to apply the rule of law in cases of individuals that are suspected or accused for having committed the most serious crimes under international law. Nevertheless, as for the fair trial requirements, the absolute innovatory approach within the Rome Statute is not the enrichment of art. 14 of the ICCPR but particularity of the rights of victims, namely their participation in the proceedings. 90 3.6 Crimes under International Law The sixth principle is as for the word count the longest one in the list of the principles formulated by the Commission and the list and definitions of crimes under international law are included in the longest Article of the Charter. Similarly, the longest Article of the Rome Statute is devoted to war crimes. However, given limited scope of this article, this principle is presented only by pointing out schematic differences between definitions of core crimes in the Charter and their subsequent formulation in the document prepared by the Commission, and in the Statute. First of all, the most controversial crime within both the Charter and the Statute: the crime of aggression. 91 As for the Charter, its definition is repeated by the Commission in its formulation of Nuremberg principles and is based on the reasoning that when an act is considered illegal by international law (the so-called Briand-Kellog Pact outlawed war as an instrument of national policy), those who plan, initiate, or wage that conduct, commit a crime and must be criminally responsible for crimes against peace. 92 Controversies concerning this crime under international law also remained during the Rome Conference and created a situation when plenipotentiaries were not able to agree on a definition of the crime of aggression and conditions of the Court jurisdiction in this case. 93 Most discrepancies were overcome during the Review Conference in Kampala where finally, despite all sorts of exceptions and conditions, a definition of the crime of aggression was adopted. If compared to the Nuremberg crime against peace, it is a much longer definition, and moreover, more constraints were set out to the ICC jurisdiction than expected before Kampala. 94 90 See art. 68 of the Rome Statute on protection of the victims and witnesses and their participation in the proceedings. See further e. g. CIORCIARI, J.D., HEINDEL, A., Victim Testimony in International and Hybrid Criminal Courts: Narrative Opportunities, Challenges, and Fair Trial Demands, in Virginia Journal of International Law , 2016, vol. 56. 91 TOMUSCHAT, C., The Legacy of Nuremberg, in Journal of International Criminal Justice , 2006, vol. 4, p. 830. 92 Nuremberg Judgment, para. 445 et seq, see supra note 2. 93 The outcome was verbalised in art. 5 of the Rome Statute according to which the Court has jurisdiction with respect to the crime of aggression; however, it shall exercise it once this crime is defined and conditions of exercising the Court’s jurisdiction are set out. 94 In brief, if the crime of aggression is committed after 1 year after 30 ratifications of the amendments by State Parties, if a special activation decision by the majority of State Parties is adopted, if there is no opt-out by a State Party, if there is no determination of an act of aggression by the UN SC within 6 months after a notification to the UN Secretary-General is provided. 87 See art. 67 para. 2 of the Rome Statute. 88 See art. 67 para. 1 letter g) of the Rome Statute. 89 Art. 67 para. 1 letter a) of the Rome Statute.

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