Retreat from Nuremberg: The Leadership Requirement in the Crime of Aggression
Posted: 20 Jun 2008
Date Written: June 2007
The International Criminal Court's Special Working Group on the Crime of Aggression (SWG) is currently considering two different proposals for a definition of the crime. Although different in many respects, both proposals agree that aggression is a leadership crime that can be committed only by persons who are in a position effectively to exercise control over or to direct the political or military action of a State . According to the SWG, the control or direct standard is consistent with - and required by - the jurisprudence of the International Military Tribunal, Nuremberg Military Tribunal, and International Military Tribunal for the Far East. In fact, that jurisprudence tells a different story. These three tribunals not only assumed that the crime of aggression could be committed by two categories of individuals who could never satisfy the control or direct requirement - private economic actors such as industrialists, and political or military officials in a state who are complicit in another state's act of aggression - they specifically rejected the control or direct requirement in favour of a much less restrictive shape or influence standard. The SWG's decision to adopt the control or direct requirement thus represents a significant retreat from the Nuremberg principles, not their codification.
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