crime against peace

The crime of aggression was conceived by Soviet jurist Aron Trainin in the wake of the German invasion of the Soviet Union during World War II. Pictured: Stalingrad in ruins, December 1942

A crime of aggression or crime against peace is the planning, initiation, or execution of a large-scale and serious act of aggression using state military force. The definition and scope of the crime is controversial. The Rome Statute contains an exhaustive list of acts of aggression that can give rise to individual criminal responsibility, which include invasion, military occupation, annexation by the use of force, bombardment, and military blockade of ports. In general, committing an act of aggression is a leadership crime that can only be committed by those with the power to shape a state's policy of aggression, as opposed to those who discharge it.

The philosophical basis for the wrongness of aggression is found in just war theory, in which waging a war without a just cause for self-defense is unjust. In the wake of the German invasion of the Soviet Union during World War II, Soviet jurist Aron Trainin made the first successful proposal to criminalize aggression. The Charter of the International Military Tribunal provided criminal liability for waging aggressive war, which was the main focus of the Nuremberg trial. Other participants in World War II were tried for aggression in Finland, Poland, China, the subsequent Nuremberg trials, and the Tokyo trial. No one has been prosecuted for aggression either before or since the 1940s.

There are cases that make the definition especially vague, like " War on terror", which is by definition state-initiated harm. This case might present the use of existing legal and social frameworks t
"construct an environment within which the applicability of the relevant international norms was either severely restricted or uncertain."
and thus justify the brute fact of aggression.

It is generally accepted that the crime of aggression exists in international customary law. The definitions and the conditions for the exercise of jurisdiction over this crime by the International Criminal Court were adopted in 2010 at the Kampala Review Conference by the states parties to the court. Aggression is criminalized according to the statute law of some countries, and can be prosecuted under universal jurisdiction.

Aggression is one of the core crimes in international criminal law, alongside genocide, crimes against humanity, and war crimes. In 1946, the International Military Tribunal ruled that aggression was "the supreme international crime" because "it contains within itself the accumulated evil of the whole". The standard view is that aggression is a crime against the state that is attacked, but it can also be considered a crime against individuals who are killed or harmed as a result of war.

Background

Just war theory

Warfare has been part of human experience since the beginning of human history. The criminalization of aggression is of recent origin, dating to after World War II, but the idea of aggression as a grave moral transgression and violation of the international order dates back much farther. Just war theory, over the centuries, held that a war fought for territorial aggrandizement was unjust, and that just wars are fought only for self-defense, or in defense of allies, against such aggression. The philosophical basis for the criminalization of aggression derives from eighteenth-century theorist Emer de Vattel, although Vattel did not envision formal trials for aggression, simply the execution of wrongdoers. Early modern just war theorists conceived aggression as the first wrong committed against another country, rather than the first military strike. Hugo Grotius, often considered the founder of international law, saw the principal wrong in aggression in the violation of individual rights. In 1815, Napoleon was outlawed "as an Enemy and Disturber of the tranquillity of the World" in what was considered an "Exception to general rules of the Law of Nations".

World War I and interwar

The loss of life and harms of war are cited as a reason for the illegality of aggression. Pictured: aerial view of the ruins of Vaux, France, 1918.

After World War I, the prosecution of Kaiser Wilhelm II for aggression was proposed by the United Kingdom and France. In a speech on 11 November 1918, British Prime Minister David Lloyd George cited the loss of "the lives of millions of the best young men in Europe" and "the outrage upon international law which is involved in invading the territory of an independent country without its consent" as a crime for which someone should be held responsible. The proposed prosecution met with disapproval from the judiciary and was rejected by the United States.

Instead, the League of Nations had the mandate of maintaining international peace. Interwar treaties criminalizing aggression were proposed but not ratified, and there was no progress towards the criminalization of aggression. Aggressive war became progressively delegitimized but was not considered illegal under international customary law. Although the 1928 Kellogg–Briand Pact did not contain any suggestion that war was criminal, it was cited as a precedent for the prosecution of German and Japanese leaders for waging aggressive wars after World War II.

World War II

Invasions during World War II led to new thinking on aggression. Soviet criminologist Aron Naumovich Trainin developed the ideas that were used to criminalize aggressive war, although he did not attract international attention until 1943. Others making similar proposals included Hersch Lauterpacht, Marcel de Baer, and Bohuslav Ečer. Trainin argued that although material and political responsibility rested with the state, criminal responsibility for aggressive war was vested in the individuals exercising authority. He blamed Adolf Hitler, his cabinet, government officials, the Nazi Party and German industrialists for acts of aggression against the Soviet Union, which he described as "the most heinous crime". The governments-in-exile represented in the London International Assembly lobbied for a formal international tribunal with jurisdiction over acts of aggression. In 1944, Trainin proposed that the Nazi leaders could be dealt with either with a tribunal or by "the political verdict of the victorious democratic States". At the time, the Soviet Union still perceived itself as vulnerable to international aggression, which motivated its interest in criminalizing aggression.

Although there was not much in the way of international criminal law to work from, the United States Department of War put together the legal framework for the Nuremberg trials in ten months. Some prominent United States policymakers thought that execution without trial compromised the principles of the Allies and that formal trials before an international court would lend legitimacy. At the London Conference of 1945, the victorious Allies decided to criminalize aggression and try their vanquished enemies although at the conference doubts were raised that wars of aggression were illegal under customary law. Both the Soviet Union, which invaded the Baltic States and Poland according to the secret protocols of the German–Soviet pact, and Western countries, which had planned an invasion of Norway, were aware that they could also be accused of acts of aggression and so they limited the definition of crimes against peace to the actions of their defeated enemies during World War II.

Case law

Almost all the trials for crimes against peace took place between November 1945 and November 1948, though in some cases such as Romania they extended into 1949; no one has been prosecuted for aggression before or since. The courts faced the challenge, first of proving the criminality of acts of aggression, and secondly in tying such acts to individuals.

War-responsibility trials in Finland

In 1939, the Soviet Union invaded Finland, leading to a peace treaty on unfavorable terms in 1940. During the Continuation War, Finland managed to retake its ceded territory and progressed further to the areas of Soviet Union that had never been part of Finland. In 1944, the war turned against Finland, which signed an armistice on even less favorable terms. The Allied Control Commission in Finland insisted on holding trials for aggression during the second war, as the armistice had required Finnish cooperation in trying those accused of war crimes. The law establishing the tribunal established criminal responsibility for those who "in a significant manner contributed in Finland's engagement in the war...or prevented peace" between 1941 and 1944. Eight men were tried; wartime president Risto Ryti, six members of the cabinet, and the Finnish ambassador to Germany, but not any generals. Unlike other specifications of the crimes against peace, the Finnish trials charged those who joined the government after 1941 and rejected peace offers from the Soviet Union. Initially seven were convicted and the ambassador was acquitted; the judgement was revised to convict all the defendants with harsher penalties, up to ten years imprisonment with hard labor. The convicts were treated leniently in prison and all were released by 1949.

International Military Tribunal

The Nuremberg Charter

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