Retreat from Nuremberg: The leadership requirement in the crime of aggression

European Journal of International Law

Volumn 18, Issue 3, 2007, Pages 477-497

  Heller, Kevin Jon ^a  

^a DUKE UNIVERSITY   (United States)

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EID: 35648962893     PISSN: 09385428     EISSN: 14643596     Source Type: Journal    
DOI: 10.1093/ejil/chm025     Document Type: Article

References (128)

1. Statute of the International Criminal Court, Art. 5, UN Doc A/Conf.183/9 (1998) (hereinafter Rome Statute).
2. Final Act of the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, UN Doc A/CONF.183/10 (1998) Resolution F, para. 7.
3. Report of the Special Working Group on the Crime of Aggression, ICC-ASP/5/SWGCA/3 (31 Jan. 2007) (hereinafter 2007 Report).
4. See, e.g., European Law Students Association, Report on the Assembly of State Parties to the Rome Statute of the International Criminal Court (2003) (hereinafter ELSA Report), at 75.
5. See, e.g., Kaul, 'The Crime of Aggression: Definitional Options for the Way Forward', in M. Politi and G. Nesi (eds), The International Criminal Court and the Crime of Aggression (2004), at 46 ('[T]here seems to be agreement that aggression is, by definition, a leadership crime. This is currently reflected by the formula "a person who is in a position to exercise control or capable of directing political/military action in his State against another State". Here one gets the impression that this formula seems to be by and large uncontroversial.').
6. See 2007 Report, supra note 3, para. 13 ('It was suggested that the leadership clause in paragraph 1 should also capture persons outside the military and political leadership, who had the power to shape or influence the actions of a State.').
7. Draft Statute for the International Criminal Court, A/CONF.183/2/Add.1 (14 Apr. 1998) (hereinafter Draft Statute), Art. 5 ('[A]n individual [who is in a position of exercising control or capable of directing political/military action in a State]').
8. Consolidated Text of Proposals on the Crime of Aggression, PCNICC/1999/ WGCA/RT.1 (9 Dec. 1999) ('[A]n individual who is in a position of exercising control or directing the political or military action of a State.').
9. Discussion Paper Proposed by the Coordinator, PCNICC/2002/WGCA/ RT.1/Rev.2 (11 July 2002) ('[P]osition effectively to exercise control over or to direct the political or military action of a State.').
10. Report of the Special Working Group on the Crime of Aggression, ICC-ASP/4/SWGCA/1 (1 Dec. 2005), Annex II.A (hereinafter 2005 Annex), para. 18 ('[B]eing in a position effectively to exercise control over to direct the political or military action of a State.').
11. Informal Intersessional Meeting of the Special Working Group on the Crime of Aggression, ICC-ASP/5/SWGCA/INF.1 (5 Sept. 2006) (hereinafter 2006 Report) ('[B]eing in a position effectively to exercise control over or to direct the political or military action of a State.') (Proposal B).
12. 2007 Report, supra note 3, Annex.
13. See Opening Statement at Nuremberg by Robert H. Jackson, Chief Prosecutor for the United States, in United States v. Göring et al., 2 Trial of the Major War Criminals Before the International Military Tribunal (1946) 105 (stating that the Prosecution had 'no purpose to incriminate the whole German people', and intended to reach only 'the planners and designers, the inciters and the leaders, without whose evil architecture the world would not have been for so long scourged with the violence and lawlessness... of this terrible war'.).
14. Proposal Submitted by the Delegation of Colombia, PCNICC/2002/WGCA/DP.3 (1 July 2002).
15. See Coalition for the International Criminal Court, Report of the CICC Team on the Crime of Aggression (2005) (hereinafter CICC Report), at 30-31;
16. see also 2006 Report, supra note 11, at para. 88 (noting that 'the view was expressed that the leadership clause should refer to the ability to influence policy') (emphasis added).
17. See Coalition for the International Criminal Court, Observations about the Discussion Paper Proposed by the Chairman, ICC-ASP/5/SWGCA/ 2 (25 Jan. 2007) (hereinafter CICC Observations), at 5.
18. Proposal submitted by Belgium, Cambodia, Sierra Leone and Thailand, PCNICC/2002/WGCA/DP.5 (8 July 2002). Academic commentators agree. See, e.g., Nsereko, 'Defining the Crime of Aggression' [2003] Acta Juridica 256, at 279 (noting that the 'control or direct' requirement, 'though worded differently, is in essence consistent with the Nuremberg and Tokyo precedents');
19. Danner, 'The Nuremberg Industrialist Prosecutions and Aggressive War', 46 Virginia J Int'l L (2007) 651, at 675 (noting that the control or direct requirement 'essentially represents a codification of the Nuremberg standard').
20. Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis, with annexed Charter of the International Military Tribunal, 8 Aug. 1945, 59 Stat. 1544, 82 UNTS 279, Art. 1.
21. See Secretariat's Historical Review of Developments Relating to Aggression, PCNICC/2002/WGCA/L.1 (24 June 2002) (hereinafter Historical Review), at 15.
22. See ibid., at 16.
23. Judgment, United States v. Goering et al., International Military Tribunal, 1 Oct. 1946, Nazi Conspiracy and Aggression: Opinion and Judgmenit. (1947) (hereinafter IMT Judgment), at 223.
24. Gustav Krupp, the head ofthe Krupp manufacturing conglomerate, was initially indicted on both Counts 1 and 2, but the charges were later dismissed because of his ill health. See Ruling of the Tribunal on 15 November 1945 in the Matter of the Application of Counsel for Postponement of the Proceedings Against this Defendant, I Nazi Conspiracy and Aggression (1946), at 91, 92.
25. See text accompanying note 59 infra.
26. IMT Judgment, supra note 21, at 308-309.
27. See Historical Review, supra note 19, at 38.
28. Ibid., at 39.
29. Ibid., at 38.
30. IMT Judgment, supra note 21, at 308-309.
31. Ibid., at 309.
32. Ibid., at 309-310.
33. Interestingly, Schacht admitted after the war that he had raised funds for Germany's rearmament knowing that Hitler intended to invade Russia. See T. Bower, Blind Eye to Murder: Britain, America, and the Purging of Nazi Germany A Pledge Betrayed (1981), at 14.
34. See Historical Review, supra note 19, at 41.
35. See IMT Judgment, supra note 21, at 331.
36. Ibid.
37. Ibid.
38. Allied Control Council Law No. 10, 20 Dec. 1945, 15 Trials of War Criminals Before the Nuernberg Military Tribunals Under Control Council LawNo. 10 (1951) (hereinafter Law No. 10), Preamble.
39. Ibid.,
40. Art II, para. 2(f) (emphasis added). Although (a) to (f) are disjunctive in the text, implying that holding a high position is sufficient for guilt, Judge Herbert noted in his concurring judgment in Farben that '[n]o such literal interpretation could be permitted. Paragraph 2(f) merely requires that the fact that a person held such a high position to be taken into consideration with all of the other evidence in determining the extent of individual knowledge and participation in crimes against peace'. See Opinion and Judgment, United States v. Krauch et al., Military Tribunal VI (hereinafter Farben Judgment), 8 Trials of War Criminals Before the Nuernberg Military Tribunals Under Control CouncilLaw No. 10 (1952) 1299 (Herbert Concurrence).
41. See Historical Review, supra note 19, at 44.
42. Farben Judgment, supra note 36.
43. Order of the Tribunal Acquitting the Defendant of the Charges of Crimes Against Peace, United States v. Krupp Von Bohlen und Halbach et al. Military Tribunal III (hereinafter Krupp Order), 9 Trials of War Criminals Before the Nuernberg Military Tribunals Under Control Council Law No. 10 (1950).
44. United States v. von Leeb et al., Military Tribunal XII (hereinafter High Command Judgment), 11 Trials of War Criminals Before the Nuernberg Military Tribunals Under Control Council Law No. 10 (1950).
45. United States v. von Weizsäcker et al., Military Tribunal XI (hereinafter Ministries Judgment), 14 Trials of War Criminals Before the Nuernberg Military Tribunals Under Control Council Law No. 10 (1949).
46. Farben Judgment, supra note 36, at 1216 (Herbert Concurrence).
47. See ibid., at 1206-1209.
48. Ibid., at 1126.
49. Ibid., at 1124.
50. Ibid. (emphasis added). The Tribunal did not specify what level of authority made a defendant 'responsible' for formulating and executing Nazi policy. It implied, though - following the IMT, and perhaps anticipating High Command's adoption of the 'shape or influence' standard - that any defendant who was important enough to take part in the relevant discussions possessed sufficient authority.
51. See ibid., at 1126 ('Strive as we may, we are unable to find, once we have passed below those who have led a country into a war of aggression, a rational mark dividing the guilty from the innocent... [H] ere let it be said that the mark has already been set by [the IMT]. It was set below the planners and leaders ... and above those whose participation was less and whose activity took the form of neither planning nor guiding the nation in its aggressive ambitions.') (emphasis added).
52. See ibid., at 1123.
53. See ibid., at 1108. It is also worth pointing out that Judge Herbert believed the IMT had itself approved such convictions.
54. See ibid., at 1304 (noting that, according to the judgment of the IMT, 'rearmament of itself is not a crime unless carried out as part of a plan to wage aggressive war').
55. Ibid., at 1123.
56. Ibid., at 1123. Judge Herbert's concurring judgment reinforces the conclusion that the defendants were acquitted because of lack of knowledge, not lack of influence. After noting that '[t]he issues of fact are truly so close as to cause genuine concern as to whether or not justice has actually been done because of the enormous and indispensable role these defendants were shown to have played in the building of the war machine which made Hitler's aggressions possible', he concluded that the acquittals were nevertheless justified, because 'clear unequivocal proof of exact knowledge of the decision of the regime to initiate and wage wars of aggression is not established beyond reasonable doubt': ibid., at 1212-1213.
57. Law No. 10, supra note 35, Art. 11, para. 2(f).
58. Farben Judgment, supra note 36, at 1299-1300 (Herbert Concurrence).
59. Krupp Order, supra note 39, at 391.
60. Ibid., at 404.
61. Ibid., at 400.
62. Ibid., at 396;
63. see also ibid., at 443 (Anderson Concurrence) ('The offense of planning, preparation, and initiation of aggressive wars is, in practical effect, the same as the conspiracy. Here the determinative question is whether with the requisite guilty knowledge the evidence was sufficient to show that the defendants were guilty of participating in the planning, preparation, and initiation ofthe particular wars charged in the indictment.').
64. Ibid., at 449 (Anderson Concurrence).
65. Ibid., at 393.
66. Farben Judgment, supra note 36, at 1126-1127, quoting IMT Judgment, supra note 21, at 331.
67. See, e.g., Krupp Order, supra note 39, at 450 (noting, regarding the waging of aggressive war, that 'only those responsible for a policy leading to initiation and waging of aggressive war and those privy to such a policy... are criminally liable') (emphasis added).
68. See Historical Review, supra note 19, at 50-51.
69. High Command Judgment, supra note 40, at 490-491 (emphasis added).
70. Ibid., at 489.
71. The Tribunal also noted that '[i]nternational law condemns those who, due to their actual power to shape and influence the policy of their nation, prepare for, or lead their country into or in an aggressive war': ibid. (emphasis added).
72. Ibid., at 488.
73. Ibid. (emphasis added).
74. Ibid.
75. Ibid. In its report on the trial, the United Nations War Crimes Commission also emphasized that the Tribunal acquitted the defendants because of their lack of influence over Nazi policy: Regardless of whether they had at any time had or had not actual knowledge of, or were involved in, concrete plans and preparations for aggressive wars or invasions, it was established by the evidence that they were not in a position which enabled them to exercise any influence on such a policy. No matter what their rank or status, it was clear from the evidence that they had been outside the policy-making circle close to Hitler and had no power to shape or influence the policy of the German State.
76. United States Military Tribunal at Nuremberg, Trial of Wilhelm von Leeb and Thirteen Others, the United Nations War Crimes Commission, 12 Law Reports of Trials of War Criminals (1949) 12 (emphasis added).
77. See Historical Review, supra note 19, at 56.
78. Ibid., at 80,
79. quoting Ministries Judgment, supra note 41, at 425 (emphasis added). In his dissenting judgment, Judge Powers endorsed a three-part test for crimes against peace that was equivalent to the one in High Command: As to each defendant ... we must seek the answer to the following three questions: (1) Did he knowingly engage in some activity in support of a plan or purpose to induce his government to initiate a war? (2) Did the know that the war to be initiated was a war of aggression? (3) Was his position and influence, or the consequences of his capacity, such that his action could properly be said to have had some influence or effect in bringing about the initiation of the war on the part of his government? Only if all of these questions are answered in the affirmative will we be justified in finding a Crime against Peace has been committed.
80. Ministries Judgment, supra note 41, at 889 (Powers Dissent) (emphasis added).
81. Ibid., at 354 (emphasis added).
82. The Tribunal later reversed von Weizsäcker's conviction on the crime against peace count, but 'nonetheless upheld the general principles that led to' it: Historical Review, supra note 19, at 68.
83. Special Proclamation: Establishment of an International Military Tribunal for the Far East, TIAS No 1589 (19 Jan. 1946).
84. Judgment of the International Military Tribunal for the Far East, reprinted in R. Pritchard (ed), The Tokyo Major War Crimes Trial (1998), at 1190-1191 (emphasis added).
85. See Historical Review, supra note 19, at 110.
86. See, e.g., 2005 Annex, supra note 10, para. 26.
87. Report, supra note 11, para. 84.
88. See text accompanying note 12 supra.
89. See 2007 Report, supra note 3, Annex.
90. See Discussion Paper Proposed by the Chairman, ICC-ASP/5/SWGCA/2 (16 Jan. 2007) (hereinafter 2007 Discussion Paper), at 3.
91. Report, supra note 3, Annex.
92. See Rome Statute, supra note 1, Art. 25.
93. Proposal Submitted by Samoa, PCNICC/2002/WGCA/DP.2 (21 June 2002). As the discussion below indicates, I do not believe that this modification would actually permit the conviction of private economic actors.
94. See ELSA Report, supra note 4, at 75.
95. Proposal Submitted by Cuba, ICC-ASP/2/SWGCA/DP.1 (4 Sept. 2003) (emphasis added). These proposals were introduced before the SWG settled on the differentiated approach, so they did not utilize the 'principle perpetrator'/'secondary perpetrator' distinction.
96. See, e.g., Yanez-Barnuevo, 'The Exercise of the International Criminal Court's Jurisdiction over the Crime of Aggression: Short Term and Long Term Prospects', in Politi and Nesi, supra note 5, at 111 ('At the last session of the PrepCom there was unanimity ... in considering aggression as a "leadership crime" involving only those who, because of their political or military leadership of a State, can and do take decisions directly relevant to the commission of an act of aggression by the State.').
97. But see Clark, 'The Crime of Aggression and the International Criminal Court', in J. Doria et al., The Legal Regime of the International Criminal Court (2006), at 32 ('One who comes along later (an industrialist or general for example) and supplies the know-how for an ongoing enterprise may come within the ambit of the article.').
98. Politi, 'The Debate Within the Preparatory Commission for the International Criminal Court', in Politi and Nesi, supra note 5, at 46.
99. Danner, supra note 17, at 19.
100. A French military tribunal established pursuant to Law No. 10 convicted Hermann Roechling, the head of a large steel conglomerate and president of the Reich Association Iron, of crimes against peace, concluding that his efforts to increase the Reich's iron and steel production constituted waging aggressive war. The Supreme Military Government Court for the French Occupation Zone later reversed his conviction, holding that he had not rearmed Germany with the 'intention and aim' to permit the Nazis to wage aggressive war: See Historical Review, supra note 19, at 83-84.
101. CICC Report, supra note 15, at 30-31 (emphasis added).
102. The Chair reiterated that position at the 2007 meeting in response to the author's position paper: 'Roughly, the objective had been to replace the phrase "being in a position ... to exercise control over or to direct" with "being in a position ... to shape or influence" and to thus assure in particular the inclusion of private economic actors such as industrial leaders ... The Chair pointed out that it had always been understood that the "control or direct" formula covered this group in any event': CICC Observations, supra note 16, at 5.
103. This is not merely a semantic argument. Even if the SWG sincerely believes that there is no practical difference between 'shape or influence' and 'control or direct', the starting point for interpreting a treaty is the ordinary meaning of its text; preparatory work is relevant only if textual interpretation leads to an ambiguous or unreasonable result: See Vienna Convention on the Law of Treaties, 1155 UNTS 331 (23 May 1969), Art. 31(1). Limiting the category of 'leader' to those who can control or direct a state's political or military action may be inconsistent with the Nuremberg principles, but it is neither ambiguous nor unreasonable.
104. International Law Commission, Commentaries to the Draft Articles on Responsibility of States for Internationally Wrongful Acts (2001) (hereinafter Commentary to Draft Articles), Art. 17, para. 7 (emphasis added). This argument assumes, of course, that the Court will follow the ILC definitions of 'control' and 'direct'. It seems likely that it will, given that the SWG has made no attempt to provide different ones.
105. Farben Judgment, supra note 36, at 1297 (Herbert Concurrence).
106. Ibid., at 1215-1216.
107. Ibid., at 1298 (emphasis added).
108. See Law No. 10, supra note 35, Art. II, para. 2(f) ('Any person ... is deemed to have committed a crime ... if he was (a) a principal or (b) was an accessory to the commission of any such crime or ordered or abetted the same or (c) took a consenting part therein or (d) was connected with plans or enterprises involving its commission.').
109. See, e.g., Ministries Judgment, supra note 41, at 338 ('He who knowingly joined or implemented, aided or abetted in their commission as principal or accessory cannot be heard to say that he did not know the acts in question were criminal.').
110. Law No. 10, supra note 35, Art. II, para. 2(f).
111. International Law Commission, Draft Articles on Responsibility of States for Internationally Wrongful Acts (2001).
112. See Commentary to Draft Articles, supra note 87, Art. 16, para. 1.
113. See ibid., Art. 17, para. 7.
114. See ibid., Art. 18, para. 2.
115. See ibid., Art. 18, para. 3.
116. The Secretariat's historical review of aggression, e.g., does not contain an example of such a situation. See generally Historical Review, supra note 19.
117. See Commentary to Draft Articles, supra note 87, Art. 17, para. 2.
118. See ibid., Art. 17, para. 5.
119. See ibid., Art. 17, para. 2.
120. See, e.g., Kahn, 'Nuclear Weapons and the Rule of Law', 31 NYU J Int'l L & Pol (1999) 349, at 402 (noting that 'during the years of the Cold War ... the Permanent Members [of the Security Council] protected their client states and pursued each other in proxy wars').
121. See, e.g., Kelly, 'Can Sovereigns Be Brought to Justice? The Crime of Genocide's Evolution and the Meaning ofthe Milosevic Trial', 76 St John's L Rev (2002) 257, at 299 (noting that '[a]fter the Cold War, client states were generally released from their fealty to the superpowers').
122. See C. Jian, China's Road to the Korean War (1994), at 110-111.
123. See Schabas, 'The Unfinished Work of Defining Aggression: How Many Times Must the Cannonballs Fly, Before They Are Forever Banned?', in D. McGoldrick et al. (eds), The Permanent International Criminal Court: Legal and Policy Issues (2004), at 137.
124. See SC Res. 455 (1979), para. 2.
125. See Prosecutor v. Tadic, Case No. IT-94-1, Judgment (7 May 1997), para. 666 ('The concept of direct individual criminal responsibility and personal culpability for assisting, aiding and abetting, or participating in, in contrast to the direct commission of, a criminal endeavour or act ... has a basis in customary international law.').
126. See, e.g., Prosecutor v. Vasiljevic, Case No. IT-93-32-T, Judgment (29 Nov. 2002), paras 70-71 ('An accused will incur individual criminal responsibility for aiding and abetting a crime ... where it is demonstrated that the accused carried out an act which consisted of practical assistance, encouragement or moral support to the principal offender of the crime ... To establish the mens rea of aiding and abetting, it must be demonstrated that the aider and abettor knew (in the sense that he was aware) that his own acts assisted in the commission of the specific crime in question by the principal offender.').
127. GA Res 498(V), UN GAOR, 5th Sess., Supp. No. 20A, UN Doc. A/1775/Add.1 (1950), para. 1 (concluding that China, 'by giving direct aid and assistance to those who were already committing aggression in Korea ... itself engaged in aggression in Korea').
128. IMT Judgment, supra note 21, at 110.