Academic journal article Case Western Reserve Journal of International Law

Current U.S. Policy on the Crime of Aggression: History in the Unmaking?

Academic journal article Case Western Reserve Journal of International Law

Current U.S. Policy on the Crime of Aggression: History in the Unmaking?

Article excerpt

At the 2015 Annual Meeting of the American Society of International Law, a U.S. policy statement on the crime of aggression was presented as part of a panel entitled "The ICC Crime of Aggression and the Changing International Security Landscape. " This article examines current U.S. policy on the crime of aggression, highlighting the historic role that the U.S. played in establishing aggression as an international crime after World War II, and concludes that activation of ICC jurisdiction over the crime of aggression would be a significant step forward in the development of international law.

CONTENTS

I. BRIEF BACKGROUND ON THE CRIME OF AGGRESSION
II. CURRENT U.S. POLICY ON THE ICC CRIME OF AGGRESSION
III. OBSERVATIONS REGARDING THE STATED U.S. CONCERNS
     A. Possible Chilling Effect on Military Coalition Partners
     B. Impairment of Ability to Resolve Ongoing Conflicts
     C. Interference with the ICC's Core Mission of Prosecuting and
        Helping to Deter Atrocity Crimes
     D. Jurisdiction over Nationals of Non-ratifying States Parties: The
        Article 121(5) Issue
IV. U.S. SUGGESTIONS FOR MITIGATION OF ITS CONCERNS
V. FURTHER REFLECTIONS AND CONCLUDING THOUGHTS

I remind you that 23 members of the United Nations have bound themselves by the Charter of the Nuremberg Tribunal to the principle that planning, initiating or waging a war of aggression is a crime against humanity for which individuals as well as states shall be tried before the bar of international justice. (1)

U.S. President Harry Truman, Addressing the U.N. General Assembly, 23 October 1946.

I. BRIEF BACKGROUND ON THE CRIME OF AGGRESSION

Sixty million dead (2) and the introduction of weapons of such mind-numbing destructive capacity as to threaten all life on earth could not help but leave those who had survived the carnage of World War II determined to curb war-making itself. (3) The year 1945 thus witnessed not only the establishment of the United Nations, whose Charter expressly prohibits the unauthorized use of force, (4) but also the historic opening of the ground-breaking Nuremberg Trials, whose judgment indelibly and conspicuously branded aggressive war as "the supreme international crime." (5)

Students of history will know that the United States played a critical role in seeing to it that those accused at Nuremberg would stand trial for their crimes, rather than simply be taken out and shot-as was the initial preference of both Stalin and Churchill. (6) Moreover, American insistence was responsible for assuring that crimes against peace was among the indictable offenses at Nuremberg--the first time in history that aggressive war-making would be charged as a crime and that those responsible for it would be held personally accountable. (7)

The Nuremberg Charter, which set forth the provisions pursuant to which the International Military Tribunal (IMT) would be conducted, was annexed to the London Agreement signed on the morning of August 8, 1945. (8) It enumerated three crimes for which individuals could be held accountable in their personal capacities, regardless of their positions of national leadership. These included war crimes, crimes against humanity, and crimes against peace--the core feature of which was the "planning, preparation, initiation or waging of a war of aggression, or a war in violation of international treaties, agreements or assurances." (9)

At Nuremberg, Sir Hartley Shawcross, the British prosecutor, articulated the proposition that those who conduct wars in violation of international law are ineligible to claim, in defense, that such wars were executed in accordance with the laws and customs of war:

   The killing of combatants in war is justifiable, both in
   international and in municipal law, only where the war itself is
   legal. But where a war is illegal ... there is nothing to justify
   the killing, and these murders are not to be distinguished from
   those of any other lawless robber bands. … 
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