Criminal Responsibility for the Crime of Aggression

Patrycja Grzebyk

• Publisher: Routledge
• Year: 2013
• ISBN:
  9781136001208
• Edition: 1
• Topic: Droit
• Subtopic: Théorie et pratique du droit

Since the Nuremberg trial, the crime of aggression has been considered one of the gravest international crimes. However, since the 1940s no defendants have been charged with this crime, with some states actively opposing the notion of punishing aggression. The option of trying an individual for aggression is expressly included in the statute of the International Criminal Court. In 2010 the Assembly of States Parties adopted a definition of the crime of aggression and conditions of the exercise of jurisdiction over this crime by the Court. The Assembly also agreed that the decision on including the crime of aggression within the Court's jurisdiction would be made in 2017 at the earliest. It is still internationally debatable whether the criminalisation of aggression is an outcome to strive for, or whether its abandonment is more preferable.

In Criminal Responsibility for the Crime of Aggression, Patrycja Grzebyk explores the scope of criminal responsibility of individuals for crimes of aggression and asks why those responsible for aggression are not brought to justice. The book first works to identify the legal norms that define and delegalise aggression, before moving to determine the basis and scope for the criminalisation of aggression. The book then goes on to identify the key risks and difficulties inherent in trials for aggression.

Following a string of awards in Poland, including the Manfred Lachs Prize for the best first book on public international law, this cutting investigation of aggression is now deservedly made available to the wider world. In its extensive analysis of international trials on aggression, and its synthesis of legal, political and historical rhetoric, this book offers broad and striking insight into the criminal responsibility of individuals on a world stage.

Part I

Outlawing aggression

1 War as an institution of law

War has always been a part of the history of humankind. Over the ages, reasons for wars and how wars were fought changed, but the essence remained the same. Primitive wars were little more than large-scale robberies,¹ and the wars fought by the civilised people aimed higher: at territorial² or cultural³ expansion.

Whether wars result from the innate human nature or whether they are a product of civilisation gives rise to endless debates.⁴ The history of international relations demonstrates that both Jean Jacques Rousseau’s notion of primitive people being of naturally peaceful disposition, and Thomas Hobbes’s theory of the state of nature with its ‘war of all against all’, fail to find their full reflections in the real world.⁵ Researchers have studied primitive tribes that lived in peace, with no knowledge of war, as well as equally primitive tribes for whom war was the way of life.⁶

As a result of the frequency with which it occurred, war came to be treated as a regular and unavoidable part of life,⁷ just as it is impossible to eliminate or avoid natural disasters such as earthquakes, fires or floods.⁸ Nonetheless, war was never completely accepted. Literature going as far back as ancient times, be it Jewish,⁹ Indian,¹⁰ Chinese,¹¹ Greek or Roman,¹² abounded in anti-war sentiments.

As civilisations developed, theories arose as to the legitimacy of wars. Initially, wars were classified as just or unjust. Later, with the Covenant of the League of Nations, came the idea of legal and illegal wars. The Charter of the United Nations discusses ‘self-defence’, ‘armed attack’ and ‘acts of aggression’ – notions rooted in post-First World War discourse. How these notions are defined became of crucial importance, since the legality of the use of armed force rests on these definitions. It is particularly important to define aggression: outlawing aggression is the basis for its criminalisation and, consequently, the basis for criminal liability of individuals found guilty of waging aggressive war.¹³

1.1 Before the First World War

Until the end of the First World War, the problem of waging wars tended to be considered in moral categories (in particular in light of morality of international relations) rather than in legal ones. Therefore, research both by lawyers and by philosophers discussed war in terms of its being just or not, rather than legal or not.¹⁴ It was generally believed that the outbreak of war does have legal consequences, much as a flood wreaks havoc that later results in a title to compensation. The mere occurrence of war, however, was believed to be beyond the realm of law.¹⁵ Thus, while law might govern the relations between the parties at war (ius in bello) and the responsibilities of third parties (the principle of neutrality), no laws apply to the very outbreak of war.¹⁶ The outbreak of war is a fact of life, not a fact of law.¹⁷ The legality of war is a moot point, and so international law must accept war for what it is, whether it is fought for just reasons or not.¹⁸

Not only did the states hold the right to wage war at will and decide whether these wars were just and legal: they also wielded the power to decide whether a war they were fighting was formally a war. The interesting (if absurd) doctrine of the state of war stipulated that it was up to the warring parties to decide whether a de iure war was in effect. Whether a war occurred was thus not judged on the basis of objective criteria, such as active hostilities etc. War in the legal sense only occurred if it had formally been declared or if, in the absence of a formal declaration, one of the states was guilty of aggression towards another and demanded neutrality from other states, or if the state that fell victim to aggression deemed the circumstances to constitute war.¹⁹

As long as the parties avoided describing the situation as ‘war’, it was possible to engage in large-scale military operations without admitting that a war was going on. For example, the intervention in China of a coalition of American, Austrian, British, French, German, Japanese, Italian and Russian armies, in order to quash the so-called Boxer uprising (1900–1901), resulted in heavy fighting in Taku, Tientsin and Beijing. Neither China nor the coalition labelled the situation as ‘war’. In his letter to the president of the United States and to the German emperor, the Chinese emperor mentioned only ‘friendly relations’.²⁰

The reverse situations occurred too, where despite the absence of fighting parties claimed to be at war. A good example is the Polish-Lithuanian conflict. Lithuania claimed that since October 1920, when Poland commenced allegedly occupying Vilnius, the states were at war. Consequently, diplomatic relations were suspended and borders were closed.²¹ It took the decision of the Council of the League of Nations of 10 December 1927 to end this war.

It is relatively easy to understand why countries may claim to be at war, even if no actual military action occurs. One or both of the countries may seek a propaganda effect, may want to play up the hostility and make a strong statement that the current solution to a territorial dispute is not acceptable. This was the reasoning behind the Polish-Lithuanian conflict. It is somewhat more difficult to explain why parties deny the occurrence of war, even if military operations are in fact underway. The explanation rests on the following factors. A war usually results in a breach in diplomatic and economic relations, a breakdown in transport and travel (owing to the sealing of borders), a suspension of bilateral agreements and the necessity to observe the applicable national procedures for launching a war.²² Once war occurs, third parties are also bound by the duty to remain neutral. The consequences of war are felt by both of the parties involved, but the weaker party is hit harder, especially in terms of the massive economic losses. Third parties may invoke neutrality to cut off the supply of arms, and the opponent may thus be encouraged to intensify military efforts.²³ Finally, the term ‘war’ is heavily loaded with psychological and moral baggage that the parties may prefer not to shoulder.²⁴ Therefore, the parties often prefer to label their actions as reprisals, demonstration of force, peaceful blockade, armed intervention (so-called measures short of war).²⁵ Certain limitations apply to these solutions, visible particularly well in the case of reprisals.

Reprisals are usually defined as ‘such injurious and otherwise internationally illegal acts of one State against another as are exceptionally permitted for the purpose of compelling the latter to consent to a satisfactory settlement of a difference created by its own international delinquency’.²⁶ In the case of armed reprisals, they may consist of bombings, occupations or blockades. The legality of reprisals was discussed in the ruling of the arbitration court in the case of Naulilaa (1928).²⁷ The ruling stipulated that reprisals: (1) may be used only if international law was breached by the offending state; (2) must be preceded by a request for compensation of losses suffered; and (3) must be in proportion to the action to which they constitute the reaction.²⁸ States therefore have the option of labelling their actions not as ‘war’ but, for example, as ‘reprisals’. This, however, imposes on them the duty to act in proportion to the offending actions and observe certain restrictions (annexation is for example ruled out).²⁹

At the turn of the 19th century, public opinion gained in importance. The ruler’s exclusive prerogative to launch war was challenged, in a large part owing to the fact that the burden of actual military action rested on the people, rather than on the sovereign. Consequently, a new viewpoint gained popularity, namely one that proposed that war was the ultimate step, to be used only if all peaceful measures of conflict resolution had failed, and only for self-defence or self-preservation. A number of conflicts at the time found their solutions in the courts of arbitration: the Alabama Claims (1872), the Bering Sea controversy (1892), the British Guyana–Venezuela border dispute (1897), the ‘deserters of Casablanca’ issue (1909), encouraging the use of amicable measures of conflict resolution. Unilateral and multilateral agreements came into force in which the contracting states pledged themselves to international arbitration and/or other peaceful solutions.

The First Hague Conference in 1899 and the Second Hague Conference in 1907³⁰ aimed at ‘ensuring the most effectual means of insuring to all peoples the benefits of a real and durable peace’.³¹ At the first conference, the Convention for the Pacific Settlement of International Disputes (Hague I) was adopted, in which the parties to the convention undertook to accept in principle the employment of good offices and of mediation in cases lending themselves thereto.³² Pursuant to the convention, the Permanent Court of Arbitration was established, with its seat in The Hague. Unfortunately, both the First Hague Convention of 1899 and First Hague Convention of 1907 failed to impose mandatory arbitration in conflict situations, even though the principle of reliance on arbitration was included in the Declaration to the 1907 Hague I. At the 1907 Conference, the Convention on the Limitation of Employment of Force for Recovery of Contract Debts was adopted (also known as the Drago-Porter Convention, Hague II).³³ Its scope was somewhat limited, since it allowed for the possibility of war if the debtor state was unwilling to submit to arbitration (refused arbitration, neglected to reply to an offer of arbitration) or, after accepting the offer of arbitration, prevented any compromise from being agreed on, or, after the arbitration, failed to submit to the award. Moreover, the convention was not applicable to intergovernmental loans; it pertained solely to loans granted to individuals who had the official support of their governments. The states that ratified the convention – and they were few and far between – made additional reservations, further limiting its impact.³⁴ Nonetheless, it was the first international treaty to indicate an unlawful reason for launching a war.³⁵

Among the regulations on the legal status of war arising out of the Hague Conferences, the Convention Relative to the Opening of Hostilities of 1907 was also adopted (Hague III).³⁶ It stipulated that hostilities must not commence without previous and explicit warning, in the form either of a reasoned declaration of war or of an ultimatum with a conditional declaration of war. The convention aimed at minimising the potential for war by means of implementing formal requirements on its commencement, thus making it more difficult (albeit minimally so) to launch a war.³⁷ The covenants of Hague III were almost universally disregarded. None of the Hague Conventions went as far as to outlaw war.

The beginning of the 20th century saw a number of bilateral agreements obliging the parties to solve conflicts by peaceful means. For example, beginning in 1913, US Secretary of State, William Jennings Bryan, negotiated a number of bilateral treaties for the ‘advancement of peace’. The basic aim of these treaties was to prevent war by interjecting a conciliation process into a dispute between the parties to the treaty.³⁸ Each signatory nominated two representatives, one a national and one a foreign citizen, to a permanent commission. These four would then choose...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Table of Contents
• Tables and charts
• List of abbreviations
• Acknowledgements
• Introduction
• PART I Outlawing aggression
• PART II Criminalisation of aggression
• PART III Difficulties and risks
• Conclusion
• Notes
• Bibliography
• Appendix
• Index