Retreat from Nuremberg: The Leadership Requirement in the Crime of Aggression

Kevin Jon Heller ¹

Abstract

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.

1  Senior Lecturer, University of Auckland Faculty of Law. J.D. 1996, Stanford Law School; M.A. 1993, Duke University, M.A. 1991, New School for Social Research

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