tag:blogger.com,1999:blog-4605495417463810012.post3171929097289529375..comments2024-03-06T10:16:40.696+00:00Comments on PhD studies in human rights: Crime of Aggression, International Law and the Chilcott InquiryWilliam A. Schabashttp://www.blogger.com/profile/17552332133145290879noreply@blogger.comBlogger3125tag:blogger.com,1999:blog-4605495417463810012.post-89835029317890541262010-02-18T19:12:30.719+00:002010-02-18T19:12:30.719+00:00Dear Professor,
Since a war of aggression is a cr...Dear Professor,<br /><br />Since a war of aggression is a crime under the customary international law, the definition of a war of aggression is problematic, and fraught with political and legal difficulties, at least as applied to wars since the coming of modernity, due to the multiple layers of justification and qualification that most contemporary belligerents attach (or observers ascribe to) to their participation in military action. This problematic definition of a war of aggression is made easier by the fact that purported wars of aggression are usually accompanied by other crimes against the treaty law, or the customary international law, such as torture, crimes against the laws and customs of the war, crimes against humanity, and/or genocide.<br /><br />The International Military Tribunal of Nuremberg, which followed World War II, called the waging of aggressive war “essentially an evil thing...to initiate a war of aggression...is not only an international crime; it is the supreme international crime, differing only from other war crimes in that it contains within itself the accumulated evil of the whole. Article 39 of the United Nations Charter provides that the Security Council shall determine the existence of any act of aggression and “shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security”. <br /><br />The Rome Statute of the International Criminal Court refers to the crime of aggression as one of the “most serious crimes of concern to the international community”, and provides that the crime falls within the jurisdiction of the International Criminal Court (ICC). However, the Rome Statute stipulates that the ICC may not exercise its jurisdiction over the crime of aggression until such time as the states parties agree on a definition of the crime and set out the conditions under which it may be prosecuted.<br /><br />In effect, only sanctions which reach individuals can peacefully and effectively be enforced. Hence, the principle of the criminality of aggressive war is implemented by the United Nations Charter with the principle of personal responsibility. Of course, the idea that a state, any more than a corporation, commits crimes is a fiction. Crimes always are committed only by persons. While it is quite proper to employ the fiction of responsibility of a state or corporation for the purpose of imposing a collective liability, it is quite intolerable to let such a legalism become the basis of personal immunity.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-4605495417463810012.post-88577308076472244922010-02-04T20:01:56.438+00:002010-02-04T20:01:56.438+00:00Article 6 of the Nuremberg Charter included either...Article 6 of the Nuremberg Charter included either a war of aggression or <i>"a war in violation of international treaties, agreements or assurances"</i>. Surely that would include the customary prohibition against threats or use of force which is reflected in Article 2(4) of the UN Charter.<br /><br /><a href="http://europa.eu/legislation_summaries/justice_freedom_security/combating_discrimination/l33178_en.htm" rel="nofollow">The EU Framework Decision</a> on combating certain forms and expressions of xenophobia cites the crimes defined in the Statute of the International Criminal Court (Articles 6, 7 and 8), and Article 6 of the Charter of the International Military Tribunal. <br /><br />In this instance the enabling legislation cannot be used to prevent the Prime Minister or Foreign Secretary from inciting an illegal war which targets the members of another national group. Nonetheless, it still might be capable of novel applications to prevent those same individuals from publicly condoning, denying, or trivializing their actions after the fact.Hostagehttps://www.blogger.com/profile/17734214941510644323noreply@blogger.comtag:blogger.com,1999:blog-4605495417463810012.post-10101008163169736742010-01-27T19:10:23.316+00:002010-01-27T19:10:23.316+00:00Dear Professor,
A little remark in relation to th...Dear Professor,<br /><br />A little remark in relation to the following comment. <br /><br />"It seems preposterous to claim that the crime of aggression existed at Nuremberg and Tokyo (it was then called crimes against peace) , but that it does not exist today because there is no definition in the Rome Statute"<br /><br />I think that one can of course argue that aggression is an international crime, but, even if your remark is based on probably "having heard it all before", I find your dismissal of arguments contra a little too hasty by calling them "preposterous".<br />In relation to Nuremberg, the argumentation of the court in recognising individual criminal responsibility in customary law based, among other things, on the Kellog-Briand Pact was flimsy at best. Since then, there have been no binding international documents defining the crime and State practice in relation to its prosecution is scarce.<br />In relation to the link between the crime and the definition, I remain baffled by the claim that something for which nobody can agree on the content is law, especially in criminal matters. Without the definition, "aggression", as a crime, is just a word. You cannot separate the name from the substance. If not, and this is an argument ad absurdum, I could tell you that "defluxation" is a customary crime even though nobody has heard of it and irrespective of an hypothetical definition. More seriously, if everybody applies a different definition of "aggression", how can one claim generally that aggression is a crime under general international law?Dov Jacobshttps://www.blogger.com/profile/14088064995374954241noreply@blogger.com