International Law Commission Report, 1996

Chapter II

DRAFT CODE OF CRIMES AGAINST THE PEACE AND SECURITY OF MANKIND

PART II. CRIMES AGAINST THE PEACE AND SECURITY OF MANKIND

Article 16 - Crime of aggression

“An individual who, as leader or organizer, actively participates in or orders the planning, preparation, initiation or waging of aggression committed by a State shall be responsible for a crime of aggression.“

The text was adopted by the Commission at its forty-eighth session, in 1996, and submitted to the General Assembly as a part of the Commission's report covering the work of that session. The report (A/48/10), which also contains commentaries on the draft articles, will be published in Yearbook of the International Law Commission, 1996, vol. II(2).

Commentary

(1) The characterization of aggression as a crime against the peace and security of mankind contained in article 16 of the present Code is drawn from the relevant provision of the Nürnberg Charter as interpreted and applied by the Nürnberg Tribunal. Article 16 addresses several important aspects of the crime of aggression for the purpose of individual criminal responsibility. The phrase "An individual ... shall be responsible for a crime of aggression" is used to indicate that the scope of the present article is limited to the crime of aggression for the purpose of individual criminal responsibility. Thus, the present article does not address the question of the definition of aggression by a State which is beyond the scope of the present Code.

(2) The perpetrators of an act of aggression are to be found only in the categories of individuals who have the necessary authority or power to be in a position potentially to play a decisive role in committing aggression. These are the individuals whom article 16 designates as "leaders" or "organizers", an expression that was taken from the Nürnberg Charter. These terms must be understood in the broad sense, i.e. as referring, in addition to the members of a Government, to persons occupying high-level posts in the military, the diplomatic corps, political parties and industry, as recognized by the Nürnberg Tribunal, which stated that: "Hitler could not make aggressive war by himself. He had to have the cooperation of statesmen, military leaders, diplomats and businessmen".

(3) The mere material fact of participating in an act of aggression is, however, not enough to establish the guilt of a leader or organizer. Such participation must have been intentional and have taken place knowingly as part of a plan or policy of aggression. In this connection, the Nürnberg Tribunal stated, in analysing the conduct of some of the accused, that: "When they, with knowledge of his aims, gave him their cooperation, they made themselves parties to the plan he had initiated. They are not to be deemed innocent because Hitler made use of them, if they knew what they were doing".

(4) The present article refers to "aggression committed by a State". An individual, as leader or organizer, participates in that aggression. It is this participation that article 16 defines as a crime against the peace and security of mankind. In other words, it reaffirms the criminal responsibility of the participants in a crime of aggression.

Individual responsibility for such a crime is intrinsically and inextricably linked to the commission of aggression by a State. The rule of international law which prohibits aggression applies to the conduct of a State in relation to another State. Therefore, only a State is capable of committing aggression by violating this rule of international law which prohibits such conduct. At the same time, a State is an abstract entity which is incapable of acting on its own. A State can commit aggression only with the active participation of the individuals who have the necessary authority or power to plan, prepare, initiate or wage aggression.

The Nürnberg Tribunal clearly recognized the reality of the role of States and individuals in stating that: "Crimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced". Thus, the violation by a State of the rule of international law prohibiting aggression gives rise to the criminal responsibility of the individuals who played a decisive role in planning, preparing, initiating or waging aggression. The words "aggression committed by a State" clearly indicate that such a violation of the law by a State is a sine qua non condition for the possible attribution to an individual of responsibility for a crime of aggression. None the less, the scope of the present article is limited to participation in a crime of aggression for the purpose of individual criminal responsibility. It therefore does not relate to the rule of international law which prohibits aggression by a State.

(5) The action of a State entails individual responsibility for a crime of aggression only if the conduct of the State is a sufficiently serious violation of the prohibition contained in Article 2, paragraph 4, of the Charter of the United Nations. In this regard, the competent court may have to consider two closely related issues, namely, whether the conduct of the State constitutes a violation of Article 2, paragraph 4, of the Charter and whether such conduct constitutes a sufficiently serious violation of an international obligation to qualify as aggression entailing individual criminal responsibility. The Charter and Judgement of the Nürnberg Tribunal are the main sources of authority with regard to individual criminal responsibility for acts of aggression.

(6) Several phases of aggression are listed in article 16. These are: the order to commit aggression, and, subsequently, the planning, preparation, initiation and waging of the resulting operations. These different phases are not watertight. Participation in a single phase of aggression is enough to give rise to criminal responsibility.

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