5.1 Definition of a 'CRIME AGAINST PEACE'

5.1.1    History of the formulation of the Nuremberg Principles

(29)     A brief history of the formulation and development of the Principles of Customary International Law, recognised by the Charter and in the Judgement of the International Military Tribunal held at Nuremberg, is set out in Background Document RLM 001 to which the reader is now referred.

5.1.2 Principle VI (a) of the ‘Nuremberg Principles’

(30)     “Principle VI

    The crimes hereinafter set out are punishable as crimes under international law:

     (a) Crimes against peace:

(i) Planning, preparation, initiation or waging of a war of aggression or a war in violation of international treaties, agreements or assurances;
(ii) Participation in a common plan or conspiracy for the accomplishment of any of the acts mentioned under (i). ...“

5.1.3  Judgement of the Tribunal on ‘Crimes Against Peace’

(31)     The Judgement of the Tribunal was delivered by its President, Lord Justice Geoffrey Lawrence (later Baron Trevethin and Oaksey) on 30 September and 1 October 1946. On the question of the character of the crime charged first and second in the indictment against the major German war criminals the Judgement of the Tribunal had this to say:

“The Tribunal now turns to the consideration of the Crimes against peace charged in the Indictment. Count One of the Indictment charges the defendants with conspiring or having a common plan to commit crimes against peace.

Count Two of the Indictment charges the defendants with committing specific crimes against peace by planning, preparing, initiating, and waging wars of aggression against a number of other States. It will be convenient to consider the question of the existence of a common plan and the question of aggressive war together, and to deal later in this Judgement with the question of the individual responsibility of the defendants.

The charges in the Indictment that the defendants planned and waged aggressive wars are charges of the utmost gravity. War is essentially an evil thing. Its consequences are not confined to the belligerent States alone, but affect the whole world.

To initiate a war of aggression, therefore, 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. “                                                                      (my emphasis added).

The Trial of German Major War Criminals Sitting at Nuremberg, Germany

(Blue Transcripts) - The Judgement (pp12-13) HMSO 1946.

5.1.4   The Special Status of ‘Nuremberg’ Principles

(32)     Whereas, with most principles of customary international law the precise or textual rule has to be derived or distilled judicially, from the evidence of the opinio juris on the existing ‘general laws and customs accepted by the community of nations’ and as gleaned from the judicial decisions of international tribunals and prominent writers and jurists (see especially Art. 38(1) of the Statute of the International Court of Justice) ; that is not a process required with respect to the ‘Nuremberg Principles’. Here the necessary textual codification, performed lastly by the International Law Commission, and as expressing the communis opinio juris of the global community of nations, has itself already received in terms the affirmative and unanimous assent of that community of nations, as represented in the General Assembly of the United Nations.

(33)     Accordingly, this, it is submitted, makes the ‘Nuremberg Principles’ an aspect of customary international law whose established and settled clarity and certainty is almost unique, and therefore more than any other aspect of that law beyond per adventure of misrepresentation.

5.1.5    A class of offence rather than a single crime?

(34)     The definition of ‘a crime against peace’ as set out in Principle VI(a) (as above) is characterised by reference to two disjunctive elements.

(35)     Firstly, by reference to the planning, preparation, initiation or waging of a war of aggression. Secondly, by reference to the planning etc. of a war in violation of international treaties, agreements or assurances. The question has therefore been posed ‘is this in fact two distinct crimes or a class of crime which can be established by reference to more than one method of analysis ‘?

(36)     It is submitted that the approach taken by the Tribunal to this question, is of decisive influence since it was the purpose of the ‘Nuremberg Principles’ to codify the law recognised both by the Charter and the Judgement of the Tribunal, as reaffirming the principles of International law therein relied upon.

(37)     Although not very fully addressed in the Judgement, what is said clearly establishes it is submitted that it is the planning etc. of a war of aggression, as defined by reference to customary law, which is the gravamen of the offence ; whilst, specific conventional treaty obligations and undertakings, prohibiting war like acts, are considered as effectively further evidence or examples declaratory of the general international legal prohibition on the unjustified resort to the use of war, as a legitimate means or instrument of international conduct.

“ The Charter defines as a crime the planning or waging of war that is a war of aggression or a war in violation of international treaties. The Tribunal has decided that certain of the defendants planned and waged aggressive wars against twelve nations, and were therefore guilty of this series of crimes. This makes it unnecessary to discuss the subject in further detail, or even to consider at any length the extent to which these aggressive wars were also "wars in violation of international treaties, agreements, or assurances. ....

Ibid. @ p.36

(38)     Notwithstanding, the Tribunal, however, then went on to consider some of the relevant provisions of the Hague Conventions (1899), the Treaty of Versailles (1919), The Treaty of Locarno (1925) and particularly the Kellogg-Briand Pact (the so-called Treaty of Paris) (1928) which had been cited in argument before it in this regard. Having done so It then continued:

“ (p40) In interpreting the words of the Pact, it must be remembered that international law is not the product of an international legislature, and that such international agreements as the Pact of Paris have to deal with general principles of law, and not with administrative matters of procedure. The law of war is to be found not only in treaties, but in the customs and practices of states which gradually obtained universal recognition, and from the general principles of justice applied by jurists and practised by military courts. This law is not static, but by continual adaptation follows the needs of a changing world. Indeed, in many cases treaties do no more than express and define for more accurate reference the principles of law already existing.

....(p41) All these expressions of opinion, and others that could be cited, so solemnly made, reinforce the construction which the Tribunal placed upon the Pact of Paris, that resort to a war of aggression is not merely illegal, but is criminal. The prohibition of aggressive war demanded by the conscience of the world, finds its expression in the series of pacts and treaties to which the Tribunal has just referred. “

Ibid. @ pp.40-41

(39)     It is submitted then that the decision of the Tribunal rests upon a conclusion that in order to establish that a ‘crime against peace’ has been committed, it is sufficient to show that an act has been perpetrated, involving the planning, preparation, initiation or waging of a war, which constitutes (or would so constitute were it to be carried out) an act of international aggression, as considered at customary international law; but also that, establishing that such an act is (or would be) in breach of certain relevant obligations under international treaties, agreements or assurances, etc., declaratory of that customary law, is also sufficient to establish the offence.

(40)     It is further observed that, for reasons of manifest jurisprudential logic, the definition of a crime against peace disclosed as it must be under 'customary' international law, cannot be established directly or solely in relation to to an allegation that a state has acted in breach of its obligations, purely and only, in relation to the provisions of one or more treaties to which it is a party. That premise would effectively destroy the necessary distinction and differentiation between the two sources of law. Hence, the necessary interpretation that the breach of obligations described in treaties, agreements etc. are a relevant or indeed sufficient element of the offence, but only in so far as those obligations can be clearly established as, and shown to be, declaratory of, the customary rule prohibiting international aggression as a letigimate means for the resolution of international disputes.

(41)     In practice, it is submitted, the only real issue which would test the distinction between these two disjunctive elements, is where a minor and perhaps transient act of armed incursion or use of force had occurred, and which could be said to be de minimus with regards to the gravity or seriousness required of an act of war, but which nevertheless it was contended comprised in a technical breach of an international treaty, agreement or assurance obligation. Such an argument has been contended, for example, before the International Court of Justice in the case of Nicaragua v. the United States (1996).

(42)     In the present instance, however, the various acts of, state organised and implemented use of, international armed force, relied upon as constituting the actus reus of the offence herein alleged, are so comprehensive in character, extensive in application and sustained in time, intended as they were, and succeeding as they did, to attack the whole of the State of Iraq and thereby contribute, through “the coalition” of US/UK forces, to the complete overthrow entirely of the sovereign political and state control of the Government of Iraq over that country, that no practical doubt as to whether there was sufficient use of force to constitute the offence, in this instance, realistically arises.

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