|By Steven R. Ratner
Crimes against peace, as described by the Nuremberg Tribunal in 1946, are “the supreme international crime, differing only from other war crimes in that it contains within itself the accumulated evil of the whole.”
Also known as the crime of aggression, crimes against peace formed the first charge against the Nazis in the 1945 Charter of the International Military Tribunal at Nuremberg. The charter defined them as “planning, preparation, initiation or waging of a war of aggression, or a war in violation of international treaties, agreements or assurances, or participation in a common plan or conspiracy [to do so].” Crimes against peace are not war crimes per se, which involve unlawful conduct during war.
The idea of charging the Nazis with the crime of starting World War II was controversial at the time and has remained so ever since. For the Americans, crimes against peace were the chief offense of the Nazis, and the criminality of aggressive war needed to be enshrined in international law. But starting a war had not been regarded as criminal up to that time. The Kellogg-Briand Pact of 1928, which outlawed war (not too successfully, to say the least), only rendered aggression an illegal act for States, not a criminal act for which individuals could be tried. The French resisted the concept for this reason; the Soviets, for their part, were concerned about criminalizing aggressive war given their invasions of Finland and annexation of parts of Poland. The American view prevailed—though the tribunal’s jurisdiction was limited to Axis aggression—leading to the conviction of leading Nazis for crimes against peace. Afterward, a fierce debate raged in legal circles as to whether the Allies had applied criminal law retroactively.
Although UN bodies have restated the importance of crimes against peace since World War II, the UN’s members—especially Western States—have noted serious obstacles to actually prosecuting individuals. First, a definition of aggression specific enough for prosecutions of governmental officials remains elusive. Second, since wars are typically planned by many people in State bureaucracies, drawing a line of guilt might prove difficult. Third, criminal cases could encompass complex, politically laden factual inquiries ill-suited for courts. While some cases of aggression are as stark as Iraq’s invasion of Kuwait, other incidents demand more careful scrutiny.
One clear manifestation of these concerns was the Security Council’s unwillingness to give the UN’s Yugoslavia Tribunal jurisdiction over this crime. Another was the decision by the States drafting the Rome Statute of the International Criminal Court (ICC) to give the ICC jurisdiction over crimes against peace only if States formally amend that statute to add a definition of the crime and the conditions for the exercise of jurisdiction. States thus seem to say that aggression is a crime in the abstract, but are reluctant to prosecute it. The concept of crimes against peace still has some effect on international law, as States want to recognize the illegality of aggression in the strongest way—by proclaiming that leaders can be held accountable for it. But the dim prospects of actually prosecuting anyone make impunity the norm and crimes against peace somewhat of a dead letter.