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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.
(See crimes against humanity;
war crimes)
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