Legal Consequences Crime of Aggression : State v Individual Criminal Responsibility - Essay Example

 Topic:  Legal Consequences Crime of Aggression: State v Individual Criminal Responsibility Essay Question: What are the legal consequences for the International Crime of Aggression?  Introduction  The purpose of the essay is to examine the dual systems in international criminal justice: State Responsibility and Individual Criminal Responsibility with regards to the Crime of Aggression. The paper is divided in two sections.  Section I: State Responsibility There is no denying the fact that most international crimes are committed under the banner of system criminality where there is a mixture of individual and collective responsibility therefore cornering only particular individuals for accountability would just be a limited part of the solution.1International Customary law has devised certain provisions for state’s collective responsibility e.g. in 1949 the United Nation’s ILC developed a “Draft Declaration on Rights and Duties” that mentioned some duties for the states but their accountability for war crimes was not well established hence most of the laws were concerned with individual responsibility.2 Theoretical concept of collective responsibility In recent years the argument under consideration is whether international criminal law has its jurisdictions on large scale war crime? Martti Koskeniemmi argued that it may be possible that a tragedy is of such a great magnitude that punishing a single person would not help to end impunity as most of the international crimes have a political agenda in the background.3 Among other critics of this phenomenon Hannah Arendt in her study “Trial of Adolf Eichmann” proposed that in past people were reluctant to judge individuals for being morally accountable for the committed crime. After the IMT, Eichmann Tribunals this hesitation is omitted to a great extent but this created our negligence in regard to systemic atrocity. If collective effort could limit individual agency than the collective moral responsibility could be initiated by states. She only questions the accountability criteria of the international court claiming that victor’s justice shelters the winners thus limiting our understanding of war crimes to only mass atrocities.4 Arendt hoped that it might happen in future that nations having political responsibility may be trialed in international court but this is beyond comprehension as all criminal courts are bound to trial only individuals by charges held against them.5 Contradicting the viewpoint of Arendt, Crawford believed that by making states responsible for committed crimes do not lend individuals forget their moral responsibility.6 Robert Lifton has studied the Nazi Holocaust and came to the conclusion that most of the acts of aggression were due to the psychic numbness and dissociation of the executors.7 Sometimes it is inevitable for individuals to kill non combatants but in such cases everyone involved should be held accountable so that in future the number of such events could be minimized.8 In carrying out trials, the aim of International Military Tribunal was not to imprison suspects, select cases or to bring about evidence that could prove the accused guilty of their collective acts of aggression but to retain the legality of the crime itself. 9The concept of state responsibility was first time figured in Article 9 and 10 of the International Military Tribunal Charter where criminal ‘organizations’ were mentioned, however the purpose was to not to punish the organization rather the individuals involved within.10 Legal framework: State wrongful acts: Delicts v State crime: In 1976 an article about State responsibility was approved to be added in the existing Draft articles of International Law Commission with the aim that it would help to distinguish common international crimes (termed as delicts) and serious violations of international law that it called ‘international crimes’. ILC tried to maintain such distinction in 1996 after completion of first reading of its Articles.11 Allen Pallet, a member of the International Law Commission supports the idea by stating that states can commit a crime. He is of the view that the difference between delicts and crimes should be implemented legally. Although he believed that the crime definition provided under the Article 19 of the ILC is satisfactory yet it is too much sophisticated. He raised criticism regarding the ILC’s legal administration of such crimes mentioned in Draft Articles 51-53 as well as the conclusion of the word ‘crime’ could be divergent but still the significance of this concept cannot be ignored in contemporary international Law.12 The adoption of the Draft articles after the first reading was commendable as it brought into account the more recent case laws to the International Court, it constituted tireless efforts of special Rapporteurs including Robert Ago, Gaetano Arangio-Ruiz and Willem Riphagen. In view of James Crawford the entire debate regarding the ILC article is a false one yielding that states are not liable for wrongful acts. Crawford himself was responsible for formulating the second reading of the Draft in which article 19, encompassing state responsibility was deleted by the consent of state members.13 Notion of criminal intent in building armament International Law promotes neutrality and therefore allows states to build army but with the aim of self defense or to carry out peace process. United Nations Charter permit nations to stay prepared for self defense but limited its implication e.g. nations are bound to gain approval from security counsel to use force against the states who pose a threat to the nation’s sovereignty. Take the example of Switzerland where every male member of the family is bound to serve military except for the excuse that they are physically unfit to serve.14 All members of the army are allowed to keep weapons in their homes but their use is strictly forbidden except for the purpose of self defense. Switzerland’s position in both world wars was neutral; however they retaliated against minor armed attacks by Germany and America in World War II. Unlike the Nazi Regime they did not establish militia to impose atrocities on member states. Section II: Individual Criminal Responsibility For the positive applicability of the International Law, an act of aggression committed even by an individual of the state is liable to be punished.15 According to Yorum Dinstein an individual is accountable for a trial if he plans, prepares, initiates or directly wages a war of aggression as article 6(a) of the GA Resolution clearly states the distinction between these terms.16 Most of the just war theorists including Grotius, Wheaton and Walzer stressed the accountability of individual state rulers for waging wars but they couldn’t provide the ground for legal action. 17 The statutes of Nuremberg and Tokyo were the pioneers to take action in case of crime against peace and taken into account the individual criminal responsibility.18 Robert Jackson, a chief prosecutor of the International Military Tribunal at Nuremberg stated that the time has come for us to regard aggressive war-making as a criminal and illegal act.19 The establishment of the Nuremberg Tribunal was brought about to ensure that major war criminals who have committed crimes beyond the geographical boundaries of their state be testified by the court.20 The Nuremberg Charter formed a committee that formulated the indictment against the accused.21The indictment’s count one relates to the common plan by the individuals to commit crimes against peace whereas count two describes the allegations if such crimes are committed.22 Crimes committed on behalf of a state's political agenda: Principle I of the Nuremberg Tribunal had stated in its judgment that men are responsible for committing crimes not the “abstract entities”, and measures of international law can only be implemented if individuals liable for committed crimes be penalized. 23 IMT in its judgement proclaimed that individuals are obliged to perform certain international duties that go beyond the national jurisdictions of the state from where they belong. 24Under the International law high rank officials who commit crimes cannot shelter themselves behind the position they hold in state. Principle IV of the IMT judgement revealed that the person is held accountable even if he was bound to act on orders of higher officials provided that he had a moral choice. However the issue of mitigating penalty was left for the court to decide. Principle VI encompasses article 6 of the Nuremberg Charter. It included planning, preparation, starting warfare and conspiring to commit these acts.25 Since Nuremberg Trials, emphasis has been laid for trying single perpetrators in the court as charging the whole state for the war crimes seemed unproductive and abstract.26An idea about war of aggression similar to IMT was provided in Allied Control Council Law No.10. Few of the individual cases that were conducted under the Control Counsel Law No.10 in American Military Tribunals are discussed below: 27 Planning & Preparing (US v Wilhelm Goering, Krupp case)  In US v Krupp Case most of the defendants were ill and aged28. The case included twelve industrialists. During the trial proceedings, defence filed an appeal against the charges as the evidence provided was not satisfactory.29 The court showed its concerns about the outcome of prison sentence. No action was taken rapidly in this regard but still it pursued the Military Governor to act, who was actually responsible to execute sentence.30 Participating in a Common Plan to commit Crime Against Peace (Farben case)  Farben case involved allegations for crime against peace in which twenty four high industrial officials were charged for planning, preparation and initiation to bring about wars of aggression under count one and thus committing the crime against peace under count five by getting involved in the state matters and establishing conspiracy against the following nations of Austria, France, United Kingdom, Czechoslovakia, Poland, United States and a few others. Of the twenty four, one couldn’t appear before the court due to ill health while the rest filed appeal against the charges.31Of the defendants, thirteen were found guilty while ten were acquitted of all charges.32 Waging and carrying out Crimes Against Peace (US v von Leeb High Command case)  In case of US v Wilhelm von Leeb et al. (High Command Trial) fourteen German officers were sentenced for only three years in prison together “with the tribunal noting that there was much to be said in mitigation”. Wilhelm von Leeb had no belongings with the Nazi Regime and it has been proved through trial that he didn’t sign any criminal orders.33 Under international law, in order to highlight individual responsibility in war of aggression, the use of force must be of intense nature.34 This was speculated by Nina Jorgenson that under article 5(2) of the United Nations G.A., there exists a clear disparity among gruesome criminal acts in wars of aggression and other less violent acts of aggression that are “short of war” .According to her, all acts of aggression being international delicts, involve state responsibility.35 Article 5(1) and 5(2) of the Resolution 3314 mentioned aggression as a crime against international peace and that aggression leads to “international responsibility”. Special emphasis is laid on the dual nature of aggression i.e. as crime and as delict.36 Article 25 of the Rome Statue of the International Criminal Court encompasses individual state responsibility. It mentions that the court can exercise its authority over individuals who have participated with other persons in committing crimes that comes under the jurisdiction of the court.37 “Article 25(3) envisions a large range of personal contributions to the commission of a crime. The respective profiles appear to fall under three basic categories within which the single individual can commit one of the crimes contemplated in the Statute: (i) as agent, author or principal; (ii) as accomplice (contributor) alongside one or more agents; (iii) as participant in at least the attempted commission of a crime by a group sharing an action plan”.38 It states that the ICC will exercise its authority over “natural persons” who would be held individually responsible for the committed crime. This is not an innovation because such provisions were also mentioned in the Nuremberg tribunals where single individuals were identified in spite of “collective entities” like state. In that case law such action was carried out to highlight the real initiators of vast atrocities thus making them accountable for the crimes they adopted.39 In the Rome Statue, a person is likely to be penalized if he carries the act alone or in joint collaboration with others, gives orders or aid for the commission of such crime. Contribution could be solely in the form of increasing criminal activity or for creating incitement among a group (e.g. in case of genocide). The person may be acquitted of all charges if the crime committed was forced irrespective of the person’s intensions.40 Article 25(4) offers a clear cut separation of individual and state responsibility under the international law.41 Jeremy Bentham an eighteenth century philosopher proposed that circumstances within the course of action should be considered while holding a person responsible for aggressive acts. He even proclaimed that in certain instances even killing an individual could be beneficial.42 Attempt and incitement to commit aggression  Another debate under consideration is about the persons who can commit aggression. This include participatory role of not only militants but also industrialists, businessmen, political leaders involved in war crimes etc. The definition of aggression provided by the Special Working Group couldn’t give lucid explanation regarding individuals who are liable for the crimes. Drumbl states that in modern times most of the security threats are raised by the fragmented group of individuals who are not directly linked to the military or are not bound by the patriotic obligation while waging wars rather they activate independently.43 If such officers are not reprimanded for the acts of aggression than this “collectivization of innocence” may lead to further incitement of aggressive acts, as individuals will exert no effort to abstain themselves for waging wars. Incentives could be in the form of financial benefits awarded to the high rank officials so that they could keep a check on their counterparts. Mark Osiel has suggested a legal framework in which all officers have to recompense losses in case of act of aggression committed by any one member of the group with the intention that this would dissuade them from falling in the trap of politicians and entrepreneurs who (to be on the safer side) wish to act behind the curtains while initiating aggressive wars.44 Lauterpacht and Kelsen theories & arguments on Individual Criminal Responsibility  Hans Kelson (1881-1973), an Austrian legal philosopher was well known for his positive law theory. He criticized the phenomenon that once the international law has implemented its jurisdiction to prevent crime of aggression than a violation of this law would be considered a delict and a military reaction against such act would be sort of sanction, hence he was in favour of the just war theory.45 According to him an individual should only be liable for accountability if the actions he committed are done with pure intent. If this is not the case he may be pardoned for the crimes he committed. He further gave the concept of duty and responsibility (individual and collective responsibility) incumbent upon individuals through legal order.46 Lauterpacht, a proponent of state responsibility in the international crime, is of the view that state and individuals working on behalf of the state are responsible for commission of gruesome criminal acts that are condemned internationally. According to him “massacre of aliens resident” living within the boundaries of a state and preparing an aggressive war are alleged crimes. He stated that international law principles relating to criminal responsibility of a state is a relatively new concept that must be exercised with full authority by the international court of law so that war criminals could be penalized and such acts could be minimized to some extent in future.47 Role of Security Council & the cases of aggression so far: Antonio Cassesse states that Security Council has most remained silent as no allegations against crime of aggression were observed after 1947, although states have engaged in such crimes over the years, thus violating article 2(4) of the UN charter.48 Security Council in its resolution 487 has condemned the attack on Iraq’s Osirak nuclear reactor by Israel in 1981 but the international community failed to approve it as aggressive act.49 Same happened in case of South African aggravated attack on Angola in 1985.50 Nicolaos Strapatsas, a leading delegate on the SWGCA proposed that since its inception in 1945, the Security Council has only condemned crime of aggression thirty one times.51 This presented a challenge for the legality of international law as courts took no action to limit aggression. Whenever states commit crime of aggression they shelter themselves under the protective coating of Self Defence provided by the Security Council, thus getting free from accountability issues.52 According to Gerhard Werle, the responsibility to identify acts of aggression granted to the Security Council, under article 24 of the UN Charter, is a controversial issue. 53He believes that as Security Council is no judicial organ, its involvement may bear risks to politicize legal proceedings. Few of its members also have the right to veto therefore it might be possible to prevent some of the actual cases from being presented in front of the ICC.54 Section III: Concluding Remarks  The jurisdiction of international law for prosecuting crimes against aggression has not been practiced in recent years especially after the International Military Tribunal of Nuremberg and Tokyo tribunals.55 When UN General Assembly approved the Nuremberg principles, accountability for individual in crimes against peace were also amended in the law standards.56 State and individuals are both liable for crimes of aggression in the international law, however the International Criminal Court requires the consent of member states to carry out legal proceedings in this regard. But according to Drumbl, if we stick to the assumption that law has the jurisdiction to motivate human behavior then efforts could be made to incentivize vulnerable individuals by stating that if they stay away from criminal acts they would not be held morally responsible for the legal consequences.57 Work Cited Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis, United Nations, Treaty Series, vol. 82, p. 279. Andre’ Nollkaemper and Harmen van der Wilt, Introduction in Andre’ Nollkaemper and Harmen van der Wilt, System Criminality in International Law (Cambridge, 2009) 1 at 4 Article 25 of the Rome Statute Cassese Antonio, On Some Problematical Aspects of the Crime of Aggression, (2007) Leiden Journal of International Law, Vol. 20, pp.844 International Military Tribunal for Nuremberg, Judgment, 1 October 1946.pp.41 Cassesse Antonio, Affirmation of the Principles of International Law recognized by the Charter of the Nuremberg Tribunal(2009) United Nations Audiovisual Library of International Law, pp.3 Cherif Bassiouni International Criminal Law, 2nd Edition, Vol. 3, Ardsley, NY: Transaction, 1999 Cryer et al., An Introduction to International Criminal Law and Procedure, Cambridge University Press, p. 37 Crawford James, The ILC’S Articles on Responsibility of States for Internationally Wrongful Acts: A Retrospect, Symposium: The ILC’s State Responsibility Articles, 2002, 874 Crawford Neta C., Individual and Collective Moral Responsibilty for Systemic Military Atrocity. The Journal of Political Philosophy: Volume 15, Number 2, 2007, pp. Dinstein Yorum (2005) War, Aggression and Self-Defence 4th ed. CUP Cambridge, p.132 Draft Declaration on Rights and Duties of States, 1949 Drumbl Mark,The push to criminalize aggression: something lost amid the gains, Working Paper No.2008-43,pp.4 Hans Kelsen, General Theory of Law and State, 2007, The Lawbook Exchange P.68-69 Hannah Arendt, Eichmann in Jerusalem: A Report on the Banality of Evil (New York: Penguin Books, revised edn, 1977), p. 256. Journal of International Criminal Justice/2007, Volume 5/Issue 4, September/Articles/The Personal Nature of Individual Criminal Responsibility and the ICC Statute - ICJ 5 4 (941) United States of America v. Krupp von Bohlen et al. (“Krupp Trial”), 10 L.R.T.W.C. 69, 158 (1949). Jorgensen Nina H.B., The responsibilty of states for international crimes, 2000, pp.240 Journal of International Criminal Justice/2007, Volume 5/Issue 4, September/Articles/The Personal Nature of Individual Criminal Responsibility and the ICC Statute - ICJ 5 4 (941), 3 Jeremy Bentham, An introduction to the Principles of Morals and Legislation, edited by J.H. Burns and H.L.A Hart, Oxford University Press, 1970, p.79 Judgment, 29, 30 July 1948, Trials of War Criminals before the Nuremberg Military Tribunals, United States Government Printing Office,1952, vol. VIII, pp. 1081, 1083. http://www.ess.uwe.ac.uk/genocide/cntrl10_trials.htm#KruppNuremberg Trials Held by the United States of America Under Control Council Law No.10 May Larry Aggression and Crime Against Peace, p.145 International Military Tribunal (Nuremberg), Judgment and Sentences, 41 AM. J. INT’L. L. 172, 186 (1947) pp.186 Mentioned in UN Security Council resolution 577 of 6 December 1985, on South Africa’s attacks on Angola Noah Weisbord, Prosecuting Aggression, Harvard International Law Journal, Vol.49, No.1, pp. pp.169 [49 Harv. Int'l L.J. 161 (2008)] Militello Vincenzo, The Personal Nature of Individual Criminal Responsibility and the ICC Statute, Journal of International Criminal Justice/2007, Volume 5,Issue 4- ICJ 5 4 (941) Osiel Mark, The Bonality of Good: Aligning Incentives Against Mass Atrocity, COLUM.L.REV.1751,1761 (2005) PP.105 Pallet Allen, Can a state commit a crime? Definitely Yes! EJIL 10(1999), 426 Politi Mauro & Nesi Giuseppe,(2004). The International Criminal Court and the Crime of Aggression Ashgate Publishing: United Kingdom p.93 Report of the International Law Commission on the Work of its forty eighth session, 6 May-26 July 1996, GAOR, 51st. Session, Supplement No. 10, UN Doc. A/51/10, at 131-132 See Robert J. Lifton and Erik Markuson, The Genocidal Mentality: Nazi Holocaust and Nuclear Threat (New York: Basic Books, 1990), p. 199. http://www.soccerphile.com/soccerphile/euro2008/culture/swiss-armed-forces.html Easton Robert. Swiss Culture: Swiss Armed Forces, 2000. http://untreaty.un.org/cod/icc/documents/aggression/aggressiondocs.htm  Historical review of developments relating to aggression, prepared by the Secretariat PCNICC/2002/WGCA/L.1 (January 2002) and its Addendum PCNICC/2002/WGCA/L.1/Add.1,13-14 U.N. PREP.COMM’N FOR THE INT’L CRIM.CT., Working Group of Aggression, Proposal Submitted by Germany: The Crime of Aggression: A Further Informal Discussion paper, pp.20, U.N. Doc. PCNICC/2000/WGCA/DP.4 (Nov. 13, 2000). Reichberg et al.The ethics of war: classic and contemporary readings.2006 Wiley Blackwell, p.605 Tunkin Ivanovich Grigoii, Theory of International Law, 1974, Harvard University Press, p.399 International Law Commission of the United Nations, Principles of the Nuremberg Tribunal, Report of the International Law Commission Covering its Second Session, 5 June-29 July, 1950, Document A/1316, pp. 11-14 Werle Gerhard (2007). The Crime of Aggression between International and Domestic Criminal Law. Humboldt-Universitat zu Berlin, pp.5 ( Presentation at the XVth International Congress on Social Defence: Criminal Law between War and Peace: Justice and Cooperation in Military Matters in International Military Interventions, Toledo, Spain) Read More