Retreat from Nuremberg: The leadership requirement in the crime of aggression

Abstract

The International Criminal Court's Special Working Group on the Crime of Aggression (SWG) is currently considering two different proposals for a definition of the crime. Although different in many respects, both proposals agree that aggression is a 'leadership' crime that can be committed only by 'persons who are in a position effectively to exercise control over or to direct the political or military action of a State'. According to the SWG, the 'control or direct' standard is consistent with - and required by - the jurisprudence of the International Military Tribunal, Nuremberg Military Tribunal, and International Military Tribunal for the Far East. In fact, that jurisprudence tells a different story. These three tribunals not only assumed that the crime of aggression could be committed by two categories of individuals who could never satisfy the 'control or direct' requirement - private economic actors such as industrialists, and political or military officials in a state who are complicit in another state's act of aggression - they specifically rejected the 'control or direct' requirement in favour of a much less restrictive 'shape or influence' standard. The SWG's decision to adopt the 'control or direct' requirement thus represents a significant retreat from the Nuremberg principles, not their codification. © EJIL 2007; all rights reserved.