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 defi nition 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 offi cials in a state who are complicit in another state's act of aggression -they specifi cally rejected the ' control or direct ' requirement in favour of a much less restrictive ' shape or infl uence ' standard. The SWG's decision to adopt the ' control or direct ' requirement thus represents a signifi cant retreat from the Nuremberg principles, not their codifi cation.