Crime against peace
Encyclopedia
A crime against peace, in international law
, refers to "planning, preparation, initiation, or waging of wars of aggression
, or a war in violation of international treaties, agreements or assurances, or participation in a common plan or conspiracy for the accomplishment of any of the foregoing". This definition of crimes against peace was first incorporated into the Nuremberg Principles
and later included in the United Nations Charter
. This definition would play a part in defining aggression as a crime against peace
.
An important exception to the foregoing are defensive military actions taken under Article 51 of the UN Charter. Such defensive actions are subject to immediate Security Council review, but do not require UN permission to be legal within international law. "Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations." (UN Charter, Article 51) The Security Council will determine if the action is legally the "right of individual or collective self-defence", or it may appoint another UN organ to do this.
", "political independence
" and "sovereignty
". However, their face value
would seem to disclose the following:
This definition of the crime of aggression belongs to jus cogens, which is supreme in the hierarchy of international law
and, therefore, it cannot be modified by, or give way to, any rule of international law but one of the same rank. An arguable example is any rule imposing a conflicting obligation to prevent, interdict or vindicate crimes which also belong to jus cogens, namely aggression
itself, crimes against humanity, genocide
, war crimes, slavery
, torture
and piracy
, so that a war waged consistent with the aim of repressing any of these crimes might not be illegal where the crime comes within the limit of proportionality
relative to war
and its characteristic effects.
, known as the General Treaty for the Renunciation of War, said:
If a nation does not register with the UN as recognizing the Kellogg-Briand Pact, even if the nation had signed it, the UN cannot hold a claimed violation of the Kellogg-Briand Pact to be a violation of international law (according to its own Charter, Article 102). The interpretation of Article 102 is reserved to the Security Council, so it is possible that a "crime against peace" might be found by the Security Council, regardless.
defined three categories of crimes, including crimes against peace. This definition was first used in Finland
to prosecute the political leadership in the War-responsibility trials in Finland
. The principles were later known as the Nuremberg Principles
.
In 1950, the Nuremberg Tribunal
defined Crimes against Peace (in Principle VI.a, submitted to the United Nations General Assembly
) as
Wikipedia (Nuremberg Trials) "The legal basis for the jurisdiction of the court was that defined by the Instrument of Surrender of Germany, political authority for Germany had been transferred to the Allied Control Council, which having sovereign power over Germany could choose to punish violations of international law and the laws of war. Because the court was limited to violations of the laws of war, it did not have jurisdiction over crimes that took place before the outbreak of war on September 1, 1939"
For committing this crime, the Nuremberg Tribunal sentenced a number of persons responsible for starting World War II
. One consequence of this is that nations who are starting an armed conflict must now argue that they are either exercising the right of self-defense, the right of collective defense, or - it seems - the enforcement of the criminal law
of jus cogens. It has made formal declaration of war
uncommon after 1945.
During the trial, the chief American prosecutor, Robert H. Jackson
, stated:
Associate Supreme Court Justice William Douglas charged that the Allies
were guilty of "substituting power for principle" at Nuremberg. "I thought at the time and still think that the Nuremberg trials were unprincipled.", he wrote. "Law was created ex post facto to suit the passion and clamor of the time." ['Dönitz at Nuremberg: A Reappraisal', H. K. Thompson, Jr. and Henry Strutz, (Torrance, Calif.: 1983)]
says:
The interdiction of aggressive war
was confirmed and broadened by the United Nations' Charter, which states in article 2, paragraph 4 that
International law
Public international law concerns the structure and conduct of sovereign states; analogous entities, such as the Holy See; and intergovernmental organizations. To a lesser degree, international law also may affect multinational corporations and individuals, an impact increasingly evolving beyond...
, refers to "planning, preparation, initiation, or waging of wars of aggression
War of aggression
A war of aggression, sometimes also war of conquest, is a military conflict waged without the justification of self-defense usually for territorial gain and subjugation. The phrase is distinctly modern and diametrically opposed to the prior legal international standard of "might makes right", under...
, or a war in violation of international treaties, agreements or assurances, or participation in a common plan or conspiracy for the accomplishment of any of the foregoing". This definition of crimes against peace was first incorporated into the Nuremberg Principles
Nuremberg Principles
The Nuremberg principles were a set of guidelines for determining what constitutes a war crime. The document was created by the International Law Commission of the United Nations to codify the legal principles underlying the Nuremberg Trials of Nazi party members following World War II.- Principle...
and later included in the United Nations Charter
United Nations Charter
The Charter of the United Nations is the foundational treaty of the international organization called the United Nations. It was signed at the San Francisco War Memorial and Performing Arts Center in San Francisco, United States, on 26 June 1945, by 50 of the 51 original member countries...
. This definition would play a part in defining aggression as a crime against peace
Aggression (war crime)
United Nations General Assembly Resolution 3314 was adopted by the United Nations General Assembly on December 14, 1974 as a non-binding recommendation to the United Nations Security Council on the definition it should use for the crime of aggression.-Background:The adoption of the definition was...
.
An important exception to the foregoing are defensive military actions taken under Article 51 of the UN Charter. Such defensive actions are subject to immediate Security Council review, but do not require UN permission to be legal within international law. "Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations." (UN Charter, Article 51) The Security Council will determine if the action is legally the "right of individual or collective self-defence", or it may appoint another UN organ to do this.
Definition
No legal authority exists for the definition of the terms "territorial integrityTerritorial integrity
Territorial integrity is the principle under international law that nation-states should not attempt to promote secessionist movements or to promote border changes in other nation-states...
", "political independence
Independence
Independence is a condition of a nation, country, or state in which its residents and population, or some portion thereof, exercise self-government, and usually sovereignty, over its territory....
" and "sovereignty
Sovereignty
Sovereignty is the quality of having supreme, independent authority over a geographic area, such as a territory. It can be found in a power to rule and make law that rests on a political fact for which no purely legal explanation can be provided...
". However, their face value
Face value
The Face value is the value of a coin, stamp or paper money, as printed on the coin, stamp or bill itself by the minting authority. While the face value usually refers to the true value of the coin, stamp or bill in question it can sometimes be largely symbolic, as is often the case with bullion...
would seem to disclose the following:
- The "territorial integrity" rule means that it is a crime of aggression to use armed force with intent permanently to deprive a state of any part or parts of its territory, not excluding territories for the foreign affairs of which it is responsible;
- The "political independence" rule means that it is a crime of aggression to use armed force with intent to deprive a state of the entirety of one or more of the prerequisites of statehood, namely: defined territory, permanent population, constitutionally independent government and the means of conducting relations with other States;
- The "sovereignty" rule means that it is a crime of aggression to use armed force with intent to overthrow the government of a state or to impede its freedom to act unhindered, as it sees fit, throughout its jurisdiction.
This definition of the crime of aggression belongs to jus cogens, which is supreme in the hierarchy of international law
International law
Public international law concerns the structure and conduct of sovereign states; analogous entities, such as the Holy See; and intergovernmental organizations. To a lesser degree, international law also may affect multinational corporations and individuals, an impact increasingly evolving beyond...
and, therefore, it cannot be modified by, or give way to, any rule of international law but one of the same rank. An arguable example is any rule imposing a conflicting obligation to prevent, interdict or vindicate crimes which also belong to jus cogens, namely aggression
Aggression
In psychology, as well as other social and behavioral sciences, aggression refers to behavior between members of the same species that is intended to cause humiliation, pain, or harm. Ferguson and Beaver defined aggressive behavior as "Behavior which is intended to increase the social dominance of...
itself, crimes against humanity, genocide
Genocide
Genocide is defined as "the deliberate and systematic destruction, in whole or in part, of an ethnic, racial, religious, or national group", though what constitutes enough of a "part" to qualify as genocide has been subject to much debate by legal scholars...
, war crimes, slavery
Slavery
Slavery is a system under which people are treated as property to be bought and sold, and are forced to work. Slaves can be held against their will from the time of their capture, purchase or birth, and deprived of the right to leave, to refuse to work, or to demand compensation...
, torture
Torture
Torture is the act of inflicting severe pain as a means of punishment, revenge, forcing information or a confession, or simply as an act of cruelty. Throughout history, torture has often been used as a method of political re-education, interrogation, punishment, and coercion...
and piracy
Piracy
Piracy is an act of robbery or criminal violence at sea. The term can include acts committed on land, in the air, or in other major bodies of water or on a shore. It does not normally include crimes committed against persons traveling on the same vessel as the perpetrator...
, so that a war waged consistent with the aim of repressing any of these crimes might not be illegal where the crime comes within the limit of proportionality
Proportionality (political maxim)
The principle of proportionality is a political maxim which states that no layer of government should take any action that exceeds that which is necessary to achieve the objective of government . It was initially developed in the German legal system.It is a fundamental principle of European Union...
relative to war
War
War is a state of organized, armed, and often prolonged conflict carried on between states, nations, or other parties typified by extreme aggression, social disruption, and usually high mortality. War should be understood as an actual, intentional and widespread armed conflict between political...
and its characteristic effects.
Kellogg-Briand Pact
In 1928, the Kellogg-Briand PactKellogg-Briand Pact
The Kellogg–Briand Pact was an agreement signed on August 27, 1928, by the United States, France, the United Kingdom, Italy, Japan, Weimar Germany and a number of other countries.The pact renounced war , prohibiting the use of war...
, known as the General Treaty for the Renunciation of War, said:
The High Contracting Parties solemnly declare in the names of their respective peoples that they condemn recourse to war for the solution of international controversies, and renounce it, as an instrument of national policy in their relations with one another.
If a nation does not register with the UN as recognizing the Kellogg-Briand Pact, even if the nation had signed it, the UN cannot hold a claimed violation of the Kellogg-Briand Pact to be a violation of international law (according to its own Charter, Article 102). The interpretation of Article 102 is reserved to the Security Council, so it is possible that a "crime against peace" might be found by the Security Council, regardless.
Nuremberg Principles
In 1945, the London Charter of the International Military TribunalLondon Charter of the International Military Tribunal
The London Charter of the International Military Tribunal was the decree issued on August 8, 1945, that set down the laws and procedures by which the Nuremberg trials were to be conducted.The charter stipulated that crimes of the European Axis Powers could be tried...
defined three categories of crimes, including crimes against peace. This definition was first used in Finland
Finland
Finland , officially the Republic of Finland, is a Nordic country situated in the Fennoscandian region of Northern Europe. It is bordered by Sweden in the west, Norway in the north and Russia in the east, while Estonia lies to its south across the Gulf of Finland.Around 5.4 million people reside...
to prosecute the political leadership in the War-responsibility trials in Finland
War-responsibility trials in Finland
The war-responsibility trials in Finland was a trial of the Finnish wartime leaders held responsible for "definitely influencing Finland in getting into a war with the Soviet Union and United Kingdom in 1941 or preventing peace" during the Continuation War, 1941-1944. Unlike other World War II...
. The principles were later known as the Nuremberg Principles
Nuremberg Principles
The Nuremberg principles were a set of guidelines for determining what constitutes a war crime. The document was created by the International Law Commission of the United Nations to codify the legal principles underlying the Nuremberg Trials of Nazi party members following World War II.- Principle...
.
In 1950, the Nuremberg Tribunal
Nuremberg Trials
The Nuremberg Trials were a series of military tribunals, held by the victorious Allied forces of World War II, most notable for the prosecution of prominent members of the political, military, and economic leadership of the defeated Nazi Germany....
defined Crimes against Peace (in Principle VI.a, submitted to the United Nations General Assembly
United Nations General Assembly
For two articles dealing with membership in the General Assembly, see:* General Assembly members* General Assembly observersThe United Nations General Assembly is one of the five principal organs of the United Nations and the only one in which all member nations have equal representation...
) as
(i) Planning, preparation, initiation or waging of a war of aggression or a war in violation of international treaties, agreements or assurances;
(ii) Participation in a common plan or conspiracy for the accomplishment of any of the acts mentioned under (i).
Wikipedia (Nuremberg Trials) "The legal basis for the jurisdiction of the court was that defined by the Instrument of Surrender of Germany, political authority for Germany had been transferred to the Allied Control Council, which having sovereign power over Germany could choose to punish violations of international law and the laws of war. Because the court was limited to violations of the laws of war, it did not have jurisdiction over crimes that took place before the outbreak of war on September 1, 1939"
For committing this crime, the Nuremberg Tribunal sentenced a number of persons responsible for starting World War II
World War II
World War II, or the Second World War , was a global conflict lasting from 1939 to 1945, involving most of the world's nations—including all of the great powers—eventually forming two opposing military alliances: the Allies and the Axis...
. One consequence of this is that nations who are starting an armed conflict must now argue that they are either exercising the right of self-defense, the right of collective defense, or - it seems - the enforcement of the criminal law
Criminal law
Criminal law, is the body of law that relates to crime. It might be defined as the body of rules that defines conduct that is not allowed because it is held to threaten, harm or endanger the safety and welfare of people, and that sets out the punishment to be imposed on people who do not obey...
of jus cogens. It has made formal declaration of war
Declaration of war
A declaration of war is a formal act by which one nation goes to war against another. The declaration is a performative speech act by an authorized party of a national government in order to create a state of war between two or more states.The legality of who is competent to declare war varies...
uncommon after 1945.
During the trial, the chief American prosecutor, Robert H. Jackson
Robert H. Jackson
Robert Houghwout Jackson was United States Attorney General and an Associate Justice of the United States Supreme Court . He was also the chief United States prosecutor at the Nuremberg Trials...
, stated:
To initiate a war of aggression, therefore, is not only an international crime; it is the supreme international crime differing only from other war crimes in that it contains within itself the accumulated evil of the whole.
Associate Supreme Court Justice William Douglas charged that the Allies
Allies of World War II
The Allies of World War II were the countries that opposed the Axis powers during the Second World War . Former Axis states contributing to the Allied victory are not considered Allied states...
were guilty of "substituting power for principle" at Nuremberg. "I thought at the time and still think that the Nuremberg trials were unprincipled.", he wrote. "Law was created ex post facto to suit the passion and clamor of the time." ['Dönitz at Nuremberg: A Reappraisal', H. K. Thompson, Jr. and Henry Strutz, (Torrance, Calif.: 1983)]
United Nations Charter
The first article of the United Nations CharterUnited Nations Charter
The Charter of the United Nations is the foundational treaty of the international organization called the United Nations. It was signed at the San Francisco War Memorial and Performing Arts Center in San Francisco, United States, on 26 June 1945, by 50 of the 51 original member countries...
says:
The Purposes of the United NationsUnited NationsThe United Nations is an international organization whose stated aims are facilitating cooperation in international law, international security, economic development, social progress, human rights, and achievement of world peace...
are:
- To maintain international peace and security, and to that end: to take effective collective measures for the prevention and removal of threats to the peace
PeacePeace is a state of harmony characterized by the lack of violent conflict. Commonly understood as the absence of hostility, peace also suggests the existence of healthy or newly healed interpersonal or international relationships, prosperity in matters of social or economic welfare, the...
, and for the suppression of acts of aggression or other breaches of the peace, and to bring about by peaceful means, and in conformity with the principles of justiceJusticeJustice is a concept of moral rightness based on ethics, rationality, law, natural law, religion, or equity, along with the punishment of the breach of said ethics; justice is the act of being just and/or fair.-Concept of justice:...
and international lawInternational lawPublic international law concerns the structure and conduct of sovereign states; analogous entities, such as the Holy See; and intergovernmental organizations. To a lesser degree, international law also may affect multinational corporations and individuals, an impact increasingly evolving beyond...
, adjustment or settlement of international disputes or situations which might lead to a breach of the peaceBreach of the peaceBreach of the peace is a legal term used in constitutional law in English-speaking countries, and in a wider public order sense in Britain.-Constitutional law:...
;- To develop friendly relations among nations based on respect for the principle of equal rights
Civil rightsCivil and political rights are a class of rights that protect individuals' freedom from unwarranted infringement by governments and private organizations, and ensure one's ability to participate in the civil and political life of the state without discrimination or repression.Civil rights include...
and self-determinationSelf-determinationSelf-determination is the principle in international law that nations have the right to freely choose their sovereignty and international political status with no external compulsion or external interference...
of peoples, and to take other appropriate measures to strengthen universal peace;
The interdiction of aggressive war
War of aggression
A war of aggression, sometimes also war of conquest, is a military conflict waged without the justification of self-defense usually for territorial gain and subjugation. The phrase is distinctly modern and diametrically opposed to the prior legal international standard of "might makes right", under...
was confirmed and broadened by the United Nations' Charter, which states in article 2, paragraph 4 that
All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.
Article 33
The parties to any dispute, the continuance of which is likely to endanger the maintenance of international peace and security, shall, first of all, seek a solution by negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their own choice.
The Security Council shall, when it deems necessary, call upon the parties to settle their dispute by such means.
Article 39
The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security.
Article 51
Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United NationsUnited NationsThe United Nations is an international organization whose stated aims are facilitating cooperation in international law, international security, economic development, social progress, human rights, and achievement of world peace...
, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security.
U.S. laws of war
The U.S. Army's Law of Land Warfare (Field Manual 27-10) states:
498. Crimes Under International Law
Any person, whether a member of the armed forces or a civilian, who commits an act which constitutes a crime under international law is responsible therefore and liable to punishment. Such offenses in connection with war comprise:
- a. Crimes against peace.
- b. Crimes against humanity.
- c. War crimes.
Although this manual recognizes the criminal responsibility of individuals for those offenses which may comprise any of the foregoing types of crimes, members of the armed forces will normally be concerned, only with those offenses constituting "war crimes." (emphasis added)
See also
- Command responsibilityCommand responsibilityCommand responsibility, sometimes referred to as the Yamashita standard or the Medina standard, and also known as superior responsibility, is the doctrine of hierarchical accountability in cases of war crimes....
- International Criminal CourtInternational Criminal CourtThe International Criminal Court is a permanent tribunal to prosecute individuals for genocide, crimes against humanity, war crimes, and the crime of aggression .It came into being on 1 July 2002—the date its founding treaty, the Rome Statute of the...
- Second World War
- War of aggressionWar of aggressionA war of aggression, sometimes also war of conquest, is a military conflict waged without the justification of self-defense usually for territorial gain and subjugation. The phrase is distinctly modern and diametrically opposed to the prior legal international standard of "might makes right", under...