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On aggression, on international criminal law, on international criminal jurisdiction1–I

Published online by Cambridge University Press:  21 May 2009

B. V. A. Röling
B. V. A. Röling
Affiliation:
Professor of international law at the University of Groningen
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Extract

It would be a remarkable and astonishing thing: to find a generally acceptable definition of aggression. We know that all endeavours up till now failed completely, including the labours of the Special Committee on defining aggression, that met in New York last year.

When we look at its report, we see in the Annexes draft-definitions of aggression and suggestions as to definitions. In view of this the French member of the Committee at the time stated that, in his opinion, the Committee had carried out its terms of reference, viz. “to submit draft definitions of aggression or draft statements of the notion of aggression”. I would submit that the Special Committee did not carry out its functions in this regard. In the Annexes of the Report drafts are given proposed by individual members of the Committee. Those drafts were not drafts of the Committee, but drafts of some of its members.

Type
Articles
Information
Netherlands International Law Review , Volume 2 , Issue 2 , June 1955 , pp. 167 - 196
Copyright
Copyright © T.M.C. Asser Press 1955

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References

page 167 note 2 Report of the Special Committee on the question of defining aggression. G. A. Official Records. Ninth session. Suppl. No. 11, A.2638.

page 167 note 3 A/AC/66/SR 18, p. 8, Oct. 6, 1953.

page 173 note 1 The Law of the United Nations, 2nd imp. London 1951, p. 727.Google Scholar

page 175 note 1 British edition, London 1946, p. 28.Google Scholar

page 175 note 2 Resolution I 95 of December 11, 1946.

page 175 note 3 Transcript of the proceedings, page 49768.

page 176 note 1 Judgment Nuremberg. Brit. ed. London 1946, p. 42.Google Scholar

page 177 note 1 Compare Resolution V 380 “Peace through deeds”.

page 179 note 1 L.o.N. Off. Journal, 1925, pp. 1696–1718.Google Scholar

page 179 note 2 Res. of the League Assembly, 11 24, 1934.Google Scholar

page 181 note 1 Compare Eagleton, Clyde: The attempt to define war, Carnegie-Endowment, International Conciliation No. 291, New York 1933, p. 58Google Scholar, and Grob, Fritz: The relativity of war and peace, A study in Law, History and Politics, New Haven. 1949, p. 325 ff. 181Google Scholar

page 182 note 1 Compare: Report of Jackson, Robert H., U.S. representative to the International Conference on Military Trials. London 1945. Dep. of State publication 3080, Washington 1949.Google Scholar

page 182 note 2 Compare: Law Reports of Trials of war Criminals, Vol. I–XV, London 1946–1949.Google Scholar

page 182 note 3 Judgment of the International Military Tribunal for the Trial of German Major War Criminals. Nuremberg 30 Sept.—1 Oct. 1946. H.M. Stat. Office. London 1946, p. 38.Google Scholar

page 183 note 1 Report of Jackson, Robert H., p. 394.Google Scholar

page 183 note 2 Speeches of the Chief Prosecutors at the close of the case against the individual defendants, London 1946, p. 63.

page 184 note 1 E. g. Pompe, C. A.: Aggressive war, an international crime, 's-Gravenhage 1953, p. 281CrossRefGoogle Scholar, who rightly observes: “The penal decision more than the reasoning on which it is based, is the important factor”, (p. 289).Google Scholar

page 184 note 2 Judgment o.c., p. 3.Google Scholar

page 184 note 3 Judgment o.c., p. 38.Google Scholar

page 184 note 4 International legal theories evolved at Nuremberg, in International Affairs XXIII—1947—No. 3.

page 185 note 1 Donnedieu de Vabres: Le procès de Nuremberg devant les principes modernes du droit pénal international, in Recueil des Cours de l'Académie de droit international de La Haye, Paris 1947, Vol, I, pag. 481 ff.

page 185 note 2 Judgment Nuremberg, o.c., p. 42.Google Scholar

page 186 note 1 Stimson, Henry L., The Nuremberg Trial: “Landmark in Law”. Foreign Affairs XXV, 1947, pp. 179–189.CrossRefGoogle Scholar

page 186 note 2 Closing speeches. Brit. ed. London 1946, p. 109.Google Scholar

page 186 note 3 Some took exception to this word “sinister”. In a later intervention I gave the following explanation:

The “sinister thing” is not that some very guilty men were put to death. In case they were shot down without trial—as Winston Churchill suggested at the time as an alternative—history would not have blamed us, so great was their guilt.

But a trial, a judicial trial was organized, and new law about the individual criminal responsibility was laid down. As such Nuremberg was a precedent. Hans Kelsen at the time denied on technical grounds that Nuremberg would constitute a precedent. But it cannot be denied, Nuremberg will have “the power of the beaten path”, which is the essence of a precedent. As such it signifies that the victor in a war is entitled—in circumstances as those after World War II—to enact new law based on the conscience of the world. Every victor in any future world war will rely on this precedent. This precedent we should only recognize in case a second principle is combined with it: that the newly promulgated law will bind all in the future.

At the time of Nuremberg and Tokyo it was said repeatedly and officially: this law will bind us all. To retreat now from it would make “the precedent of Nuremberg” the pretext to every victor: you may invent new law and apply it on the vanquished, and you will not be bound yourself. As a precedent, I would call this “sinister”.

page 187 note 1 Judgment Nuremberg, o.c., p. 42.Google Scholar

page 187 note 2 Kelsen, Hans, Will the judgment in the Nuremberg trial constitute a precedent in international law? The International Law Quarterly, I, 1947, pp. 153–171.Google Scholar

page 188 note 1 Gesetzblatt der Deutschen Demokratischen Republik 1950, p. 1199.Google Scholar

page 188 note 2 English text taken from American Journal of International Law 1952, Supplement page 99.Google Scholar

page 188 note 3 Text in American Journal of International Law, 1952, Supplement p. 34 and 35.Google Scholar

page 188 note 4 Texts in Americal Journal of International Law, 1952, Supplement page p. 101 ff.Google Scholar

page 189 note 1 In this connection it is of special significance that Western Germany and Austria ratified the Refugee-convention. Dr J. Robinson, the Israeli delegate in the Legal Committee, drew attention to the fact that, at least by implication the Nuremberg principles have been recognized in the respective peace treaties by Italy (art. 38), Rumania (art. 6), Hungary (art. 5), Bulgaria (art. 5) and Finland (art. 9).

page 189 note 2 Compare the Report of the Rapporteur of the VIth Committee, Off. Rec. Second Session of the General Assembly, Sixth Committee, Summary Records, New York 1947, p. 212.Google Scholar

page 190 note 1 Report International Law Commission 1949, p. 4.Google Scholar

page 191 note 1 Macbeth, I 7.Google Scholar

page 193 note 1 Studies in which an objective analysis of the post-war judgments is given, simply do not exist. On the other band German scholars publish numerous books on a high scholarly level, but representing the typical German attitude. I may mention here H. H. Jescheck, Die Verantwortlichkeit der Staatsorgane nach Völkerstrafrecht, Eine Studie zu den Nürnberger Prozessen, Bonn 1952, and A. von Knieriem: Nürnberg, Rechtliche und menschliche Probleme, Stuttgart 1953, in which reference is made to the recent German literature.