New Essay on the Crime of Aggression

I have a new essay on SSRN, entitled “Retreat from Nuremberg: The Leadership Requirement in the Special Working Group’s Definition of Aggression.” Here is the abstract:

The International Criminal Court’s jurisdiction over the crime of aggression is contingent upon the Assembly of States Parties adopting a definition of the crime. To that end, the Special Working Group on the Crime of Aggression (SWG) has been considering a number of proposals for a possible definition. Although different in a number of respects, the proposals all agree on one point: 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.”

No delegation has ever questioned the leadership requirement itself. There have been suggestions, however, that limiting the category of “leader” to individuals who can control or direct a State’s political or military action might unnecessarily restrict the crime’s scope. The SWG has consistently rejected those suggestions, insisting that the “control or direct” standard is consistent with – and required by – the jurisprudence of the International Military Tribunal (IMT), Nuremberg Military Tribunal (NMT), and International Military Tribunal for the Far East (IMTFE).

In fact, that jurisprudence tells a very different story. As this essay demonstrates, the IMT, NMT, and IMTFE 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 favor 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.

The essay is an early draft, so comments and criticisms would be welcome.