Nuremberg and crimes against peace.

• Author: King, Henry T., Jr.

The Frederick K. Cox International Law Center at Case Western Reserve University sponsored a symposium, "The International Criminal Court and the Crime of Aggression," on September 26, 2008. The purpose of the conference was to assist the ICC Assembly of State Parties' Special Working Group on the Crime of Aggression create a workable definition of aggression and the conditions under which the Court could exercise its jurisdiction over it. This transcript contains the remarks of Henry T. King, who delivered the opening address at the symposium.

TRANSCRIPT

The international community has long sought to define "aggression" in a way that would serve as an effective tool in sustaining peace. I think that for this conference, I could serve you best by reviewing the origin of the Nuremberg aggressive-war charge--a crime against peace, (1) as defined by the victorious powers in the London Charter of August 8, 1945--and tracing the role the charge played through the twelve subsequent proceedings at Nuremberg. (2) By evaluating the checkered success of the aggression charge, I hope to provide context for the present effort to define aggression. Context will be vital to drafting a definition that will be both effective and acceptable to seven-eighths of the 106 or so nations of the governing assembly of states that have ratified the Rome Statute of July 1998. (3)

One of the revolutionary aspects of Nuremberg was that it held individuals responsible for the criminal acts they committed in the name of their country. Aggressive war was, up until then, an "act of state" that did not lead to individual liability. The new approach was based largely on the work of William C. Chanler, a law partner of the Secretary of War, Henry L. Stimson, who succeeded in getting it adopted as U.S. Policy. (4) Chanler was among the first to argue that there should be individual liability for engaging in crimes against peace. (5)

The basis of Chanler's argument that aggression should be an international crime was the Kellogg Briand Peace Act of 1928, (6) which outlawed war as an instrument of national policy. The Act was ratified by over sixty nations, including Germany. (7) Chanler's contribution was to criminalize aggression and to punish individuals for starting aggressive war. (8) His approach was intended to correct the situation where individuals like Kaiser Wilhelm II, who helped launch World War I, would go scot-free after the war.

President Franklin Delano Roosevelt adopted Chandler's idea on January 3, 1945, (9) and thereafter it became a part of American policy to include it in war crimes proposals. (10) Roosevelt died on April 12, 1945, and on the following day Justice Robert Jackson gave a speech before the American Society of International Law in which he argued for the prosecution of Nazi war criminals and emphasized the importance of a fair trial. (11)

At the suggestion of Samuel Rosenman, who had handled issues related to war crimes tribunals on behalf of President Franklin Roosevelt, President Truman appointed Robert Jackson to negotiate arrangements for the war-crimes trials and to represent the United States at the trials themselves. (12) Jackson strongly advocated for an international tribunal. His views sometimes ran counter to those of the other three countries participating in the war crimes project. (13) Usually he prevailed. Jackson was dynamic and eloquent, and without him there might never have been any Nuremberg trials at all.

The four victorious, major powers met in London in the summer of 1945 to develop a charter governing the future International Military Tribunal (IMT) at Nuremberg. (14) In preparing the United States' position, Justice Jackson included charges not only of "crimes against peace," but also of "conspiracy to wage aggressive war." (15) The concept of conspiracy as an independent crime was not part of the Napoleonic Civil Code followed by the continental states, (16) so France...