Individual Criminal Responsibility for the Crime of Aggression: Tracking Down the Leaders of a State

Abstract: The Nuremberg Charter introduced the crime of aggression into international law. The American Chief Prosecutor Justice Robert Jackson gave a famous promise that offenders who commit acts of aggression shall be prosecuted and international criminal law would be applied against them. However, only at the first Review Conference of the ICC Statute in Kampala 2010, agreement on a universally accepted definition was reached. To this end, Articles 15bis and 15ter of the ICC Statute prescribe the possibility of the court to exercise its jurisdiction over the crime of aggression after 1 January 2017. What distinguishes the crime of aggression from other core crimes under the ICC jurisdiction — namely, genocide, crimes against humanity and war crimes — is its leadership nature. According to Articles 8bis(1) and 25(3bis) ICC Statute, only a person in a position to 'direct or control' political or military action of a state could be found guilty for the crime of aggression. Notably, the structure of Article 25 ICC Statue — which articulates different modes of individual criminal responsibility for the under the ICC purview — is now limited to only a narrow group of people within a state, who could meet the leadership requirement. The introduction of the 'direct or control' clause represents a novelty of the new definition of the crime of aggression. It is true that ever since the post-World War II trials the crime of aggression was somewhat 'reserved' only to the policy-makers. The opinion that hallmarked the discourse on individual criminal responsibility regarding this crime, advocated that low-ranking state officials lacked the requisite mental element in that by virtue of their position they may not know the aggressive plans of their country. Therefore, it would be at variance with the interests of justice to prosecute those individuals for aggression. Not an every post-World War II tribunal set forth the leadership criteria explicitly. However, they all had a pattern they followed in tracing down potential perpetrators who could be regarded as leaders. After the High Command case, the Nuremberg Military Tribunal unequivocally stated that only individuals at the policy level could be convicted for the crime of aggression. By way of example, the leadership standard of 'shape or influence' was adopted for the first time in international criminal law. The requirement of 'shape or influence' was highly disputed in scholarship as it captures a broad group of persons who could meet this criterion. On the other hand, the ICC's standard of 'direct or control' seems to suffice the interest of justice in a more coherent way. Or, in another key, in those terms the commitment of the crime of aggression will entail criminal responsibility only if the perpetrators were in a position of political or military leadership and organized or planned aggression. It captures only those individuals who have decision-making power on behalf of a state to carry out aggression. Accordingly, low-level state officials are excluded by adopting this standard, which was indeed the intention of the architects of international criminal law. The leadership clause evolved but the purpose remained the same, i.e. the aim of the leadership requirement is to narrow down potential perpetrators for the crime of aggression only to persons who are regarded as policy-makers or simply 'leaders'. However, as the both terms 'direct' and 'control' have never been used in international criminal law, the scope of application is not quite clear from the wording of the ICC Statute. In order to consider this in depth, the author will firstly discuss the meaning and effects of the first standard of 'shape or influence', and subsequently consider its interpretation by post-World War II tribunals. After presenting this initial analysis, the thesis will ponder on the ICC's standard of 'direct or control'. Within the chapter that introduces leadership, in sake of producing a robust argument on identifying potential perpetrators who could meet this standard, there will be some theoretical considerations about the conceptual underpinnings of the leadership nature of a crime as such.