In general a principle of

justice
The Debate on the Crime against Peace in the Wake
of the Nuremberg Judgment

Thomas Weigend*

Abstract
The Nuremberg judgment concerning the crime against peace failed to provide a per-
suasive argument that the convictions for this crime were in keeping with the prin-
ciple nullum crimen sine lege and especially with the prohibition of ex post facto
criminal law. For this reason, the contemporary response to the International
Military Tribunal judgment in that respect, both in Germany and the United
States, was predominantly critical. Vindication for the Nuremberg revolution can
be achieved only through a consistent application of the newly established principle
that preparing for and waging an aggressive war is a criminal offence under interna-
tional law. The so-called Kampala compromise of 2010 is an important step in this
direction.

1. The Role of the Crime against Peace in the Trials of

German Defendants
When the International Military Tribunal (IMT) in Nuremberg rendered
its judgment against the main war criminals in December of 1946,
most Germans probably felt relieved that the men who had brought destruction
and shame on their country were sentenced to death or to lengthy
prison terms.1 Justice had finally been done; and the proverbial man in the
street may not have been terribly interested in what legal headings were used

* Professor of Criminal Law, University of Cologne, Germany; Member, Advisory Board of this
Journal. The author wishes to thank Ms Sarah Erne for her most valuable research support.
[thomas.weigend@uni-koeln.de]
1 On the public perception of the trial see A.J. Merritt and R.L. Merritt (eds), Public Opinion in
Occupied Germany, The OMGUS Surveys 1945^1949 (University of Illinois Press, 1970), at
33^35, 93^94; H. Krosche, Abseits der Vergangenheit. Das Interesse der deutschen
Nachkriegsoffentlichkeit am Nurnberger Prozess gegen die Hauptkriegsverbrecher 1945/46, in
............................................................................
Journal of International Criminal Justice 10 (2012), 41^58 doi:10.1093/jicj/mqr057
Oxford University Press, 2012, All rights reserved. For permissions, please email: journals.permissions@oup.com
42 JICJ 10 (2012), 41^58

to achieve this result. Yet, from a legal viewpoint some of the charges brought
against the defendants raised difficult questions, and the defence, although
successful only with respect to three defendants,2 cannot be faulted for chal-
lenging the legal basis on which the IMT judgment rested.3
The charge of war crimes did not raise much controversy since it had a suffi-
cient basis in customary international law.4 Crimes against humanity were a
novel concept, but the argument could be made that these crimes were but an
application of general rules common to all civilized nations.5 By contrast, the
crime of preparing and waging a war of aggression or in violation of interna-
tional treaties, with its ancillary modalities of conspiracy and complicity,6 was
more problematic because there was no clear precedent in prior international
(or, for that matter, national) law. The Allies could have foreseen that bringing
this charge would raise the objection that the crime against peace did not
exist in international law at the time when the defendants started the Second
World War. The charge of waging a war of aggression, moreover, invited the de-
fence to seek an elaborate inquiry into ::: who declared war upon whom and
the reality of the German claim of self-defense.7 What made this issue even
more politically sensitive was the fact that the Soviet Union, one of the nations

J. Osterloh and C. Vollnhals (eds), NS-Prozesse und deutsche O ffentlichkeit. Besatzungszeit, fruhe
Bundesrepublik und DDR (Vandenhoeck and Ruprecht, 2011) 93.
2 Only the defendants Fritzsche, von Papen and Schacht were acquitted of all charges.
3 The primary legal basis was the Charter of the International Military Tribunal (IMT), agreed
upon by the four Allied states in London on 8 August 1945 and later joined by 19 other states.
See Charter of the International Military Tribunal, Annex, Agreement for the Prosecution and
Punishment of the Major War Criminals of the European Axis, London, 8 August 1945 (IMT
Charter). For an easily accessible source see http://avalon.law.yale.edu/imt/imtconst.asp (vis-
ited 20 November 2011).
4 Cf. France et al. v. Goring et al., Trial of the Major War Criminals before the International Military
Tribunal, 14 November 1945-1 October 1946, Vol. I (1946), at 253^254 (IMT Judgment); G.A.
Finch, The Nuremberg Trial and International Law, 41 American Journal of International Law
(AJIL) (1947) 20^22; K.S. Gallant, The Principle of Legality in International and Comparative
Criminal Law (Cambridge University Press, 2009), at 69^72, 117^119; H.-H. Jescheck, Die
Verantwortlichkeit der Staatsorgane nach Volkerstrafrecht (Rohrscheid, 1952), at 33^39, 64^67,
180^182; H. Kelsen, The Rule Against Ex Post Facto Laws and the Prosecution of the Axis War
Criminals, 8 The Judge Advocate Journal (1945) 10; H. Lauterpacht, The Law of Nations and the
Punishment of War Crimes, 21 British Year Book of International Law (1944) 58, at 61^68;
Q. Wright, The Law of the Nuremberg Trial, 41 AJIL (1947) 38, at 59^60.
5 A. Cassese,Crimes Against Humanity, in A. Cassese, P. Gaeta and J.R.W.D. Jones (eds), The Rome
Statute of the International Criminal Court: A Commentary, Vol. I (Oxford University Press, 2002)
353^355; V.V. Pella, La Guerre-crime et les Criminels de guerre (Editions A. Pedone, 1946), at 80.
But see Jescheck, supra note 4, at 184, pointing out that the specific feature of crimes against
humanity, i.e. the persecution of groups, had previously never been made a criminal offence
in national legislation.
6 Art. 6(2) IMT Charter: The following acts, or any of them, are crimes coming within the juris-
diction of the Tribunal for which there shall be individual responsibility: (a) CRIMES
AGAINST PEACE: namely, planning, preparation, initiation or waging of a war 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.
7 This concern was raised by American criminologist Sheldon Glueck in a letter written in
1945 before the adoption of the IMT Charter. The letter is reprinted in J.A. Bush,
 In general a principle of justice 43

sitting in judgment over the German defendants, had in 1939 been expelled
from the League of Nations for the very reason of having waged an aggressive
war against Finland, and was notably involved in the preparation of Hitlers
attack on Poland.8 Why were the United States and the Soviet Union, in spite
of these manifest problems, adamant in making aggressive war one of the
main issues at Nuremberg?9 Perhaps the best explanation is that criminal ag-
gression provided a handle or label, a way of thinking about what was widely
felt to be the big issue, the war.10 There may have been the feeling that bring-
ing the issue of waging war before a court of law was the only feasible alterna-
tive to summarily executing the individuals regarded as responsible for
triggering the tragedy that had cost so many millions of lives.11
Contrary to the wishes of the prosecution, the IMT limited the reach of the
concept of conspiracy to commit the crime against peace to those defendants
who were knowingly involved in activities not too far removed from the time
of decision and of action,12 and on that basis convicted only eight out of the
22 defendants whom the prosecution had charged with conspiracy.13
Similarly, the Tribunal convicted of preparing for or waging a war of aggression
only those defendants who contributed to the initiation of the war in an im-
portant and aggressive role.14 By thus limiting the reach of the charges, the

The Supreme ::: Crimeand Its Origins: The Lost Legislative History of the Crime of Aggressive
War, 102 Columbia Law Review (2002) 2324, at 2407.
8 H. Quaritsch, Nachwort, in H. Quaritsch (ed.), Carl Schmitt: Das internationalrechtliche
Verbrechen des Angriffskrieges und der Grundsatz Nullum crimen, nulla poena sine lege (Duncker
& Humblot, 1994) 125, at 162, argues that both the United States and the Soviet Union were
interested in having the Tribunal declare Germany to be solely responsible for the war precisely
because both nations had their own problems with being involved in an aggressive war. See
also F.B. Schick, The Nuremberg Trial and the International Law of the Future, 41 AJIL (1947)
770, at 783, claiming that the decision of the International Military Tribunal that Germany re-
sorted to aggressive war provides, belatedly, the legal justification for the declarations of war
against Germany by Poland, the United Kingdom, France, and other states.
9 In retrospect, the Allies would not have done much damage to their case if they had limited the
crimes subject to the Tribunals jurisdiction to war crimes and crimes against humanity
only Rudolf Hess might have escaped conviction if the crime of aggression had been omitted
from the IMT Charter. Hess was convicted of preparing for an aggressive war, but was acquitted
of war crimes and crimes against humanity in light of the fact that he was in British captivity
since May 1941; IMT Judgment, supra note 4, at 282^285.
10 Bush, supra note 7, at 2364.
11 Cf. H. Ehard, Der Nurnberger Proze gegen die Hauptkriegsverbrecher und das Volkerrecht,
3 Su ddeutsche Juristenzeitung (1948) 353, at 364; H.L. Stimson, The Nuremberg Trial:
Landmark in Law, 25 Foreign Affairs (1947) 179, at 179^180.
12 IMT Judgment, supra note 4, at 225.
13 The persons convicted of conspiracy to wage a war of aggression were military leaders Goring,
Keitel, Raeder and Jodl, party leaders Hess and Rosenberg, and foreign ministers von Neurath
and Ribbentrop.
14 For an insightful analysis of the Tribunals decision on the conspiracy and crime against peace
charges, see H. Leventhal, S. Harris, J.M. Woolsey and W. Farr, The Nuernberg Verdict,
60 Harvard Law Review (1947) 857, at 868^884, 903^904. See also H. Wechsler, The Issues of
the Nuremberg Trial, 62 Political Science Quarterly (1947) 11, at 18^21, arguing that extending
the crime of waging of aggressive war to every person actively involved in the war would
44 JICJ 10 (2012), 41^58

Tribunal succeeded in giving precise contours to the crime of aggression and

avoided its use as a dragnet to catch everybody actively involved with
National Socialist (NS) policies.15
The subsequent trials of other groups of NS leaders, in particular the IG
Farben trial,16 the Industrialist case against Krupp and others,17 the High
Command case against high-ranking members of the Wehrmacht,18 and the
so-called Ministries case against diplomats and functionaries of the German
Foreign Office,19 notably produced very few convictions for the crime against
peace. This result is probably due to the restriction the IMT placed on the
scope of the crimes definition: if the crime of aggression was limited to those
who, from a position of authority, directly and with full awareness of the con-
sequences devised or carried out the plans for an aggressive war, then industri-
alists or diplomats whose contribution was limited to supporting the general
move towards a rearmament of Germany or to exerting pressure on foreign
governments did not qualify as perpetrators of the crime against peace.20

2. Criticism of the Nuremberg Judgment

Somewhat surprisingly, German jurists initially seemed to display little critical
interest in the legal aspects of the IMT judgment of 1946. Their muted response

have sent the message that adherence to jus in bello becomes irrelevant since combatants faced
criminal punishment regardless of the way they conducted the war. On the standard the IMT
used to identify potential perpetrators ability to shape and influence war related policy,
see K.J. Heller, Retreat from Nuremberg: The Leadership Requirement in the Crime of
Aggression, 18 European Journal of International Law (2007) 477, at 480^488.
15 The fact that Rudolf Hess, the only defendant convicted exclusively of the crime against peace,
was not sentenced to death may be an indication of the Tribunals assessment that preparing
for a war of aggression indicated a lesser degree of personal ruthlessness than, for example,
the commission of crimes against humanity; see Wright, supra note 4, at 44.
16 U.S. v. Carl Krauch et al., in Trials of War Criminals before the Nuremberg Military Tribunals Under
Control Council Law No. 10 (TWC), Vol. VIII (Hein, 1997). The Court in the IG Farben case
seemed to fear that a conviction of the defendants on crime against peace charges might
imply that the German population was collectively guilty of waging an aggressive war: The de-
fendants now before us were neither high public officials in the civil government nor high mili-
tary officers. Their participation was that of followers and not leaders. If we lower the
standard of participation to include them, it is difficult to find a logical place to draw the line
between the guilty and the innocent among the great mass of German people. It is, of course,
unthinkable that the majority of Germans should be condemned as guilty of committing
crimes against peace. This would amount to a determination of collective guilt.; ibid., at 1126.
For a legal and political assessment of the IG Farben judgment, see F. Jeberger, On the Origins
of Individual Responsibility under International Law for Business Activity: IG Farben on Trial,
8 Journal of International Criminal Justice (JICJ) (2010) 783, at 796^802.
17 U.S. v. Alfried Felix Alwyn Kupp von Bohlen und Halbach et al., in TWC, Vol. IX, 1327^1452.
18 U.S. v.Wilhelm von Leeb et al., in TWC, Vol. XI, 462^697.
19 U.S. v. Ernst von Weizsaecker et al., in TWC, Vol. XIV, 308-870. In the Ministries case, five defend-
ants were found guilty of preparing a war of aggression but for two defendants (Weizsacker
and Wormann), the convictions were quashed on appeal.
20 Cf. Bush, supra note 7, at 2379^2385.
 In general a principle of justice 45

might be explained by the fact that the few German lawyers active at the time
were either occupied with more pressing problems, such as the legal situation
of Germany after the occupation, or had been personally involved in the crim-
inal trials against the NS leaders and therefore preferred not to publish their
views. It was, moreover, psychologically difficult to find fault with the
Nuremberg judgment on what appeared to be petty or technical legal grounds,
when the trial had unveiled atrocities of a magnitude that few people could
even have imagined.21 Contemporary US lawyers and legal scholars, although
generally supporting the outcome of the Nuremberg trial, spotted some weak
points in the Tribunals judgment and were not shy to criticize the judges.
When I describe, in what follows, the criticism of the IMT judgment with
respect to the convictions for the crime against peace, I will therefore refer
not only to German but also to American authors.

A. Nullum crimen sine lege

The main legal issue that troubled critics of the IMT judgment was the prin-
ciple nullum crimen sine lege, and it was the crime against peace, which had
never previously been discussed in a criminal court, that raised the greatest
concern.
Vagueness of the offences description was one aspect of the principle of le-
gality that was cited by critics of the IMT Charter and the ensuing judgment
of the IMT. Hans-Heinrich Jescheck emphasized that criminal law provisions
must be precise so that they can fulfil their educational function,22 and he
as well as other German writers23 found the wording of Article 6 IMT
Charter lacking in that regard. The description of the offence, Jescheck claimed,
was reminiscent of the Soviet Unions legislative method of simply listing key
words rather than precisely describing the forbidden act.24

1. Crime of Aggression Recognized in International Law?

But this was a rather technical issue compared with the main fault Jescheck
and others found with the crime against peace: that it had simply not existed
between 1937 and 1941, when the acts in question were committed. Any appli-
cation of Article 6(a) IMT Charter, these critics claimed, therefore violated the
prohibition of ex post facto criminal punishment.25 Undoubtedly, there were
past examples of aggressors who suffered after having been overpowered by

21 See S. Jung, Die Rechtsprobleme der Nurnberger Prozesse, dargestellt am Verfahren gegen Friedrich
Flick (J.C.B. Mohr, 1992), at 151.
22 Jescheck, supra note 4, at 234^235.
23 Cf. G. Dahm, Zur Problematik des Volkerstrafrechts (Vandenhoeck and Ruprecht, 1956), at 57;
H. Leonhardt, The Nuremberg Trial: A Legal Analysis, 11 Review of Politics (1949) 449, at 453.
24 Jescheck, supra note 4, at 235.
25 See, for example, Dahm, supra note 23, at 58; Finch, supra note 4, at 28; Jescheck, supra note 4,
at 241^242.
46 JICJ 10 (2012), 41^58

their opponents: they were either summarily killed or, as in the case of
Napoleon I, banished for having disturbed international peace.26 But never
before had any leader of an aggressor country been convicted of a criminal of-
fence for waging war.
Justice Robert Jackson, the chief prosecutor on behalf of the United States at
the Nuremberg trial, in 1946 indirectly acknowledged the novelty of the crime
of aggression but contended that when representatives of the four na-
tions ::: set their signatures to the Agreement of August 8, 1945 in London,
the old order, by which all war was legal, visibly passed away. I think it already
had passed away and that the London Agreement only recognized an evolution
that already had been consummated.27 There is a telltale ambiguity in Justice
Jacksons statement: did the old order pass away in London, or had it passed
away before? It is one thing to say that the Allies took advantage, in 1945, of a
favourable climate for creating a novel offence of international criminal law,
with application to future cases of aggression;28 but it is quite another thing
to contend that this offence had already been the law in the late 1930s, when
the NS leaders developed their plans to subjugate by force, if needed
Austria, Czechoslovakia and Poland.
Like Justice Jackson, the IMT approached the issue of retroactivity in an am-
bivalent fashion. In a famous passage, the judges claimed that: The making of
the Charter was the exercise of the sovereign legislative power by the countries
to which the German Reich unconditionally surrendered; and the undoubted
right of these countries to legislate for the occupied territories has been recog-
nised by the civilised world.29 Importantly, the occupying powers right to le-
gislate was supposed to include the authority to make retroactive criminal law.
The Tribunal based this authority on the (questionable) assertion that the
maxim nullum crimen sine lege is not a limitation of sovereignty, but is in gen-
eral a principle of justice.30
The sovereignty of the occupying powers to make laws was thus, in the eyes
of the IMT, not fettered by nullum crimen sine lege. Following the English trad-
ition,31 the judges obviously considered the legislative authority to be above
any principles that it might or might not choose to adhere to. But the IMT ob-
viously was not completely satisfied with this allegation of the occupants raw

26 Cf. Jescheck, supra note 4, at 30^33; Leonhardt, supra note 23, at 454^456.
27 R. Jackson, Foreword, in S. Glueck, The Nuremberg Trial and Aggressive War (A.A. Knopf, 1946) x.
28 This is the interpretation given to the events by Jescheck, supra note 4, at 179^180; see also
L. Gross, The Criminality of Aggressive War, 41 American Political Science Review (1947) 205,
at 220.
29 IMT Judgment, supra note 4, at 218.
30 Ibid., 219.
31 On the traditional broad scope of parliamentary sovereignty in Britain, see A.V. Dicey,
Introduction to the Study of the Law of the Constitution (9th edn., Macmillan, 1952), at 39^50.
Under British Law, Parliament was considered to have the authority to pass retroactive crim-
inal laws; see E.C.S. Wade and G.G. Phillips, Constitutional and Administrative Law
(A.W. Bradley, ed.) (9th edn., Longman, 1977), at 62. For the present status of the prohibition of
ex post facto criminal law in England and Wales, see A. Ashworth, Principles of Criminal Law
(6th edn., Oxford University Press, 2009), at 58^66.
 In general a principle of justice 47

law-making power.32 The Tribunal went on to explain that the Charter is not
an arbitrary exercise of power on the part of the victorious Nations, but ::: is
the expression of international law existing at the time of its creation.33
Though not being bound by nullum crimen sine lege, the Allied powers, accord-
ing to the IMT judgment, still elected to honour that maxim. It is this claim of
the IMT that gave rise to a spirited debate, both in Germany and the United
States.
There were those who maintained that customary international law, even
before the Second World War, had recognized the criminality of waging an ag-
gressive war.34 One argument on point referred to Article 227 Versailles Peace
Treaty of 1919, which charged German Kaiser Wilhelm II for a supreme offence
against international morality and the sanctity of treaties.35 Although Britain
and France meant to actually bring Kaiser Wilhelm to trial for his part in start-
ing the First World War, the United States and Japan successfully opposed this
idea.36 As a result, the charge in the peace treaty ended up as a mere moral
condemnation, to be determined by a special tribunal which, as is well
known, was never constituted. This case thus failed to establish a precedent,
in any juridical sense, for the recognition of an international crime of aggres-
sive war.37
To further support its argument, the IMT drew a parallel between the crime
against peace and war crimes. The 1907 Hague Convention on the Law and
Customs of War on Land, the Tribunal argued, nowhere declared that certain
violations were crimes, and yet [f]or many years past ::: military tribunals
have tried and punished individuals guilty of violating the rules of land war-
fare laid down by this Convention.38 Why should it be different with the
crime against peace, which was, as the judges wrote, of much greater moment

32 One argument against basing the Nuremberg judgment on the law of the occupation is the fact
that Art. 6 IMT Charter asserted the IMTs jurisdiction for the trial and punishment of the
major war criminals of the European Axis countries. The IMTs jurisdiction was thus extended
far beyond occupied Germany. See Schick, supra note 8, at 781.
33 IMT Judgment, supra note 4, at 218.
34 See, for example, Wright, supra note 4, at 59.
35 The Versailles Peace Treaty was signed between the Allied Powers and Germany on 28 June
1919.
36 See Jung, supra note 21, at 141^142 and references.
37 Art. 227(3) Versailles Peace Treaty did not even mention the option of imposing criminal pun-
ishment but provided that in its decision the tribunal will be guided by the highest motives of
international policy, with a view to vindicating the solemn obligations of international under-
takings and the validity of international morality. It will be its duty to fix the punishment
which it considers should be imposed. See also W. Grewe, Referat: Uber das Volkerrecht des
Nurnberger Prozesses, in Stuttgarter Privatstudiengesellschaft (ed.), Nurnberg als Rechtsfrage
(Ernst Klett, 1947) 7, at 37^38; W. Schabas, Origins of the Criminalization of Aggression: How
Crimes against Peace Became the Supreme International Crime, in M. Politi and G. Nesi
(eds), The International Criminal Court and the Crime of Aggression (Ashgate Publishing, 2004)
17, at 21. Also see, K. Sellars, Delegitimising Aggression: First Steps and False Starts after the
First World War, in this issue of the Journal.
38 IMT Judgment, supra note 4, at 221.
48 JICJ 10 (2012), 41^58

than a breach of one of the rules of the Hague Convention?39 Hans Kelsen was
quick to point out that the difference lay in the fact that many states trans-
ferred the war crimes listed in the Hague Convention into their national legisla-
tion and thereby turned them into criminal offences under domestic law
something that no state had done with respect to any prohibition of aggressive
war that international law might have contemplated.40
In another attempt to show that customary international law had recog-
nized the criminality of waging an aggressive war, the Tribunal cited sev-
eral resolutions and draft conventions of various international bodies
presented in the years between the World Wars.41 These instruments had in
common that they purported to prohibit the use of war as a means of resolving
conflict between nations, and some of them explicitly called aggressive war
an international crime. Yet most commentators, both in Germany,42 and the
United States,43 rejected the Tribunals attempt to infer the existence of custom-
ary law from what were essentially failed attempts to reach an agreement. In
the 1920s and 1930s, these attempts foundered as they were to do for
many more years on the inability of states to agree on a definition of aggres-
sive war, coupled with concerns for their sovereignty.44 Moreover, the designa-
tion of aggressive war as an international crime was never backed up by
providing sanctions for individuals who waged war and must thus be regarded
as a rhetorical device expressing moral indignation rather than a serious at-
tempt to establish individual criminal liability of politicians or military
leaders.45
The cornerstone of the Tribunals argument, as is well known, was the
General Treaty for the Renunciation of War, better known as the Kellogg^
Briand Pact. This international treaty, concluded in Paris in 1928, was

39 Ibid.
40 H. Kelsen, Will the Judgment in the Nuremberg Trial Constitute a Precedent in International
Law?, 1 International Law Quarterly (1947) 153, at 160^161; see also Quaritsch, supra note 8, at
160^162.
41 IMT Judgment, supra note 4, at 221^222. For a comprehensive list of such draft instruments, see
Glueck, supra note 27, at 27^33.
42 See D. Haa, Nulla poena sine lege im nationalen und internationalen Recht (PhD
Dissertation on file at the University of Heidelberg, 1955), at 15^18; H. Moltrecht, Das strafrech-
tliche Ruckwirkungsverbot im Volkerrecht unter besonderer Berucksichtigung des Londoner
Statuts fur den Internationalen Militargerichtshof (PhD Dissertation on file at the University
of Gottingen, 1953), at 114^117; P. Ratz, Uber die volkerrechtlichen Grundlagen des Londoner
Statuts vom 8. August 1945 und des Kontrollratsgesetzes Nr. 10, 3 Archiv des Volkerrechts
(1951^52) 275, at 298^299.
43 See Schick, supra note 8, at 784.
44 See Jung, supra note 21, at 143^144. For later attempts to agree on a definition of aggression see
B.B. Ferencz, Defining International Aggression: The Search For World Peace, A Documentary
History and Analysis (Dobbs Ferry: Oceana Publications, 1975); R. Cryer, H. Friman,
D. Robinson and E. Wilmshurst, An Introduction to International Criminal Law and Procedure
(2nd edn., Cambridge University Press, 2010), at 312^318.
45 For a thorough analysis of the language of contemporary legal instruments, see Gross, supra
note 28, at 211^220.
 In general a principle of justice 49

eventually ratified by 63 nations, notably including Germany and Japan.46

In Article I of the Pact, the parties solemnly declared 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.
Article II stated that only pacific means were to be used for the resolution of
conflicts. Nowhere did the Pact indicate what sanctions might apply if one
party or its representatives failed to adhere to the renunciation of war, except
that, according to the Preamble, any signatory Power which shall hereafter
seek to promote its national interests by resort to war should be denied the
benefits furnished by this Treaty.
The IMT maintained that due to the Kellogg^Briand Pact the waging of
aggressive war was a crime under international law in the late 1930s. The
judges declared: After the signing of the Pact, any nation resorting to war as
an instrument of national policy breaks the Pact. In the opinion of the
Tribunal, the solemn renunciation of war as an instrument of national policy
necessarily involves the proposition that such a war is illegal in international
law; and that those who plan and wage such a war, with its inevitable and ter-
rible consequences, are committing a crime in so doing.47
This explanation proved to be less than persuasive. Critics in Germany and
beyond pointed out the non sequitur in the IMTs argument: it may well have
been true that war, at least for those states who had ratified the Pact, was il-
legal in international law. But this proposition did not mean that those who
prepared or waged a war were committing a crime in so doing, as the
Tribunal declared. Writers identified several flaws in the Tribunals reliance on
the Kellogg^Briand Pact: first, the Pact did not specifically deal with wars of
aggression but renounced resort to any war (even though some states parties,
such as the United States, specifically declared that the Pact did not restrict
their right to self-defence); second, the Pact only concerned the legal obliga-
tions of states, not of individuals;48 third, the consequences of breaching the
Pact were clearly limited to the loss of the benefits flowing from the Pact, that
is, the protection from being subject to warlike military attacks. Neither the
wording of the Pact nor its travaux pre paratoires in any way suggested that it
envisaged individual criminal liability for violating the states partiesobligation
to resolve conflicts peacefully.49 Further, if the states that concluded the
Kellogg^Briand Pact had wished to attach such a novel and far-reaching conse-
quence to breaching the Pact, one would have expected them to stigmatize as
criminal those acts of aggression that occurred after the conclusion of the

46 The text of the Kellogg-Briand Pact and a list of signatories is available online at: http://avalon
.law.yale.edu/20th_century/kbpact.asp (visited 20 November 2011).
47 IMT Judgment, supra note 4, at 220.
48 Dahm, supra note 23, at 48; Finch, supra note 4, at 30, 33; Jescheck, supra note 4, at 209^210;
Kelsen, supra note 4, at 10; Leonhardt, supra note 23, at 463.
49 Glueck, supra note 27, at 21^22; Gross, supra note 28, at 209^210; Leonhardt, supra note 23, at
463^464; M. Radin, Justice at Nuremberg, 24 Foreign Affairs (1946) 369, at 380, claiming that
the moral disapproval of the world was the sanction foreseen by the drafters of the
Kellogg-Briand Pact.
50 JICJ 10 (2012), 41^58

Pact, such as Italys assault on Abyssinia and the occupation of parts of China
by Japan. But no such reaction occurred.50 Carl Schmitt called the Kellogg^
Briand Pact a treaty without definitions, without sanctions and without insti-
tutions,51 and he further pointed out that Henry Stimson, the then United
States Secretary of State, had in 1932 publicly declared that the Pact provided
for no sanction other than public opinion.52 In a rare instance of agreement
with Carl Schmitt, Hans Kelsen, in an article on the Nuremberg judgment pub-
lished in 1947, explained the matter in very similar terms: To deduce individual
criminal responsibility for a certain act from the mere fact that this act consti-
tutes a violation of international law, to identify the international illegality of
an act ::: with its criminality, meaning individual criminal responsibility for it,
is in contradiction with positive law and generally accepted principles of
jurisprudence.53
Aware that the Kellogg^Briand Pact did not provide for individual criminal-
ity, the prosecution at Nuremberg advanced a different argument to show that
the Pact had nevertheless fundamentally changed the legal situation: if war
as such had been declared to be illegal, then the killing, wounding and de-
struction incident to any war lost its legal protection; consequently, anyone
involved in these acts could be punished as an ordinary criminal for murder,
mayhem or destruction of property. Or, as Justice Jackson, with characteristic
rhetorical flourish, put it in his opening speech: The very minimum legal con-
sequences of the treaties making aggressive wars illegal is to strip those who
incite or wage them from every defence the law ever gave, and to leave
war-makers subject to judgment by usually accepted principles of the law of
crime.54
The fallacy of this argument was quickly detected. Hans Kelsen explained
that the lack of criminality of, for example, killings and woundings in a war
was not based on any rule of international law but that national laws exempt
these acts from their criminal laws, regardless of whether the military action
in question was bellum justum or the state had waged an aggressive war in

50 See Ehard, supra note 11, at 363^364; Grewe, supra note 37, at 43.
51 C. Schmitt, Das internationalrechtliche Verbrechen des Angriffskrieges und der Grundsatz Nullum
crimen, nulla poena sine lege (H. Quaritsch, ed.) (Duncker & Humblot, 1994), at 45. This work,
written in the summer of 1945, was an expertise to be used for the defence of Friedrich Flick
before the IMT.
52 Ibid., at 46.
53 Kelsen, supra note 40, at 156.
54 Opening Speeches of the Chief Prosecutors, Opening Speech by Justice Robert Jackson, 20
November 1945, at 39. Justice Jacksons opening speech is available online at http://www
.roberthjackson.org/the-man/speeches-articles/speeches/speeches-by-robert-h-jackson/
opening-statement-before-the-international-military-tribunal/ (visited 20 November 2011). This
argument may first have been introduced by William Chanler in his correspondence with
Sheldon Glueck, and was later approved by President Franklin D. Roosevelt; for details see
Bush, supra note 7, at 2363, 2403, 2415. For a similar argument of a German lawyer, see
O. Kuster, Koreferat, in Stuttgarter Privatstudiengesellschaft (ed.), Nurnberg als Rechtsfrage
(Ernst Klett, 1947) 70, at 83.
 In general a principle of justice 51

violation of international law.55 Perhaps more importantly, Justice Jacksons ar-

gument overlooked the difference between the right to wage war (jus ad
bellum) and the law of war (jus in bello). The fact that starting an armed conflict
violates international law does not deprive the persons involved in the conflict
of the right to conduct it in accordance with the general rules of warfare, and
those rules include the right to wound and kill enemy combatants.56

2. No Prohibition of Ex Post Facto Criminal Laws under International Law?

As a preliminary conclusion, it appears that the IMT failed to convince the
legal community of the proposition that an international crime of aggression
existed at the time when the defendants had acted. There remained, however,
the primary, more radical line of argument that the Tribunal advanced: that it
was not bound by the prohibition of creating criminal law ex post facto, because
this prohibition was no more than in general a principle of justice57 a prin-
ciple, as one must infer, that permitted exceptions.
The basis of this argument lies in the distinction between domestic criminal
law and international law: only national criminal law, the supporters of the
IMT argued, is bound by the principle nullum crimen sine lege praevia, whereas
international law grows in an organic, unregulated fashion and therefore
cannot be restricted by such a rigid rule.58 Some authors drew a parallel be-
tween international law and the common law,59 others compared the way
international treaties create international law without being bound by
pre-existing principles to the British parliaments supremacy.60 Interestingly,
even the German international law scholar Georg Dahm took this view. Since
international law is only to a limited extent subject to codification, Dahm
wrote in 1956, a precise written fixation of criminal offences cannot be de-
manded. Only if the conduct in question was lawful at the time of commission
would punishing the actor contradict elementary principles of law.61 Herbert
Wechsler, who was to become the leading American criminal lawyer of his
generation, in 1947 also made an eloquent plea for recognizing the otherness

55 Kelsen, supra note 40, 157.

56 See K. Okimoto, The Distinction and Relationship between Jus ad Bellum and Jus in Bello (Hart
Publishing, 2011), at 12^36.
57 IMT Judgment, supra note 4, at 219.
58 The IMT expressed this idea thus: The law of war is to be found not only in treaties, but in the
customs and practices of states which gradually obtained universal recognition, and from the
general principles of justice applied by jurists and practised by military courts. This law is not
static, but by continual adaptation follows the needs of a changing world. Indeed, in many
cases treaties do no more than express and define for more accurate reference the principles
of law already existing.: ibid., at 221.
59 See, for example, Glueck, supra note 27, at 89; Stimson, supra note 11, at 180, 185: All case law
grows by new decisions, and where those new decisions match the conscience of the commu-
nity, they are law as truly as the law of murder.
60 Gross, supra note 28, at 222^224.
61 Dahm, supra note 23, at 63^65. For another German proponent of this view, see Kuster, supra
note 54, at 84.
52 JICJ 10 (2012), 41^58

of international criminal law: To be sure, we would demand a more explicit

authorization for punishment in domestic law, for we have adopted for
the protection of individuals a prophylactic principle absolutely forbidding
retroactivity ::: International society, being less stable, can afford less luxury.
We admit that in other respects. Why should we deny it here?62
Yet there were others who took the position that nullum crimen sine lege had
become a general rule of law recognized by all civilized nations and could
therefore not be neglected when trying an individual before an international
tribunal.63 Writing in 1994, German public law professor Helmut Quaritsch
suggested that respect for the prohibition of retroactive criminal law is particu-
larly important in the context of armed conflicts. The vanquished stands
before the victor defenceless, he wrote; to deny him the protection of nullum
crimen sine lege means to deliver him to the mercy of the victor, who can arbi-
trarily define new crimes and fix sentences for their violation.64 It has also
been pointed out that international law may permit retroactivity in general
but that different rules ought to apply to criminal offences under international
law. At the end of the Nuremberg deliberations stood a gallows, wrote
Eberhard Schlepple in 1948, and not a conference table for the peaceful agree-
ment on improved methods of international cooperation.65
In this debate, the IMT avoided taking a clear position beyond claiming, in a
single sentence, that nullum crimen was a mere principle of justice.66 If that
was true and the principle allowed for exceptions, the discussion shifted to
the question on what grounds such exceptions might be justified. One argu-
ment raised in this context referred to the fact that German legislation had, in
1935, restricted the reach of the nullum crimen principle, and that the NS lead-
ers tried in Nuremberg certainly had never been champions of a strict inter-
pretation of criminal laws as long as those laws were not applied to
themselves.67 Justice Jackson in his opening speech at Nuremberg put this ar-
gument with snide sarcasm: It may be said that this is new law, not

62 Wechsler, supra note 14, at 25. See also S. Glaser, La Charte du Tribunal de Nuremberg et les
nouveaux principes de droit international, 63 Schweizerische Zeitschrift fur Strafrecht (1948) 23;
further examples are cited in G. Hoffmann, Strafrechtliche Verantwortung im Volkerrecht
(A. Metzner, 1962), at 142^143; Jung, supra note 21, at 147.
63 Leonhardt, supra note 23, at 469^470; Moltrecht, supra note 42, at 89^90, showing that the
prohibition of ex post facto criminal law was recognized even in common law countries;
Quaritsch, supra note 8, at 164^168; see also L. May, Aggression and Crimes against Peace
(Cambridge University Press, 2008), at 153, who asserts that the principle of legality is a
non-derogable principle in international law.
64 Quaritsch, supra note 8, at 169. See also Dahm, supra note 23, at 61, warning that any interven-
tion in violation of international law by state organs in the Cold War might retroactively be
defined as criminal.
65 E. Schlepple, Das Verbrechen gegen den Frieden und seine Bestrafung (Peter Lang, 1983, written
1948), at 83.
66 For a discussion of significant differences between the English, French and Russian versions of
this phrase in the IMT judgment, see G. Acquaviva, At the Origins of Crimes Against
Humanity: Clues to a Proper Understanding of the Nullum Crimen Principle in the Nuremberg
Judgment, 9 JICJ (2011) 881^903.
67 See, for example, Kelsen, supra note 40, at 46; Kuster, supra note 54, at 85^86.
 In general a principle of justice 53

authoritatively declared at the time [the defendants] did the acts it condemns,
and that this declaration of the law has taken them by surprise. I cannot, of
course, deny that these men are surprised that this is the law; they really are
surprised that there is any such thing as law. These defendants did not rely on
any law at all. Their program ignored and defied all law.68 The consensus
was, however, that the IMT was correct in not stooping to the defendants low
standards even those who defy the law must be adjudicated in accordance
with the law.69
Another argument against the applicability of nullum crimen sine lege in the
case of German war criminals relied on the assumption that the prohibition of
ex post facto criminal laws refers only to conduct that comports with morality
or, as common lawyers tend to say, that is not malum in se. If the actor knows
that he is doing something forbidden, the IMT argued, he has no reason to
complain about retroactive criminalization, for he took the risk of punish-
ment.70 On this premise, Hans Kelsen concluded that at the time the
Briand-Kellogg Pact and certain non-aggression Pacts were violated by the
Axis powers, the conviction that an aggressive war is a crime was so generally
recognized by the public opinion of the world, that subsequent international
agreements providing individual punishment for these violations of
International Law were certainly not unforeseeable.71 In response, German
jurists questioned the premise on which this argument rests. The nullum
crimen barrier can be overcome only if the actor could have known that his
conduct was in fact punishable by law, they argued, the fact that the conduct
in question was immoral or deserving of punishment is insufficient.72 If that is
true, the Nuremberg defendants could not have been convicted of the crime
against peace, for in the years immediately preceding the outbreak of the
Second World War, there existed no international convention and no customary
practice based on an opinio juris to the effect that individuals who planned or
initiated a war of aggression were to be held personally liable under interna-
tional criminal law.
However hard the judges of the Tribunal tried to find a basis in prior custom-
ary law for the crime of waging a war of aggression, their efforts did not con-
vince the scientific community, even outside Germany. In the late 1940s, there
was a widespread consensus among commentators that the judges at
Nuremberg had cut a precedent out of whole cloth. The IMT Charter created
new law, and the IMT applied that law ex post facto to defendants who certainly

68 Jackson, supra note 54, at 37.

69 Ehard, supra note 11, at 361; Grewe, supra note 37, at 16.
70 See IMT Judgment, supra note 4, at 219: To assert that it is unjust to punish those who in defi-
ance of treaties and assurances have attacked neighbouring states without warning is obvi-
ously untrue, for in such circumstances the attacker must know that he is doing wrong..
71 Kelsen, supra note 40, at 10; see also Glueck, supra note 27, at 84.
72 Ehard, supra note 11, at 362; Grewe, supra note 37, at 45; Jescheck, supra note 4, at 147. See also
Schick, supra note 8, at 782: International law in existence at the time ::: knew of no obligation
forbidding nationals of a sovereign state to plan or perform acts which, reviewed retrospect-
ively by the victor, may be considered as having lead to an illegal war.
54 JICJ 10 (2012), 41^58

knew that their acts were immoral and violated international law, but who had
no reason to believe that they committed a crime. In that sense, the
Nuremberg trial and its outcome, as far as it related to the crime against
peace, went against the principle nullum crimen sine lege, which had, in varying
formulations, been understood by all civilized nations to guarantee an individ-
ual impunity if his acts were not regarded as criminal at the time when
he acted.

3. Legitimization through Subsequent Practice?

In light of this dilemma, two strategies were employed to defend the IMT judg-
ment. The first strategy was to emphasize the enormity of the crimes com-
mitted or ordered by the leaders of the NS regime, and to argue that it would
have violated anyones sense of justice if the Tribunal had set them free.73
In the words of Hans Kelsen:
Justice required the punishment of these men, in spite of the fact that under positive law
they were not punishable at the time they performed the acts made punishable with retro-
active force ::: . To punish those who were morally responsible for the international crime
of the Second World War may certainly be considered as more important than to comply
with the rather relative rule against ex post facto laws, open to so many exceptions.74

Or, as the Tribunal put it, after stating that the attacker must have known
that invading neighbouring countries was wrong, so far from it being unjust
to punish him, it would be unjust if his wrong were allowed to go
unpunished.75
The persuasiveness of that argument hinges on the assumption that there
exists some kind of natural criminal justice distinct from criminal justice
based on the applicable law. Since the jurists of the Third Reich had managed
to cloak even the worst excesses in statutes and ordinances, it is understand-
able that positive law had lost its magic and that lawyers searched for more
stable grounds on which to build the ideal of substantive justice. Recourse to
ideas of natural law was therefore popular among German jurists at the
time.76 Yet, whatever one may think of the existence of limits to any legisla-
tures authority to make criminal law, recourse to natural ideas of justice

73 See May, supra note 63, at 148, What made the Nazi case stand out was the scale and vicious-
ness with which it was fought, not that it was a case of aggression. By contrast, Radin, supra
note 49, at 382, thought that there would be little or no public support for convicting the lead-
ers of the Wehrmacht had they not also committed war crimes and crimes against humanity.
74 Kelsen, supra note 40, at 165. See also Finch, supra note 4, at 35: the convictions for the crime
against peace may be unquestionably approved as morally justifiable political acts.
75 IMT Judgment, supra note 4, at 219.
76 See G. Radbruch, Gesetzliches Unrecht und ubergesetzliches Recht, 1 Su ddeutsche
Juristenzeitung (1946) 105; H. Weinkauff, Der Naturrechtsgedanke in der Rechtsprechung des
Bundesgerichtshofs, Neue Juristische Wochenschrift (1960) 1689. For an overview, see H.D.
Schelauske, Naturrechtsdiskussion in Deutschland (J.P. Bachem, 1968), at 13^21.
 In general a principle of justice 55

cannot provide a basis for a conviction in the absence of positive law. A defend-
ant can be convicted only when a law provides authority to do so, not when-
ever a court thinks that what the defendant did should be punishable in a
system of natural justice.77
That leaves the second strategy of justification: to acknowledge that
Nuremberg made new law and applied it retroactively, and to rely on future
practice to vindicate the Nuremberg revolution.78 Justice Jackson said as
much in his report to the President on the Nuremberg trial: The four nations,
through their prosecutors and through their representatives on the Tribunal,
have enunciated standards of conduct ::: by which the Germans have been
condemned and which will become the condemnation of any nation that is
faithless to them.79 This unconventional approach appeals to history rather
than law to legitimize a judgment. But even if one assumes that a criminal
judgment without a legal basis when rendered can subsequently acquire legit-
imacy through a consistent application of its principles, it is not easy to make
the case that this has happened with the Nuremberg judgment relating to the
crime against peace. Since the IMT was designed as a one-time court, it was
unable to set any precedent in a strict sense.80 The formal recognition of the
Nuremberg principles by the General Assembly of the United Nations81 was
not legally binding, and neither the United Nations nor any other international
legal body ever produced a conclusive legal instrument establishing the crim-
inality of waging an aggressive war.82 Even the fact that United Nations

77 A similar debate occurred some 50 years after Nuremberg, when German Democratic Republic
(GDR) border guards tried for homicide claimed that domestic law in force at the time author-
ized them to use deadly force against persons who attempted to cross the border to West
Germany. Their argument based on nullum crimen received short thrift in the relevant decisions
of the German Federal Supreme Court, Bundesgerichtshof, 39 Entscheidungen des
Bundesgerichtshofes in Strafsachen 1 (1992), at 26^30; 41 Entscheidungen des Bundesgerichtshofes
in Strafsachen 101 (1995), at 106^113; and the Federal Constitutional Court, 95 Entscheidungen
des Bundesverfassungsgerichts 96 (1996), at 130^137; for criticism of these decisions, see, for ex-
ample, G. Dannecker, Comments on x 1, in H.W. Laufhutte, R. Rissing-van Saan and K.
Tiedemann (eds), 1 Strafgesetzbuch. Leipziger Kommentar (12th edn., de Gruyter Recht, 2007),
at marginal notes 450^452. But even if one thinks that the authorization for shooting con-
tained in the GDR border law could be disregarded because of its incompatibility with relevant
international law, these cases differ from the IMT judgment in that the GDR border guards
were convicted of homicide, whereas the Nuremberg defendants were convicted of a crime
against peace that did not exist when they acted.
78 Cf. O. Kranzbuhler, Nuremberg Eighteen Years Afterwards, 14 DePaul Law Review (1964^1965)
333, at 335; Quaritsch, supra note 8, at 184.
79 Final Report to the President from Supreme Court Justice Robert H. Jackson, Prosecution of
Major Nazi War Criminals, in Department of State Bulletin, Vol. 15, 27 October 1946, at 771.
80 Ehard, supra note 11, at 366; Schick, supra note 8, at 791.
81 GA Res. 95 (I), 11 December 1946, entitled Affirmation of the Principles of International Law
recognized by the Charter of the Nurnberg Tribunal.
82 See Dahm, supra note 23, at 66; Jescheck, supra note 4, at 188^189, points out that the
Soviet Union made sure that the IMT judgment did not generate general principles of
international law.
56 JICJ 10 (2012), 41^58

Resolution 3314 (XXIX) of 197483 provided a definition of aggression for the

purpose of Article 39 United Nations Charter did not lead to an agreement on
the contours of the crime of aggression.84
That left national practice with the onus of making true the promise of
Nuremberg that aggressors should be punished. As Philip Jessup put it, with
clairvoyance, in 1947: Inaction by the whole society of nations from now on
would constitute a repudiation of the [Nuremberg] precedent ::: It would con-
stitute an assertion that aggressive war is not a crime and that the individual
who is guilty of endangering the international public repose is not to be treated
as a criminal.85
In the decades that followed, there was no lack of incidents that argu-
ably met even the narrowest definition of the crime against peace,
including aggressive action taken by the Soviet Union and the United
States during the years of the Cold War. Yet, after Nuremberg, the crime of ag-
gression was never charged in any court of the world, nor did the dream of
having a universal federation directly controlling individuals in all countries
on matters covered by international law86 even come close to being fulfilled.
The fact remained that in 1946 a Tribunal consisting of members of the victori-
ous nations had, in a singular effort, adjudicated the leaders of the vanquished
nation for starting the war, and there had been no follow-up on this prin-
ciple.87 Writing in 1994, Helmut Quaritsch concluded that any evolution of cus-
tomary international law was cut off after 1950, and that the judgments of
Nuremberg and Tokyo, far from being landmarks of the law, remained singular
events in the history of international law, without precedent and without
consequence.88

83 GA Res. 3314 (XXIX), 14 December 1974, Annex.

84 Art. 16 International Law Commission (ILC) Draft Code of Crimes against the Peace and
Security of Mankind (1996) contained the crime of aggression without defining it.
85 P. Jessup, The Crime of Aggression and the Future of International Law, 62 Political Science
Quarterly (1947) 1, at 4. For similar statements, see Stimson, supra note 11, at 189; Wechsler,
supra note 14, at 26. Ehard, supra note 11, at 365, concedes that it may have been necessary to
go beyond the applicable law in order to achieve higher justice, but claims that the new
norms established in Nuremberg must then be applied to the strong as well as the weak.
86 Wright, supra note 4, at 47.
87 See Jeschecks acerbic conclusion: It can hardly be called a welcome development of state prac-
tice that the winner of a war should have the right to adjudicate the leading organs of the van-
quished state in an extraordinary court, applying extraordinary law., supra note 4, at 415, my
translation. For a similar assessment, see Kelsen, supra note 40, at 170: The prohibition of
waging aggressive war turned out to be applicable only by victors against leaders of the van-
quished party; and Bush, supra note 7, at 2328, the notion of Crimes against Peace had been
made the centerpiece of Nuremberg ::: and afterward was hailed by international lawyers, com-
pletely buried in practice, and studied to death by inconclusive drafting committees and advo-
cacy groups.
88 Quaritsch, supra note 8, at 218^220.
 In general a principle of justice 57

4. Conclusion: A Precedent for the Future?

As matters stood in the early 1990s, it would have been difficult to find fault
with Quaritschs assessment. Yet, the seed that had remained deeply buried for
more than four decades miraculously bore shoots during the deliberations on
the Rome Statute of the International Criminal Court (ICC). Although the ques-
tions of how the crime of aggression was to be defined and under what circum-
stances the ICC should have jurisdiction over that crime remained unresolved,
Article 5(1)(d) ICC Statute at least established the states parties consensus
that the crime of aggression belonged to the core crimes of international crim-
inal law.89 The breakthrough towards a definition of the crime of aggression
at the Review Conference of Kampala in 201090 can be regarded as another
giant step towards fulfilling the long dormant promise of Nuremberg. The
great majority of states managed to agree on a definition of the crime of aggres-
sion, and the delegates also and perhaps even more importantly devised
a process for making the ICCs jurisdiction operational without requiring the
consent of the United Nations Security Council in each individual case. The
delegates at the Kampala conference thereby laid a firm foundation for an
international jurisdiction over the crime against peace the foundation that
had been missing in the decades since Nuremberg. It is interesting to note
that the proposed Article 8bis ICC Statute circumscribing the crime of aggres-
sion continues, in several respects, the definitional work started at
Nuremberg: the incriminated acts of planning, preparing, initiating and
executing an act of aggression are almost verbatim taken from Article 6(a)
IMT Charter,91 and the limitation of perpetratorship of the crime of aggression
to persons in a position effectively to exercise control over or to direct the pol-
itical or military action of a State,92 reflects the similar limitation in the
Nuremberg judgment to persons who had the possibility to shape and influ-
ence national policy.93
If the process set in motion in Rome and Kampala succeeds and the ICC is
granted the power to sit in judgment over those who prepare or wage an
aggressive war, and if the ICC or relevant national courts make use of that
authority even where the aggressor is a powerful nation then the seeds

89 For a brief overview of the status of the crime of aggression at and after the Rome conference of
1998, see G. Gaja, The Long Journey towards Repressing Aggression, in Cassese, Gaeta and
Jones (eds), supra note 5, 427^441; and A. Zimmermann, Comments on Article 5, in O.
Triffterer (ed.), Commentary on the Rome Statute of the International Criminal Court (2nd edn.,
C.H. Beck, 2008), at marginal notes 16-41.
90 For the first comprehensive analysis of the Kampala compromise, see C. Kre and L. von
Holtzendorff, The Kampala Compromise on the Crime of Aggression, 8 JICJ (2010) 1179^1217.
91 In Art. 8bis ICCSt., the words waging a war of aggression have been replaced by execution of
an act of aggression, but there was no change in substance as to the individual acts giving
rise to criminal liability.
92 On the issue of aggression as a leadership crime, see Kre and von Holtzendorff, supra note 90,
at 1189.
93 As to the differences between the Nuremberg and Kampala terminology, see Heller, supra
note 14.
58 JICJ 10 (2012), 41^58

sown in Nuremberg will finally have come to fruition. If waging aggressive war
in violation of the principles of international law is effectively outlawed and
those responsible for starting such wars are made criminally liable, then the
Nuremberg judgment that troubled criminal lawyers by effectively suspending
the principle nullum crimen sine lege may eventually be seen as a courageous
step towards making the world a more peaceful planet.