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8 - Prosecuting Military and Political Leaders

Published online by Cambridge University Press:  13 November 2009

Larry May
Larry May
Affiliation:
Washington University, St Louis
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Summary

Obviously, no man may be condemned for fighting in what he believes is the defense of his native land, even though his belief be mistaken. Nor can he be expected to undertake an independent investigation to determine whether or not the cause for which he fights is the result of an aggressive act of his own government. One can be guilty only where knowledge of aggression in fact exists, and it is not sufficient that he have suspicions that the war is aggressive. Any other test of guilt would involve a standard of conduct both impracticable and unjust.

“The Ministries Case Judgment”

In this and the next chapter, I will attempt to draw some lessons from an examination of several of the trials at Nuremberg for the crime of aggression. If we can get around the problems discussed in the previous chapter concerning the idea of precedent in international criminal law, the next question is what is the precedent-value of those trials. I am especially interested in how the elements of the crime of aggression, especially the element of actus reus was established and what defenses were recognized. I will examine cases of both military and political leaders tried at Nuremberg, drawing first on one of the seemingly easiest of cases and also one of the hardest. Throughout this chapter I try to provide some concrete detail to the rather abstract discussions of the previous part of this book, but I also will try to fill out and extend the abstract discussion as well, setting the stage for the reconceptualization of the main elements of the crime of aggression.

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Aggression and Crimes Against Peace , pp. 163 - 184
Publisher: Cambridge University Press
Print publication year: 2008

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