Delighted to be speaking today about the topic that I was actually thinking about for quite some time,
very intensively for since April this year or maybe March even.
And also, I'm very happy that I'm going to spend the entire year at Oxford Law faculty and hopefully we
get to spend time together and similar events organised by Public International Law Group.
So the topic of today's discussion I hope is going to be discussion since I intend to deliver a quite simple presentation.
So have more time for Q&A. But I'm afraid that my argument is both quite opposite of simple, and it's actually very difficult and complex.
So please feel free to interrupt me in between if you have any.
In clarifications that you think I can I can do.
And in between of my arguments, actually, I'm going to make a few arguments in order to sort of outline,
as I said in the abstract to this lecture, I'll try to outline the conceptual foundations for complexity, for crime of aggression.
So I am actually I published an article for the American Journal of International Law, which is coming out.
It's going to be published very soon, actually.
But also, I've been dealing with this topic somewhat in my thesis, so I'm going to speak about the leadership standard of the crime of aggression.
So I will share a screen in a moment.
Just to point out where he's actually located.
So it's it makes the crime of aggression somewhat unique in that sort of led to believe that the crime of aggression is a leadership crime,
which is true, as we will see. But also that is reserved to top leadership of a state, which I don't think it's true.
So there's also confusion with those of you who know anything about international criminal law.
So many of you. There's this control theory of the International Criminal Court.
So before. After actually India leadership standard was adopted, the control theory emerged and sort of like made everything more confusing.
So this just introduce the topic for discussion. I'll try to be more structured in my lecture presentation.
So let me just for a moment share my screen. Right.
Does it work? First, right. Great.
So this is the crime of aggression. This is the current definition, as we have in the Rome Statute.
So it's articulated this. So this is the part actually that that refers to the leadership clause.
It says for the purpose of the statute, crime progression means conduct verbs, planning,
preparation and support by a person in a position to exercise, control or direct the political and military action of the state.
Also we have mortal liability in the Rome Statute, which are found which are to be found in Article 25.
So we have here a perpetration forms of complicity in Article 25 three.
Right. And then we have a new Article 25 three based. It says, in respect of the crimes of aggression,
that's the provision of this article is to apply only to persons in a position
effectively to exercise control over or to direct the political and military actions.
It's a is the only crime actually that is practised by this.
We call its leadership clause, which essentially was the control over a direct political mutual military action of the state.
Okay. Let me just quit this.
Now back. So the crimes aggression is one of the four core crimes.
And as I said, it's the only one left together with genocide,
crimes against humanity and war crimes and is the only crime that is the premise of this leadership clause.
It was actually adopted a it was in jurisdiction of the jurisdiction of the International Criminal Court ever since the beginning.
It took from 1998 and 2002. And however, the definition was adopted in 2007 and became fully operational in 2017.
So apart from the leadership clause, there's also one more particularity, very important.
So states conduct elements. So again, is the only crime that requires direct action of a state.
So if the state does not commit an act of aggression, so manifestly more than the international law definition,
customary definition of an act of aggression, then there is no criminal responsibility.
So the reasons why we have this leadership clause is actually the main reason is to prevent overcriminalization.
So as you know, like the war is, which involves many.
Dozens of thousands of hundreds of thousands of people.
So it's never been go beyond point of possibility if we consider everyone responsible to sort of contribute to an act of aggression.
So that's why we have some leadership clause. So this is the introduction.
So today I'll try to make I'll make five points, which will be carried out in five steps.
So the first point I'll make concerns the genealogy of the leadership clause.
So I will explain how the customary international law actually suggests that private individuals are able to meet
this leadership standard and henceforth therefore be responsible for complicity in the crime of aggression.
So this is contested actually in literature. And in step two, I will explain the critique of the current theory of control of direct.
In the step three, I will explain my argument on the definition of what is an actual need to control their state action.
In step four, I will explain how control from control or direct or control from the leadership
clause relates to the control theory of the International Criminal Court.
And in step five, very briefly, I will set out the conditions for the for complicity.
So as you know, complicity has many forms in the criminal law, and there are different particularities there.
But I will not speak about it today,
so I will just see how my proposed interpretation of the leadership clause reflects on theories of complicity in general international criminal law.
Okay, any questions? Nope. Great.
So let's start with step one. So say something about the the nature of the leadership nature of your crime, of aggression.
So ever since the first trials in Nuremberg, in Tokyo, we considered aggression to be a leadership crime.
So if you see the Nuremberg Charter or Tokyo chapter, there is nothing about the leadership.
However, if you see the reasoning of the courts,
you will discern how the reflected on the leadership positions of the persons who were found responsible for crimes against those crimes aggression.
So even Justice Robert Jackson, which I'm sure many of you know who he is, he was the chief prosecutor for the US at Nuremberg.
So he actually reflected on the the trials some years after and after the trials were finished.
He said that it never occurred to me and I'm sure it occurred to no one else at the London conference were actually Nuremberg Charter was adopted
to speak of anyone waging a war of aggression except the topmost leaders who had some degree of control over its precipitation and policy.
And that was like saying that from the beginning the crime of aggression was sort of reserved, quote unquote, for the policy makers.
There are in in the subsequent, as I recall, subsequent trials of the trials in the occupied zones that followed a number of getting Tokyo trials.
There are two important cases that addressed the leadership problem of the crime of aggression.
So the first one is Farben case Farben.
So that was the case brought by the United States against 24 high level officials.
Time actually five. It was huge company, the largest industrial corporation in Europe.
So they were its officials were accused of essentially complicity in international crimes and one of them was a crime of aggression.
So interestingly, the Nuremberg Military Tribunal, which was the tribunal where they were prosecuted,
said that the leadership standard already existed from the beginning.
So they considered that the crime of aggression is that leaders and they they also importantly said that industrialists as civil society leaders,
that's termed it,
and that's the matter of industrialists or any any other private individuals are actually able to be considered as leaders of a state.
So that was back in the forties. And there is another case, very important, one of high command, where 14 high ranking officers in German military,
just to say that four or five defendants, they were acquitted, but not for the reasons that they did not meet the leadership standard.
They were acquitted because mainly because of the so that it was considered they did not have enough knowledge of the aggressive war.
There's a little bit more sophistication, if you're will, but that's essentially when the court said in high command case,
which followed, 14 ranking officers in the German military were prosecuted for aggression.
So that's that's a very important case because that the Nuremberg military
tribunal unequivocally said that crime of aggression is there only for policy.
Actually said that leaders are those individuals with actual power to shape or influence the policy of their state.
So that was the standard or is it time to influence or just control a directive today?
So however important thing here, the important message is that the courts always considered the crime of aggression,
only to be reserved for the policymakers. So this is pretty much uncontested in the in the literature.
But it's important just to know that industrialists, for instance,
are always considered to be capable to meet this leadership standard shape of influence at the time.
But we'll see how it plays out in control in Iraq.
So the first time the leadership clause was adopted in In International Law Document was actually 1996
when the International Law Commission issued draft codes of crimes against peace and security of mankind.
So if you see Article 16, there defines a crime of aggression and prescribes responsibility to individuals who as leaders or organisers,
actively participate in the ground for aggression. So there was no leadership clause.
It didn't say anything about the super influence, but they say it's only for leaders.
The organisers write the commentaries and for actual law commission said that
those are the individuals who are able to decide to inform the formulation,
the creation of the policy of a state, including its policy.
It's always there from the beginning policy makers, parties policy,
international law commissions that those are in leadership of the state are individuals
who are able to decisively influence the formulation of their aggressive policy.
And they said that this also applies quoting Nuremberg cases.
This also applies to individuals from the civil society sector and industry.
In 1997 during the negotiation, prior to the adoption of the Rome Statute, 1998.
The German delegation. Proposed that instead of leaders or organisers use the term control or direct.
So if you remember when I showed article business control in the state government and from 1997 it
was suggested by German delegation as a more apt criteria to capture the modern state dynamics.
So it is now in Article 25, an article about this, as you've seen, and also in the amounts of responsibility in Article 23, this.
As I said, the crime of aggression was within the purview of the Rome Statute from the very beginning.
However, in the semester it was not adopted until 2007 review conference of the Rome Statute.
So from 2003 to 2009, even before that.
But this is an important period presently. And since I was in a special working group for a crime of aggression,
I met several times and in 2000, and it proposed a definition which was eventually adopted.
So there were many issues that were contested, mainly relating to jurisdiction,
and they were sort of resolved in a satisfactory manner to some extent.
Myself? No. The there was some discussion about individual convicting force, but about the scope of the leadership responsibility.
Opinions have been raised, however. However, there was no clear stance or so.
The control their wrecked. Was a new standards.
So replacing the sheep or implements someone from the Second World War.
And some delegations assumed and they suggested it's too narrow a standard.
Definitely will infringe the customary international law and the Nuremberg precedents and
meaning that individuals from private sector would be excluded from criminal responsibility.
Then you have 2007 where my friend of mine, Kevin John Heller, published an article, sort of inspired me to write these 12 articles.
So he argued that the standard completely retreats from Nuremberg Legacy and actually suggested that we should go back to shape, for instance,
because if we keep control and direct or direct standards never to turn states complicit nor private individuals could meet the standards.
So I'll come back to his argument in a moment. But this is what he said in 2007 and sort of as a response to that.
And since I was in that, not in nine, it's very important.
So the special working group for Crime of Aggression concluded the following.
The view during the negotiation was also expressed in the language of the provision.
Control is sufficiently broad to include persons with effective control over the political interaction of the state,
but who are not formally part of the relevant government such as industrial.
So I think this is, from my analysis, the most important sentence.
So it doesn't say much, does it say that?
Okay, we are definitely going to include within the scope of criminal responsibility leaders from the private sector.
What is does not also say very importantly is that they could never be prosecuted.
So the conclusion here is that my argument is that the customary status of the
leadership clause arguments about a customary status of the leadership laws in
different places confirms that the crimes progression has always considered both
formal and civil sector leaders have within the purview of chromosome stability.
And crucially, there is nothing in the documents nor other sources of international law suggesting guidelines.
If someone suggests a new interpretation of the controller directives,
arguing for a more narrow approach that will only be focussed on the formal political leadership of the state, that's all right.
But if they say that this is what the documents suggest, I don't think that's correct.
They didn't find anything in the documents.
And I actually have been studying this growth while I did actually talk with many people who were present during
the conference and they were doing during the special the work on the special working group Crime of Aggression.
And they're very reluctant to say that the civil society leaders are able to meet the standards and able to be prosecuted for complicity.
But their reasoning was mainly the sentiment during the conference.
That's how they felt when they were there. Again, the focus was on jurisdictional issues, right?
But their feeling with most of them, with whom I spoke, was that civil society leaders could not be prosecuted for the crime of aggression.
So my based on my conversations with them is that they did not spend enough time pondering about this issue.
And there was this very influential article of Kevin John Heller. Imagine 2007.
It's sort of the opinion state that civil society leaders could not be prosecuted for complicity in a war of aggression.
Again, if you look at the documents, look at the law.
There's nothing suggesting that. So that that's very important. That's the big part of what I'm arguing in my.
In my theory of complexity. Okay. So that's that's step number one.
So we know something about the the leadership responsibility.
So now we turn to critique of controller direct.
So there are a few scholars who were arguing in their articles and commentaries that the standard is too narrow,
but little just like mention two of them, Kevin John Halloran, Karen McDougal, because they think they spend a lot more time than others.
Kevin Durant devoted an hour and a day article in 2007, and also he repeated this position in private emails, of course, but correspondence.
But also in his latest article, which dates back to years ago, he said that nothing changed and she still thinks that.
That's partially why he said that a control like direct could not encompass leaders outside of the formal state leadership.
I like his argument very much. I would disagree.
I think that he's reading of the case.
Law is very, very good. So he said that in five been the case that I just mentioned where industrialists were prosecuted.
The reasoning was the following The court considered their contribution to be bad for communities,
and it goes on towards the formulation of the state policy or decisively.
The Court considered their contribution to decisively influence the formulation of state policy,
and the Court said the contribution of industrialists was indispensable to the realisation of the aggressive policy.
However, since the normative appreciation of the five and defendants was minus aiding and abetting,
Heller argues that they could never satisfied the new control or direct grey theory.
So Heller says that during the Second World War,
industrialists were prosecuted based on shape or influence and they cannot control controlled, direct.
And his reasoning is, while a cheaper influence means decisive influence towards the formulation of state policy.
But control and direct is a higher standard. If she doesn't say why is it higher and how it actually can be higher than decisive influence?
He only says that because industrialists such as descendants of IBM.
Their role was one of aiding and abetting.
And because it's by nature complicity in a war of aggression, they could never meet the control order extant.
That's his reason. Karen McDougal said something very similar.
Lisa she in according to her and she published that in both volumes of the book of the Crime of aggression.
So she under something very similar and she says that the crime of aggression should be reserved only to what she calls deciders.
So those who decide actually about the use of armed force.
So in short, Harold Heller McDougal and another scenario can find control criteria is a lower threshold of the leadership.
I was there argue that there were considerable aiding and abetting.
So do think if someone aids in a bed cannot control.
That's the essence. The central. I, however, disagree with that.
So I think that a person who hates it about gun control, that's simple as that.
So this is this is my view. I defined the the definition of of control their right in the following matter.
So if you look at it in definition, it says a controller directly relates to the state action.
So the person in a position to control or direct the state action.
So here is a little bit tricky. So I actually have an entire article and book chapter about this.
So the state action, if you look at the definition of the crime of aggression.
It could mean two things to me. The use of armed force and this elements.
From a criminal law perspective, this is extremely important because when we attribute criminal responsibility,
we need to decide what is the consequence of the crime. Murder means causing a death.
Causing is the action of perpetration. Death is a consequence.
So is wandering was the consequence of the crime of aggression and identifying anything actually in literature.
So I as I said then. I have a bookshop on this and also an article arguing how state action is to be
understood as the act of use amounts force and also as the state's kind of talismans,
which is the particularly great use of force, was particularly great violation of the UN charter.
So we essentially blame individuals for causing the use of foreign force.
And. Also being aware of the overarching state act of aggression.
So that's my argument. Short But maybe this is controversial to some of you and I'm very happy to discuss that in the Q&A afterwards.
And this is what I conclude. So we have to look at the definition.
We have to use amount of force. It's always every act of aggression is based on a series of instances of the use of armed force.
Every single one of them represents the consequence of the crime.
So ultimately,
we blame individuals for causing this single instance of the use of armed force while being aware of the overarching state conduct element,
which is the manifest violation of the UN Charter.
So if we accept that, and I'm arguing for that in my in my book, then we can reach the following conclusion.
So state action is always an instance of the use of force.
It forms a basis for interpretation, for the appreciation of the state conflict element.
Therefore, control of their rights relates to use of armed force.
Based on the analysis of customer international law as they tried to show the leadership clause restricts criminal responsibility to policy makers.
It's always about policy.
If you look at the documents, if you look at the case law, it was always something about policy being or persons being the policy of a state.
But therefore, in this context, I argue controller,
I suggest controller direct relates to the formulation of the state policy on the use of armed force.
Control means decisive influence or but fought over the formulation of the state policy utterances.
Iraq.
This is very shortly is substantially a higher level of high degree of control, requiring some proactive behaviour on the part of the perpetrator.
So I would use this analogy from the state responsibility. So they also have control their reconstruction.
What is the means of this discussion? So that was focussed on control and that's what I'm doing in my article in my book.
So importantly, control means decisive influence or battle for contribution towards the formulation of the state policy to use our force.
I would say that having John Taylor agrees with this as well, he mentions that shape or influence mean well,
he read that five minute and he said this is what shape or influence means,
indispensable contribution towards the formulation of policy,
but that this is what I see about control also from the from the from the new leadership class.
Okay. So if we accept that, then we can work.
We can apply this to the theory of complicity in international criminal law and show how we see how it is possible
for individual or is contribution was severe aiding and abetting how he's able to also control state policy.
So I'm coming back to that in a moment. But first, I just want to say something about the control theory of the International Criminal Court.
So if you look at the control theory of the International Criminal Court, which sort of emerged, I believe, in 2007.
It suggests it has a normative purpose to ascribe perpetration to individuals who are not directly committing international crimes.
So those would be the leaders of states or non-state actors to sort of set in motion the atrocities that eventually occur.
If they if their control theory argues that their contribution contribution was essential towards the commission of international crimes,
then there's a plausible way to argue that they are perpetrators of crimes.
They should take this reasoning to control in a crime of aggression.
Then you will look at only individuals who are essentially deciding what the act of aggression is.
You're saying that, okay,
we should apply the interpretation from the International Criminal Courts Control Theory to control from in the leadership clause.
Then you will reach a conclusion that only perpetration is possible for the crime of aggression,
and only the top level of individuals could meet the standard because they are the ones who are deciding.
They are the ones who are providing indispensable financial contribution towards the instant different instances of the use of armed force.
However, I think that the normative purpose of control from the leadership clause and
control from control theory are two different paradigms and they don't coincide.
So one person could meet one standard without meaning the other, and vice versa.
So according to the control theory, control means that the perpetrators conduct is constituent the commission of the crime,
whereas controlling the leadership clause denotes decisive influence and in responsible
but for contribution on the formulation of the state policy or decision to use force.
So control theory means if a conductor is constituent to the commission of crime, then this person should be labelled as a perpetrator.
Right? Control from the leadership clause means if a person decisively or expansively
contributes to the formulation of a policy to use of force and disperse,
it should be regarded as a. Just to take this through an example.
So, for instance, a pilot may be in control of a particular act of commission, of the use of force.
That's a bombardment, but not the stated policy to use armed force.
Conversely, and industrialists may satisfy the leadership flaws, specially if he has monopoly proposal.
If he holds monopoly on the market by being in a position to decisively influence
the formulation of the state policy to carry out the use of foreign force,
even though his conduct actually helped or influence aiding and abetting, it is not constituents to the commission of the active use of force itself.
Or the editor in chief. My favourite example of a mainstream newspaper or media creates a necessary consensus amongst
the population that proved to be indispensable for the state to resort to armed force.
But media influence may have decisively helped the state to resort to violence.
But the actual decision to use armed force was made by someone else.
So you can add the chief of the poor media, for example, that I'm going to go into it if you want.
Merrill Lynch. Really? They their contribution towards the formulation of policies that is decisive.
It's very important. They could have potentially a huge influence, especially my own, my country, where I come from, Serbia,
they can they could have a huge influence over the state policy and particular policy towards the use of foreign force.
However, if you look at the actual action of the going out to use a foreign force.
Can't say that their contribution was constituent TOLBERT Was that that's something
else that's a control theory that defines what perpetration what's not okay.
And the last point I'm going to make concerns, complicity. And if we sort of accept what I tried to explain so far, then we can argue that.
Someone like this cellist may have decisive influence towards the formulation of the state policy in a way that isn't inscribed.
The important factor for assessing this complicity liability is to look at whether he had substantial or just contribution
towards the active use of force was not just enough to sort of be in a position of control over the state policy.
But also you need to contribute over the actual act of commission, of use of armed force.
And this person has to have requirements, which is a different topic of discussion.
So he has to be aware of his leadership position and has to be aware of this element is to be.
Aware that this contribution will result in the court in the act of use of armed force.
Okay. So that's everything I have in my notes.
So as I said, I apologise. It's a very like I don't I don't like giving lectures before lectures or so, but this is how it is.
I'm for something. I'm stuck in Stockholm at the moment.
I'm coming to Oxford very soon, so I should try to be more structured and clear in my, my, my, my scholarship.
So if you are interested, as I said, I can be articles coming out very soon.
But also I. I have some documents that some text from my book that sort of contributed to my arguments.
But yeah, so that's it. So maybe we can start with a Q&A session.