Abstract
The article critically appraises Carl Schmitt’s 1945 expert opinion on The International Crime of the War of Aggression and the Principle ‘nullum crimen, nulla poena sine lege’. Each element of Carl Schmitt’s expert opinion is subjected to close scrutiny and contextualised with references, where appropriate, to the icc’s recently acquired jurisdiction to try crimes of aggression. It is shown that Schmitt’s legal arguments are on the whole tenable but that the expert opinion’s assumptions about the position of the ability of ‘ordinary’ citizens to assess their own actions are very problematic.
Highlights
On 12 November 2018, the judges of the International Criminal Court (‘icc’) amended the Court’s Regulations[1] to implement a final set of provisions concerning the icc’s newly acquired jurisdiction over the crime of aggression.[2]
Following the end of the war, Flick was arrested by the US-American occupying forces in Germany on 13 June 1945
Jackson, reported to the American president that “we act on the juridical principle that aggressive warmaking is illegal and criminal” and that in doing so he (Jackson) was “not disturbed by the lack of precedent for the inquiry we propose to conduct”
Summary
On 12 November 2018, the judges of the International Criminal Court (‘icc’) amended the Court’s Regulations[1] to implement a final set of provisions concerning the icc’s newly acquired jurisdiction over the crime of aggression.[2]. But rarely studied, treatment of the issues concerning an individual’s responsibility for acts of aggression is Carl Schmitt’s 1945 expert opinion on The International Crime of the War of Aggression and the Principle ‘Nullum crimen, nulla poena sine lege’.3. Flick’s legal team tasked Carl Schmitt, one of Germany’s most prominent international lawyers at the time, with preparing an expert opinion on the responsibility of civilians for crimes of aggression. C. Schmitt, ‘The International Crime of the War of Aggression and the Principle “Nullum Crimen, Nulla Poena Sine Lege”’, in T. Even if the crime of aggression existed, Schmitt argues that responsibility could be attributed only to a very small circle of politicians and that, fourth, it would be inappropriate to extend responsibility beyond that circle and to ‘ordinary businessmen’ The article subjects these arguments to close scrutiny on their own terms. 12 The term ‘ordinary businessmen’ will be used in quotation marks throughout the text since Schmitt does not explain in which sense businessmen like Friedrich Flick should be considered to be ordinary
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