In June 2010 in Kampala, Uganda, the states that are party to the Statute of the International Criminal Court agreed to amend the ICC Statute to add the crime of aggression to the Court’s jurisdiction. One of the key compromises that made this possible was the adoption of a U.S.-proposed “understanding” which provided that the aggression amendment should not be interpreted as creating a right for national courts to prosecute the crime of aggression under universal jurisdiction. If, however, national courts already possess the right to do so under customary international law, stemming from the Nuremberg precedent, then the understanding will end up failing to protect U.S. officials from the specter of potential prosecution for the crime of aggression in foreign courts around the globe. To answer that question, this Article re-examines the historic sources and analyzes the subsequent developments to discern whether Nuremberg established aggression as a universal jurisdiction crime under customary international law.
