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Under international law, for example the Hague, Geneva conventions and case law estabilished by various international bodies such as ICC, UNSC, UNGA, International Military Tributal (IMT)...

  1. Are soldiers, and not just commanding officers, criminally responsible for fighting under a war of aggression (assuming that they are on the side of the aggressor)?

  2. Can the Nuremberg defense be made? Must these soldiers refuse the orders of their commanding officers?

  3. Is there a difference between drafted soldiers and those that sign up?

An example in recent history: Are privates in the US army responsible for the war of aggression against Iraq, if they participated in that war, and could they be prosecuted if there were such a body willing to do it (I know that the Rome statute and War of Aggressions are in a bit of a bind)?

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The international body which judges international warcrimes is the International Criminal Court, and its authority is derived from the Rome Statute.

The Rome Statute of the International Criminal Court defines the "Crime of Aggression" as:

the planning, preparation, initiation or execution, by a person in a position effectively to exercise control over or to direct the political or military action of a State, of an act of aggression which, by its character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations.

(emphasis mine)

So this only applies to people who are in command of a state army, not to common soldiers.

But keep in mind that warcrimes are sometimes not judged by the international criminal court but by local courts which are bound to their own laws and regulations.

Also note that the United States have not ratified the Rome Statute, so the ICC has no authority over US soldiers anyway.

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    Does it apply to officers? E.g: Majors, Colonels, Generals? If we consider this a gray scale - at what point do you bear criminal responsibility (any interesting case law?). Why was this exception made in the Rome statute? What is the history behind it? Are there any other conventions or case law that contradicts this? If I remember correctly, the ICC can prosecute crimes committed by anyone in signatory states? And since a lot of states have universal jurisdiction over war crimes, can't for example Sweden arrest even US generals and presidents (putting aside political consequences)? – Centril Jan 9 '16 at 21:59
  • @Centril These are questions you should rather ask on law.stackexchange.com – Philipp Jan 9 '16 at 22:04
  • I feel that international law is much less clear cut and open for interpretation and based on "might-makes-right" so that it doesn't fit in law.stackexchange.com . Also, I'm very interested in the political aspects to these questions. So that's why I don't/didn't ask there... Any expansion on your answer is greatly appreciated. Especially keeping in mind that the ICC is not the sole arbitrator of international law... – Centril Jan 9 '16 at 22:08
  • @Centril The provision is new, but status as a military officer generally has never been considered to make you automatically liable for the crime of aggression (or the earlier Nuremberg term, "crimes against peace"). It applies to the very highest leadership; most commanding officers in a military aren't in a position to exercise effective control over their country's military action, because if one division commander refuses his orders he'll just be replaced and the division sent into combat. The crime isn't for participating in an aggressive war; it's for sending a country into one. – cpast Jan 10 '16 at 3:33
  • So assuming that the act of "sending a country into one" requires planning and isn't done over night... the planning is usually done by generals? And so generals (including from 4 to (2 or 1) star generals) might be criminally liable? – Centril Jan 10 '16 at 6:39

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