14 October 1957
Report of the International Law Commission to the General Assembly:
The Question on Defining Aggression and its inclusion in the Draft Code of Offences against the Peace and Security of Mankind
Table of Contents:
QUESTION OF DEFINING AGGRESSION
DRAFT CODE OF OFFENCES AGAINST THE PEACE AND SECURITY OF MANKIND |1|
- Document A/CN.4/L.6 : Mémorandum présenté par M. Gilberto Amado
- Document A/CN.4/L7 : Projet présenté par M. J. M. Yepes
- Document A/CN.4/L.8 : Memorandum submitted by Mr. Ricardo J. Alfaro
- Document A/CN.4/L.10 : Proposal by Mr. Roberto Córdova
- Document A/CN.4/L.11 : Proposal by Mr. Shuhsi Hsu
- Document A/CN.4/L.12 : Proposition de M. J. M. Yepes
- Document A/CN.4/L.19 : Mémorandum présenté par M. Georges Scelle
[This table of contents is not part of the original document]
YEARBOOK OF THE INTERNATIONAL LAW COMMISSION
Documents of the third session including the report of the Commission to the General Assembly
UNITED NATIONS, New York, 1957
NOTE TO THE READER:
In accordance with General Assembly resolution 987 (X) of 3 December 1955, the documents reproduced in the present volume are printed in their original languages; translations of the same documents are available only in mimeographed form. However, the Report of the Commission is also issued as a Supplement to the Official Records of the General Assembly in the five official languages of the Organization.
A/CN.4/SER. A/1951/Add. 1
14 October 1957
QUESTION OF DEFINING AGGRESSION
DOCUMENT A/CN.4/L.6 |2|
Mémorandum présenté par M. Gilberto Amado
[Texte original en français]
[29 mai 1951]
1. Les spéculations médiévales et de la période classique du droit international autour du vieux problème de la définition de la belium justum, en opposition à la guerre illégale ont été remplacées par la question de la définition de l'agression lors de la première tentative d'organisation de la Société des États, à la lumière du principe de la sécurité collective. Le Pacte de la Société des Nations avait comme but essentiel la condamnation de la guerre d'agression, pour le maintien de la paix entre les États. D'après le Pacte, si un membre de la Société internationale recourt à la guerre contrairement aux engagements pris aux Articles 10, 12, 13 et 15, il est considéré comme ayant commis un acte d'agression contre tous les autres membres de la Société. La constitution de la Société des Nations ne contenait pas, cependant, un critère de définition de l'agresseur. C'était au Conseil de sécurité (Art. 15) de constater l'existence de l'agression et de condamner l'État coupable de ce crime suprême contre la paix. Il s'agissait d'une solution à posteriori du problème: l'agression était un fait concret passible d'être constaté par un organe compétent, qui prendrait en considération toutes les circonstances historiques et politiques qui auraient précédé et déterminé l'existence d'un conflit quelconque, avant d'émettre sa solution, indépendamment d'une définition préalable du concept de guerre d'agression. Les Nations Unies ont été les héritières de cette conception empirique, puisque la Charte met aux mains du Conseil toute la responsabilité de la définition de l'agresseur, et conséquemment du maintien de l'édifice de la sécurité collective, sans essayer de définir d'une façon doctrinaire générale la guerre d'agression. En effet, l'Article 39 de la Charte stipule: «Le Conseil de sécurité constate l'existence d'une menace contre la paix, d'une rupture de la paix ou d'un acte d'agression et fait des recommandations ou décide quelles mesures seront prises conformément aux Articles 41 et 42 pour maintenir ou rétablir la paix ou la sécurité internationales. »
2. En 1924, on a essayé de remplir une lacune du Pacte en formulant une définition d'agression, laquelle fut incorporée au Protocole de Genève. L'Article 2 du Protocole dit ceci : « Les États signataires conviennent qu'en aucun cas ils ne doivent recourir à la guerre, ni entre eux ni contre tout autre État qui, le cas échéant, accepterait les obligations ci-après définies, excepté dans le cas de résistance à des actes d'agression, ou quand ils agissent en accord avec le Conseil ou l'Assemblée de la Société des Nations, selon les dispositions du Pacte et du présent Protocole. » Et l'Article 10, alinéa 1er déclare : « Est considéré comme agresseur tout État qui recourt à la guerre en violation des prescriptions prévues par le Pacte ou par le présent Protocole. » Le document de Genève n'est pas un prédécesseur du Pacte de Paris. Il n'interdit nulle part la guerre en général. Il n'interdit que la guerre d'agression, qui, d'après son préambule, rompt la solidarité des membres et constitue un crime international.
3. La définition du Protocole de Genève était une formule souple qui renonçait à déterminer avec précision les circonstances d'après lesquelles une guerre serait considérée comme agressive. Elle se borne à déclarer hors de la loi toutes les guerres entreprises pour d'autres motifs que la légitime défense ou l'accomplissement des obligations incombant aux États membres de la Société des Nations en conséquence des dispositions du Pacte.
4. Le problème de la définition de l'agression a été abordé d'une façon tout à fait différente, lors de la Conférence du désarmement, en 1933. On y a essayé d'élaborer une liste des situations de fait constituant l'agression. Les démarches en ce sens étaient dues à l'initiative du représentant de l'Union soviétique, M. Litvinov, qui a présenté sa proposition à la Conférence le 6 février 1933. D'après le projet Litvinov, la guerre d'agression pourrait être définie par un des actes suivants : déclaration de guerre, invasion, bombardement du territoire d'un pays étranger, ou attaque de ses navires et aéronefs, débarquement sur un territoire étranger de détachements terrestres ou navals ou aériens, sans autorisation, ou avec permission, mais en violation des conditions établies d'un commun accord, quant au temps et lieu où les débarquements auraient dû être effectués et, en dernière instance, blocus des côtes ou des ports. En même temps, la proposition soviétique contenait une seconde liste, celle des circonstances qui sauraient être refusées comme excuses à l'agression, notamment des raisons d'ordre politique, stratégique ou économique. Ce projet soviétique a subi une procédure de revision au Comité pour les questions de sécurité de la Conférence, lequel a abouti à une formule appelée « l'Acte définissant l'agresseur », d'après lesquel l'agresseur serait l'État qui aurait commis le premier un des faits y annoncés comme des actes d'agression. L'« Acte définissant l'agresseur » fut conçu par M. Politis, le principal responsable pour la revision de la proposition soviétique comme un prolongement du Pacte de Paris, puisque d'après l'opinion de M. Politis, il aurait comme conséquence la condamnation de toutes les guerres, sauf celles de légitime défense. L'esprit qui a guidé les auteurs de l'Acte et de la définition Litvinov-Politis était celui de définir l'agression d'une façon telle qu'aucune place serait laissée aux doutes au cas d'un conflit international. L'application de la définition devrait se produire automatiquement. L'Acte définissant l'agresseur a subi une forte opposition de la part de plusieurs délégations à la Conférence, notamment celle de la Grande-Bretagne, sous allégations que tout l'arrière-plan historique d'un conflit particulier serait méprisé en faveur de la considération des circonstances immédiates et de fait. En conséquence, l'Acte n'a pas été adopté par la Conférence du désarmement, bien que approuvé par le Comité pour les questions de sécurité. Cependant, au cours de la Conférence économique mondiale à Londres, des Conventions furent conclues, le 3 juillet 1933, entre l'URSS, l'Afghanistan, l'Estonie, la Lettonie, la Perse, la Pologne, la Roumanie et la Turquie et, le 4 juillet, entre l'URSS, la Petite Entente et la Turquie et, le 5 juillet, entre l'URSS et la Lithuanie, incorporant la définition Litvinov-Politis.
5. Cette définition est basée sur un critère territorial, sur l'idée de l'inviolabilité du territoire national. M. W. Kormanicki, dans son œuvre « La Définition de l'agresseur » |3|, observe très judicieusement que le critère territorial peut offrir de graves difficultés quand il s'agit d'une dispute au sujet d'un territoire sur lequel les États en litige réclament tous avoir le pouvoir de fait, comme c'était le cas dans les affaires du Chaco, de Leticia et du territoire de Wilno. Le critère adopté par la définition Litvinov-Politis ne saurait être employé avec succès que dans un cas où la notion du territoire national fût précise et hors de discussion. Autrement il serait très difficile de résoudre la question concrète de savoir quand et comment l'agression s'est produite.
6. M. Kormanicki mentionne encore, pour illustrer l'insuffisance du critère territorial la question de la Mandchourie, quand les Japonais ont pu alléguer l'absence des frontières précises dans la zone ferroviaire de ce pays pour essayer de justifier leur action militaire. D'un autre côté, dans le conflit italo- éthiopien, l'application du critère territorial pourrait conduire à des résultats d'une injustice flagrante, si l'Éthiopie avait attaqué les concentrations de troupes italiennes au début de l'été de 1935, quand les manœuvres militaires des troupes fascistes ne permettaient plus de doutes sur leurs intentions agressives. La conclusion de l'auteur est la suivante: «Nous pourrions nous demander si la définition adoptée par les Conventions de Londres... est adéquate. Nous sommes enclins à répondre par la négative et ceci pour deux raisons: tout d'abord le système casuiste, appliqué à cette construction tout en englobant les cas les plus essentiels et les plus fréquents, peut faire parfois défaut dans les cas spécifiques. Ensuite ce système se limite nécessairement aux faits d'agression flagrante. Des méthodes plus subtiles sont nécessaires pour voir clair dans l'enchevêtrement des faits dans une situation compliquée comme cela s'est produit dans l'étape initiale du conflit italo-éthiopien|4|. »
7. A San-Francisco, lors de la préparation de la Charte des Nations Unies, deux pays ont essayé de faire inclure dans la constitution de la nouvelle organisation des États une définition d'agression : les Philippines et la Bolivie. Le projet philippin se basait sur la définition incorporée aux Conventions de Londres ci-dessus mentionnées (déclaration de guerre, invasion, attaque d'un navire ou aéronef, blocus), développant en même temps l'idée de la subversion de l'ordre interne comme un nouvel acte d'agression.
8. La proposition bolivienne se fondait sur l'idée de la garantie que les puissances et particulièrement les membres permanents du Conseil de sécurité étaient censés donner au principe de l'inviolabilité territoriale des États, en vertu duquel l'acquisition d'un territoire par la force, et d'autres actes de contrainte, ne sauraient jamais être reconnus; l'indépendance politique des États aussi bien que leur droit à la libre organisation de leur vie intérieure devraient être, d'un autre côté, assurés par lesdites puissances. Les actes suivants étaient considérés comme capables de configurer l'existence de l'agression: invasion armée d'un territoire étranger; déclaration de guerre, attaques par les forces terrestres, navales ou aériennes; assistance aux bandes armées aux buts de l'invasion; intervention dans les affaires intérieures d'un État ou dans sa politique étrangère; refus de soumettre à la procédure du règlement pacifique la cause d'un conflit armé ainsi que le refus d'exécuter une décision de la Cour internationale de Justice. La proposition de la Bolivie prévoyait le déclenchement automatique des sanctions collectives au cas d'une agression commise en violation des garanties y stipulées comme dues par les puissances aux autres États. Aucune de ces deux tentatives n'a réussi à la Conférence de San-Francisco.
9. Dans le système panaméricain, on trouve une définition formelle d'agression incorporée dans l'article 9 du Traité de Rio-de-Janeiro, signé au cours de la Conférence pour le maintien de la paix et de la sécurité continentales (du 15 août au 2 septembre 1947). Ce dispositif se borne à mentionner comme des actes d'agression l'attaque armée, sans provocation, contre le territoire, la population et les forces terrestres, navales ou aériennes d'un autre État et l'invasion de ce territoire par des forces armées étrangères. L'organe de consultation serait chargé de caractériser les autres actes d'agression. Comme définition casuistique, elle est évidemment incomplète, comparée à celle des Conventions de Londres. La déclaration de guerre, le blocus et l'appui donné à des bandes armées pour envahir le territoire d'un autre État n'y trouvent pas de place.
10. A la Conférence panaméricaine de Buenos-Aires, 1936, la délégation de Colombie a pris l'initiative d'un projet pour la création d'une « association des nations américaines », dont l'auteur était notre éminent collègue M. Yepes, lequel contient un concept d'agression bien plus étendu que tous les précédents; après avoir reproduit substantiellement les présomptions d'agression établies dans les traités de Londres de 1933, ajoute que sera déclaré agresseur « l'État qui aura intervenu d'une manière illicite et unilatérale dans les affaires intérieures ou extérieures d'un autre État ». La formule du professeur Yepes est très intéressante et très originale, mais nous ne pouvons nous empêcher de la trouver un peu trop étendue, considérant que le concept de l'intervention est loin d'être nettement déterminé en droit international. On pourrait même dire qu'il est plus controversé que celui de guerre d'agression.
11. Maintenant, au cours de la cinquième session de l'Assemblée générale des Nations Unies, la Yougoslavie a pris l'initiative d'une tentative de solution du problème tout à fait inorthodoxe. A la demande de la délégation yougoslave, l'Assemblée générale a inclu à son ordre du jour le point 72, intitulé « Devoirs des États en cas d'ouverture des hostilités ». C'était en connexion avec ce point que la Yougoslavie a présenté un projet de résolution qui visait à établir un critère empirique et automatique pour déterminer l'agresseur, s'écartant des deux courants traditionnels de la doctrine en matière de définition d'agression, soit la définition souple, générale, du protocole de Genève et la définition casuiste des Conventions de Londres.
12. Les points les plus remarquables de la proposition yougoslave dans sa forme originale étaient les suivants: 1) chaque fois que des hostilités auront éclaté entre un État et un ou plusieurs autres États, chacun de ces États fera dès le début des hostilités et en tout cas vingt-quatre heures au plus après l'ouverture des hostilités, une déclaration publique où il proclamera qu'il est prêt à donner l'ordre de cesser le feu, à interdire la violation de l'espace aérien de l'autre partie et à retirer ses forces armées qui auront pénétré sur le territoire ou les eaux territoriales d'un autre État. Le projet original prévoyait encore qu'à minuit, le jour où auraient été faites lesdites déclarations chacun de ces États mettrait à exécution l'ordre de cesser le feu, et accomplirait toutes les mesures de cessation des hostilités. Cette partie a été cependant rejetée au cours de plusieurs modifications que la proposition a subies pendant les discussions à la Première Commission de l'Assemblée; 2) la dénonciation automatique comme agresseur et responsable de la rupture de la paix, devant la communauté internationale, de l'État qui se trouverait engagé dans les hostilités contre un autre État ou plusieurs autres États et qui, n'ayant pas fait la déclaration mentionnée ou qui, l'ayant faite, ne se conformera pas aux dispositions de cessation de feu. Ce dispositif contenait la partie la plus caractéristique de la proposition et exprimait le but principal de la délégation yougoslave qui était, d'après les déclarations répétées des représentants de ce pays, d'écarter les critères subjectifs et d'établir un moyen objectif et concret pour la détermination de l'agresseur |5|. Le mémorandum explicatif avec lequel la délégation de la Yougoslavie a présenté son projet de résolution met en évidence lui aussi cet aspect de la proposition : « Toutefois dans le cas concret cette procédure permettrait en même temps de démasquer sans équivoque l'agresseur réel. » Cette déclaration, l'obligation de mettre fin aux hostilités et le retrait des troupes en delà des frontières du territoire menacé permettraient de déterminer incontestablement l'agresseur. L'État qui ne tiendrait pas compte de cette procédure et qui ne se soumettrait pas à ses règles et à ses obligations se désignerait comme agresseur et, de ce fait, devrait assumer devant la communauté internationale la responsabilité de la rupture de la paix.
13. Cette partie de la résolution qui, évidemment, était la plus substantielle, n'a pas trouvé accueil au sein de la Première Commission. Plusieurs délégations se sont manifestées contre l'adoption d'un dispositif pareil, qui neutralisait la lettre de l'Article 39 de la Charte et retirait au Conseil de sécurité le pouvoir de constater l'existence d'un acte d'agression. La délégation yougoslave a accepté les critiques qui ont été faites à son projet sur ce point, comme d'ailleurs sur plusieurs autres points, et dans la rédaction finale de la proposition (A/C. 1/ 604/Rev.3), la procédure suggérée par la Yougoslavie paraît comme un simple critère subsidiaire qui devrait être tenu en compte lors de la détermination de l'agresseur. C'était dans cette forme que l'Assemblée générale l'a adopté par la résolution 378 (V) A, dont le paragraphe 1, alinéa c, dit le suivant:
« Qu'il soit tenu compte, chaque fois qu'il s'agira d'attribuer la responsabilité de la rupture de la paix ou de l'acte d'agression dans le cas d'espèce et lors de toutes autres procédures des organes compétents des Nations Unies s'y rapportant, de la conduite tenue par les États intéressés rela
14. Il serait long d'essayer de retracer ici l'évolution du projet yougoslave qui a abouti à la résolution 378 (V) du 17 novembre 1950. Il suffit de dire que la proposition yougoslave conçue comme une alternative empirique et pratique pour échapper du binôme traditionnel définition souple - définition casuiste, a pris la forme, lors de son approbation finale par l'Assemblée, d'un simple critère capable d'aider les organes compétents dans la tâche de définir l'agression sans écarter l'idée du besoin d'une définition préliminaire et de la participation du Conseil, aux termes de l'Article 39 de la Charte.
15. En connexion avec le même point de l'ordre du jour, l'Union soviétique a présenté un projet de résolution (doc.A/C 1/ 608) qui contient une définition minutieusement élaborée d'agression, suivant les lignes générales de la proposition Litvinov et du rapport Politis, incorporés dans les Conventions de Londres de 1933. L'énumération des actes d'agression fut cependant modifiée. Un nouvel alinéa d a été ajouté à la liste des faits capables de déterminer l'existence de l'acte d'agression. Nous ne nous trouvons pas en mesure de comprendre la vraie portée de cet alinéa, vu que l'hypothèse des débarquements de forces de mer et de l'air dans le territoire d'un autre pays est déjà parfaitement couverte par l'alinéa b, soit l'invasion par des forces armées du territoire d'un autre pays. Encore une autre modification qui attire l'attention est l'élimination de la liste des actes d'agression du cas concernant l'appui donné à des bandes armées qui, formées sur son territoire, auront envahi le territoire d'un autre État, ou du refus, malgré la demande de l'État envahi, de prendre sur son propre territoire toutes les mesures en son pouvoir pour priver lesdites bandes de toute aide ou protection. Ce dispositif, qui figure à l'article 5, alinéa II, des Conventions de Londres, était sans explication biffé du projet de résolution soviétique. La liste de circonstances qui ne sauraient pas être invoquées comme excuse ou comme justificatives à la pratique des actes d'agression, qui figurait dans les annexes aux Conventions de Londres, a été élaborée et perfectionnée par les auteurs du projet soviétique.
16. Le projet de l'URSS fut longuement discuté au sein de la Première Commission et a été l'objet de toutes les critiques de ceux qui n'acceptent pas la possibilité d'une définition casuiste en vue de l'impossibilité pratique de prévoir toutes les circonstances et toutes les hypothèses qui peuvent avoir lieu au cas d'une dispute entre deux États. Considérant qu'il s'agit d'une question plutôt technique de droit international et que la Commission du droit international entreprend maintenant l'élaboration d'un projet de code des crimes contre la paix et la sécurité de l'humanité, l'Assemblée générale, par la résolution 378 B (V), du 17 novembre 1950, a décidé de renvoyer à cet organe subsidiaire l'examen de la question.
17. Voilà donc la tâche qui nous incombe maintenant: étudier la possibilité de définir l'agression. La question n'est pas étrange à cette commission. L'année dernière, lors de notre deuxième session, le sujet fut étudié ici en connexion avec l'élaboration du projet de code des crimes contre la paix et la sécurité de l'humanité. Le projet présenté par le professeur Spiropoulos, suivant l'alinéa a de l'article 6 du Statut de Nuremberg, classifie comme crime no. 1 « l'emploi de la force armée en violation du droit international et notamment la poursuite d'une guerre d'agression ». En ce qui concerne la définition de guerre d'agression, dit M. Spiropoulos: « Pour les raisons indiquées par les représentants de l'Union soviétique à la Conférence de Londres, nous proposons que la Commission du droit international s'abstienne de toute tentative de définir la notion d'agression. Une telle tentative n'aboutirait qu'à une perte de temps. »
18. En ce qui concerne les opinions du représentant soviétique à la Conférence de Londres de 1945, nous nous permettons d'ouvrir ici une parenthèse pour faire ressortir un fait très curieux: au cours des discussions à la cinquième session de l'Assemblée générale, les représentants des pays du bloc soviétique ont toujours insisté pour démontrer que les États-Unis d'Amérique ont été les adversaires constants de toutes les tentatives de définition d'agression et ont toujours fait ressortir les obstacles à l'établissement d'un critère capable de désigner l'agresseur, tandis que les Russes, depuis 1933, s'efforcent d'établir un critère de définition. Cependant, à la Conférence de Londres de 1945, ce qui était arrivé, c'était justement le contraire : la délégation des États-Unis a proposé une définition qui n'était rien de plus que la définition des Conventions de Londres de 1933, la même qui sert de base au projet de résolution soviétique présenté à la cinquième session de l'Assemblée générale. L'initiative des États-Unis s'est heurtée cependant à l'opposition décidée du représentant de l'URSS, le général Nikitchenko, qui, à cet égard, a déclaré : « Il est évident que cela est dû au fait que l'agression est devenue une sorte de formule en soi. Apparemment, quand les gens parlent d'agression, ils savent ce que cela signifie, mais quand ils viennent à le définir, ils se heurtent à des difficultés qu'il n'a pas été possible de surmonter jusqu'à présent |6|. »
19. Je n'ai pas besoin de vous rappeler que lors de la discussion du crime no. 1 du projet Spiropoulos, à la deuxième session de la Commission, j'ai eu l'occasion de prendre l'initiative de la réaction contre l'idée de renoncer à toute tentative de définir l'agression, suggérée par le rapporteur, qui s'était mis d'accord sur ce point avec l'opinion du délégué soviétique à la Conférence de Londres. J'ai eu alors l'occasion de déclarer ceci: « En d'autres termes, le concept de la guerre d'agression est une énigme qu'on ne peut pas déchiffer. Cependant, cette question insoluble pour une Commission composée comme la Commission du droit international, d'émi-nents juristes, doit être tranchée par le Tribunal qui aura à juger les personnes accusées du « crime no. 1 ». On doit essayer de délimiter le concept de guerre d'agression ou le faire disparaître du Code. Une solution serait peut-être de dire que constitue une guerre d'agression toute guerre qui n'est pas poursuivie dans l'exercice du droit de légitime défense ou en application des dispositions de l'Article 42 de la Charte des Nations Unies |7|. »
20. Cette suggestion a trouvé bon accueil à la Commission et fut incorporée dans le texte préliminaire du proiet de Code préparé par le Comité de rédaction, dont l'article I lit: « Les actes suivants sont des crimes contre la paix et la sécurité de l'humanité et sont punissables comme crimes de droit international: 1) l'emploi ou la menace de l'emploi des forces armées d'un Etat contre un autre État à des fins autres que la légitime défense ou l'exécution d'une décision d'un organe compétent des Nations Unies |8|. »
21. La tentative de définition qui a été suggérée par moi se rattache évidemment au système adopté par le protocole de Genève, en s'écartant de l'idée d'établir une liste rigide des actes considérés, comme des actes d'agression, pour les mêmes raisons qui ont été invoquées au cours des séances de la première Commission de la cinquième Assemblée générale contre la proposition soviétique : Une définition basée sur l'énumération d'un certain nombre d'actes considérés comme capables de caractériser l'agression, difficilement pourrait être complète et il faut admettre qu'une omission serait sûrement dangereuse. Il n'y a pas un consensus définitif sur la nature des actes agressifs.
22. La formule souple s'adapterait à toutes les circonstances de fait et pourrait être employée par le Conseil de sécurité, ou maintenant par l'Assemblée générale quand le Conseil de sécurité manque à s'acquitter de sa responsabilité [Résolution 377 (V), « L'Union pour le maintien de la paix »], pour constater l'existence d'un acte d'agression, ex-vi de l'Article 39 de la Charte, sans restreindre la liberté de jugement de l'organe compétent des Nations Unies. L'esprit de la Charte est de donner à cet organe pleins pouvoirs de décider de l'existence ou non de l'agression. La définition contenant la liste des actes d'agression signifierait une limitation considérable de ces pouvoirs. Un autre avantage du critère que j'ai eu l'occasion de proposer l'année dernière et dont je suggère maintenant l'adoption, c'est la possibilité d'écarter la discussion de la section A de la résolution 378 (V), qui contient les éléments proposés par la Yougoslavie comme système empirique de définition de l'agression. Une définition casuiste ne pourrait pas laisser de côté ce système déjà approuvé par l'Assemblée générale comme critère subsidiaire de définition. Or, bien qu'en reconnaissant la possible utilité du plan yougoslave, je doute fort qu'on le puisse considérer sérieusement du point de vue droit international. La pratique des États et la doctrine du droit international n'ont jamais connu une pareille solution pour le problème de définir l'agression. Si nous nous engagions dans le travail de formuler une définition casuiste élaborée, il y faudrait sans aucun doute introduire ces éléments nouveaux. La conception de la délégation de Yougoslavie, discutée à la cinquième session de l'Assemblée générale, peut être très ingénieuse et très habile, mais elle est tout à fait étrange à la pratique des États et au droit international conventionnel. Il serait ainsi évidemment avantageux d'éviter la discussion de la façon d'après laquelle on pourrait ici concilier une définition basée sur les données du droit international avec ce critère un peu arbitraire établi par l'Assemblée générale.
23. Voilà, Messieurs, les raisons qui m'ont convaincu de défendre dans cette Commission la définition qui était adoptée, en première lecture, l'année dernière.
Projet présenté par M. J. M. Yepes
[Texte original en français]
[30 mai 1951]
Sera considéré agresseur et, par conséquent, passible de sanctions prévues contre l'agresseur, l'État responsable de l'un ou de plusieurs des actes énoncés ci-après :
(a) Le franchissement illégal du territoire terrestre, maritime ou aérien d'un État par les forces armées régulières d'un autre État dans le but de soumettre le premier à la volonté de l'envahisseur;
(b) Lorsque cet acte (franchissement des frontières d'un État) s'accomplit par des bandes irrégulières, organisées dans le territoire d'un État ou à l'étranger mais avec la complicité active ou passive de l'État du départ, le franchissement illégal de la frontière produira les mêmes effets que dans le cas prévu au sous-paragraphe a;
(c) L'attaque armée d'un État contre le territoire, la population ou les forces terrestres, maritimes ou aériennes d'un autre État;
(d) L'intervention unilatérale et illégale d'un État ou groupe d'États dans les affaires intérieures ou extérieures d'un autre État ou groupe d'États;
(e) Le refus systématique de soumettre ses différends avec un autre État à l'un quelconque des moyens de règlement pacifique prévus par la Charte des Nations Unies, par le Statut de la Cour internationale de Justice ou par tout autre traité ou convention en vigueur;
(f) Le refus de mauvaise foi de se conformer à une décision de la Cour internationale de Justice, d'un tribunal d'arbitrage ou de toute autre juridiction convenue pour trancher un différend entre l'État récalcitrant et un autre membre de la communauté internationale, pourvu, néanmoins, que ce dernier soit disposé à s'y soumettre;
(g) Au cas où un accord serait conclu pour établir le contrôle international de l'égergie atomique, sera agresseur l'État qui se trouverait en possession illégale de bombes atomiques ou d'une usine d'énergie atomique.
Aucune considération d'ordre politique, économique, militaire ou autre ne pourra servir d'excuse ou de justification pour les actes d'agression ci-dessus énumérés. Mais, par contre, l'exercice du droit de légitime défense, individuelle ou collective, au sens de l'Article 51 de la Charte des Nations Unies, c'est-à-dire la résistance à un acte d'agression ou l'action d'un État tendant à assister un autre État victime d'une attaque armée, ne constituera pas une agression.
Les dispositions de l'article précédent n'excluent pas le droit de l'Autorité internationale compétente de faire appel, dans des cas exceptionnels, à d'autres éléments ou criteria objectifs pour déterminer l'agresseur.
Memorandum submitted by Mr. Ricardo J. Alfaro
[Original text: English]
[30 May 1951]
1. In consequence of a proposal of the delegation of Yugoslavia in the Fifth Session of the General Assembly of the United Nations on the subject of Duties of States in the event of the outbreak of hostilities, the delegation of the Soviet Union introduced a draft resolution aimed at the purpose of defining the concept of aggression.
2. After both proposals were fully discussed in the First Committee of the General Assembly resolution 278 B (V) was passed on 17 November 1950, the second part of which decided "to refer the proposal of the Union of Soviet Socialist Republics and all the records of the First Committee dealing with the question to the International Law Commission, so that the latter may take them into consideration in formulating its conclusions as soon as possible".
3. Inasmuch as the above-mentioned resolution contains in its first part the recommendations and directives adopted by the General Assembly as the result of the Yugoslavian initiative, the only question on which the Commission is expected to formulate conclusions is the problem of defining aggression. On this problem I desire to submit some remarks and a proposal to the learned consideration of the Commission.
4. Determination of the aggressor in international conflicts is a problem which has occupied the minds of jurists, statesmen and diplomats for over a quarter of a century. A satisfactory solution of that problem has always been considered as a factor of primary importance for the maintenance of peace and security in international life. Such a solution has not yet been found and the opinion seems to be almost unanimous that finding it is extremely difficult, if not altogether impossible. Referring to the work of the Committee on Arbitration of the League of Nations in 1924, Mr. Adatci asserted: "The most difficult and most delicate task was that of defining the agressor and of determining how to apply adequate sanctions." And 26 years later, in the debates of the Fifth General Assembly a distinguished delegate from Australia, among many others who made similar statements, expressed doubts as to "whether it would ever be possible to set out completely all the ways in which aggression could be committed".
5. In my opinion, the failure to find a satisfactory formula for the determination of the aggressor in international conflicts is due to the fact that the efforts to achieve such a result have concentrated on the idea of an enumeration of the different acts constituting aggression. It seems to me that it is high time to undertake the formulation of a norm, a general principle by the application of which the competent organs of the United Nations be enabled to determine who has been the aggressor in a given conflict.
6. All persons familiar with drafting legislative or contractual texts know very well how dangerous enumerations are. It is impossible for the human mind, in a constantly changing world, to foresee all the cases, forms, ways, eventualities and modalities which may be present in a given situation. For this reason enumerations of prohibited or punishable acts are always likely to be incomplete, and hence to leave loopholes through which transgressors may find escape and impunity may result.
7. In 1923 the League of Nations undertook the preparation of a Treaty of Mutual Assistance and during these labours the League's Permanent Advisory Commission discussed at length the problem of defining the aggressor in a Report which dealt with many important aspects of the question, but without making any concrete proposal. (League of Nations, 4th Assembly, A/35/1923, IX.)
8. The Report contained remarks of manifest interest on the subjects of mobilization and invasion as acts of aggression, as well as on the points of "Signs which betoken an impending aggression" and "Universal recognition of impending aggression". Under the former heading the following factors were listed:
(1) Organization on paper of industrial mobilization;
(2) Actual organization of industrial mobilization;
(3) Collection of stocks of raw materials;
(4) Setting on foot of war industries;
(5) Preparation for military mobilization;
(6) Actual military mobilization;
Under the second heading are mentioned:
The political attitude of the possible aggressor;
The attitude of his press and population;
His policy on the international market, etc.
9. A Temporary Mixed Commission for the Reduction of Armaments was also set up by the League, which presented another learned Report but failed to offer any definite solution to the problem. This Commission prepared a Draft Treaty of Mutual Assistance, which replaced previous drafts submitted by Lord Cecil and by Colonel Réquin.
10. Article I of that Treaty, as adopted by the League, declared war an international crime. Article 2 mentioned "aggression" and articles IV and VIII used the phrase "in case of aggression", but no definition appeared anywhere. The Treaty did not meet with the approval of Governments and never came into force.
11. The first attempt at directly defining the aggressor was made in 1924 before the Committee on Arbitration of the League of Nations during the elaboration of the Geneva Protocol for the Pacific Settlement of International Disputes. The results of the efforts made at that time are represented by article 10 of the Protocol.
12. The first paragraph of article 10 provided:
"Every State which resorts to war in violation of the undertakings contained in the Covenant or in the present protocol, is an aggressor."
If the article had stopped there, we would have had a flexible criterium for the determination of the aggressor. However, the paragraph entered into the specification of acts of aggression or concrete cases, which restricted, within narrow limits, the scope of the clause, thereby failing to give pre-eminence to a general rule constituting by itself an essential definition.
13. With a view to the concrete determination of the aggressor, article 10 provided in the same paragraph 1, as a second sentence thereof, that violation of the statute of a demilitarized zone would be considered as resort to war. It further provided that in case of hostilities, a State would be presumed to be the aggressor if it had refused to submit the controversy to pacific settlement or to comply with a judicial sentence or arbitral award or with a unanimous decision or recommendation of the League's Council or a judicial or arbitral decision on the question whether a given affair was within the domestic jurisdiction of a State. The article further provided that any belligerent which had refused to accept an armistice prescribed by the Council or had violated its terms should be deemed an aggressor.
14. As may be seen, so far as a definition of aggression was concerned, these provisions were extremely deficient. They left out the chief and most obvious forms of aggression, namely invasion, armed attack and blockade.
15. A more ambitious effort was made in 1933 during the Conference for the Reduction and Limitation of Armaments, before the Committee on Security Questions, when the Soviet Foreign Minister, Mr. Maxim Litvinov, formulated his well known proposals on definition of the aggressor which were the subject of a luminous report by the Chairman of that Committee, Mr. Nicolas Politis. (League of Nations document Conf. D/C.G.108.)
16. The formulas of the Politis Report were later embodied in the Convention on Definition of the Aggressor signed in London on 3 July, 1933 by the Soviet Union, and Afghanistan, Estonia, Latvia, Persia, Poland, Roumania and Turkey, followed by another Convention between the Soviet Union and Czechoslovakia, Roumania, Turkey and Yugoslavia, and a third one between the Soviet Union and Lithuania. The substantive provisions of these treaties are the following:
"Each of the High Contracting Parties undertakes to accept in its relations with each of the other Parties, from the date of the entry into force of the present Convention, the definition of aggression as explained in the report dated May 24th, 1933, of the Committee on Security Questions (Politis report) to the Conference for the Reduction and Limitation of Armaments, which report was made in consequence of the proposal of the Soviet delegation."
"Accordingly, the aggressor in an international conflict shall, subject to the agreements in force between the parties to the dispute, be considered to be that State which is the first to commit any of the following actions:
"(1) Declaration of war upon another State;
"(2) Invasion by its armed forces, with or without a declaration of war, of the territory of another State;
"(3) Attack by its land, naval or air forces, with or without a declaration of war, on the territory, vessels or aircraft of another State;
"(4) Naval blockade of the coasts or ports of another State;
"(5) Provision of support to armed bands formed on its territory, which have invaded the territory of another State, or refusal to take, in its own territory, notwithstanding the request of the invaded State, all the measures in its power to deprive those bands of all assistance or protection."
"No political, military, economic or other consideration may serve as an excuse or justification for the aggression referred to in article II".|9|
17. An Annex to the Treaty, signed jointly with it, declared that
"No act of agression within the meaning of Article II of that Convention can be justified on either of the following grounds, among others:
"A. The internal condition of a State:
"E.g. its political, economic or social structure; alleged defects in its administration; disturbances due to strikes, revolutions, counter-revolutions, or civil war.
"B. The international conduct of a State:
"E.g. the violation or threatened violation of the material or moral rights or interests of a foreign State or its nationals; the rupture of diplomatic relations; economic or financial boycotts; disputes relating to economic, financial or other obligations towards foreign States; frontier incidents not forming any of the cases of aggression specified in Article II."
18. The nations of the Western Hemisphere showed a deep interest in the question of definition of the aggressor. In the Seventh Pan American Conference held in Montevideo in 1933, Mexico submitted a Draft Code of Peace, the first article of which condemned wars of aggression and the second provided:
"For the purpose of the preceding article that State shall be recognized as aggressor which shall have first committed any of the following acts, whatever may have been their purpose:
"(a) To declare war upon another State;
"(b) To start an invasion with land, naval or air forces -- even without a declaration of war -- against the territory, the ships or the aircraft of another country;
"(c) To start a blockade of the coast or of a port of another country;
"(d) To give aid to elements, which, having formed within its territory, should attack the territory of another country, or to reject the demands of the attacked country, that measures be taken to deprive those elements of support or defence;
"No consideration of a political, military or economic character can justify the aggression referred to in this article."
The influence of the Litvinov-Politis conception is clearly discernible here.
19. Other proposals were introduced in the Peace Conference of Buenos Aires in 1936 and in the Eighth Pan American Conference held in Lima in 1938. However, all these proposals met with the ever present objection that the enumerations formulated were incomplete and the delegations did not come to any agreement. The different drafts were referred to the Inter-American Committee of Jurists for study and consideration.
20. In the London Conference of 1945 the United States proposed that aggression be defined in these terms:
"An aggressor, for the purposes of this article, is the State which is the first to commit any of the following actions:
"1. Declaration of war upon another State;
"2. Invasion by its armed forces, with or without a declaration of war, of the territory of another State;
"3. Attack by its land, naval or air forces, with or without a declaration of war, on the territory, vessels or aircraft of another State;
"4. Naval blockade of the coasts or ports of another State;
"5. Provision of support to armed bands formed in its territory which have invaded the territory of another State, or refusal, notwithstanding the request of the invaded State, to take in its own territory, all the measures in its power to deprive those bands of all assistance and protection.
"No political, military, economic or other considerations shall serve as an excuse or justification for such actions; but exercise of the right of legitimate self-defence, that is to say, resistance to an act of aggression, or action to assist a State which has been subjected to aggression, shall not constitute a war of aggression."
21. While the above enumeration was clearly patterned after the Litvinov-Politis formula, the American proposal had the merit of being the first to introduce the element of individual or collective self-defence for the determination of the aggressor. For the rest, the proposal did not crystallize in any agreement.
22. The Act of Chapultepec, agreed upon in the Conference on Problems of Peace and War held in Mexico City in 1945, deals with the subject of aggression but it confines itself to setting forth a criterium with regard to invasion, in these terms:
"In any case, invasion by armed forces of one State into the territory of another, trespassing boundaries established by treaty and demarcated in accordance therewith, shall constitute an act of aggression."
23. In the Conference on the Consolidation of Peace and Security on the American Continent, held in Rio de Janeiro in 1947, the problem of defining the aggressor was again taken up, this time with a strong determination to attain positive results. The Inter-American Treaty of Reciprocal Assistance incorporates a definition of aggression. The enumeration of cases it contains is not as large as the one embodied in the Litvinov treaties, but on the other hand, it has the advantage of not being limitative. Hence, it makes possible the determination of the aggressor in cases not specifically defined or set forth in the treaty. Article 9 thereof reads as follows:
"In addition to other acts which the Organ of Consultation may characterize as aggression, the following shall be considered as such:
"(a) Unprovoked armed attack by a State against the territory, the people or the land, sea and air forces of another State;
"(b) Invasion by the armed forces of a State, of the territory of an American State, through the trespassing of the boundaries demarcated in accordance with a treaty, judicial decision or arbitral award, or, in the absence of frontiers thus demarcated, invasion affecting a region which is under the effective jurisdiction of another State."
24. Each of the formulas agreed upon in London (1933) and in Rio de Janeiro (1947) has merits as well as defects. Both can be criticized as incomplete and imperfect. None of the two furnishes a fully satisfactory solution of the problem of defining aggression.
25. The Litvinov-Politis formula contains what has been called "the five capital sins" of aggression, namely: a declaration of war, invasion, armed attack, naval blockade and support to armed bands. But it may be averred that many sins are not found among these five and that not all of the five are sins. For instance, it is a manifest error to lay down the rule that a declaration of war constitutes by itself an act of aggression. The declaration of a state of war may come about precisely as the consequence of an aggression committed by the power against which the declaration is made, which power in turn, may have attacked without declaring war. On the basis of that formula, in the war resulting from the attack of Japan on Pearl Harbour, the United States would have been the aggressor, because it declared war; and in the conflagration of 1939, France and England would have been guilty of aggression because in exercise of the collective right of self-defence they declared war on Germany after this nation had attacked Poland. Another objection: Naval blockade is branded as aggression, but nothing is said about a land blockade, which produces equal effects. Still another: The clause relative to irregular bands fails to foresee the possibility that they be not only assisted but actually organized by the agressor State.
26. The Inter-American Treaty of Mutual Assistance, in classifying as aggression an "unprovoked attack", seems to justify attack when it has been "provoked". Introducing the vague, imprecise and uncertain element of "provocation" in the determination of the aggressor, may lead to most disturbing and dangerous consequences. Another serious objection is that attack on the sea and air forces of a State is specifically mentioned as aggression, wherefore attack on merchant vessels and civil aircraft would seem to be permissible.
27. The foregoing remarks demonstrate the many errors and omissions that can be incurred when determination of the aggressor is attempted by way of an enumeration.
28. In the present state of the world we find certain international factors, conditions or elements which we can utilize in our quest for an adequate definition of aggression. Such elements are:
(1) The fact that war is a crime under international law;
(2) The fact that the great majority of the States have established a new international order under the Charter of the United Nations and most of the other States have declared their disposition to live under that order;
(3) The fact that the supreme purpose of the United Nations is to take effective collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace (Art. 1, para. 1, Charter of the United Nations);
(4) The fact that the United Nations is committed to ensure that States which are not Members act in accordance with the Charter so far as may be necessary for the maintenance of international peace and security (Art. 2, para. 6);
(5) The fact that States are bound to submit all their differences to peaceful settlement (Art. 2, para. 3);
(6) The fact that States are bound to refrain from the threat or use of force in any manner inconsistent with the purposes of the United Nations (Art. 2, para. 4);
(7) The fact that the Charter authorizes a competent organ of the United Nations to employ armed force to stop aggression and to maintain or restore international peace and security, if other measures have proved to be inadequate (Art. 42);
(8) The fact that States Members are bound to give the United Nations every assistance in any action it takes in accordance with the Charter (Art. 2, para, 5; Arts. 43, 44);
(9) The fact that the Charter recognizes the inherent right of individual or collective self-defence if an armed attack occurs against a member of the United Nations (Art. 51).
29. The above-stated facts demonstrate that in the present international order, as a basic rule, war, i.e., the use of force in interstate relations, is illegal. It has been renounced too, pronounced an international crime, and is expressly prohibited. There is no distinction between just and unjust wars. Save two exceptions, all war is aggression, even if started on account of a wrong suffered by a State. Violations of rights under inxernational law give rise to controversies which can only be decided by pacific methods and not by States taking the law in their own hands, assuming the role of party, accuser and judge, and deciding the issue by force of arms.
30. We are today very far from the days when the last traces of influence of XlXth century notions about the sovereign right to declare and wage war were still discernible in international thought.
31. The Covenant of the League of Nations did, in fact, divide wars into two classes, namely: just, legal or defensive wars, and unjust, illegal or aggressive wars. To the first class belonged wars waged after exhaustion of the pacific procedures established by the Covenant.
The second class comprised wars started in violation of such procedures.
32. As a manifestation of the system, article 12 of the Covenant envisaged the possibility of a "just" or "legal" war by providing that States Members of the League "shall in no case resort to war before the expiration of a term of three months after an arbitral or judicial decision or a report by the Council".
33. In the same spirit, article I of the Treaty of Mutual Assistance of 1923 provided that "a war shall not be considered a war of aggression if waged by a State which is a party to a dispute and has accepted the unanimous recommendation of the Council, the verdict of the Permanent Court of International Justice, or an arbitral award against a Contracting Party which has not accepted it, provided, however, that the first State does not intend to violate the political independence or the territorial integrity of the High Contracting Party".
34. Likewise, the Locarno Treaties of 1925 (art. 2, para. 1) authorized recourse to force in case of violation of the Versailles Treaty, such recourse in that case being held to be self-defence.
35. Self-defence in our day can only be the outcome of armed attack. Violation of treaties, unless the violation should consist in an armed attack, does not justify any State's declaring or waging war. Neither is it legal for any State to enforce by resort to arms an arbitral or judicial decision rendered in its favour. The basic rule, with the only two exceptions hereafter referred to, is that States "shall refrain in their international relations from the threat or use of force" against other States.
36. Exceptions to the rule that the use of force is illegal are only two circumstances under which it is permissible: 1, individual or collective self-defence against armed attack, and 2, coercive action undertaken by the United Nations. Consequently, unless any one of these two circumstances is present, the use of force is unauthorized and illegal: it constitutes a violation of the Charter, a breach of the peace, an act of war, and hence, aggression. On the basis of this reasoning I have formulated and I respectfully submit to the Commission, the following definition:
"Aggression is the use of force by one State or group of States, or by any Government or group of Governments, against the territory and people of other States or Governments, in any manner, by any methods, for any reasons and for any purposes, except individual or collective self-defence against armed attack or coercive action by the United Nations."
37. It is worthy of note that this definition is in full harmony with the definition of the crime of war which has just been adopted by the Commission for the Code of Offences against the Peace and Security of Mankind. Here is how such crime is defined:
"The employment or threat of employment, by the authorities of a State, of armed force against another State, for any purpose other than national or collective self-defence or execution of a decision by a competent organ of the United Nations."
38. And it is particularly gratifying to me to quote in this connexion a prophetic statement made by our eminent colleague, Professor Scelle, in a notable study on the subject of aggression which he wrote in 1936. Here are his words:
"II est donc nécessaire tout à la fois d'adopter de la guerre un critère purement objectif et d'assimiler tout emploi de la force à l'agression. C'est bien d'ailleurs, nous le verrons, le sens de l'évolution. Elle aboutit à cette double équation: ' tout recours à la violence = guerre; toute guerre = aggression'."|10|
("It is therefore necessary simultaneously to adopt a purely objective criterion regarding war and to assimilate all employment of force to aggression. Besides, this is clearly, as we shall see, the trend of evolution. The latter culminates in this double equation: 'all resort to violence = war; all war = aggression'.")
39. In order to establish in a precise manner the scope of the proposed definition of aggression, I deem advisable to offer a comment on each one of the phrases and terms I have used, viz:
"Aggression is the use of force"
40. The initial phrase contains the chief element of the definition, as per the general rule of Art. 2, para. 4, of the San Francisco Charter that States must refrain in their international relations from the threat or use of force in any manner inconsistent with the purposes of the United Nations, among which the principal one is the maintenance of peace.
41. The term force is used in a broad sense to signify any elements at the disposal of States which are capable of destroying life and property, or of inflicting serious damage. It comprises land, sea and air forces, regular armies as well as irregular bands and any and all kinds of weapons, contrivances, explosives, toxic or asphyxiating gases, employed for the destruction of life and property in land, naval, air, chemical or bacteriological warfare.
42. I have refrained in my definition from making any reference to the aggressor as the one who is the first to commit a certain act of force.
43. The circumstance of being the first to use force in a given manner is no sure criterion for the determination of the aggressor in an international conflict. After aggression has been consummated, the State victim of the aggression might be the first to commit a certain act of force in exercise of the right of self-defence. For instance, State A is invaded by State B. State A, thereupon, in order to counteract the invasion, is the first to bombard parts of the territory of State B with an aim to put its supply bases out of action.
According to the letter of the oft-copied Litvinov-Politis formula, State B, for being the first to bombard, in the ensuing conflict, would be the aggressor, which, of course, is preposterous.
44. The fact of the aggression does not really consist in being the first to execute one of the different acts described as aggressive. It consists in the fact of being the first to resort to violence in any way, shape or form. It consists in the fact of unleashing hostilities through the commission of any act of force amidst a condition of peace. Here I use the term "peace" in its strictest sence, i.e., meaning an absence of hostilities or a situation of material peace, even where moral peace does not exist. Once hostilities have been unleashed through the fault of the attacking State, the State defending itself may be the first to bombard, the first to effect a landing or the first to impose a blockade. Yet, he would not be the aggressor. Furthermore, other States, exercising the right of collective defence in running to the assistance of the State attacked, will surely be the first to use force in any of the different ways described in the several enumerations. Yet, they will not be aggressors.
45. The true test, therefore, is not a question of priority in the commission of a particular act of a certain list of acts. The true test is to determine whether the peace and the public order of the community of States has been disturbed by means of an illegal or unauthorized use of force.
"By any State or group of States or by any Government or group of Governments"
46. This language is used in order to avoid any interpretation in the sense that only States can commit aggression and are capable of disturbing the peace of the world. There may be governments of nations or people not organized or recognized as States, which may have at their disposal the armies, weapons and other means of committing aggression.
"Against the territory and the people of other States or Governments"
47. Aggression is bound to be conceived as perpetrated against the territory and against the people under the jurisdiction of the State victim, and aimed at the submission or destruction of any forces opposing resistance to the aggression. This aim implies the possibility of destroying life and property, a destruction of which the victim is the people of the State attacked. Aggression against the territory and the people of a State or Government must comprise any acts of violence perpetrated against its land, sea or air forces; or against its vessels or aircraft, whatever their character; or against structures vital to public life and health, as for instance, water works and protective dams; or against the whole of the population, through the use of any weapons or the commission of any acts likely to endanger combatants and non-combatants.
"In any manner"
48. This phrase refers to the different manners in which aggression may be committed, i.e., invasion, crossing of frontiers, open armed attack, naval or land blockade, etc.
"By any methods"
49. This expression indicates the different methods by which an attack may be carried out, such as military occupation; infantry, cavalry or artillery operations of land troops; bombardment by sea or air forces; incursion by irregular bands; destruction of dams, reservoirs or other water works; artificial inundation of lands; bacteriological or chemical warfare, in short, the use of any element or method capable of destroying life and property, or of inflicting serious damage or of paralyzing any defence action of the State attacked.
"For any reasons"
50. As stated before, there can be no reason for the use of force by any State, except the two circumstances specifically mentioned by the Charter, and by the definition, namely: self-defence and enforcement action. For even in case of a violation of the rights of a State, the wronged State is bound to submit the resulting controversy to peaceful methods. The right of self-defence cannot be invoked as meaning defence against wrongs, but defence against armed attack.
51. The expression "for any reason" in the proposed definition has the same scope and effect of Article II of the Litvinov-Politis formula, reproduced in several treaties and proposals, which reads as follows:
"No political, military, economic or other considerations may serve as an excuse or justification for aggression."
"For any purposes"
52. In the same manner as no reason can justify the use of force, no purpose can be invoked for justification. Art. 2, para. 4, of the Charter forbids "the threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the Purposes of the United Nations". The only cases in which the use of force is consistent with such purposes are the two mentioned in the preceding paragraph. Moreover, the use of force constitutes a breach of the peace, maintenance of which is the supreme purpose of the Organization. Therefore, even if the aim is legitimate per se, as for instance, to redress a real wrong, such an aim would run counter to the purposes of the United Nations, because the Charter prescribes that international disputes be settled by peaceful methods and not by force.
"Except individual or collective self-defence against armed attack or coercive action of the United Nations"
53. The preceding paragraphs lead us to the logical conclusion that the two circumstances mentioned above determine the only two cases in which the use of force by any State is permissible. The only two reasons for a State using force are: first, an armed attack affecting directly or immediately one or several States; and second, enforcement action taken by the United Nations.
Conversely, the only two purposes for which States can legitimately use force are: first, to exercise the inherent right of individual or collective defence; and second, to stop aggression and restore international peace and security.
54. The two factors or elements above commented upon constitute therefore a sure, unfailing, iron-clad test for the determination of aggression. Unless any of the two elements is present, the act of force is an act of aggression. The definition is formulated just by reversing the terms and stating in substance that aggression is any act of force committed for any reasons and purposes other than self-defence or enforcement action.
55. Actual application of the test will easily show that the definition provides a sure means of determining the aggressor in any conflict. Let us imagine any of the acts mentioned in the several enumerations proposed has occurred: invasion, incursion, violation of frontiers, blockade, bombardment, attack of any nature. Let us then make the questions: Was it in self-defence against armed attack? Was it to carry on or aid in enforcement action decided upon by the United Nations? If the answer in either case be no, the act constitutes aggression. If the answer be yes, it is not.
56. Here is a definition which does not consist in an enumeration of acts but in a co-ordination of the ideological elements of the concept of aggression in the international order of our day. We can have thus at the disposal of the competent organs of the United Nations, of Governments and of public opinion, a norm, a rule, a general principle applicable to all cases by the simple method of testing the character of the act of force.
57. The rule proposed is entirely and absolutely objective. It envisages an act of force and tests the circumstances attending it. These circumstances are also purely objective and determine the respective purpose. If the fact of an armed attack has occurred amidst a state of peace the circumstance of illegality is apparent and the purpose of exercising the right of self-defence makes the use of force legitimate. Likewise, if the fact has happened that the United Nations, through its competent organ, has decided to employ armed force in order to stop aggression and restore international peace, that fact legitimates the use of force against the State subjected to coercive action.
58. Therefore, it is not necessary for Governments or for organs of the United Nations to take into consideration any element of "feeling", or "impression" or "intention" or of "signs which betoken impending aggression". We are only concerned with the existence or non-existence of the fact that a State has used force against another State and with the lawful or unlawful character of the act of force. Thus, the factors of industrial mobilization, stocking of strategic materials, full-fledged functioning of war industries, scientific research in connexion with warfare, propaganda, an attitude of ill will in the press and the population of a State towards another State, espionage on the armaments and activities of other countries, even military mobilization, do not by themselves alone constitute agression. They are preparatory acts which may lead to aggression as well as to self-defence. Aggression itself is not perpetrated until and unless some form of attack or physical offensive has taken place.
59. On the question of "intention", it cannot be denied, of course, that it is a natural element of aggression. There can be no aggression unless there has been an intention to commit it. But the point is that the act of using force reveals the intention by itself. If a town is unexpectedly bombarded or a port is blockaded, there can be no doubt as to the intention accompanying the bombardment or blockade, because force has been used in a manner and for purposes contrary to the present international order.
60. Something different occurs in the case of other acts which may not constitute aggression because no force is actually employed by a State against another State. Let us take, for instance, the case where a frontier is crossed by the troops of a certain State. If the act is done with the consent of the other State, or in accordance with a treaty of alliance or of any other nature, the crossing of the frontier is not an act of force. Likewise, if one or several aviators fly over the air space of a State without permission, on account of a mistake or otherwise, the act might be a violation of international law, but it would not constitute aggression, because force has not been used by a State against another State with immediate telling consequences. For the same reasons it would not be possible to consider espionage as actual aggression, although it may be practised in preparation for it.
61. Having thus explained the intent and scope of my proposal, I desire to state that while an enumeration is an unsafe and deficient substitute for an essential definition, a list of clear-cut, precise and unmistakable cases might perhaps be useful by way of exemplification of the general principle, the former subordinated to the latter. Should it be found desirable to enumerate acts of aggression, it would be necessary to use a language similar to that of the Rio de Janeiro Treaty of 1947, and adopt a clause drafted more or less as follows:
"In addition to other acts which the competent organs of the United Nations may characterize as aggression by application of the rule contained in the preceding definition, the following shall be considered as such:"
62. It is not my intention to discuss here which acts could be listed as specific instances of aggression. The task would be too long and difficult. As a matter of fact, recent changes in juridical and political ideas, as well as the great transformations effected in the art and science of warfare and in general scientific knowledge, oblige us to review and occasionally to rectify many concepts heretofore accepted as indisputable. Moreover, the task would be premature at this time. Hence, my proposal is limited to the sole question of defining aggression.
63. I will say, in conclusion, that with reference to the question of the desirability or necessity of a definition of aggression, I am in full accord with the statements of those who for the last thirty years or so have been labouring for it. Nicholas Murray Butler, cited by Kormanicki in a lecture given at the Hague Academy in 1949, opined: "With the signing of the Pact of Paris, the need for a definition of aggression has become imperative." |11| Commenting upon the Nürnberg Charter, Justice Jackson said: "It is perhaps a weakness in this Charter that it fails to define a war of aggression." And way back in 1924, Politis had said in his report: "In the event of international bodies being called upon to determine in fact the aggressor in any given conflict, the existence of a precise definition of the notion which these bodies would have to apply, would render the determination of the aggressor much easier and there would be less risk of an attempt to shield or to excuse the aggressor for various political reasons without appearing to break the rule to be applied. It would considerably strengthen the authority of the prohibition to resort to force by enabling public opinion and other States to judge with greater certainty whether this prohibition had been respected or not."
Proposal by Mr. Roberto Córdova
[Original text: English]
[4 June 1951]
Aggression, that is, the direct or indirect employment by the authorities of a State of armed force against another State for any purpose other than national or collective self-defence or execution of a decision by a competent organ of the United Nations.
The threat of aggression should also be deemed to be a crime under this article.
DOCUMENT A/CN.4/L.11 |12|
Proposal by Mr. Shuhsi Hsu
[Original text: English]
[4 June 1951]
Aggression, which is a crime under international law, is the hostile act of a State against another State, committed by (a) the employment of armed force other than in self-defence or the implementation of United Nations enforcement action; or (b) the arming of organized bands or of third States, hostile to the victim State, for offensive purposes; or (c) the fomenting of civil strife in the victim State in the interest of some foreign State; or (d) any other illegal resort to force, openly or otherwise.
Proposition de M. J. M. Yepes
[Texte original en français]
[4 juin 1951]
Pour les effets de l'Article 39 de la Charte des Nations Unies, constitue un acte d'agression tout usage direct ou indirect de la violence |13| par un État ou groupe d'États contre l'intégrité territoriale ou l'indépendance politique d'un autre État ou groupes d'États.
La violence (force) exercée par des bandes irrégulières organisées dans le territoire d'un État ou à l'étranger avec la complicité active ou passive de cet État sera considérée comme agression au sens du paragraphe précédent.
Ne constitue pas un acte d'agression l'emploi de la violence (force) en exercice du droit de légitime défense, individuelle ou collective, reconnu par l'Article 51 de la Charte ou en exécution de la décision régulièrement prise par un organe compétent des Nations Unies.
Aucune considération d'ordre politique, économique, militaire ou autre ne pourra servir d'excuse ou de justification pour un acte d'agression.
Mémorandum présenté par M. Georges Scelle
[Texte original en français]
[20 juin 1951]
1. Nous noterons d'abord que c'est sur la proposition de l'un des membres de cette commission que la cinquième Assemblée nous a chargés d'étudier une définition de l'agression et que nous devons faire tous nos efforts pour lui donner satisfaction.
2. Nous remarquerons en outre que l'opinion publique de l'humanité et l'ingéniosité des juristes se sont préoccupées, depuis la fin de la première guerre mondiale, de rechercher cette définition ou ce critère, et qu'il est peu vraisemblable que cette préoccupation humanitaire d'une part, cette recherche scientifique obstinée de l'autre, soient à la poursuite d'une chimère.
3. Du point de vue de la science juridique, nous croyons qu'il est possible de définir l'agression en tant que crime contre la paix et la sécurité de l'humanité, et la base de notre croyance est la suivante:
4. L'agression a passé, depuis le Pacte de la Société des Nations, du domaine de la morale dans celui du droit positif. Cette évolution qui commence avec le Pacte de Genève, s'est achevée avec la Charte des Nations Unies dont l'Article 39 met l'agression sur le même pied qu'une rupture de la paix.
5. Il y a désormais une emprise du droit positif sur le recours à la force. Cette emprise du droit est récente. Elle date du Pacte de la Société des Nations qui, pour la première fois, a posé le principe qu'il existait des guerres illégales. Jadis, les Canonistes avaient fait la théorie de la guerre injuste: c'était une notion de morale (au maximum de droit naturel ou religieux), mais ce n'était pas une notion de droit positif. Le droit positif, avant le Pacte de la Société des Nations, faisait du recours à la guerre une compétence discrétionnaire, c'est-à-dire que tout gouvernement avait le droit d'employer la force pour quelque motif que ce soit, dans quelque but que ce fût, et notamment en vue de modifier l'« état de droit» ou l'ordonnancement juridique de la Société internationale. En un mot, pour employer les termes du Pacte Briand-Kellogg, tout État pouvait recourir à la guerre pour faire triompher une prétention nationale juste ou injuste, aussi bien que pour faire triompher une règle de droit. Le but de la guerre, sinon ses moyens, était indifférent au droit positif.
6. Le Pacte de la Société des Nations n'a pas modifié l'élément intentionnel de la guerre, ses motifs ou son but. Il a seulement établi une procédure du déclenchement de la guerre, dont le respect ou le non-respect la rendaient légale ou illégale. Des efforts persévérants ont été faits en vue de faire considérer le recours à la guerre, ou guerre offensive, comme un crime international; mais le résultat n'a pas été obtenu, même par le Pacte Briand-Kellogg, en raison des obscurités et des réserves qui l'accompagnaient. Déjà cependant, la distinction entre l'usage légal et illégal de la force, c'est-à-dire entre la guerre offensive et défensive, tendait à s'imposer sur la base du but poursuivi. Mais l'article 10 du Protocole de Genève ne parvint qu'à une définition approximative. Selon cet article: «est agresseur tout État qui recourt à la guerre contrairement aux engagements prévus au Pacte ou au présent Protocole». Si les rédacteurs s'en étaient tenus là, la définition eût pu paraître simpliste, mais elle n'était pas juridiquement critiquable. Malheureusement, ils s'efforcèrent d'énumérer les cas d'agression et d'en faire des présomptions juridiques irréfragables (juris et de jure) et tombèrent ainsi dans l'ornière où se sont enlisés tous les efforts de ce genre. La Commission du droit international a résolu, à juste titre, d'éviter cet écueil en décrétant qu'il ne peut pas y avoir de définition énumérative de l'agresseur. D'autre part, notre éminent rapporteur nous a démontré qu'il ne peut pas y avoir de critère subjectif de l'agression.
7. Nous observerons qu'une «définition» n'est pas nécessairement un «critère» susceptible de s'appliquer dans chaque cas particulier. Une définition est un concept, mais un concept ne couvre pas nécessairement tous les cas individuels. Il existe un concept du mammifère, mais il y a beaucoup de cas où l'on peut être embarrassé de savoir si l'on se trouve en face d'un mammifère ou d'un ovipare.
8. En matière de droit pénal, il n'y a vraisemblablement de critère subjectif pour aucune infraction pénale. Il n'en existe pas notamment pour l'homicide par imprudence, pour le meurtre avec préméditation, pour l'abus de confiance, pour la faillite frauduleuse, etc. Qu'est-ce, en effet, qui permettra de déterminer si dans tel cas, il y a eu préméditation, imprudence, fraude, dol, etc. Il faudra bien cependant que le juge se prononce d'après son opinion subjective sur le comportement subjectif de l'inculpé. Toute infraction implique un élément objectif ou de fait dont la définition peut être donnée, et un élément d'intention dont l'appréciation subjective dépend uniquement de la conviction du juge.
9. On peut donc définir l'élément objectif commun à toute agression, mais il faut laisser au juge (ou à l'organe qui en fait fonction) une totale liberté dans la détermination de l'agresseur.
10. La situation est exactement la même en ce qui concerne la légitime défense. Il est impossible de définir la légitime défense par son seul élément matériel car c'est le même que celui de l'agression, c'est-à-dire le recours à la force. La différence réside dans l'élément intentionnel, c'est-à-dire dans le but en vue duquel la force a été employée. Or le droit positif permet précisément de trancher le litige dans chaque cas parce qu'il distingue entre la légitimité et l'illégitimité du but. Seulement, dans chaque cas, c'est au juge qu'il appartiendra de dire si l'élément intentionnel est ou non conforme au droit positif. Le législateur, lui, ne peut rien en savoir d'avance. On sait d'ailleurs qu'une légitime défense apparente peut très bien être une agression déguisée.
11. Nous proposons donc la définition suivante où l'élément matériel et l'élément intentionnel de l'agression se rencontrent tous les deux:
« L'agression est un crime contre la paix et la sécurité de l'humanité. Ce crime est constitué par tout recours à la force contraire aux dispositions de la Charte des Nations Unies, ayant pour but de modifier l'état du droit international positif en vigueur, ou pour résultat de troubler l'ordre public. »
12. On objectera peut-être qu'il s'agit là d'un truisme. Pas plus, selon nous, qu'il n'y a truisme dans les normes juridiques les plus importantes du droit public interne interdisant par exemple de se faire justice à soi-même; de troubler l'ordre public; de s'insurger contre les fonctionnaires ou la force publique, etc.
13. Il importe, selon nous, de spécifier que l'agression est un crime contre l'humanité et la paix publique. Ce n'est que la traduction de l'éthique universelle en formule juridique. Il ne s'agit pas seulement d'une illégalité ou d'un délit, mais du crime international majeur dont les premiers articles de notre projet de Code pénal international énumèrent plusieurs cas précis (voir art. 2, par. 1, 3, 4, 7 notamment, et le par. XI en ce qui concerne la complicité).
14. Qu'il s'agisse bien de normes de droit positif dont la violation doit être poursuivie, c'est ce que prouve surabondamment la lecture des Articles 1, 2 (par. 3, 4, 5 et 6), 33 et suivants, 39 de la Charte qui interdisent de façon expresse toute modification par la violence du droit positif et exigent dans tous les cas le recours aux instances juridictionnelles ou aux organes compétents de l'ONU, faute de quoi tout sujet de droit international est tenu de rester dans le statu quo. Nous ne prétendons donc, en aucune façon, faire étalage d'abstraction juridique, mais simplement traduire en langage normatif le sens le plus profond de la Charte.
15. La définition qui est proposée nous paraît couvrir, sans aucun péril d'énumération, tous les cas possibles d'agression: la guerre offensive, sous toutes ses formes; la guerre civile, toutes les fois que celle-ci dépasse les buts constitutionnels internes et menace de réagir sur l'ordre international; la violation d'une situation internationale juridiquement établie, même si elle n'est que provisoire (Corée); l'utilisation directe ou indirecte de la force, c'est-à-dire les incursions de bandes armées, et même les raids d'apparence privée, si l'organe chargé de qualifier l'agresseur y décèle une complicité gouvernementale, etc. |15|
16. Bien entendu la souplesse de cette définition exige que l'organe compétent pour déterminer l'agresseur (ou éventuellement le juge) ne soit bridé dans sa décision par aucune présomption irréfragable afin qu'il puisse déterminer non seulement l'agresseur, mais les agresseurs éventuels, réciproques ou multiples, et les agresseurs camouflés (fausse légitime défense). Ceci devrait être spécifié à la suite de la définition, ou tout au moins dans les commentaires.
DRAFT CODE OF OFFENCES AGAINST THE PEACE AND SECURITY OF MANKIND
Second report by Mr. J. Spiropoulos, Special Rapporteur
[Original text: English]
[12 April 1951]
DRAFT CODE OF OFFENCES AGAINST THE PEACE AND SECURITY OF MANKIND
B. The report of the International Law Commission before the fifth session of the General Assembly
C. Views expressed by delegation in the Sixth Committee on the text of the Nürnberg principles as formulated by the International Law Commission
(a) Views concerning principle I
(b) Views concerning principle I
(c) Views concerning principle III
(d) Views concerning principle IV
(e) Views concerning principle V
(f) Views concerning principle VI (a)
(g) Views concerning principle VI (b)
(h) Views concerning principle VI (c)
(i) Views concerning principle VII
THE POSSIBILITY AND DESIRABILITY OF A DEFINITION OF AGGRESSION
I. The Treaty of Mutual Assistance
II. The League of Nations' Permanent Advisory Commission
III. The League of Nations Special Committee of the Temporary Mixed Commission
IV. The Geneva Protocol
V. The years 1925 to 1932
VI. The Conference of Disarmament of 1932-1934
VII. The Treaties of London
VIII. The London Conference of 1945
IX. The San Francisco Conference
I. The determination of aggression under existing international law
II. Analysis of the notion of aggression as applied in international practice 67
III. The attempt to define aggression by positive rules and the intrinsic virtue of "legal" definitions
1. In submitting the present paper to the International Law Commission (second report on a draft code of offences against the peace and security of mankind) we wish to present the following brief observations:
2. The text of chapter I, D has been given a definite form, so that, after discussion and adoption by the Commission, it might be submitted to governments in application of article 16 (g) and (h) of the statute of the International Law Commission.
3. A chapter has been devoted to the question of the possibility and advisability of a definition of "aggression". This subject has been very slightly touched upon in our first report on the draft code of offences against the peace and security of mankind, because we were of the opinion that any attempt to define the concept of aggression "would prove to be a pure waste of time". |16|
4. However, considering the General Assembly resolution 378 B (V) of 17 November 1950 on the duties of States in the event of the outbreak of hostilities which requests the International Law Commission to examine the question of the definition of aggression in conjunction with matters under consideration by the International Law Commission, that is in conjunction with the draft code of offences against the peace and security of mankind, we have dealt also with this question, thus providing the Commission with a working paper.
5. With regard to the manner in which we approached this problem, we wish to make the following remarks: The various League of Nations Commissions which, in the past, have dealt with the question of the definition of aggression have followed a purely casuistic method. Due to this method of approach, the question of the possibility and desirability of a definition of aggression has not yet found a generally accepted positive solution.
6. In contrast to the above method of work used by the League of Nations Commissions, we ventured to undertake a dogmatic approach to the problem which centres on the systematic analysis of the "notion of aggression". In our view, only this way of examining the subject leads to definitive conclusions.
7. In concluding, we wish to observe that, in order to facilitate the work of the Commission, chapter II has been drafted so as to serve as the basis for the text to be submitted by the Commission to the General Assembly.
Draft code of offences against the peace and security of mankind
8. By resolution 177 (II), paragraph (b), the General Assembly requested the International Law Commission to prepare a draft code of offences against the peace and security of mankind, indicating clearly the place to be accorded to the principles of international law recognized in the charter of the Nurnberg Tribunal and in the judgment of the Tribunal.
9. At its first session, the Commission appointed Mr. Jean Spiropoulos special Rapporteur on this subject and invited him to prepare a working paper for submission to the Commission at its second session. The Commission also decided that a questionnaire should be circulated to governments inquiring what offences, apart from those denned in the charter and judgment of the Nürnberg Tribunal, should, in their view, be included in the draft code.
10. At its second session, the International Law Commission examined the report of the special Rapporteur (A/CN.4/25) using it as a basis for its discussion. The Commission also took into consideration the replies received from governments (A/CN.4/19, part II, A/CN.4/19/Add.l and A/CN.4/19/Add.2) to its questionnaire, The draft code which has been prepared by a drafting sub-committee composed of Messrs. Alfaro, Hudson and Spiropoulos (See Report of the International Law Commission covering its second session, Official Records of the General Assembly, Fifth Session, Supplement No. 12 (A/1316, p. 17)) is contained in document A/CN.4/R.6 which has already been distributed to the members of the Commission. |17|
11. The above draft was not discussed by the Commission, but referred to the special Rapporteur who was requested to continue the work of the Commission and to submit a further report at its third session.
12. At its 81st meeting the Commission adopted that part of its report to the General Assembly which concerned the draft code of offences against the peace and security of mankind.
B. The report of the International Law Commission before the fifth session of the General Assembly
13. While the part of the report as above mentioned did not give rise to special discussion in the General Assembly, the part containing the formulation of the Nürnberg principles undertaken by the International Law Commission offered to the delegates of the Sixth Committee the opportunity of commenting on these principles. According to General Assembly resolution 488 (V) of 12 December 1950, the International Law Commission when preparing the draft code of offences against the peace and security of mankind, is requested to take into account the above comments as well as eventual observations made by Governments on the said formulation.
14. The text of the above resolution of the General Assembly reads as follows:
"The General Assembly,
"Having considered part III (Formulation of the Nürnberg principles) of the report of the International Law Commission on the work of its second session,
"Recollecting that the General Assembly, by its resolution 95 (I) of 11 December 1946, unanimously affirmed the principles of international law recognized by the charter and judgment of the Nürnberg Tribunal,
"Considering that, by its resolution 177 (II) of 21 November 1947, the General Assembly directed the International Law Commission to formulate those principles, and also to prepare a draft code of offences against the peace and security of mankind,
"Considering that the International Law Commission has formulated certain principles recognized, according to the Commission, in the charter and judgment of the Nürnberg Tribunal, and that many delegations have made observations during the fifth session of the General Assembly on this formulation,
"Considering that it is appropriate to give the Governments of Member States full opportunity to furnish their observations on this formulation,
"1. Invites the Governments of Member States to furnish their observations accordingly;
"2. Requests the International Law Commission, in preparing the draft code of offences against the peace and security of mankind, to take account of the observations made on this formulation by delegations during the fifth session of the General Assembly and of any observations which may be made by Governments."
15. With regard to the comments on the formulation of the Nürnberg principles made by the various delegations in the Sixth Committee we wish to draw attention to the following facts:
(a) Part of the criticism, by certain delegations, on the formulation of the Nürnberg principles is counterbalanced by statements of other delegations approving the text submitted by the International Law Commission;
(b) A great deal of the arguments put forth against the wording of the formulation of the one or the other of the Nürnberg principles had already been taken into account by the International Law Commission when elaborating the text submitted to the General Assembly;
(c) Finally, some criticism and suggestions were made by one or two delegates only, while the rest of the sixty delegates comprising the Sixth Committee did not express any view on the subject in question, a fact which might be interpreted as an approval of the text under discussion.
Under these circumstances we have thought it wise to refrain from any positive suggestions on this matter, leaving to the International Law Commission the initiative to be taken.
C. Views expressed by delegations in the Sixth Committee on the text of the Nürnberg principles formulated by the International Law Commission
16. The comments, by delegations in the Sixth Committee, on the text of the Nürnberg principles as formulated by the International Law Commission refer both to the way in which the International Law Commission has envisaged or executed its task in general and to the specific formulation of the principles by the International Law Commission. The following passages from the summary records of the Sixth Committee are reproduced as being illustrative of the position taken by the various delegations with regard to the formulation of the Nürnberg principles.
17. (a) Some delegations criticized the decision of the International Law Commission not to examine whether the principles recognized by the charter and judgment of the Nürnberg Tribunal were or were not principles of international law, while other delegations approved the decision of the Commission.
18. AMADO (Brazil) (A/C.6/SR.231, pp. 131-132): |18| [The] third group [including Mr. Amado himself] was of the opinion that the Commission should restrict itself to the decisions which it had taken previously that, since the General Assembly had sanctioned the Nürnberg principles in resolution 95 (I) of 11 December 1946, the task of the Commission was not to express any appreciation of those principles as principles of international law but merely to formulate them. ...
The third thesis had been accepted.
19. CHAUMONT (France) (SR.232, p. 141): Paragraph 96 of the Commission's report recalled the conclusion reached by the Commission at its first session and approved at the fourth session of the General Assembly that the task of the Commission was not to express any appreciation of the Nürnberg principles as principles of the international law, but merely to formulate them. Yet, as Professor Hudson had noted in his reservation, the Commission had not altogether adhered to that view in its later work, with the result that there had been some doubt as to the juridical character of the formulation. The Nürnberg judgment itself recognized that it constituted part of positive international law. That was also confirmed by General Assembly resolution 177 (II), which indicated that the principles to be formulated by the Commission should eventually find a place in the code of offences against the peace and security of mankind. ... It was therefore the Commission's duty to determine the juridical character of the Nürnberg principles, in preparation for their subsequent codification as existing principles of positive international law. ...
20. TIRADO (Mexico) (SR.233, p. 145): In its report on its second session, the International Law Commission had stated that it considered it as its task not to express any appreciation of the Nürnberg principles as principles of international law, but merely to formulate the basic concepts. That was the proper approach. There was no doubt that the charter and judgment created new concepts in the field of international criminal law, some of which were in contradiction with the rules and principles prevailing prior to the time they were proclaimed.... A decision as to whether or not those principles were principles of international law was another matter, not within the terms of reference of the International Law Commission.
21. TIRADO (Mexico) (SR.237, p. 182): The Mexican delegation had felt that the Commission had been justified in confining itself to the formulation of those principles without considering whether or not they were principles of international law.
22. PETREN (Sweden) (SR.233, p. 146): It mattered little whether it was said that the principles had existed before the creation of the Tribunal or that the charter and the Tribunal had created them, since it had finally been recognized that they did exist.
23. PETREN (Sweden) (SR.233, p. 146): The second stage was the formulation of the Nürnberg principles. That was chiefly a matter of selection and wording and not of creating or affirming new law.
24. MOROZOV (USSR) (SR.234, p. 156): Mr. Morozov thought it necessary to refute the allegation that the Commission had not correctly interpreted the task entrusted to it by the General Assembly. That assertion had come mainly from the representatives of France and of the Netherlands. Mr. Spiropoulos had admirably defended the Commission's point of view, and had advanced most of the arguments which Mr. Morozov had intended to use. The International Law Commission had based its work on General Assembly resolution 177 (II) and had kept exactly to its terms....
The International Law Commission was of the opinion that its duty was not to express any appreciation of the principles affirmed in the Nürnberg charter, but merely to formulate them. That was the only correct interpretation.
25. TARAZI (Syria) (SR.235, p. 159): He said the task of the Commission had been to formulate the principles contained in the Nürnberg charter and judgment; to extract them, so to speak. Its business had been solely to give judgments of facts, not of value (p. 160): The development of international penal law would be promoted not by attempting to pass judgment on those principles, but by endeavouring to clarify and emphasize them.
26. ABDOH (Iran) (SR.235, p. 160): He did not agree with the French representative that the International Law Commission ought to have decided to what extent the principles contained in the Nürnberg charter and judgment were principles of international law. The General Assembly had affirmed and then reaffirmed the Nürnberg principles by its resolutions 95 (I) and 177 (II); and the task of the International Law Commission was therefore not to express opinions on those principles as principles of international law, but simply to formulate them.
27. VAN GLABBEKE (Belgium) (SR.235, p. 161): The International Law Commission had been instructed by the General Assembly to formulate principles -and nothing but principles- of international law. It might therefore have been asked whether all the principles contained in the charter of the Nürnberg Tribunal, which the latter had applied, were in fact principles of international law either because they were part of international law before the Nürnberg trial or because they could be described as new international law.
28. HSU (China) (SR.235, p. 164): There had also been discussions in the Sixth Committee as to whether the International Law Commission should have expressed any appreciation of the Nürnberg principles as principles of law. He took the view of the majority of the International Law Commission, which had not considered that to be its task.
29. CABANA (Venezuela) (SR.235, p. 165): He went on to speak of the doubts which had been expressed as to whether the International Law Commission had been right to limit itself to formulating the Nürnberg principles without appreciating their value. Most of those doubts had been dispelled by the brilliant statement of the Greek representative. In his delegation's opinion, such an appreciation was not required under General Assembly resolution and would have served no purpose.
30. CABANA (Venezuela) (SR.235, p. 165): His delegation thought that the formulation of the Nürnberg principles was only a stage in the process of the codification of international law. Certain representatives, amongst them the representative of Yugoslavia, had maintained the contrary opinion, and had alleged that resolution 95 (I) of the General Assembly had affirmed that the principles recognized by the charter and judgment of the Nürnberg Tribunal were principles of international law. The Assembly had not stated that all the principles appearing in those two instruments were principles of international law. It would therefore be well to analyse those documents with a view to deciding which were the principles included which might be considered as principles of international law and accepted as such.
31. BUNGE (Argentina) (SR.235, p. 166): It was, however, inadmissible to consider that the General Assembly had regarded as rules of international law principles which had not even yet been formulated, especially in view of the fact that it had adopted a second resolution instructing the International Law Commission to assume that task. It was clearly implied in the operative part of resolution 95 (I) that the Assembly had merely confirmed the principles of international law recognized in the charter and judgment of Niirn-berg. A detailed consideration of the text of that resolution showed that the International Law Commission was called upon to formulate principles which had to be (a) principles of international law, and (b) recognized by the Nürnberg charter and Tribunal. That means that the General Assembly had not confirmed all the principles acknowledged at Nürnberg and that, as a result, it had not considered as principles of international law all the principles, without exception, on which the charter is based, or which have been accepted by the Tribunal.
32. BUNGE (Argentina) (SR.235, p. 166): The contention in paragraph 96 of the report of the International Law Commission was unfounded.
33. LOBO (Pakistan) (SR.236, p. 174): As the General Assembly had affirmed the Nürnberg principles by its resolution 95 (I), the task assigned to the International Law Commission under the terms of paragraph (a) of resolution 177 (II) was not to state an opinion on these principles as principles of international law, but purely and simply to formulate them.
34. LOBO (Pakistan) (SR.236, p. 174): His delegation shared the doubts of the International Law Commission on the subject of the Tribunal's statement to the effect that the Nürnberg charter was the expression of international law at the time of the creation of the Tribunal. The judgment of the Tribunal had considerably extended the scope of the Nürnberg charter and its findings, and there was a consequent doubt as to the juridical nature of the formulation adopted.
35. ROBINSON (Israel) (SR.236, p. 175): He shared the views of the French representative with regard to the work of the International Law Commission within the limited area of its research. The International Law Commission had been instructed by General Assembly resolutions 95 (I) end 177 (II) to formulate the principles enacted by the London charter and applied in the judgment of Nürnberg and recognized in both the charter and the judgment. It seemed obvious that the recognition of principles logically implied that they had existed previously. The General Assembly had adopted the view expressed by the International Military Tribunal that its charter was the expression of international law existing at the time of its creation, and he regretted that the International Law Commission had not gone more deeply into the question.
36. GOTTLIEB (Czechoslovakia) (SR.238, p. 187): In the view of his delegation, the Commission had in the main correctly interpreted its task under General Assembly resolution 177 (11) and rightly confined itself to the formulation of the principles of the Nürnberg charter and judgment. That did not mean that his delegation necessarily agreed with all of the principles as formulated by the Commission.
37. MAKTOS (USA) (SR.233, p. 147): It would be fruitless to question resolution 95 (I), in which the General Assembly had affirmed the Nürnberg principles... even as it would be premature at present to discuss the principles formulated by the Commission. The appropriate time to discuss them would be after the Commission had incorporated them in the code of offences, in doing which it would no doubt take the views expressed in the Sixth Committee into account.
38. BARTOS (Yugoslavia) (SR.234, p. 150): The Yugoslav delegation considered that the International Law Commission must formulate the legal principles stated in the charter and judgment of the Nürnberg Tribunal - principles which had already been an integral part of international law at the time--so as to ensure definite application in the future.
39. ROBERTS (Union of South Africa) (SR.237, p. 181): The International Law Commission had not ascertained whether the principles contained in the charter and judgment constituted principles of international law; it had simply noted those principles, having regard to the fact that they had been affirmed by the General Assembly. The General Assembly was not a legislative body, and it could not be accepted that the principles contained in the charter and judgment were principles of international law solely because the Nürnberg Tribunal had recognized them as such. The main objection of his delegation to the report was, therefore, that it left a doubt as to the international recognition of those principles as formulated. Article 13, 1 (a) of the United Nations Charter required the General Assembly to encourage the development of international law and its codification, and it was for the International Law Commission to make recommendations to the Assembly for that purpose. It was difficult to see how the Commission could be of any assistance to the Assembly, if it expressed no opinion on the principles in question.
40. JIMENEZ DE ARECHAGA (Uruguay) (SR. 234, p. 154): Whether or not the Nürnberg principles were principles of positive law in 1945, they certainly were today.... He therefore considered that it would be useless to question the positive juridical nature that those principles now possessed.
41. SULTAN (Egypt) (SR.234, p. 155): Nevertheless, the only organ which had affirmed the legal character of the Nürnberg principles was a political one and the silence of the juridical organs with regard to a question which obviously fell within their competence was regrettable.
(b) Some delegates expressed the view that the task of the International Law Commission was not only to formulate the Nürnberg principles but also the principles underlying the charter and judgment while other delegates approved the decision of the Commission.
42. CHAUMONT (France) (SR.232, p. 141): A proposal made at the time to the effect that the Commission should formulate, not only the principles recognized in the charter and judgment, but also those underlying the charter and judgment, had been rejected by the Commission (A/CN.4/22, p. 23), although the General Assembly resolution 95 (I) clearly called for the formulation of both. If the Commission's interpretation were adopted, it would mean that the two sub-paragraphs of that resolution said one and the same things, which was obviously not the case... The task entrusted to the Commission, therefore, had not been to provide historical commentaries on the charter and judgment, or to throw some light on separate points contained therein, but to establish the underlying principles with a view to assisting the future development of international penal law.
43. HSU (China) (SR.235, p. 164): Mr Georges Scelle had asked the International Law Commission to formulate the principles upon which the Nürnberg charter was based, instead of confining themselves to summarizing certain of them. The decision taken by the International Law Commission to reject that proposal was justified, but he thought that the Commission would not have been wrongly interpreting its terms of reference if it had accepted Mr. Scelle's proposal. It was a matter of two different methods, both equally legitimate. He would have preferred the method suggested by Mr. Scelle...
44. BALLARD (Australia) (SR.236, p. 169): The International Law Commission had fulfilled its task and its interpretation of resolution 177 (II) had been correct. It had been argued that the Commission had formulated rules of law instead of principles and that it should have formulated the general principles of international law on which the Nürnberg charter and judgment were based. The wordings of resolution 177 (II) perhaps contained a latent ambiguity, and subsequent discussion showed that the word "principles" was used in a loose sense in the resolution. Since a code should contain rules of law rather than principles, it could not be said that the Commission's interpretation was wrong.
45. FITZMAURICE (United Kingdom) (SR.233, p. 144): The Commission had not been asked to formulate the general rules of international law on which the Nürnberg principles had been based. It had been asked to formulate the principles themselves, as they were actually expressed in the Nürnberg charter. The Commission itself had adopted that attitude and on the whole it had done extremely well.
46. SPIROPOULOS (Greece) (SR.234, p. 152): ... the terms of reference given to the International Law Commission were simply to formulate the Nürnberg principles, and not the principles on which these were based.
(c) Some delegates found the International Law Commission guilty of certain omissions.
47. BARTOS (Yugoslavia) (SR.234, p. 151): Mr. Bartos then took up two essential principles with which the Nürnberg Tribunal had been concerned and which the International Law Commission had failed to formulate: the principle "nulla poena sitie lege" and the principle according to which membership in a criminal organization constituted a crime under international law. The first principle had been cited by the defence at the Nürnberg trials and been rejected by the Tribunal. The Yugoslav delegation felt that the International Law Commission had committed a particularly serious omission by failing to formulate that principle, since the other principles stated did not fix the penalties. That principle, which was one currently applied and which had been proclaimed in the Universal Declaration of Human Rights, should therefore be included. The second principle, according to which mere membership in criminal organizations which had as their purpose the commission of crimes against peace, war crimes and crimes against humanity constituted a crime under international law, was incon-testably one of the principles recognized at Nürnberg . It had been asserted that organizations such as the SS. the SD and the SA were essentially German creations. That was not the case. Similar organizations had always existed, in particular organizations of volunteers which filtered into other countries, or which took the form of punitive expeditions vested with broad powers. In the opinion of the Yugoslav delegation, such activities constituted not merely participation in the execution of crimes against peace, war crimes, and crimes against humanity, as the International Law Commission considered, but special forms of criminal activity in war-time.
48. TARAZI (Syria) (SR.235, p. 159): The International Law Commission had unfortunately not pointed out that the Niirnberg Tribunal had been instructed to try only war criminals whose offences had no particular geographical localization.... Nor had the International Law Commission mentioned the principleof group responsibility. ... Thirdly, the Commission should have mentioned in its report the Tribunal's interpretation of the rule nullum crimen sine lege, nulla poena sine lege, and also Article 11 of the charter, which laid down that any person convicted by the International Tribunal might also be charged before a national tribunal. It would have been extremely useful for any future international judicial organization if that principle had been thoroughly examined.
49. VAN GLABBEKE (Belgium) (SR.235, p. 162): When the principles as formulated by the International Law Commission were being considered, it was fitting to inquire if some principles had been omitted. That was undoubtedly the reason for the observations of some representatives, including those of France and Yugoslavia, who had referred to principles which were not mentioned in the report of the Internationa] Law Commission. It was equally regrettable that the members of that Commission had concluded that they were not expected to deal with the provisions concerning procedure, which were in the charter and which the Tribunal had applied. The Nürnberg trial had established the principle that a war criminal could be tried in absentia and that from the sentence, which might call for the death penalty, there was no appeal.... (p. 163). He had already indicated some omissions and there might be others, for example the principle of the criminal responsibility of organizations, a principle which would make it possible to prosecute individuals because of their affiliation to a group which had been declared criminal by a judicial decision.
50. BUNGE (Argentina) (SR.235, p. 166): The first remark which sprang to mind was that the International Law Commission had not formulated all the principles of international law acknowledged in the Nürnberg charter and judgment. For instance, it had not formulated the principle of the non-retroactivity of penal laws, which had been acknowledged by the Nürnberg Tribunal (p. 167). ... In view of the fact that the principle of the non-retroactivity of penal laws had not been incorporated in the formulation, it was not surprising that the Commission had failed to take into account similar principles, or other consequences of the principle nulla poena sine lege or non bis in idem or in dubio pro reo, and so forth.
51. LOBO (Pakistan) (SR. 236, p. 173): The principles formulated in the report did not include all those proclaimed in the charter and judgement of the Nürnberg Tribunal. They did not even express the essence of those principles, since the maxim nullum crimen sine lege, nulla poena sine lege, which the Tribunal had not applied in the Nürnberg trial, had been implicitly recognized by the Commission. Consequently, neither the principle of ex post facto punishment recognized in the charter and judgement of the Nürnberg Tribunal nor the principle of the criminal responsibility of groups and organizations defined in articles 9, 10 and 11 of the Nürnberg charter appeared in the formulation.
52. MAURTUA (Peru) (SR. 237, p. 180): The internal law of all countries tacitly accepted the principle of nullum crimen sine lege. In international law that principle should be expressly stated to avoid all possibility of misunderstanding.
II. VIEWS CONCERNING THE VARIOUS NÜRNBERG PRINCIPLES
53. AMADO (Brazil) (SR.231, p. 132): Principle I, based on the first paragraph of article 6 of the charter of the Nürnberg Tribunal, was the foundation of all international criminal law in that it affirmed the responsibility of the individual in the commission of international crimes. Moreover, it was a crystallization of the efforts made by a great many jurists to weaken the traditional doctrine under which States were the only subjects of international law. ...
54. ROLING (Netherlands) (SR.232, p. 137): Mr. Roling said that principle I was of great importance and could be adopted as it stood.
55. BARTOS (Yugoslavia) (SR.234, p. 150): With regard to Principle 1, the Yugoslav delegation agreed with either delegations that although that principle was correct, it had been drafted in too general terms. In fact, it should have been specified that "any person who commits an act which according to the principles of Nürnberg constitutes a crime under international law is responsible therefor and liable to punishment". As the International Law Commission had only been asked to formulate the principles of Nürnberg , it must be made clear that the crimes in question were crimes recognized as such by the charter of Nürnberg and not international crimes in general.
56. MOROZOV (USSR) (SR.234, p. 156): .. .there was a gap in the text proposed by the Commission; he proposed the following wording: "Any person who commits an act which constitutes a crime under international law is responsible therefor, whenever a relevant treaty exists, whether or not such act constitutes a crime under the domestic law of the country where it is perpetrated."
57. VAN GLABBEKE (Belgium) (SR.235, p. 152): ... The Belgian delegation accordingly accepted principle I as formulated....
58. HUNGE (Argentina) (SR.235, p. 167): He considered that the word "person" in principle I should be replaced by the word "author". The word "person" was held to mean moral persons, as well as individuals, in the juridical terminology of many countries. That distinction was rather important in referring to the criminal organizations dealt with in article 9 of the Nürnberg charter. In view of the fact that the charter undoubtedly did not wish to make moral persons subjects of international law, a suitable terminology should be used to make clear that the reference applied only to physical persons.
59. MAURTUA (Peru) (SR.237, pp. 179-180): The representative of Greece had stressed the fact that according to the principles recognized by the Nürnberg charter and judgment, the individual was subject to international law; on that point he shared the opinion of his illustrious compatriot, Mr. Politis. Another school of thought did not recognize the international responsibility of the individual, while a third took an intermediate position. ... Principle I, as formulated by the Commission, was not a definition of an international crime. The principle set forth in the text, to the effect that any person was responsible for criminal acts committed by him, was already recognized in the national legislation of all countries. What constituted a crime under international law should have been specified before anything else. Crimes were clearly defined in national law and the same should be true in international law.
(b) Views concerning principle II
60. RÖLING (Netherlands) (SR.232, p. 137): In paragraph 102 of the Commission's report that body stated that principle II expressed the principle of the supremacy of international law. Mr. Röling thought, however, that the case of a crime under international law, whilst the national law imposed no penalties for the act, was rather different from the case where national law obliged the individual to perform the very act which was considered a crime under international law. To that situation referred the sentence of the judgment quoted at the end of paragraph 102, that "the very essence of the charter is that individuals have international duties which transcend the national obligations of obedience imposed by the individual State".
61. With regard to international duties, there were three situations in which an individual might find himself. First, there was the situation in which no contrary international obligation was involved; secondly, there was a situation where the national law obliged the individual to act contrary to an international duty, a case which was not dealt with in the principle as formulated by the International Law Commission; and, thirdly, there was the situation where a national superior order imposed duties contrary to international obligations. The third situation was covered in principle IV. If the phrase "command of the law" were inserted in that principle, principle II would become redundant. Principle II was ambiguous, and, if taken literally, superfluous.
62. RÖLING (Netherlands) (SR.236, p. 171): It was apparent from the judgment of Nürnberg that there were rules of international law which applied directly to individuals, without passing through the intermediary of national law, and that some obligations of international law transcended the obligations imposed by the national administration... The fact that the vanquished had been condemned on the basis of that concept signified that the concept must remain valid in the future....
63. FITZMAURICE (United Kingdom) (SR.233, p. 144).... He fully agreed that individuals who committed crimes under international law should be subject to trial and punishment, but that aim could be achieved without adopting the theory of the responsibility of the individual under international law. All that was in fact necessary was to establish the position in which the States admitted that the individuals under their jurisdiction would be subject to punishment for certain acts recognized as crimes under international law...
64. FITZMAURICE (United Kingdom) (SR.237, p. 181): He had never said that individuals should not be punished for certain acts, such as offences against peace and humanity, and that, unless it was in accordance with their national laws, it was not possible to punish them. His observations had related solely to the modus operandi, to the legal methods to be used in atttaining the generally desired objective. He had simply said that, in order to punish the individual, there was no need at all to regard him as being subject to international law, and that the desired result could be attained without affecting the classic concept that international law solely governs relations between States...
65. MAURTUA (Peru) (SR.233, p. 146): The principle of the supremacy of international law was only one doctrine amongst many. The International Law Commission's work should be regarded as an expression of opinion, which was open to discussion.
66. PETREN (Sweden) (SR.233, p. 146) : ...principle II, which implied that, if an individual committed a crime under international law which was not considered a crime under the laws of the country of which he was a national, the country would nevertheless be obliged to punish him or deliver him up for trial to a foreign or international tribunal. Many States would prefer to have the opportunity to broaden their penal code to cover crimes against international law rather than allow their nationals to be extradited.
67. BARTOS (Yugoslavia) (SR.234, p. 150): The Yugoslav delegation approved of principle II in its present form because it clearly proclaims the duty of all States to make provision in their national legislation to punish all crimes against peace, war crimes and crimes against humanity with which the Nürnberg trials were concerned.
68. SPIROPOULOS (Greece) (SR.234, p. 154): The judgment proclaimed that international law imposed duties and responsibilities on physical persons, which meant that the individual, whose personality in international law was henceforth recognized, came into contact with international law direct and no longer through the intermediary of the State.
69. ARECHAGA (Uruguay) (SR.234, p. 155): .. .The principle of the responsibility of individuals under international law was therefore no "fashion", but a firmly-based principle of great practical value.
70. SULTAN (Egypt) (SR.234, p. 155): In his own opinion, it was obvious that principles of international law were intended to apply not to individuals but to social groups, even though it would be possible to split those groups into their component parts. At the present time, the concept of state responsibility was losing ground. Some legal principles applied to individuals also, and thus made individuals in certain respects subject to international law. However, that was the exception rather than the general rule and should therefore be interpreted very strictly (p. 156)... the Egyptian delegation would have preferred to avoid making any allusion to the principle of the supremacy of international law.
71. BAEZ (Dominican Republic) (SR.235, p. 161): ...he could not accept the idea that international law prevailed over domestic law.
72. VAN GLABBEKE (Belgium) (SR.235, p. 162): He next considered principle II which was the principle of the "supremacy" of international law over national law. In the completely general form in which the International Law Commission had stated it, he feared that that principle might lead to very serious practical difficulties. It might be asked whether such an extension and generalization of the principle of the "supremacy" of international law over national law was not a mistake.
73. CABANA (Venezuela) (SR.235, p. 165): He wondered whether it would not be preferable to adopt the Union Kingdom representative's suggestion itself to the effect that the direct responsibility of the individual should be transformed into an obligation on the part of the State either itself to punish the guilty or to allow an international court to sentence them.
74. BUNGE (Argentina) (SR.235, p. 167): The principle .. .that an individual could be subject to international law has, as a corollary, the principle of the supremacy of international law. In that connexion, the Argentine delegation shared the United Kingdom representative's view that the suppression of crimes against peace and mankind could be organized perfectly well without necessarily subscribing to the theory of the responsibility of the individual under international law. Conventions which laid down direct relations between the individual and international law had
always constituted exceptions... Principle II asserted the supremacy of international law over internal law. That principle had not yet been recognized as a principle of positive international law. The Argentine Republic did not accept it and its constitution explicitly authorized the contrary principle.
75. CHAUMONT (France) (SR.236, p. 170): It was inconceivable that an individual could be criminally liable under international law unless he were himself a subject of international law. The situation as regards legal persons was different: a legal person could not be considered as criminally liable; it could only be made liable indirectly, or rather its liability was only a civil or administrative one. But as regards individuals, it was impossible to deny that they were subjects of international law without denying the possibility of the international punishment of offences under international law.
76. ROBINSON (Israel) (SR.236, p. 175): The International Law Commission had not confined itself strictly to the task of formulation; paragraph 99 mentioned a "general rule underlying principle I .. .that international law may impose duties on individuals directly without any inter-position of internal law." Secondly, paragraph 102 implied the supremacy of international law over national law. Mr. Robinson congratulated the International Law Commission on having departed from the actual terms of the charter and on having attacked the fundamental problem of international law. He felt that in so doing the Commission had not acted arbitrarily.
77. AMADO (Brazil) (SR.237, p. 184): The United Kingdom representative had already emphasized that the question of the supremacy of international law was entirely a matter of theory, and could not be included in the formulation.
78. GOTTLIEB (Czechoslovakia) (SR.238, p. 187): The concept of the punishability of the individual under international law did not exempt the individual from the jurisdiction of the State; it was not a case of extradition. Even from the point of view of implementation, it was primarily the responsibility of the State to enact appropriate provisions for the punishment of certain crimes....
79. The Netherlands representative had proposed that the entire second principle should be reduced to the recognition of the supremacy of international law. That proposal, which went back to the concepts of the monistic school, which explained the structure of law as a hierarchy of norms, was not only utterly unacceptable, but also superfluous, if it were accepted that the fundamental substance of international law was the common will of sovereign States....
(c) Views concerning principle III
80. AMADO (Brazil) (SR.231, p. 133): With regard to principle III, which was based on article 7 of the Nürnberg charter, Mr. Amado had supported the proposal to delete the words "or mitigate punishment" which appeared in the Rapporteur's original draft.
81. RÖLING (Netherlands) (SR.232, p. 138): Principle III formulated the responsibility of heads of States or government officials, a position which did not relieve them from responsibility under international law. The charter of Nürnberg went further, however, since it said in article 7 that those positions should not even be grounds for the mitigation of punishment. He could not agree with the Commission's views on principle III, for, while the concrete mitigation of punishment might be a matter for the Court to decide, to forbid mitigation of punishment in certain circumstances was surely a matter for the legislator.
82. As he had mentioned in discussing the significance of the plea of superior order or command of the law, Mr. Röling felt that the provision concerning the official position of a defendant could not be applied in the same way to major and minor war criminals and in practice many doubts had been raised as to the justification of the provision.
83. MAURTUA (Peru) (SR.233, p. 146): Principle III created a serious conflict between international law and internal law by eliminating the prerogatives of the chief of State.
84. BARTOS (Yugoslavia) (SR.234, p. 150): The Yugoslav delegation viewed favourably principle III....
85. VAN GLABBEKE (Belgium) (SR.235, p. 162): Turning to principle III, he said that there was still some confusion regarding the exact meaning of the words "responsible government official". Opinions differed: some said "responsible government official" referred solely to a member of a government, others said it included a former member of a government or even any person occupying an important post in the three important branches of government, the legislative, the executive or the judicial. Some documents referred to highly placed officials and the meaning of that expression was no clearer than the words "responsible government official". It was most important, in the cases of proceedings which might involve the death penalty, that the meaning and the exact scope of each idea in the texts should be quite clear... the Commission had omitted the last phrase of article 7 of the charter of the Tribunal which said that the fact that an individual acted as head of State or responsible government official not only could not prevent prosecution or relieve him of responsibility but also could not even be taken into consideration as a reason for mitigating punishment. He suggested the Commission had been wrong in changing the text of the charter in that particular.
86. LOBO (Pakistan) (SR.236, p. 173):.. .the principle stated in article 7 of the Nürnberg charter, which dealt with the responsibility of heads of States and responsible officials, had been considerably watered down in the formulation contained in the report. The principle that the official position of defendants would not be considered as mitigating punishment had been omitted by the Independent Law Commission, which, as the discussion at its 46th meeting - and particularly Mr. Amado's speech - had shown, had decided that on that point the Nürnberg charter had rejected a fundamental principle of law.
87. MAURTUA (Peru) (SR.237, p. 180): With respect to principle III, the representative of Belgium had already pointed out the difficulties which might arise in the application of that principle. Although the principle was a very important one, it must be borne in mind that in all democratic States the head of State was responsible to the people for his acts.
(d) Views concerning principle IV
88. AMADO (Brazil) (SR.231, p. 133): In opposing the rigid formula contained in article 8 of the charter, Mr. Amado had recalled that the Military Tribunal itself had recognized that "the true test" (of criminal responsibility) "which is found in varying degrees in the criminal law of most nations, is not the existence of the order, but whether moral choice was in fact possible."
89. RÖLING (Netherlands) (SR.232, p. 137): ... an "order of a superior", although properly excluded as a defence in article 8 of the charter of Nürnberg . should not be ruled out for people who did not belong to the small group of leaders to whom the provisions of the Charter applied. ... (p. 138) The draft of principle IV, which was based on the judgment, was not very satisfactory. The judgment said that a superior order did not remove responsibility, but recognized that there might be situations when a superior order amounted to a situation of duress and where consequently, according to the general principles of law, no obligation any longer existed, and responsibility disappeared. Those two situations were not adequately covered by the phrase "provided a moral choice was in fact possible to him". The only question to consider was whether a legal obligation still existed and whether obedience to the international duty contrary to a superior order was still humanly possible. The ambiguous wording of the judgment should not be followed in the principles to be adopted by the United Nations.
90. FITZMAURICE (United Kingdom) (SR.233, p. 144): As a general formulation the principle was correct, but a great deal depended upon the interpretation of the words "provided a moral choice was in fact possible to him". If a person was threatened with immediate execution for disobedience of an order, then it could reasonably be argued that he had no moral choice but to obey. There were also many cases in which a person might incur degradation or imprisonment or suffer some slight disability as the result of disobedience, but not a severe enough penalty to remove all moral choice. Between those two extremes there were infinite possibilities of borderline cases in which it would be very hard to decide whether a moral choice had or had not existed. He suggested therefore that, when preparing the draft code of offences against the peace and security of mankind, the International Law Commission should consider that point. If it could not actually define moral choice, it might at least give some indication of the type of circumstances in which a moral choice could be said to exist.
91. BARTOS (Yugoslavia) (SR.234, p. 150): With regard to principle IV, the Yugoslav delegation wished to make an observation of a technical nature: it felt that the Commission had departed here from the charter and judgment of Nürnberg . According to those instruments, the fact that a person who committed a criminal act had acted pursuant to an order of his government or of a superior, did not relieve him from responsibility but in exceptional cases might be considered in mitigation of punishment. If this position were supplanted by the criterion of "possible moral choice", the number of cases in which the court could acquit the guilty would be increased. Moreover, the courts might consider that the very fact that a person was in a subordinate position limited the moral choice possible to him. It was to be feared that that modification of the principle would give rise to ambiguity, and prejudice its application. Apart from that, the Yugoslav delegation fully understood the feelings of the members of the Commission which made them want to avoid having the penalty automatically applied to subordinates and to place the responsibility upon superiors. Even though the question was left to the discretion of the court, it could give rise to abuse.
92. SPIROPOULOS (Greece) (SR.234, p. 153): The only point on which the International Law Commission was open to criticism was principle IV which it had formulated. ... The International Law Commission, after sharing his opinion at its first session, had decided at its second session to abandon that point of view and to alter the drafting of the fourth principle. The Commission, which was already at work on the formulation of the code of offences against the peace and security of mankind, had sought to introduce a more flexible principle. For that purpose it had made use of a passage from the judgment of the Nürnberg Tribunal, to the effect that: "That true test, which is found in varying degrees in the criminal law of most nations, is not the existence of the order, but whether moral choice was in fact possible."
All things considered, he approved the decision taken by the International Law Commission in the matter, as the text elaborated in London had been a little too rigid.... The text as drafted by the International Law Commission could thus be inserted in the code of offences against the peace and security of mankind without any modification.
93. ABDOH (Iran) (SR.235, p. 160): His delegation agreed with the drafting of principle TV. ... The passage of thejudgment on which principlelV was based appeared to indicate that the Tribunal had not wished to go any further than the principle of penal law according to which the fact that a person acted pursuant to order of a superior did not free him from responsibility if he had freedom of choice.
94. VAN GLABBEKE (Belgium) (SR.235, p. 163): The problem of moral choice was particularly delicate; the United Kingdom representative had referred to it, but Mr. van Glabbeke did not concur in the views which he had expressed in that connexion. He thought that it was not the responsibility of the International LawCommission to examine all the possibilities. ... He therefore thought that on this point the judges shoud be relied on to make a humane application of the principle of freedom of choice, and it was with that reservation that he accepted principle IV.
95. HSU (China) (SR.235, p. 164): He agreed with Mr. Spiropoulos concerning principle IV, and regretted that the phrase "providing a moral choice was in fact possible to him" had been inserted instead of the phrase "but may be considered in mitigation of punishment".
96. ROBINSON (Israel) (SR.236, p. 175): There did not, however, appear to be any justification for asserting that the fact of having acted under orders might lessen the responsibility of the defendant, instead of considering that factor as having a bearing only on the punishment or in omitting any reference in principle IV to the authority of the Court to mitigate the punishment.
97. LACHS (Poland) (SR.236. p. 178): ...in particular, he could comment at length on principle IV, because he was far from being satisfied with the formula on moral choice, as it omitted any mention of the self-imposed duty of self-sacrifice which is necessary when the choice is between the life of one individual and the life of hundreds or thousands of human beings.
98. GOTTLIEB (Czechoslovakia) (SR.238, p. 188): During the discussions in the Committee, for example, there had been a lengthy debate on the concept of "moral choice" in principle IV. His delegation felt that the International Law Commission had exceeded its task of "formulating" with regard to that principle. Having stated, in its comment to principle III, that "the question of mitigating punishment is a matter for the competent court to decide", it had taken an entirely opposite view in the case of principle IV. Moreover, a proviso such as that formed in principle IV might have undesirable effects psychologically.
(e) Views concerning principle V
99. RÖLING (Netherlands) (SR.232, p. 138): There was no doubt that one of the principles of the charter and judgment of Nürnberg was that of a fair trial, which was contained in principle V. He wondered, however, whether the phrase "on the facts and law" should be added. Only in doubtful cases did equity demand discussion of the law.
100. BARTOS (Yugoslavia) (SR.234, p. 150): The Yugoslav delegation approved of principle V and had no criticism to make of the text submitted by the International Law Commission.
101. VAN GLABBEKE (Belgium) (SR.235. p. 163): ... He regretted, however, that the International Law Commission, in stating that any person had the right to a fair trial, had proposed the addition of the words "on the facts and law". On this point, he was prepared to support the Netherlands representative, who for the sake of simplicity had proposed the deletion of those words. It was preferable to adhere rigorously to the statement of the principle, because if "on the facts and law" were specified, the procedure seemed to be neglected. Some trials which appeared to be fair were based on a fraudulent preliminary investigation. ... When the draft code of offences against the peace and security of mankind came to be examined, consideration might be given to the principle of a preliminary investigation in which both sides would be heard, and the right of the accused to the assistance of counsel at all stages of the proceedings.
102. ROBINSON (Israel) (SR.236, p. 175): With regard to the right to a fair trial, which his delegation considered to be the most important of all, he remarked on the absence of a definition of a "fair trial" in the International Law Commission's report, whereas the expression "on the facts and the law" had a definite meaning. The word "law" meant not only substantive law but procedural law, including the principle of equality of the parties in the trial.
103. MAURTUA (Peru) (SR.237, p. 180): The representative of Peru thought that principle V was contrary to the spirit of the charter of the Nürnberg Tribunal. Article 12 of that charter authorized the Tribunal to judge, in absentia, any person accused of crimes mentioned in article 6; and article 19 provided that the Tribunal should not be bound by the technical rules governing the submission of proof. In Mr. Maur-tua's opinion, the International Law Commission, in its formulation of principle V, should have taken into consideration article 19 of the charter of the Tribunal.
104. SP1ROPOULUS (Greece) (SR.238, p. 190): A third criticism had been made regarding the inclusion of the words "on the facts and law" at the end of principle V. He explained that the original text submitted to the International Law Commission by a sub-committee had referred simply to the right to a fair trial. On re-reading the judgment, however, Mr. Spiropoulos has discovered that it referred to a fair trial "on the facts and law". He had therefore incorporated the same wording in his draft and the Commission had accepted it. Since the words appeared in the judgment, he could see no reason why anyone should object to them.
(f) Views concerning principle VI (a)
105. RÖLING (Netherlands) (SR.232, p. 135): The Soviet Foreign Minister, speaking at the 380th meeting of the First Committee on 28 October 1950, had made a distinction between just and unjust wars, and not between aggressive and defensive wars. A just war, he had said, was a liberating war designed to defend a people from foreign attack or an attempt to enslave it, or to liberate it from capitalist and imperialist domination. If that were the attitude of the Government of the Soviet Union, there would be two fundamentally different concepts of aggression. On the one hand, the charter forbade a change in the status quo brought about by armed force. On the other hand, there was the view that wars could be fought to achieve an ideological purpose. As long as that divergence of opinion existed, no code of offences against the peace and security of mankind could be drafted which did not include a definition of aggression.
106. RÖLING (Netherlands) (SR.232, p. 138): Principle VI mentioned the crimes punishable as crimes under international law. Once again it did not contain real principles but merely details of the charter of Nürnberg , and wrong details at that. To sum up all the stages in which the crime against peace could manifest itself - including even the conspiracy to plan or prepare a war of aggression - was to repeat a formulation criticized by anyone who had been connected with the application of that provision of the charter. The provision should not be repeated as a principle of international law, especially as the judgment had not distinguished between planning and preparation. Nor had the judgment followed the directive of the charter to regard as a crime what, in the opinion of the Tribunal, had been too far removed from the time of decision and action. In the light of the decision of the Tribunal, the wording of the charter was no longer correct, and the Committee should not forget that the General Assembly had requested the formulation of principles recognized both in the charter and in the judgment.
107. RÖLING (Netherlands) (SR.236, p. 172): Principle VI reproduced the enumeration of crimes against peace contained in the Nürnberg charter. That part of the charter which had been severely criticized had not been applied by the Tribunal. Principle VI classified as a crime against peace not only planning, preparation, initiation or waging of a war of aggression but also participation in a conspiracy for the accomplishment of any of the aforementioned acts.... The Tribunal had not considered it a criminal act to participate in a conspiracy to plan or prepare a war but only to participate in a concerted plan to wage war, in a concerted plan existing shortly before the war broke out. Consequently the formulation of principle VI of the International Law Commission was not in accordance with the concept of conspiracy as defined in the judgment. He considered that the International Law Commission had been mistaken on that point.
108. FITZMAURICE (United Kingdom) (SR.233, p. 144): In that connexion, he referred to the comments in paragraph 117 of the report: "Some members of the Commission feared that everyone in uniform who fought in a war of aggression might be charged with the 'waging' of such a war. The Commission understands the expression to refer only to a high-ranking military personnel and high state officials, and believes that this was also the view of the Tribunal." He fully agreed with that interpretation, and thought that a corresponding definition of the phrase "waging of a war of aggression" should be incorporated in principle VI, to safeguard the interests of the ordinary soldier.
If a definition could not be included in the actual text of the principle, it should at least be incorporated in the draft code of offences against the peace and security of mankind.
109. BARTOS (Yugoslavia) (SR.234, pp. 150-151): The wording adopted by the Commission for subparagraph (a) (i) and (ii) of that principle [principle VI] was excellent.... [Pursuant to Polish and Yugoslav proposals] a sub-paragraph should have been inserted in the text defining as criminal all propaganda inciting to hatred - or the propagation of hatred - among nations, and hatred based on racial and religious discrimination.... The Yugoslav delegation considered that any propaganda inciting to war carried on in conjunction with plans of aggression constituted preparation for war and as such should be included among the acts condemned under principle VI. Where such propaganda was not carried on together with plans of aggression, it constituted an act of a particular kind and should be the subject of a special indictment; that is, it should be included not among the acts indicated at Nürnberg but in a draft code of crimes against the peace and security of mankind.
110. VAN GLABBEKE (Belgium) (SR.235, p. 163): Among the crimes against peace, the International Law Commission had cited wars of aggression but not acts of aggression. That could be explained in the case of the Nürnberg Tribunal which did not want to take into consideration acts committed in Austria or Czechoslovakia. The Belgian delegation considered, however, that the question of acts of aggression should be reviewed when offences against the peace and security of mankind were codified. The idea embolied in the expression "waging of a war of aggression" was not defined. It had been said that it did not refer to each man who wore a uniform but merely to superior officers and high officials; but at what precise point was an officer considered a superior and an official a high official? These terms should be defined, and definition was particularly important in a field where capital punishment might be involved.
111. CHAUMONT (France) (SR.236, p. 170): With regard to offences against peace, many texts could be quoted to prove that a war of aggression had for a long time been regarded as an international crime... Thus, the concept adopted at Nürnberg had not been a new one; it was merely a new and more effective application of that concept.... He recalled that the French Government considered a war of aggression as an international crime; the contrary statements made by Mr. Gros at the London Conference, as recalled by the Greek representative, did not alter the French Government's position.
112. LACHS (Poland) (SR.236, p. 177): The waging of a war of aggression had indeed constituted a crime at the time when Germany had provoked the Second World War. The authors of the Nürnberg charter had been convinced of that fact, since they had based their conclusions not only on the Pact of Paris, but on many other documents in which it was clearly stated that a war of aggression constituted a crime under international law. The judgment itself was also explicit in that connexion, for it specified that the principles applied by the Tribunal constituted the expression of the international law in force at the time of their application.... The concept of aggression had been reaffirmed at Nürnberg , and the question was not altered by the fact that a distinction between just and unjust wars had been introduced. That distinction could give rise to no confusion unless a deliberate attempt was made to create such confusion. The struggle for liberation from foreign domination could never be defined as aggression.
113. MOROZOV (Union of Soviet Socialist Republics) (SR.234, p. 157): Referring to the Netherlands representative's quotation from the speech made at the 380th meeting of the First Committee on 28 October 1950 by the Minister for Foreign Affairs of the Soviet Union, he said that the Netherlands representative was distorting the Soviet position in alleging that the Soviet Government recognized a distinction not between aggressive and defensive wars, but only between just and unjust wars. That distinction was the result of distorting what had been said by Lenin and quoted by Mr. Vyshinsky, USSR Foreign Minister at the 380th meeting of the First Committee. From the actual description given by the great Lenin and the great Stalin of just, non-aggressive wars, it followed that they were not aggressive wars but wars of liberation, whereas unjust wars were always wars of aggression.
(g) Views concerning principle VI (b)
114. RÖLING (Netherlands) (SR.232, p. 138): Sub-paragraph (b) of principle VI mentioned war crimes. Once again, he believed that the enumeration of examples as given in the charter was no longer a principle but a detail which should not be included in a formal declaration of the principles of Nürnberg .
115. VAN GLABBEKE (Belgium) (SR.235, p. 163): The report referred to "killing of hostages" among war crimes. Without going as far as the representative of Syria who wished the taking of hostages to be considered as a crime, and in support of this view had cited the text of the Red Cross Convention, Mr. van Glabbeke thought that the case of ill-treatment of hostages should have been considered. He therefore made full reservation regarding that enumeration, which should be completed at the time of the drafting of the code of offences against the peace and security of mankind.
(h) Views concerning principle VI ©
116. AMADO (Brazil) (SR.231, p. 133): He wished, however, to draw the Committee's attention to paragraph 120 of the report, which dealt with crimes against humanity. Those acts constituted international crimes only when committed in connexion with other crimes falling within the category of crimes against peace and war crimes.
117. RÖLING (Netherlands) (SR.232, p. 138): Sub-paragraph (c) mentioned the crimes against humanity. The Commission had enumerated the acts which came under that heading but had omitted to bring out the important features of those crimes, that they could have been committed even before the war, although that was mentioned in paragraph 123 of the report. There again he believed that such an enumeration of details should not be included in the formulation of the principles of Nürnberg .
118. CHAUMONT (France) (SR.232, p. 141): In principle VI, the Commission had retained the idea embodied in the Nürnberg charter that crimes against humanity were linked with crimes against peace and war crimes. Furthermore it was clear from the report by Mr. Spiropoulos on the draft code of offences against the peace and security of mankind (A/CN.4/25, p. 28) that he had been reluctant to include in the draft code crimes against humanity as they had been defined in the Nürnberg charter and thought it might be preferable to include genocide only. The whole difficulty had arisen because the International Law Commission had misinterpreted its terms of reference and had retained the actual wording of the Nürnberg charter instead of formulating the wider principles of international law underlying that charter. Indeed, in paragraph 123 of its report, the Commission recognized the fact that crimes against humanity need not necessarily be committed in time of war, but that conclusion did not tally with the wording it had adopted in paragraph (c) of principle VI. The Commission had failed to recognize that its terms of reference were broader than those of the Nürnberg Tribunal which had been set up solely to try and to punish the major war criminals of the European Axis countries.... (p. 142) At the 231st meeting Mr. Amado had argued that if crimes against humanity were not necessarily connected with war, they would then become simply offences under the ordinary law. The French delegation was convinced, however, that such crimes had certain definite characteristics which distinguished them from crimes under the ordinary law. In the first place, the whole point of establishing the nature of international crimes was that they could only be punished at the international level. The peculiar characteristic of crimes against humanity was that they were in general committed by governments, or with the complicity or tolerance of governments, so that the only possible form of punishment was on the international level. Secondly, the concept of the crime against humanity had been incorporated in the Convention on Genocide which had now come into force and was thus a concrete part of international law. It was clear from article I of that convention that genocide, an act which all representatives would surely recognize as coming within the general concept of crime against humanity, was considered a crime under international law, whether it was committed in time of peace or in time of war. It was therefore contrary to existing international law to lay down as a principle that crimes against humanity were inseparably linked with crimes against peace or war crimes.
119. BARTOS (Yugoslavia) (SR.234, p. 151): The Commission had therefore respected the terms of its mandate and had not included among war crimes and crimes against humanity the crimes defined by the Geneva Conventions of 1949 concerning the protection of war victims. Consequently, while it supported the text proposed by the International Law Commission, the Yugoslav delegation considered that the Commission's enumeration was incomplete and that it should be supplemented in future international instruments so as to indict all war crimes and crimes against humanity defined in any international convention that would enter into force upon the outbreak of a war in the course of which such crimes might be committed.
120. SPIROPOULOS (Greece) (SR.234, p. 153): Outside the crimes against humanity defined by the Nürnberg charter, no concept of crimes against humanity existed under international law. ... He was unacquainted with any notion of crimes against humanity independent of the notion of crimes against peace, and of war crimes, in accordance with the French representative's theory. ... He believed that crimes against humanity and the crime of genocide were two quite different things. Doubtless, the crime of genocide might constitute a crime against humanity, but only if it was perpetrated against a group of human beings either in wartime or in connexion with crimes against peace or war crimes. That was why the conception embodied in the operative part of the draft resolution submitted by France (A/C.6/L.141), which declared the notion of crimes against humanity to be "distinct from the notion of crimes against peace and the notion of war crimes", was in his view erroneous.
121. ABDOH (Iran) (SR.235, p. 160): He did not agree with the French representative's view that the International Law Commission ought to have extracted from the charter and the judgment a general definition of crimes against humanity. There were no crimes against humanity generally under international law; crimes against humanity existed only under the Nürnberg charter. ... The Commission had omitted the phrase "before or during the war" contained in article 6 of the chaiter because it referred to a particular war, the war of 1939. It would have been preferable in formulating the Nürnberg principles to make a general reference to all wars, by replacing the words "the war" by "a war". The total omission of those words might lead to confusion in connexion with the definition of crimes against humanity.
122. CHAUMONT (France) (SR.236. p. 170): As regards crimes against humanity, there was no denying that they were regarded by all civilized nations as common crimes. If they were committed by responsible government officials, their punishment must be effected on the international plane and could not be left to the national law of the country. ... The Greek representative, whose words had perhaps outrun his thoughts, had stated that there were no crimes against humanity under international law. He had gone further than the judges at Nürnberg who had not denied the international character of crimes against humanity, but had refused to take cognizance of the crimes against humanity committed by the Nazi leaders before 1939 solely because of the relation between those crimes and the 1939-1945 war had not been established, and the Tribunal was competent only to take cognizance of crimes against humanity if they had been committed as a result of crimes against peace or war crimes or in conjunction with such crimes.
123. LOBO (Pakistan) (SR.236, p. 174): While he was willing to accept the Tribunal's statement that violations of the laws and customs of war constituted crimes under international law at the time of the creation of the Tribunal, he doubted whether the same could be said in 1939 of crimes against humanity. Though it could be admitted that crimes against humanity perpetrated against the populations of other countries constituted violations of existing international law, the question whether crimes against humanity committed against nationals came exclusively under national jurisdiction or international law was one over which the claims of national and international jurisdiction conflicted.
124. ROBINSON (Israel) (SR.236, p. 175): The timidity of the International Law Commission was most clearly demonstrated by its refusal to recognize the independent character of crimes against humanity and its insistence that those crimes could only be committed as a result of, or in connexion with crimes against peace and war crimes. ... There was no justification for omitting the phrase "before or during a war" in principle VI (c), particularly in view of the comment in paragraph 123. It was unfortunate that principle VI (c) did not emphasize the fact that certain acts might be crimes against humanity even if they were committed against fellow-nationals, although that idea was stressed in the comment in paragraph 124 of the report.
(i) Views concerning principle VII
125. AMADO (Brazil) (SR.231, p. 132): The Commission had considered it preferable to make a separate formulation of the principle proclaiming the responsibility of an accomplice in order to bring into clearer focus principle I which stated the general rule of individual responsibility for international crimes.
126. RÖLING (Netherlands) (SR.232, p. 138): The Commission's commentary on principle Vll stated, however, that the only provision in the charter regarding responsibility for complicity was contained in the last paragraph of article 6 which laid down that "leaders, organizers, instigators and accomplices participating in the formulation or execution of a common plan or conspiracy to commit any of the foregoing crimes are responsible for all acts performed by any persons in execution of such a plan". That was not a complicity rule but a rule about the responsibility of conspirators, and a very bad one at that. It tried to establish the responsibility for acts which were unknown to the defendant - a type of responsibility which was decisively rejected, at least in continental law. It was a typical conspiracy rule severely criticized in Anglo-American jurisprudence. It had nothing to do, however, with the general theory of complicity and participation, which was partly covered by the provision of the charter of Nürnberg about planning and preparation. Neither charter nor judgment recognized any other form of participation or complicity with regard to crimes against peace. The Tribunal had clearly recognized that the rule applied only to conspiracy. That there was confusion was confirmed by the conclusion in paragraph 126 of the report that the statement contained in the judgment to the effect that the provision had been designed to "establish the responsibility of persons participating in a common plan" to prepare, initiate and wage aggressive war "would seem to imply that the complicity rule did not apply to crimes perpetrated by individual action". The Tribunal had not invoked that rule when acknowledging the criminal character of participation and complicity in war crimes and crimes against humanity committed by individuals.
127. RÖLING (Netherlands) (SR.236, p. 172): An even more serious mistake had been committed in the formulation of principle VII which recognized that the ordinary rules of complicity were valid with regard to crimes against peace. ... That principle was not recognized in the charter or in the judgment of Nürnberg. The judgment took care to limit the scope of crimes against peace. ... According to the formulation of principle VII as it stood, not only industrialists, but all workers in munitions factories, not only the chief of staff but also all soldiers in the field from generals to privates, would be considered as criminals. That was a flagrant violation of the rules laid down in the charter and applied by the Tribunal.
128. BARTOS (Yugoslavia) (SR.234, p. 151): With regard to principle VII, the Yugoslav delegation did not agree with certain delegations that it was drafted in too general terms and that if it were interpreted too liberally all combatants who had participated as a duty in any war of aggression might be labelled war criminals.
129. VAN GLABBEKE (Belgium) (SR.235, p. 163): In principle VII, the International Law Commission had retained only the word "complicity". He accepted that wording only if the idea of complicity included co-authors, instigators and provocators, although that constituted an extension of the idea of complicity which it was not for the International Law Commission to decide. He approved the idea of making accomplices in the three categories of crimes enumerated in principle VI responsible, although he thought that in thus extending the idea, the International Law Commission had not remained strictly within the limits of its task.
130. T1RADO (Mexico) (SR.237, p. 183): ...Principle I was based on the first paragraph of article 6 of the charter of the Tribunal, which dealt with the responsibility of the individual under international law. Since that paragraph did not draw any distinction between the criminal and his accomplices, he could see no reason why the International Law Commission should have devoted a separate principle to the responsibility of the accomplices. In the criminal law of most countries, the responsibility of accomplices and of the actual criminal were both governed by the same provisions.
131. SPIROPOULUS (Greece) (SR.238, p. 190): ... The representative of the Netherlands had expressed the view that the Commission had given too wide an interpretation to the notion of complicity. Subsequently, however, the representative of Israel had contended that the Commission's interpretation was quite acceptable, since the judge in each instance would have wide discretion as to how the principle should be applied. The other members of the Committee had not mentioned that point and it might therefore be assumed that they found the Commission's text acceptable.
Draft text to be snbmitted to governments in application of article 16 (g) and(h) of the statute of the International Law Commission
Draft code of offences against the peace and security of mankind
1. By resolution 177 (II), paragraph (b), the General Assembly-requested the International Law Commission to prepare a draft code of offences against the peace and security of mankind, indicating clearly the place to be accorded to the principles of international law recognized in the charter of the Nürnberg Tribunal and in the judgment of the Tribunal.
2. At its first session the Commission appointed Mr. Jean Spiropoulos special Rapporteur on this subject and invited him to prepare a working paper for submission to the Commission at its second session. The Commission also decided that a questionnaire should be circulated to Governments inquiring what offences, apart from those defined in the charter and judgment of the Nürnberg Tribunal, should, in their view, be comprehended in the draft code.
3. At its second session, Mr. Spiropoulos presented his report (A/CN.4/25) to the Commission, which took it as a basis of discussion. The subject was considered by the Commission at its 54th to 62nd meetings. The Commission also took into consideration the replies received from Governments (A/CN.4/19. part II, A/CN.4/19/Add.l and A/CN.4/19/Add.2) to its questionnaire.
In the light of the deliberations of the Commission, a Drafting Sub-Committee, composed of Messrs. Alfaro, Hudson and Spiropoulos, prepared a provisional text (A/CN.4/R.6) which was referred by the Commission without discussion to the special Rapporteur, Mr. Spiropoulos, who was requested to continue the work on the subject and to submit a new report to the Commission at its third session.
4. At its third session, Mr. Spiropoulos presented a new report (A/CN.4/44) to the Commission which, taking it as a basis of discussion, adopted the present draft of a code of offences against the peace and security of mankind.
5. The Commission, in submitting the present text to the Governments in conformity with article 16 (g) and (h) of its statute, wishes to present the following observations as to some general questions the Commission had to solve in drafting the present draft code
(a) The Commission first considered the meaning of the term "offences against the peace and security of mankind", contained in resolution 177 (II). The view of the Commission was that the meaning of this term should be limited to offences which contain a political element and which endanger or disturb the maintenance of international peace and security, and that the draft code, therefore, should not deal with questions concerning conflicts of legislation and jurisdiction to international criminal matters. Nor should such matters as piracy, traffic in dangerous drugs, traffic in women and children, slavery, couterfeiting currency, damage to submarine cables, etc., be considered as falling within the scope of the draft code.
(b) The Commission thereafter discussed the meaning of the phrase "indicating clearly the place to be accorded to the Nürnberg principles." The sense of the Commission was:
(i) That the above phrase should not be interpreted as meaning that the Nürnberg principles would have to be inserted in their entirety in the draft code. The Commission felt that the phrase did not preclude it from suggesting modification or development of these principles for the purpose of their incorporation in the draft code.
(ii) That the Commission was not bound to indicate the exact extensions to which the incorporation of the various Nürnberg principles in the draft code had taken place. Such an attempt would have met with considerable difficulties since there exist divergencies of opinions as to the scope of some of these principles. Only a more or less general reference to the correspondent Niirn-berg principles has been considered possible.
(c) On the question of the subjects of criminal responsibility under the draft code, the Commission decided:
(i) To deal only with the criminal responsibility of individuals, following the example of the Nürnberg charter, and
(ii) Not to follow the Rapporteur who had defined the offences against the peace and security of mankind in a general way so that these crimes could be committed by any individual whether the said individual acted as authority of a State or as a private person. The Commission established a distinction in the sense that some crimes, aceording to their definition, could only be committed by the authorities of the State while other crimes could be committed by any individual.
(d) Considerable thought was given by the Commission to the question of the implementation of the code. It was felt that only the implementation by an international judicial organ could give satisfactory results. The Commission was of the opinion that pending the establishment of such an international criminal court, the implementation by national courts would practically be the only possible procedure.
6. Finally it may be noted that the Commission considered a communication from the United Nations Educational, Scientific and Cultural Organization in which it was recommended that, with a view to the protection of historical monuments and documents and works of art in case of armed conflict, the destruction of such cultural objects should be defined as a crime punishable under international law. The Commission took note of the recommendation, and agreed that such destruction comes within the general concept of war crimes.
II. TEXT OF THE DRAFT CODE
The following acts are offences against the peace and security of mankind. They are crimes under international law for which the responsible indivuals shall be punishable.
1. The employment or threat of employment, by the authorities of a State, of armed force against another State for any purpose other than national or collective self-defence or execution of a decision by a competent organ of the United Nations.
(a) The text proposed by the Rapporteur reads as follows: "The use of armed force in violation of international law and, in particular, the waging of aggressive war".
(b) The above text corresponds to article 6 (a) of the charter of the International Military Tribunal. But while the latter has in view only "a war of aggression or a war in violation of international treaties, agreements or assurances", the present text, going further, characterizes as crimes under international law not only any employment of the armed forces of a State against another State but also the threat of employment of these armed forces.
(c) The threat or use of force is prohibited by Article 2, paragraph 4, of the Charter of the United Nations which binds the Members of the Organization to "refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the purposes of the United Nations".
The same prohibition is contained in some other international instruments and in the draft declaration on rights and duties of States prepared by the International Law Commission.
(d) Crime No. 1, by its nature, can only be committed by the authorities of a State. A penal responsibility of private individuals may however result through application of crime No. 11 of the draft code.
2. The planning of or preparation for the employment, by the authorities of a State, of armed force against another State for any purpose other than national or collective self-defence or execution of a decision by a competent organ of the United Nations.
See note (b) under the preceding crime.
3. The incursion into the territory of a State by armed bands coming from the territory of another State and acting for a political purpose.
(a) The text proposed by the Rapporteur reads as follows: "The invasion by armed gangs of the territory of another State".
(b) The members of the armed bands would be guilty of the above crime. A penal responsibility of the authorities of a State under international law may, however, result through application of crime No. 11.
While in the case of crime No. 1 the simple soldier would not be criminally responsible under international law, in case of invasion by armed bands of the territory of another State, any member of the band would be responsible. This difference of treatment is justified because, in the case of state action, it would go beyond any logic to consider a mere soldier as criminally responsible for an action which has been decided and directed by the authorities of a State while in the case of armed bands the participation in them will result from the free decision of the individual members of the band.
4. The undertaking, encouragement, or toleration by the authorities of a State of organized activities calculated to foment civil strife in the territory of another State.
(a) The text proposed by the Rapporteur reads as follows: "The fomenting, by whatever means, of civil strife in another State".
(b) The fomenting of civil strife is expressly prohibited by article 4 of the draft declaration on rights and duties of States prepared by the International Law Commission.
(c) The above crime can be committed by the authorities of a State only. A penal responsibility of private individuals under international law may, however, result through application of crime No. 11 of the draft code.
5. The undertaking, encouragement or toleration by the authorities of a State of organized activities intended or calculated to create a state of terror in the minds of particular persons or a group of persons or the general public in another State.
(a) The text proposed by the Rapporteur reads as follows: "Organized terrorist activities carried out in another State".
(b) The encouragement of terrorist activites is prohibited by article 1 of the Convention for the Prevention and Punishment of Terrorism of 16 November 1937.
(c) Terrorist activities of single persons without any organized connexion between them do not fall within the scope of crime No. 5.
(d) The above crime can be committed by the authorities of a State only. A penal responsibility of private individuals under international law may however result through application of crime No. 11 of the draft code.
6. Acts by the authorities of a State in violation of international treaty obligations designed to ensure international peace and security, including but not limited to treaty obligations concerning :
(i) The character or strength or location of armed forces or armaments :
(ii) The training for service in armed forces;
(iii) The maintenance of fortifications.
(a) The text proposed by the Rapporteur reads as follows: "The violation of military clauses of international treaties defining the war potencial of a State, namely clauses concerning: (i) the strength of land, sea and air forces- (ii) armaments, munitions and war material in general; (iii) presence of land, sea and air forces, armaments, munitions and war material; (iv) recruiting and military training; (v) fortifications."
(b) The Commission thought it wise to include in the code the case of violation of treaty obligations designed to ensure international peace and security. It may be recalled that the League of Nation's Committee on Arbitration (memorandum on articles 10, 11 and 16 of the Covenant) considered the failure to observe conventional restrictions as those mentioned in the definition of crime No. 6 as raising, under many circumstances, a presumption of aggression.
(c) The above crime can be committed by the authorities of a State only. A penal responsibility of private individuals under international law may however result through application of crime No. 11 of the draft code.
7. Acts by authorities of a State resulting in or directed toward the forcible annexation of territory belonging to another State, or of territory under an international regime.
(a) The text proposed by the Rapporteur reads as follows: "The annexation of territories in violation of international law".
(b) Forcible annexation of territories is prohibited by various international instruments.
(c) The above crime can be committed by the authorities of a State only. A penal responsibility of private individuals under international law may, however, result through application of crime No. 11 of the draft code.
8. Acts committed by the authorities of a State or by private individuals with intent to destroy, in whole or in part, a national, ethnical, racial or religious group as such, including :
(i) Killing members of the group;
(ii) Causing serious bodily or mental harm to members of the group;
(iii) Deliberately inflicting on the group conditions of life calculated to bring about it physical destruction in whole or in part ;
(iv) Imposing measures intended to prevent births within the group;
(v) Forcibly transferring children of the group to another group.
(a) The text proposed by the Rapporteur is identical with the corresponding text of the Convention on the prevention and punishment of the crime of genocide.
(b) The text adopted by the Commission is, in substance, identical with the crime of genocide as defined in the Convention on the prevention and punishment of the crime of genocide.
(c) The above crime can be committed either by the authorities of a State or by private individuals.
9. Inhuman acts committed by the authorities of a State or by private individuals against any civilian population, such as mass murder, or extermination or enslavement, or deportation, or persecutions on political, racial or religious grounds, when such acts committed in execution of or in connexion with the offences defined in Nos. I, 2, 5, 7 and 10.
(a) The text proposed by the Rapporteur reads as follows: "The commission of any of the following acts in as far as they are not covered by the foregoing paragraph: Murder, extermination, enslavement, deportation, and other inhuman acts done against a civilian population, or persecutions on political, racial or religious grounds when such acts are done or such persecutions are carried on in execution of or in connexion with any crime against peace or war crimes as defined by the Charter of the International Military Tribunal."
(b) The above crime corresponds to the "Crime against humanity" of the Nürnberg charter.
While, according to the Nürnberg charter, the above-cited inhuman acts constitute a crime under international law only if they are committed in execution of or in connexion with any crime against peace or war crime as defined by the charter, the text adopted by the International Law Commission, going further, characterizes crimes under international law inhuman acts when these acts are committed in execution of or in connexion with any of the crimes defined in Nos. 1, 2, 5, 7 and 10.
(c) The above crime can be committed either by the authorities of a State or by private individuals.
10. Acts committed in violation of the laws on customs of war.
(a) The text proposed by the Rapporteur reads as follows: "Violation of the laws or customs of war".
(b) The above crime is provided for by article 6 (b) of the charter of the International Military Tribunal. In reality it does not affect the peace and security of mankind. Nevertheless, it figures among the crimes enumerated in the Nürnberg charter. It is only on account of this connexion that the International Law Commission decided to include it in the draft code.
(c) The Commission faced two problems in connexion with the definition of war crimes. Firstly, it had to decide whether every violation of the laws or customs of war were to be considered as a crime under the code or whether only acts of a certain gravity should be characterized as such. The Commission decided in favour of the first conception.
The second problem faced by the Commission was whether the code should enumerate all war crimes exhaustively or whether a general definition was to be preferred. The Commission considered that only the second was practically possible.
11. Acts which constitute:
(a) Conspiracy to commit any of the offences defined in Nos. 1-10.
(b) Direct incitement to commit anv of the offences defined in Nos. 1-10.
(c) Attempts to commit any of the offences defined in Nos. 1-10;
(d) Complicity in the commission of any of the offences defined in Nos. 1-10.
(a) The text proposed by the Rapporteur reads as follows:
(i) Conspiracy to commit any of the acts enumerated under crimes No. 1-9 (of the draft code |19| submitted by the Rapporteur).
(ii) Direct and public incitement to commit any of the acts under crimes No. 1-9.
(iii) Preparatory acts to commit any of the acts under crimes No. 1-9.
(iv) Attempt to commit any of the acts under crimes No. 1-9.
(v) Complicity in any of the acts under crimes No. 1-9.
(b) The notion of conspiracy is found in article 6, paragraph (a), of the charter of the International Military Tribunal and the notion of complicity in the last paragraph of the same article. The notion of conspiracy in the charter is limited to the "planning, preparation, initiation or waging of a war of aggression, or a war in violation of international treaties, agreements or assurances", while the text proposed by the International Law Commission provides for the application of the above notion to all offences against the peace and security of mankind.
The notions of incitement and of attempt are found in the Genocide Convention as well as in several municipal enactments on war crimes.
The fact that a person charged with a crime defined in this code acted under the orders of a government or a superior may be taken into consideration either as a defence or in mitigation of punishment if justice so requires.
(a) The text proposed by the Rapporteur reads as follows: "The fact that a person acted under command of the law or pursuant to superior orders may be taken into consideration either as a defence or in mitigation of punishment if justice so requires".
(b) The above text corresponds to article 8 of the charter of the International Military Tribunal.
Pending the establishment of a competent international criminal court, the States adopting this Code undertake to enact the necessary legislation for the trial and punishment of persons accused of committing any of the crimes under international law as defined in the Code.
(a) The text proposed by the Rapporteur reads as follows: "The parties to the Code undertake to enact the necessary legislation giving effect to the provision of the present code, and, in particular, to provide effective penalties for persons guilty of any of the acts declared punishable by the Code.
"The parties to the Code undertake to try by a competent tribunal persons having committed on their territory any of the acts declared punishable by the present Code.
"The foregoing provision does not affect the penal jurisdiction possessed by States under their municipal law."
(b) The above system of implementation of the code has been taken from the Genocide Convention. The International Law Commission is aware that the punishment of perpetrators of crimes under the code by domestic courts is not the ideal solution, yet it considered that, in the absence of an international judicial organ, the solution proposed above is, for the time being, practically, the only possible one.
Crimes defined in this Code shall not be considered as political crimes for the purpose of extradition.
The States adopting the Code undertake to grant extradition in accordance with their laws and treaties in force.
(a) The text proposed by the Rapporteur reads as follows; "The acts declared punishable by the present code shall not be considered political crimes for the purpose of extradition.
"The parties to the Code pledge themselves to grant the extradition of the perpetrators of crimes under this Code in accordance with their laws and treaties in force."
(b) The above text is found, mutatis mutandis, in the Genocide Convention.
Disputes between the States adopting this Code relating to the interpretation or application of the provisions of the Code may be brought before the International Court of Justice by an application of any party to the dispute.
The text proposed by the Rapporteur reads as follows: "The parties to the Code accept the jurisdiction of the International Court of Justice in disputes between them relating to:
"(i) The interpretation, application or fulfilment of the present Code;
"(ii) The responsibility of a State under international law for any of the acts declared punishable under the present code.
"A dispute may be brought before the Court at the request of any one of the parties to the Code.''
CHAPTER II (ANNEX)
THE POSSIBILITY AND DESIRABILITY OF A DEFINITION OF AGGRESSION
(General Assembly resolntion 378 B (V) of 17 November 1950 : Dnties of States in the event of the outbreak of hostilities)
132. At the 385th meeting of the First Committee of the General Assembly of the United Nations in 1950, in connexion with item 72 ("Duties of States in the event of the outbreak of hostilities"), included on the agenda at the request of the Government of Yugoslavia (A/1399), the representative of the USSR presented a resolution the preamble of which expressed the necessity of giving an accurate definition of aggression.
133. The proposal submitted by the Delegation of the USSR reads as follows:
"The General Assembly,
"Considering it necessary, in the interests of general security and to facilitate agreement on the maximum reductions of armaments, to define the concept of aggression as accurately as possible, so as to forestall any pretext which might be used to justify it.
"Recognizing that all States have equal rights to independence, security and the defence of their territory:
"Inspired by the desire, in the interests of general peace, to guarantee all nations the right freely to develop by such means as are appropriate to them and at the rate which they consider to be necessary, and for that purpose to provide the fullest possible protection for their security, their independence and the integrity of their territory, and also for their right to defend themselves against aggression or invasion from without, but only within the limits of their own countries, and
"Considering it necessary to formulate essentia) directives for such international organs as may be called upon to determine which party is guilty of attack.
"I. That in an international conflict that State shall be declared the attacker which first commits one of the following acts:
"(a) Declaration of war against another State;
"(b) Invasion by its armed forces, even without a declaration of war, of the territory of another State;
"(c) Bombardment by its land, sea or air forces of the territory of another State or the carrying out of a deliberate attack on the ships or aircraft of the latter;
"(d) The landing or leading of its land, sea or air forces inside the boundaries of another State without the permission of the Government of the latter, or the violation of the conditions of such permission, particularly as regards the length of their stay or the extent of the area in which they may stay;
"(e) Naval blockade of the coasts or parts of another State;
"2. Attacks such as those referred to in paragraph I may not be justified by any arguments of a political, strategic or economic nature or by the desire to exploit natural riches in the territory of the State attacked or to derive any other kind of advantages or privileges, or by reference to the amount of capital invested in the State attacked or to any other particular interests in its territory, or by the affirmation that the State attacked lacks the distinguishing marks of statehood:
"In particular, the following may not be used as justifications for attack:
"A. The internal position of any State as, for example:
"(a) The backwardness of any nation politically, economically or culturally;
"(b) Alleged shortcomings of its administration;
"(c) Any danger which may threaten the life or property of aliens;
"(d) Any revolutionary or counter-revolutionary movement, civil war, disorders or strikes;
"(e) The establishment or maintenance in any State of any political, economic or social system;
"B. Any acts, legislation or orders of any State, as for example:
"(a) The violation of international treaties;
"(b) The violation of rights and interests in the sphere of trade, concessions or any other kind of economic activity acquired by another State or its citizens;
"(c) The rupture of diplomatic or economic relations;
"(d) Measures in connexion with an economic or financial boycott;
"(e) Repudiation of debts;
"(f) Prohibition or restriction of immigration or modification of the status of foreigners;
"(g) The violation of privileges granted to the official representatives of another State:
"(h) Refusal to allow the passage of armed forces proceeding to the territory of a third State;
"(i) Measures of a religious or anti-religious nature;
"(j) Frontier incidents.
"3. In the event of the mobilization or concentration by another State of considerable armed forces near its frontier, the State which is threatened by such action, shall have the right of recourse to diplomatic or other means of securing a peaceful settlement of international disputes. It may also in the meantime adapt requisite measures of a military nature similar to those described above, without, however, crossing the frontier."
134. Mr. El-Khoury, the representative of Syria, proposed that the International Law Commission should be requested to include the definition of aggression in its studies for formulating a criminal code for international crimes and to submit a report on the subject to the General Assembly, at the 390th meeting of the First Committee, and at his suggestion a joint draft resolution was presented by Bolivia and Syria for the consideration of the matter by the International Law Commission. This draft resolution which was a result of consultation among the representatives of Brazil, Ecuador, Bolivia, Syria and the United States reads as follows:
"The General Assembly,
"Considering that the question raised by the Union of Soviet Socialist Republics proposal (A/C. 1/608) can better be examined in conjunction with matters under consideration by the International Law Commission, a subsidiary organ of the United Nations.
"Decides to refer the proposal of the Union of Soviet Socialist Republics and all the records of the First Committee dealing with the question to the International Law Commission, so that the latter may take them into consideration in formulating its conclusions as soon as possible."
135. The above proposal was adopted by the General Assembly by 49 votes in favour. 5 against and one abstention.
B. Historical survey
136. The problem of the definition of aggression was considered systematically for the first time in connexion with the various attempts made by the League of Nations |20| to close the "fissure" of the Covenant which, under certain conditions, made the recourse to war "legally" possible.
137. In this connexion mention should be made of the Treaty of Mutual Assistance of 1923 which, though not containing a positive definition of aggression, stipulates negatively that "a war shall not be considered a war of aggression if waged by a State which is party to a dispute and has accepted the unanimous recommendation of the Council, the verdict of the Permanent Court of International Justice, or an arbitral award against a Contracting Party, which has not accepted it, provided, however, that the first State does not intend to violate the political independence or the territorial integrity of the High Contracting Party".
II. THE LEAGUE OF NATIONS' PERMANENT ADVISORY COMMISSION
138. The problem of the notion of aggression became the subject of a special study by the League of Nations' Permanent Advisory Commission. The Opinion of the Permanent Advisory Commission regarding Assembly resolutions XIV and XV is of interest. It reads as follows:
"The Belgian, Brazilian, French, and Swedish delegations express the following opinions in regard to:
"(d) How can the mutual assistance provided for by a treaty of guarantee be automatically brought into play?
"It is not enough merely to repeat the familiar formula, unprovoked aggression; for under the condition of modern warfare it would seem impossible to decide, even in theory, what constitutes a case of aggression.
"Aggression should be defined in the treaty;
"The signs should be visible, so that the treaty may be applicable;
"Lastly, the signs should be universally recognized, in order to make the operation of the treaty certain.
"1. Definition of Aggression
"Hitherto, aggression could be defined as mobilization or the violation of a frontier. This double test has lost its value.
"Mobilization, which consisted, until quite recently, of a few comparatively simple operations (calling up of reserves, purchases or requisitions and establishment of war industries, after the calling up of the men), has become infinitely more complicated and more difficult both to discover at its origin and to follow in its development. In future, mobilisation will apply not merely to the army but to the whole country before the outbreak of hostilities (collection of stocks of raw materials and munitions of war, industrial mobilization, establishment or increased output of industries). All these measures which give evidence of an intention to go to war may lead to discussions and conflicting interpretations, thus securing decisive advantages to the aggressor unless action be taken.
"The violation of a frontier by 'armed forces' will not necessarily be, in future, such an obvious act of violence as it has hitherto been. The expression 'armed forces' has now become somewhat indefinite, as certain States possess police forces and irregular troops which may or may not be legally constituted, but which have a definite military value. Frontiers themselves are not easy to define, since the treaties of 1919-1920 have created neutral zones, since political and military frontiers no longer necessarily coincide, and since air forces take no account of either.
"Moreover, the passage of the frontier by the troops of another country does not always mean that the latter country is the aggressor. Particularly in the case of small States, the object of such action may be to establish an initial position which shall be as advantageous as possible for the defending country, and to do so before the adversary has had time to mass his superior forces. A military offensive of as rapid a character as possible may therefore be a means, and perhaps the only means, whereby the weaker party can defend himself against the stronger. It is also conceivable that a small nation might be compelled to make use of its air forces in order to forestall the superior forces of the enemy and take what advantage was possible from such action.
"Finally, the hostilities between two naval Powers generally begin on sea by the capture of merchant vessels, or other acts of violence--very possibly on the high seas outside territorial waters. The same applies to air frontiers of States.
"These few considerations illustrate some of the difficulties inherent in any attempt to define the expression "cases of aggression" and raise doubt as to the possibility of accurately defining this expression a priori in a treaty, from the military point of view, especially as the question is often invested with a political character.
"2. Signs which Betoken an Impending Aggression
"But, even supposing that we have defined the circumstances which constitute aggression, the existence of a case of aggression must be definitely established. It may be taken that the signs would appear in the following order:
"1. Organization on paper of industrial mobilization.
"2. Actual organization of industrial mobilization.
"3. Collection of stocks of raw materials.
"4. Setting-on-foot of war industries.
"5. Preparation for military mobilization.
"6. Actual military mobilization.
"Numbers 1 and 5 (and to some extent number 2), which are in all cases difficult to recognize, may, in those countries which are not subject under the Peace Treaties to any obligation to disarm, represent precautions which every Government is entitled to take.
"Number 3 may be justified by economic reasons, such as profiting by an advantageous market or collecting stocks in order to guard against the possible closing of certain channels of supply owing to strikes, etc.
"Number 4 (setting-on-foot of war industries) is the first which may be definitely taken as showing an intention to commit aggression; it will, however, be easy to conceal this measure for a long period in countries which are under no military supervision.
"When numbers 6 and 7 are known to have taken place, it is too late.
3. Universal Recognition of Impending Aggression
"In the absence of any indisputable test, Governments can only judge by an impression based upon the most various factors, such as:
"The political attitude of the possible aggressor;
"The attitude of his Press and population;
"His policy on the international market, etc.
"Now, the impression thus produced will not be the same on the nations which are directly threatened as upon the guarantor nations; thus, as every Government has its own individual standpoint, no simultaneous and universal agreement as to the imminence of an attack is possible.
"It will be seen, in short, that the first act of war will procede the outbreak of military hostilities by several months or even more, and that there is no reason to expect any unanimous agreement as to the signs which betoken the imminence of danger. There is therefore a risk that the mutual assistance would only come into action in reply to military mobilization or hostilities on the part of the aggressor. Such assistance, not being preventive, will always come too late, and will therefore only allow a slight reduction in the individual provision which must be made by each nation for the organization of its own defence.
"Despite these points, in which 'collective guarantees' are inferior to 'national guarantees' we must not abandon the former class, nor must we give up our attempts to strengthen them. They involve, however, important results as regards the latter class, and these results we must now enumerate...." |21|
III. THE LEAGUE OF NATIONS SPECIAL COMMITTEE OF THE TEMPORARY MIXED COMMISSION
139. Another document dealing with the question of the definition of aggression to be mentioned in this connexion is the commentary of the definition of a case of aggression drawn up by a Special Committee of the League of Nations Temporary Mixed Commission. This document reads as follows:
"1. It would be theoretically desirable to set down in writting, if it could be done, an exact definition of what constitutes an act of aggression. If such a definition could be drawn up, it would then merely remain for the Council to decide in each given case whether an act of aggression within the meaning of this definition had been committed.
" It appears, however, to be exceedingly difficult to draw up any such definition. In the words of the Permanent Advisory Commission, under the conditions of modern warfare, it would seem impossible to decide even in theory what constitutes an act of aggression.
"2. Hitherto, according to the opinion expressed by certain members of the Permanent Advisory Commision, in the report drawn up by that Commission, aggression could be defined as mobilization or the violation of a frontier. This double test has lost its value.
"It is further stated that:
"'Mobilization, which consisted, until quite recently, of a few comparatively simple operations (calling up of reserves, purchases or requisitions and establishment of war industries, after the calling-up of the men), has become infinitely more complicated and more difficult both to discover as its origin and to follow in its development. In future, mobilization will apply not merely to the army but to the whole country before the outbreak of hostilities (collection of stocks of raw materials and munitions of war, industrial mobilization, establishment or increased output of industries). All these measures, which give evidence of an intention to go to war, may lead to discussions and to conflicting interpretations, thus securing decisive advantages to the aggressor unless action be taken'.
"3. Similarly, in the view of the Permanent Advisory Commission, the text of the violation of a frontier has also lost its value.
"The report states:
"'The violation of a frontier by "armed forces" will not necessarily be, in future such an obvious act of violence as it has hitherto been.
"'...The passage of the frontier by the troops of another country does not always mean that the latter country is the aggressor. Particularly in the case of small States, the object of such action may be to establish an initial position which shall be as advantageous as possible for the defending country, and to do so before the adversary has had time to mass his superior forces. A military offensive of as rapid a character as possible may therefore be a means, and perhaps the only means, whereby the weaker party can defend itself against the stronger. It is also conceivable that a small nation might be compelled to make use of its air forces in order to forestall the superior forces of the enemy and take what advantage was possible from such action.
"'Finally, the hostilities between two naval Powers generally begin on sea by the capture of merchant vessels or other acts of violence - very possibly on the high seas outside territorial waters. The same applies to air operations which may take place without any violation of the air frontiers of States.'
"Nevertheless it is still conceivable that in many cases the invasion of a territory constitutes an act of aggression and, in any case, it is important to determine which State had violated the frontier.
"If the troops of one Power invade the territory of another, this fact in itself constitutes a presumption that the first Power has committed a wrongful act of aggression.
"But, apart from the considerations already given, this is not entirely conclusive. When armies have been practically in contact on the frontier which divides their respective countries, it may be exceedingly difficult to obtain conclusive evidence as to which of them first crossed the frontier; and, once the frontier is crossed and hostilities have begun, it may not be possible to know from the geographical position of the troops alone which State was guilty.
"4. In order to avoid such a case arising, the Council might desire, in certain cases where such a course could be followed without disadvantage to either party, either before hostilities began or even after they had begun, to invite both parties to withdraw their troops a certain distance behind a given line. It might be that such a request could be made by the Council with the intimation that, if either party refused to accede to it, such refusal would be considered as an element in deciding which was the aggressor.
"5. There may, of course, be other cases in which some action of one of the parties will simplify the matter by proving it clearly to be the aggressor. If, for example, one Power carried out a large-scale attack upon the territory of the other, that would be conclusive. Similarly, a surprise attack by poison gas, executed from the air on the territory of the other party, would be decisive evidence.
"6. It may, however, be accepted that no satisfactory definition of what constitutes an act of aggression could be drawn up. But even supposing that such a definition were possible, there would still be difficulty in determining when an act of aggression within the meaning of the definition has actually taken place. In the view of the Permanent Advisory Commission, the signs of an intention of aggression would appear in the following order:
"(1) Organization on paper of industrial mobilization.
"(2) Actual organization of industrial mobilization.
"(3) Collection of stocks of raw materials.
"(4) Setting on foot of war industries.
"(5) Preparation for military mobilization.
"(6) Actual military mobilization.
"Numbers (1) and (5) (and to some extent Number 2), which are in all cases difficult to recognize, may, in those countries which are not subject under the Peace Treaties to any obligation to disarm, represent precaution which every Government is entitled to take.
"Number (3) may be justified by economic reasons, such as profiting by advantageous markets or collecting stocks in order to guard against the possible closing of certain channels of supply owing to strikes, etc.
"Number (4) (setting on foot of war industries) is the first which may be definitely taken as showing an intention to commit aggression; it will, however, be easy to conceal this measure for a long period in countries which are under no military supervision.
"When Numbers (6) and (7) are known to have taken place, it is too late.
"In the absence of any indisputable test, Governments can only judge by an impression based upon the most various factors, such as:
"The political attitude of the possible aggressor;
"The attitude of his press and population;
"His policy on the international market, etc.
"7. One of the conclusions which follows from the above contentions set forth in the report of the Permanent Advisory Commission is that, quite apart from the material sides of the aggressive intention. the real act of aggression may lie not so much in orders given to its troops by one of the parties as in the attitude which it adopts in the negotiations concerning the subjects of dispute. Indeed, it might be that the real aggression lies in the political policy pursued by one of the parties towards the other. For this reason it might perhaps appear to the Council that the most appropriate measures that could be taken would be to invite the two parties either to abstain from hostilities or to cease the hostilities they have begun, and to submit their whole dispute to the recommendation of the Council or the decision of the Permanent Court of International Justice, and to undertake to accept and execute whatever recommendation or decision either of these bodies might give. Such an invitation might again be accompanied by an intimation that the party which refused would be considered to be the aggressor.
"8. It is clear, therefore, that no simple definition of aggression can be drawn up, and that no simple test of when an act of aggression has actually taken place can be devised. It is therefore clearly necessary to leave the Council complete discretion in the matter, merely indicating that the various factors mentioned above may provide the elements of a just decision.
"These factors may be summarized as follows:
"(a) Actual industrial and economic mobilization carried out by a State either in its own territory or by persons or societies on foreign territory.
"(b) Secret military mobilization by the formation and employment of irregular troops or by a declaration of a state of danger of war which would serve as a pretext for commencing hostilities.
"(c) Air, chemical or naval attack carried out by one party against another.
"(d) The presence of the armed forces of one party in the territory of another.
"(e) Refusal of either of the parties to withdraw their armed forces behind a line or lines indicated by the Council.
"(f) A definitely aggressive policy by one of the parties towards the other, and the consequent refusal of that party to submit the subject in dispute to the recommendation of the Council or to the decision of the Permanent Court of International Justice and to accept the recommendation or decision when given.
"9. In conclusion, it may be pointed out that in the case of a surprise attack it would be relatively easy to decide on the aggressor, but that in the general case, where aggression is preceded by a period of political tension and general mobilization, the determination of the aggressor and the moment at which aggression occurred would prove very difficult.
'"But it must be remembered that in such a case the Council, under the provisions of the Covenant, will have been engaged in efforts to avoid war and may therefore probably be in a position to form an opinion as to which of the parties is really actuated by aggressive intentions." |22|
IV. THE GENEVA PROTOCOL
140. The Treaty of Mutual Assistance did not meet with the approval of Governments - the lack of an acceptable definition of aggression was considered the chief defect of this Treaty - and therefore the question of the definition of aggressive drew general attention to the drafting of the Protocol for the Pacific Settlement of International Disputes ("Geneva Protocol"). The provision of the Geneva Protocol of interest here, is contained in Article 10 of this instrument and reads as follows:
"Every State which resorts to war in violation of the undertakings contained in the Covenant or in the present Protocol is an aggressor. Violation of the rules laid down for a demilitarized zone shall be held equivalent to resort to war.
"In the event of hostilities having broken out, any State shall be presumed to be an aggressor, unless a decision of the Council, which must be taken unanimously, shall otherwise declare:
"1. It has refused to submit the dispute to the procedure of pacific settlement provided by Articles 13 and 15 of the Covenant as amplified by the present Protocol, or to comply with a judicial sentence or arbitral award or with a unanimous recommendation of the Council, or has disregarded a unanimous report of the Council, a judicial sentence or an arbitral award recognizing that the dispute between it and the other belligerent State arises out of a matter which by international law is solely within the domestic jurisdiction of the latter State; nevertheless, in the last case the State shall only be presumed to be an aggressor if it has not pieviously submitted the question to the Council or the Assembly in accordance with Article 11 of the Covenant.
"2. If it has violated provisional measures enjoined by the Council for the period while the proceedings are in progress as contemplated by Article 7 of the present Protocol.
"Apart from the cases dealt with in paragraphs 1 and 2 of the present Article, if the Council does not at once succeed in determining the aggressor, it shall be bound to enjoin upon the belligerents an armistice, and shall fix the terms, acting, if need be, by a two-thirds majority and shall supervise its execution.
"Any belligerent which has refused to accept the armistice or has violated its terms shall be deemed an aggressor.
"The Council shall call upon the signatory States to apply forthwith against the aggressor the sanctions provided. ..."
141. As it appears on reading the above provision, its purpose is to set up, by means of certain presumptions, an automatic test for determining the existence of aggression, unless the Council, by an unanimous vote, refuted those presumptions.
V. THE YEARS 1925 TO 1932
142. The question of definition of aggression has played an important part in the discussions and drafts between the years 1925-1932. In this connexion special mention should be made of the work of the League of Nations' Committee on Arbitration and Security and in particular of the memorandum on Security Questions (Politis) as well as the memorandum on Articles 10, 11 and 16 of the Covenant (Rutgers).
VI. THE CONFERENCE OF DISARMAMENT OF 1932-1934
143. A definition of aggression adopted by several international instruments was submitted to the League of Nations' General Commission by N. Politis, Rapporteur of the Committee for Security Questions (Confer. D/C.G.108); it was based on a Russian proposal of 6 February 1932 (Confer. D/C.G.38) (it is the text of this Russian proposal which constitutes the new "definition of aggression" submitted by the Soviet Union delegation to the fifth session of the General Assembly and which is reproduced above). The text of the "Politis definition" is the following:
"The aggressor in an international conflict shall, subject to the agreements in force between the parties to the dispute, be considered to be that State which is the first to commit any of the following actions:
"(1) Declaration of war upon another State;
"(2) Invasion by its armed forces, with or without a declaration of war, of the territory of another State;
"(3) Attack by its land, naval, or air forces, with or without a declaration of war; on the territory, vessels, or aircraft of another State;
"(4) Naval blockade of the coasts or ports of another State;
"(5) Provision of support to armed bands formed in its territory which have invaded the territory of another State, or refusal, notwithstanding the request of the invaded State, to take in its own territory all the measures in its power to deprive those bands of all assistance or protection.
"No political, military, economic, or other considerations may serve as an excuse or justification for the aggression referred to in Article 1."
VII. THE TREATIES OF LONDON
144. The definition contained in the above-mentioned report of Politis to the Conference of Disarmament has been adopted by the so-called Treaties of London concluded in 1933 between the USSR and Afghanistan, Estonia, Latvia, Persia, Poland, Roumania and Turkey (3 July 1933), between the USSR and Czechoslovakia, Roumania, Turkey and Yougoslavia (4 July 1933) and between the USSR and Latvia (5 July 1933). All these treaties contain the "Politis" definition in their articles 2.
VIII. THE LONDON CONFERENCE OF 1945
145. After the Second World War, an attempt was made by the United States delegation at the London Conference of 1945 to have "aggression" defined. This delegation submitted to the Conference the following definition of aggression with a view to having a definition of this crime included into the Niirnbeig charter:
"An agressor for the purposes of this Article, is that State which is the first to commit any of the following actions:
"1. Declaration of war upon another State;
"2. Invasion by its armed forces, with or without a declaration of war, of the territory of another State;
"3. Attack by its land, naval, or air forces, with or without a declaration of war, on the territory, vessels, or aircraft of another State;
"4. Naval blockade of the coasts or ports of another State;
"5. Provision of support to armed bands formed in its territory which have invaded the territory of another State, or refusal, notwithstanding the request of the invaded State, to take in its own territory, all the measures in its power to deprive those bands of all assistance or protection.
"No political, military, economic or other considerations shall serve as an excuse or justification for such actions; but exercise of the right of legitimate self-defence, that is to say, resistance to an act of aggression, or action to assist a State which has been subjected to aggression, shall not constitute a war of aggression."
146. The United States delegation replaced the above text by a new text which did not contain the acts mentioned in paragraphs 4 and 5 of the old text. The United States proposal did not lead to any practical result.
IX. THE SAN FRANCISCO CONFERENCE
147. Some consideration was given to the problem of the definition of aggression at the San Francisco Conference in connexion with the discussion of several amendments and comments on the Dumbarton Oaks Proposals. Yet the Conference did not think it wise to comply with these proposals.
148. The report of the Rapporteur of Committee III/3 to Commission III on chapter VIII, section B, contains the following passage of interest here:
"C. Determination of acts of aggression
"A more protracted discussion developed in the Committee on the possible insertion in paragraph 2, section B, chapter VIII, of the determination of acts of aggression.
"Various amendments proposed on this subject recalled the definitions written into a number of treaties concluded before this war but did not claim to specify all cases of aggression. They proposed a list of eventualities in which intervention by the Council would be automatic. At the same time they would have left to the Council the power to determine the other cases in which it should likewise intervene.
"Although this proposition evoked considerable support, it nevertheless became clear to a majority of the Committee that a preliminary definition of aggression went beyond the possibilities of the Conference and the purpose of the Charter. The progress of the technique of modern warfare renders very difficult the definition of all cases of aggression. It may be noted that, the list of such cases being necessarily incomplete, the Council would have a tendency to consider of less importance the acts not mentioned therein; these omissions would encourage the aggressor to distort the definition or might delay action by the Council. Furthermore, in the other cases listed, automatic action by the Council might bring about a premature application of enforcement measures.
"The Committee therefore decided to adhere to the text drawn up at Dumbarton Oaks and to leave to the Council the entire decision as to what constitutes a threat to peace, a breach of the peace, or an act of aggression." |23|
C. Dogmatical part
149. Upon examining whether a definition of aggression can be achieved and, if so, whether such a definition is desirable, it appears necessary to begin with considering which applies in connexion with the determination of aggression in an international armed conflict.
150. It must be considered a fact that general international law does not contain any definition of "aggression". Nor does the Charter of the United Nations or any general treaty provide for such a definition. The same applied, in the past, to the Covenant of the League of Nations. Only a small number of treaties, entered into by a limited number of States - this applies to the Treaties of London - define the term "aggression". In the relations between the signatories of these treaties the concept of aggression as drawn up by these instruments constitutes the law.
151. On the other hand, it must also be considered a fact that, according to international practice, the determination of aggression either by governments or by international organs, has never been considered an arbitrary function of the latter. If we study the international practice to this effect, we are led to the conclusion that whenever governments are called upon to decide on the existence or non-existence of "aggression under international law" they base their judgment on criteria derived from the "natural", so to speak, notion of aggression, which, inherent in any mind, is based on "sentiment" (impression) and not on legal constructions. It is the same natural notion which, mutatis mutandis, constitutes the basis of the concept of aggression in domestic law.
152. If one wants to shape the above situation into a legal principle, one could formulate it as follows: In the absence of a positive definition of aggression provided for by an international instrument and applicable to the concrete, this case, international law, for the purpose of determining the "aggressor" in an armed conflict, is assumed to refer to the criteria contained in the "natural" notion of aggression.
II. ANALYSIS OF THE NOTION OF AGGRESSION AS APPLIED IN INTERNATIONAL PRACTICE
153. The (natural) notion of aggression, as applied by governments in international practice, is composed of both ob ective and subjective criteria. While the objective criteria consist of the fact that a State committed, the first, an act of violence - even if this act of violence be an "indirect" one (see below) - the subjective criterium consists of the fact that the violence committed must be due to aggressive intention.
(1) As to the objective criteria of the notion of aggression the following is to be said:
(a) Although there is no divergence of opinion as to the fact that aggression presupposes some kind of violence - even if this violence be an "indirect" act - it seems impossible to decide a priori which kind of violence may constitute aggression.
Acts of violence which in State practice have been considered as constituting "aggression under international law" are: the invasion by armed forces of the territory of another State, the attack by armed forces of the territory, the vessels and aircrafts of another State, the blockade of the coasts of a State, etc.
A particular case of aggression is provided for by the definition of aggression submitted to the fifth session of the General Assembly by the Soviet Union delegation which, in case of the landing of the land, sea and air forces of a State within the frontiers of another State or conducting said forces across such frontiers with the permission of this latter State, considers "the violation of the conditions of such permission" particularly as regards the length of the stay of the foreign troops or the extent of the area in which they may stay, as a case of "aggression".
However, not only violence committed by a State directly may constitute "aggression under international law", but also the complicity of a State in acts of violence committed by their parties - private individuals or States (indirect or disguised violence).
A very illustrative example of this case of aggression is given in the "Politis" definition of aggression which has been adopted in the Treaties of London and which enumerates among the acts constituting aggression: the support given to armed bands invading the territory of another State. In a note to the above text it is said in the report of the Committee on Security Questions:
"The Committee, of course, did not wish to regard as an act of aggression any incursion into the territory of a State by armed bands setting out from the territory of another country. In such a case, aggression could only be the outcome of complicity by the State in furnishing its support to the armed bands or in failing to take the measures in its power to deprive them of help and protection.
As regards both direct and indirect aggression, it cannot be said in advance what degree of violence or complicity must exist in order that one may consider itself in the presence of "aggression under international law". An answer to this question can only be given in each concrete case in conjunction with all constitutive elements of the concept of aggression.
(b) The second objective criteria of the notion of aggression as applied in international law consists in the fact that the State to be considered as responsible must be the first to act. This element, which encounters in all the definitions of aggression, is logically inherent in any notion of aggression. Aggression is presumably: acting as first.
(2) The mere fact that a State acted as first does not, per se, constitute "aggression" as long as its behaviour was not due to: aggressive intention (subjective element of the concept of aggression).
That the animus aggressionis is a constitutive element of the concept of aggression needs no demonstration. It follows from the very essence of the notion of aggression as such.
(3) As results from the above analysis of the (natural) notion of aggression as applied in international practice, this latter concept consists of both objective and subjective criteria which, only if taken altogether, make it possible to decide which State, in an international armed conflict, is to be considered as "aggressor under international law". The (natural) notion of aggression is a concept per se, which is inherent to any human mind and which, as a primary notion, is not susceptible of definition. Consequently, whether the behaviour of a State is to be considered as an "aggression under international law" has to be decided not on the basis of specific criteria adopted a priori but on the basis of the above notion which, to sum it up, is rooted in the "feeling" of the Governments concerned.
154. It may be added that, since this general feeling of what constitutes agression is not invariable, the "natural" notion of aggression is not invariable either. Nor all the periods of the international relations must necessarily have the same notion of aggression.
155. Finally, it is to be said that the (natural) notion of aggression, as a concept having its roots in the "feeling" of governments, will not always be interpreted by these latter in the same way, which amounts to saying that the objective criterium of the "notion of aggression" will, in last analysis, depend on the individual opinion of each Government concerned. It is in the same order of ideas that the League of Nations' Permanent Advisory Commission (opinion of the Belgian, Brazilian, French and Swedish delegations) expressed the following view with regard to "impression" as criterium for the determination of aggression: "The impression thus produced will not be the same on the nations which are directly threatened as upon the guarantor nations; thus, as every government has its own individual standpoint, no simultaneous and universal agreement as to the imminence of an attack is possible."
III. THE ATTEMPT TO DEFINE AGGRESSION BY POSITIVE RULES AND THE INTRINSIC VIRTUE OF "LEGAL" DEFINITIONS
156. As stated in the historical survey, several attempts have been made within the League of Nations to define aggression by positive rules. Besides, the "Politis" definition has been adopted in a number of international treaties (Treaties of London).
157. The question rises now as to the intrinsic virtue of such "legal" definitions. From a twofold point of view these definitions are open to criticism.
158. Firstly: It is not possible to determine, in advance, exhaustively which behaviour of a State the "feeling" of governments in a given period of international relations will consider as "aggression under international law". While, for instance, the definitions of aggression, drawn up in connexion with the attempts made under the League of Nations to define aggression, usually confined themselves to mentioning positive State acts (invasion of a territory by the armed forces of another State, bombing by the armed forces of a State, and so forth, as constituting "aggression", the "Politis" definition introduces into the said notion a new act of aggression: the support given by a State to armed bands invading the territory of another State. Thus, the complicity of a State in violence committed by third parties is made an integral part of a legal definition of aggression.
159. It is easy to imagine other cases which, under the present conditions, governments would consider as cases of aggression. One example in this connexion may be the following: According to international law, no State is obliged to prevent its nationals from joining as volunteers, the army of a belligerent. But what about a State which would allow a very important portion of its male population to enter the territory of a belligerent State in order to serve in the army of that State as volunteers? (We do not refer to the participation of Chinese troops in the Korean war since the situation there is somewhat different). Could one say that a State which, in the above case, would allow its nationals to join a belligerent army would not be an "aggressor" according to the general feeling of our time? A definition of aggression like that adopted by the Treaties of London would for instance leave the above case of aggression uncovered.
160. Secondly: The definitions of aggression, drawn up in connexion with the work of the League of Nations, do not, in principle, take into consideration the subjective element of the notion of aggression, i.e., the "aggressive intention", which, viewed from international practice, appears defective. The same criticism applies to the definition of aggression submitted by the Soviet delegation to the fifth session of the General Assembly of the United Nations. This latter text, stating that in an international conflict, that State shall be declared the attacker which first commits one of the following acts:
(a) Declaration of war against another State.
(b) Invasion by its armed forces, even without a declaration of war of the territory of another State.
(c) Bombardment by its land, sea or air forces of the territory of another State or the carrying out of deliberate attack on the ships or aircraft of the latter;
(d) The landing or leading of its land, sea or air forces inside the boundaries of another State without the permission of the Government of the latter, or the violation of the conditions of such permission particularly as regards the length of their stay or the extent of the area of the coasts or ports of another State.
Continues by saying that attacks such as these referred to above "may not be justified by any argument of a political, strategical or economic nature, etc."
161. The above clause forbidding to take into consideration, for instance, strategical arguments, applied in concrete cases of armed conflicts, may result in characterizing as aggressor a State which, according to the "natural" notion of aggression, would never be considered as such. Thus, to give an example, if a State, animated by aggressive intention, is on the point of launching an attack on another State and if the State so threatened attacks first, in order to be in a better position to defend itself against the expected aggression, the State acting first would be considered, according to the general feeling, as acting in defence and not as an aggressor, since its initiative was not due to "aggressive intention".
162. It is in the same order of ideas that the statement of the League of Nations' Permanent Advisory Commission (Opinion of the Belgian, Brazilian, French and Swedish delegations) says in connexion with the invasion of a territory as a test of aggression:
"Moreover, the passage of the frontier by the troops of another country does not always mean that the latter country is the aggressor. Particularly in the case of small States, the object of such action may be to establish an initial position which shall be as advantageous as possible for the defending country, and to do so before the adversary has had time to mass his superior forces. A military offensive of as rapid a character as possible may therefore be a means, and perhaps the only means, whereby the weaker party can defend itself against the stronger. It is also conceivable that a small nation might be compelled to make use of its air forces in order to forestall the superior forces of the enemy and take what advantage was possible from such action."
163. Besides, it is not conceivable to look in every armed conflict for an "aggressor". There may be armed conflicts, where, according to the "feeling" of governments, none of the engaged parties can be considered as "aggressor". In a case when, through a series of misunderstandings, two States are finally driven into an armed conflict, there is no aggressor, unless it is demonstrated that one of the States concerned had aggressive intention while the other State was acting in defence.
164. Besides, if both States concerned pursue an armed conflict in order to solve their differences in this way, none of them could be considered as the aggressor since aggression, according to the sense generally accepted, pre-supposes that one of the parties involved, as subject of attack, must act in defence.
D. Conclusion as to the possibility and desirability of a legal definition of aggression
165. Bearing in mind the preceding rerniarks, ou conclusion is that the notion of aggression is a notion per se, a primary notion, which, by its very essence, is not susceptible of definition. To the same practical result came both the League of Nations' Permanent Advisory Commission (opinion of the Belgian, Brazilian, French and Swedish delegations) which stated that "under the conditions of modern warfare, ft would seem impossible to decide, even in theory, what constitutes an act of aggression," and the League of Nations' Special Committee of the Temporary Mixed Commission which expressed the following view : "It is clear ... that no simple definition of aggression can be drawn up, and that no simple test of when an act of aggression has actually taken place can be devised."
166. A "legal" definition of aggression would be an artificial construction which, applied to concrete cases, could easily lead to conclusions which might be contrary to the "natural" notion of aggression, which is the test adopted by international law for the determination of aggression.
167. Firstly it is, both theoretically and physically, impossible to determine, a priori, which behaviour of a State may be considered as "aggression under international law".
168. Secondly it is inadmissible to judge on the existence or non-existence of "aggression" on the basis of the concrete behaviour of a State only, without taking simultaneously into consideration the objective element of the concept of aggression: the "aggressive intention".
(b) But even if the definition of aggression were theoretically possible, it would not be desirable, for practical reasons, to draw up such a definition.
169. In complicated cases - and it is only in such cases that a definition of aggression would have any practical value at all - the difficulties of determining the aggressor would be so great that the existence of a definition of aggression would appear a rather unimportant, in some cases even a disturbing, factor. Thus, for instance, in the case of an armed conflict between States or among a group of States, preceded by a period of misunderstandings, political tension, general armament, mobilization, etc., the fact that there is a definition of aggression enumerating acts to be considered as test of aggression, would scarcely have any practical importance.
170. It is in the same order of ideas that the League of Nations' Permanent Advisory Commission (opinion of the Belgian, Brazilian, French and Swedish delegations) made the following statement with regard to the virtue of tests of aggression: "In the absence of any indisputable test, governments can only judge by an impression upon the most various factors, such as the political attitude of the possible aggressor, his propaganda, the attitude of his press and population, and his policy on the international market, etc."
[Source: Yearbook of the International Law Commission: 1951, vol. II. United Nations, A/CN.4/SER.A/1951/Add.l, New York, 14 October 1957]
Documentation Note: For the online edition of this document, the parts of the original paper document that deal with crime of aggression have been extracted and reproduced in its entirety. The footnotes have been renumbered according to the order in which they appear in this online version.
5. Voir Documents officiels de l'Assemblée générale, cinquième session, première commission, 384e séance, p. 248, où se trouve un discours que M. Kardelj, chef de la délégation yougoslave, a fait en ce sens. [Go Back]
20. For a synthetic historical survey of the efforts made by the League of Nations to define "aggression" see Clyde Eagleton. "The attempt to define aggression", in International Conciliation, 1930, No. 264. [Go Back]
Crime of Aggression
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