The Search for World Peace
Geneva, May 24th, 1933.
LEAGUE OF NATIONS
CONFERENCE FOR THE REDUCTION AND LIMITATION OF ARMAMENTS
Report of the Committee on Security Questions
(Rapporteur: M.N. Politis)
The Committee originally set up by the Political Commission on March 10th, 1933, for the examination of the Soviet delegation's proposal on the definition of the aggressor (Document Conf. D/C.G. 38) and of the Belgian delegation's proposal on the establishment of the fact of aggression (Document Conf.D./C.P./12 was in addition requested by the General Commission on April 28th, 1933, to deal also with Article 6 of the Draft Convention submitted by the United Kingdom.
The Committee was presided over by M. N. Politis, and consisted of the following countries:
Belgium, Cuba, Denmark, Estonia, Finland, France, Germany, Hungary, Italy, Poland, Spain, Switzerland, Turkey, United Kingdom, U.S.S.R., United States of America, Yugoslavia.
As regards the first two subjects, the Committee has drawn up the attached Acts, the structure of which is explained in the present report (Parts I and II).
As regards the third subject, certain delegations (Germany, Hungary, Italy) confined themselves to following the Committee's work as observers. It was understood, moreover, that the draft European Pact prepared by the Committee does not bind the Governments in any way and is submitted to the General Commission as a basis of discussion.
The texts prepared regarding the establishment of the fact of aggression (Part II)and the European Security Pact (Part III) are intended to constitute Annexes X and Y referred to in Article 6 of the British draft Convention.
The Committee accordingly drew up a new text which would constitute Article 6 of the said draft and would refer to these annexes, explaining their connection with the General Convention for the Reduction and Limitation of Armaments (Part IV).
Definition of Aggressor.
1. The present Act (Annex I), conceived on the universal plane, aims at determining acts of aggression in a definite, practical and direct manner.
2. In the opinion of its supporters this method would constitute the foundation of any system of security envisaged by the Disarmament Conference by putting an end to doubts and controversies on the point whether States which resort to force have committed an aggression or not. States would thus be definitely informed in advance of what they could not do without being regarded as aggressors. Even in the absence of any intervention by an international organ, such a determination would be of some value. 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.
3. In the second place, in the event of international bodies being called upon to determine in fact the aggressor in a 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 excuse the aggressor for various political reasons without appearing to break the rule to be applied.
4. The Committee has drawn up a draft conceived on the universal plane. Certain members of the Committee, nevertheless, expressed doubts as to the possibility of achieving results on this plane, and accordingly some of them considered that before adopting definitions it would be well to know on what framework or to what States they would apply.
5. If the proposed definition was not universally accepted it would of course be compulsory only for the States who became parties to the present Act, and then only in their relations with one another. In such a case the international bodies would have to apply it to this extent only.
6. It should further be noted that the question of the definition of the aggressor and that of the sanctions to be taken against the aggressor, while of course closely connected, are nevertheless separate questions. The strictness of the definition of the aggressor does not necessarily lead to the automatic application of sanctions.
7. Furthermore, criticisms of principle were directed against the method itself.
8. Certain members of the Committee (Germany, Hungary, Italy, Spain, Switzerland, United Kingdom) showed a preference for an elastic definition of aggression, which would permit the international authorities to take all the circumstances into account, thus obviating the drawbacks of the application of rigid definitions which in certain cases might not be adaptable to the actual facts. What would be essential according to this view would be for the parties to the conflict to agree to submit the judgment of the facts in cases of alleged aggression to an international body.
9. As regards cases in which the international body might have doubts, despite the definition given, two proposals were made. According to the first, the international body would have to resort to arbitration in order to settle the doubt as to the determination of the aggressor. According to the second the aggressor should be regarded as being the State which refused to cease hostilities and to withdraw its troops from the territory in which they should not be situated. Nevertheless, the majority of the Committee preferred to keep to the original proposals.
10. Article 1 enumerates limitatively five facts, each of which, by itself, would constitute an act of aggression. But, first of all, three points should be mentioned, two of which are clear from the actual text of Article 1.
11. (a) A reservation is made in regard to agreements in force between the parties.
12. This reservation has a double purpose. In the first place it aims at safeguarding the special provisions in existing agreements, which, in certain hypotheses, permit recourse to one of the acts considered in the present Act as acts of aggression. The chief example of such agreements is the Covenant of the League of Nations. Thus, in the case of States Members of the League of Nations, the measures prescribed by the Covenant which might be taken by States Members against other States would not constitute acts of aggression, even if they were covered by the definition of the five facts enumerated.
13. In the second place, this reservation aims at the possibility of reconciling the present Act with the Convention of September 26th, 1931, to Improve the Means of Preventing War. This reconciliation gives satisfaction to some extent to those who might fear that the system laid down in the present Act is too rigid.
14. As regards the said Convention, mention must be made of two opposing observations submitted to the Committee but not accepted by the latter.
15. On the one hand the fear was expressed that the provisions of Articles 2 and 3 of this Convention, which contemplate the possibility of armed forces having entered the territory of a State in circumstances not giving rise to a state of war, might be rendered more difficult of application by the fact that the Act defining the aggressor regards invasion as an act of aggression.
16. The same apprehension was expressed in a more general manner as regards the application in similar cases of Article 11 of the Covenant of the League of Nations.
17. On the other hand it was pointed out that the application of the said Convention should be subordinated to the Act defining aggression for States who were at the same time parties to that Act and parties to the above-mentioned Convention, so as not to weaken in any way the scope of that Act.
18. (b) It is clearly specified that the State which will be recognised as the aggressor is the first State which commits one of the acts of aggression. Thus, if the armed forces of one State invade the territory of another State, the latter State may declare war on the invading State or invade its territory in turn, without itself being regarded as an aggressor. The chronological order of the facts is decisive here.
19. (c) The question was raised before the Committee whether, if a State committed against another State an act constituting an aggression according to the definitions of Article 1, a third State might commit an act of the same nature against the first State without itself being regarded as an aggressor.
20. It appeared to the Committee that in view of the fact that the Act regarding the definition of the aggressor was on the lines of the Pact of Paris, it would be sufficient if reference were made in this respect to the principle laid down in the preamble of the said Pact, viz: "that any signatory Power which shall hereafter seek to promote its national interests by resort to war should be denied the benefits furnished by this Treaty."
Enumeration of the five facts constitutiong aggression.
First Fact. - Declaration of War.
21. The Committee considered the question whether it was advisable to take the declaration of war as a criterion of aggression, or whether the acts of aggression enumerated below would not be sufficient to define it.
22. It appeared to it that the declaration of war should not be eliminated from the list of criteria of aggression. On the one hand, it is true, a declaration of war can occur before any act of hostility, and in this case it is the prelude to the hostilities which the declaring State will initiate or which the State on whom war is declared will be authorised to initiate. On the other hand, the Pact of Paris condemns resort to war and, as has been said, the Act defining the aggressor is regarded as an extension of the Pact of Paris.
Second fact. - Invasion of the territory of a State, even without declaration of war, by the armed forces of another State.
23. The act of invasion consitutes essentially an act of aggression, apart from any declaration of war.
By territory is here meant territory over which a State actually exercises authority.
Third fact. - Attack by land, naval or air forces of the territory of another State, of its vessels or of its aircraft.
24. This hypothesis is distinct from the previous one. The territory of the State attacked is not entered by armed forces but is subjected to artillery or rifle fire, air bombardment, etc.
25. As regards the vessels or aircraft of another State, no distinction has been made according to whether these vessels or aircraft belong to the armed forces of the State or are of a non-military character belonging either to the State or its nationals.
Fourth fact. - Establishment of a naval blockade of the coasts or ports or another State.
26. In spite of the objections raised by certain members to the mention of this case, the Committee considered that, while a naval blockade did not necessarily lead to war, it was nevertheless an act applying material force in a limited but real manner against another State. Only the weakness of the State against which a naval blockade is established can deter it from retaliating by acts of war. In certain cases, this weakness might also induce it to submit to a military invasion (see previous heading), which undoubtedly constitutes the most definite act of aggression.
Fifth fact. - Support given to armed bands which have invaded the territory of another State.
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. In certain cases (character of frontier districts, scarcity of population, etc.) the State may not be in a position to prevent or put a stop to the activities of these bands. In such a case it would not be regarded as responsible, provided it had taken the measures which were in its power, to put down the activities of the armed bands. In each particular case, it will be necessary to determine in practice what these measures are.
28. Article 2.
The purpose of this article is to specify that acts of aggression, as defined in Article 1, cannot find excuse or justification in considerations of any kind whatever. In other words, these acts can only be justified by a State in the single hypothesis of that State having first been the victim of acts of this kind. Certain members made reservations regarding this article owing to its absolute character.
29. A special protocol (Annex II) has been drawn up which constitutes an annex to Article 2.
30. This Protocol, which forms an integral part of the act, simply aims at illustrating the scope of Article 2. It enumerates the principal cases in which States might have thought themselves authorised to resort to measures of force against another State under international law as it existed previously to the Pact of Paris and to the Covenant of the League of Nations. But it is evident that this enumeration cannot have the effect of in any way restricting the scope of the general formula of Article 2.
31. Furthermore, the Protocol takes care to specify that breaches of international law which would not justify the use against the State committing them of the measures of force defined as acts of aggression and enumerated in Article 1, cannot be legitimated by the Protocol. A State which complains of violations of international law will be entitled, in order to redress the wrongs which it claims to have suffered, to have recourse to procedures of pacific settlement and, if necessary, it may employ means of pressure, such as the breaking off of diplomatic, economic and other relations, which do not constitute measures of force.
32. The question of provocation was raised in the Committee. In this connection an explanation is called for. "Provocation" is either one of the acts of aggression defined in Article 1; in such case the State which has been the victim of such an act can obviously retaliate by acts of a similar nature and no difficulty arises. Or "provocation" consists in a breach of international law or in the unfriendly attitude of Governments or public opinion without the commission of an act of aggression. In such case the provocation cannot be regarded as an excuse.
33. Certain reservations were made with regard to the drafting of this Protocol.
34. Article 3.
There were no comments on this article. In any case it will be for the General Commission to decide whether the present Act will have the same period of validity as the Convention of which it will form part.
ESTABLISHMENT OF THE FACT OF AGGRESSION.
35. The Committe unanimously adopted, subject to certain minor modifications, the Belgian delegation's draft regarding the creation of commissions for establishing the facts in the case of aggression or threatened aggression.
36. The U.S.S.R. delegation, however, declared that it would only be able to declare its views on this Act when the problem of the definition of the aggressor had been settled.
37. Three fundamental ideas dominate the draft.
38. 1) In the case of a crisis (whether a frontier has already been violated or whether a State feels it is under the imminent threat of aggression), it is highly desirable that there should be an impartial and immediate investigation of the facts likely to throw a light on the situation. Such investigations may be extremely valuable in guiding not only the international bodies which would have to give an opinion on the responsibilities involved in the conflict, but also public opinion, whose judgment can in such cases be decisive.
39. 2) To achieve their purpose investigations should be made forthwith without any formalities intervening to delay the operation of the system. It is therefore essential that the moment the incident occurs the commission for establishing the facts should be already in existence, or could be constituted immediately to carry out its mission without delay.
40. 3) Care should be taken to eliminate the chief objection which might be encountered by the creation of commissions of this kind by studiously avoiding investing them with any powers which could be regarded as directly or indirectly of an inquisitorial nature.
41. The Commissions referred to are in no way instruments manipulated from outside or directed either by the League of Nations or any other international body. They are merely instruments put at the disposal of the Governments concerned. The latter are the sole judges as to whether they require to make use of their services and have the sole power of deciding what should be submitted to their investigations.
42. It should be pointed out in this connection that the commissions in question have no other duties but to establish the facts and they have no power whatever to express in this respect any legal opinion whatsoever.
43. The texts which the Committee submits to the General Commission are, taken as a whole, sufficiently clear for comment to be unnecessary.
44. The following few brief observations may however be made:
45. 1) The Committee has expressed no opinion as to the place which should be allotted to the Act in the general body of Decisions which will finally be adopted by the Conference. It points out that the elasticity of the system is such as to make it adaptable to the most diverse combinations; it can be inserted just as well in a general as in a regional scheme.
46. 2) Article 2 lays down the conditions under which commissions for establishing the facts will be appointed. Each Government will select five members of its commission out of a list of ten names drawn up on request every five years by an international organisation. What should this organisation be? On this point the Committee felt it better not to express a definite opinion but to leave for later decision by the Conference the choice between the future Permanent Disarmament Commission and the Council of the League of Nations.
47. One member of the Committee proposed that the Council should act for States Members of the League of Nations and the Permanent Disarmament Commission for the other States, but it seemed better to reserve the question entirely for the moment.
48. 3) Paragraph 2 of Article 2 reads: "It shall be permissible for it (each Government) to make this choice and if necessary to modify it until such time as the Commission is despatched." This
rule adds to the elasticity of the system and makes it more practical. In adopting it the Committee had in mind certain conjunctures which might otherwise have raised difficulties in case a Government preferred, as the wording allows, to decide the membership of its own commission before the occurrence of any political crisis. It may happen that at the last moment one of the persons selected by it is unavailable owing to absence, sickness etc., or that as a result of his nationality or changes in international relations he no longer appears to that Government to offer the guarantees of impartiality and confidence which had led to his appointment. It seemed advisable to take account of these various possibilities and to allow the Government concerned to modify the membership of its commission. The option thus accorded lapses, of course, as soon as the Government applies to the chairman of the commission for the intervention of the latter.
49. 4) Some members of the Committee questioned whether it would not be possible to extend the powers of commissions for establishing the facts and to provide for the possibility of the Permanent Disarmament Commission resorting to them in cases where it had to make local investigations.
50. This suggestion however was opposed by other members, and the Committee agreed to recognise that the question could not for the moment be examined.
51. Certain delegations reserved the right to raise this question when the chapter relating to supervision in the United Kingdom Draft Convention is discussed.
The continuation of the report will be distributed in Conf. D./C.G./108(a).
Draft Act relating to the definition of the aggressor.
The States ..........
Deeming it necessary in the interest of the general security, to define aggression as specifically as possible in order to obviate any pretext whereby it might be justified;
And noting that all States have an equal right to independence, security, the defence of their territory and the free development of their institutions;
And desirous, in the interest of the general peace, to ensure to all peoples the inviolability of their territory;
And judging it expedient to establish the rules that are to be followed by the international bodies responsible for determining the aggressor:
Have agreed upon the following provisions:
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.
The present Act shall form an integral part of the General Convention for the Reduction and Limitation of Armaments.
Draft Protocol annexed to Article 2 of the Act relating to the Definition of the Aggressor.
The H.C.P. signatories of the act relating to the definition of the aggressor,
desiring, subject to the express reservation that the absolute validity of the rule laid down in Article 2 of that act shall be in no way restricted, to furnish certain indications for the guidance of the international bodies that may be called upon to determine the aggressor,
declare that no act of aggression within the meaning of Article 1 of that act 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, counterrevolutions 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 or economic 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 1.
The H.C.P. further agree to recognise that the present Protocol can never legitimate any violations of international law that may be implied in the circumstances comprised in the above list.
Act relating to the establishment of facts constituting aggression.
There shall be set up at the seat of the Government of each of the High Contracting Parties which may so request a Commission for Establishing the Facts, consisting of five members, constituted as follows:
Ever five years the Permanent Disarmament Commission (or: the Council of the League of Nations) shall establish, for each of the said High Contracting Parties, a list of 10 persons of different nationalities chosen from among the diplomatic agents and military, naval or air attaches accredited to the Government of such High Contracting Party. It shall further make provision in the interval for filling any vacancies that may occur in the personnel thus designated.
Each Government shall select from this list the five members of the Commission. It shall be permissible for it to make this choice and if necessary to modify it until such time as the Commission is despatched.
The Commission shall be presided over by those of its Members holding the highest diplomatic rank.
Any High Contracting Party which believes itself to be the victim of, or threatened with any aggression or violation of its territory shall have the option of calling upon the Commission to establish all the facts likely to throw light on the situation.
A High Contracting Party making use of this option must, immediately and by the most rapid means, notify the Secretary of the Permanent Disarmament Commission (or the Secretary-General of the League of Nations). The latter shall at once notify the High Contracting Party accused, in order that it may, should it so desire, have the facts established on its side by the Commission set up on its territory.
If the Commission considers it useful for the accomplishment of its task to verify certain facts other than those to which its attention has been drawn by the complainant Government, it shall inform the latter, which shall decide what action should be taken in this respect.
Any Commission before which a request for the establishment of facts has been laid shall, as soon as possible, make known to the Secretary of the Permanent Disarmament Commission and to the Secretary-General of the League of Nations, as also to the complainant Government, a detailed report, giving such evidence as it has been able to establish regarding the significance of the facts related therein and a statement of the conditions in which its mission has been carried out.
The Commission shall supply the Permanent Disarmament Commission and the Council of the League of Nations with any supplementary written or verbal explanations which it may be asked to give in this connection.
The decisions of the Commission for Establishing the Facts shall be taken by a majority vote, the members of the minority having the right to add to the report a note explaining the reasons for their disagreement.
The High Contracting Parties accept forthwith, on behalf of their diplomatic agents and military, naval and air attaches, any mission that may be entrusted to the latter in execution of the present Convention.
Source: League of Nations, Conference for the Reduction and Limitation of Armaments, General Commission, Conf.D./C.G./108., Geneva, May 24, 1933, pp. 1-19
Editorial Note: This is a true copy of the the above-referenced original document. This document is reproduced in Benjamin B. Ferencz's work "Defining International Aggression - The Search for World Peace", Vol. 1, as Document No. 11.
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