The Search for World Peace
REPORT OF THE SPECIAL COMMITTEE ON THE QUESTION OF DEFINING AGGRESSION |1|
Introduction I. BACKGROUND OF THE QUESTION OF DEFINING AGGRESSION
1. Under resolution 378 B (V) of 17 November 1950 the General Assembly decided to refer a proposal of the Union of Soviet Socialist Republics concerning the definition of the notion of aggression (A/C.1/608) and all the records of the First Committee dealing with that question to the International Law Commission, so that the latter might take them into consideration and formulate its conclusions as soon as possible.
2. The International Law Commission studied the question at its third session and dealt with it in Chapter III of its report on the work of that session. |2|
3. At its 341st plenary meeting on 13 November 1951, the General Assembly decided to include the report of the International Law Commission in the agenda of its sixth session. At its 342nd plenary meeting on the same date, the General Assembly referred the item to the Sixth Committee for study and report.
4. The Sixth Committee examined the question of defining aggression at its 278th to 295th meetings held from 5 January to 22 January 1952.
5. At its 368th plenary meeting on 31 January 1952 the General Assembly adopted resolution 599 (VI) the text of which is as follows:
"The General Assembly,
"Considering that, under resolution 378 B (V) of 17 November 1950, it referred the question of defining aggression, raised in the draft resolution of the Union of Soviet Socialist Republics to the International Law Commission for examination in conjunction with matters which were under consideration by that Commission,
"Considering that the International Law Commission did not in its report furnish an express definition of aggression but merely included aggression among the offences defined in its draft Code of Offences against the Peace and Security of Mankind,
"Considering that the General Assembly, on 13 November 1951, decided not to examine the draft Code at its sixth session but to include it in the provisional agenda of its seventh session,
"Considering that, although the existence of the crime of aggression may be inferred from the circumstances peculiar to each particular case, it is nevertheless possible and desirable, with a view to ensuring international peace and security and to developing international criminal law, to define aggression by reference to the elements which constitute it,
"Considering further that it would be of definite advantage if directives were formulated for the future guidance of such international bodies as may be called upon to determine the aggressor,
"1. Decides to include in the agenda of its seventh session the question of defining aggression;
"2. Instructs the Secretary-General to submit to the General Assembly at its seventh session a report in which the question of defining aggression shall be thoroughly discussed in the light of the views expressed in the Sixth Committee at the sixth session of the General Assembly and which shall duly take into account the draft resolutions and amendments submitted concerning this question;
"3. Requests States Members, when transmitting their observations on the draft Code to the Secretary-General, to give in particular their views on the problem of defining aggression."
6. In conformity with that resolution the Secretary-General submitted a report (A/2211) to the General Assembly which decided, at its 380th plenary meeting on 16 October 1952, to include in the agenda of its seventh session the following item: "Question of defining aggression: report by the Secretary-General". The question was referred to the Sixth Committee which dealt with it at its 329th to 347th meetings held between 19 November and 11 December 1952.
7. At its 408th plenary meeting on 20 December 1952. the General Assembly adopted resolution 688 (VII) which reads as follows:
"The General Assembly,
"Having regard to its resolution 599 (VI) of 31 January 1952,
"Considering that the discussion of the question defining aggression at the sixth and seventh sessions of the General Assembly and in the International Law Commission has revealed the complexity of this question and the need for a detailed study of:
"(a) The various forms of aggression,
"(b) The connexion between a definition of aggression and the maintenance of international peace and security,
"(c) The problems raised by the inclusion of a definition of aggression in the Code of Offences against the Peace and Security of Mankind and by its application within the framework of international criminal jurisdiction,
"(d) The effect of a definition of aggression on the exercise of the jurisdiction of the various organs of the United Nations,
"(e) Any other problem which might be raised by a definition of aggression,
"Considering that continued and joint efforts shall be made to formulate a generally acceptable definition of aggression, with a view to promoting international peace and security and to developing international law,
"1. Decides to establish a Special Committee of fifteen members, each representing one of the following Member States: Bolivia, Brazil, China, Dominican Republic, France, Iran, Mexico, Netherlands, Norway, Pakistan, Poland, Syria, Union of Soviet Socialist Republics, United Kingdom of Great Britain and Northern Ireland, United States of America, to meet at the Headquarters of the United Nations in 1953;
"2. Requests the said Special Committee
"(a) To submit to the General Assembly at its ninth session draft definitions of aggression or draft statements of the notion of aggression;
"(b) To study all the problems referred to above on the assumption of a definition being adopted by a resolution of the General Assembly;
"3. Requests the Secretary-General to communicate the Special Committee's report to Member States for their comments and to place the question on the provisional agenda of the ninth session of the General Assembly."
8. In conformity with this resolution the Special Committee on the question of defining aggression met at United Nations Headquarters, New York, from 24 August to 21 September 1953.
9. All the States designated under the above-mentioned resolution were represented in the Committee. The following is a list of the representatives and alternate representatives of those States:
Bolivia: Mr. Gaston Araoz;
Brazil: Mr. Gilberto Amado;
China: Mr. Shushi Hsu;
Dominican Republic: Mr. Tulio Franco y Franco, Mr. Enrique de Marchena;
France: Mr. Charles Chaumont;
Iran: Mr Fereydoun Adamiyat;
Mexico: Mr. Jorge Castañeda;
Netherlands: Mr. B. V. A. Röling;
Norway: Mr. Hans Engen, Mr. Erik Dons, Mr. Rasmus S. Gundersen;
Pakistan: Mr. A. H. B. Tyabji;
Poland: Mr. Josef Winiewicz;
Syria: Mr. Salaheddine Tarazi;
Union of Soviet Socialist Republics: Mr. P. D. Morozov;
United Kingdom of Great Britain and Northern Ireland: Mr. Francis A. Vallat;
United States of America: Mr. John Maktos.
10. At the Committee's first meeting, Mr. Morozov (Union of Soviet Socialist Republics) moved that a representative of the Central People's Government of the People's Republic of China should be invited to participate in the Committee's work. The Acting Chairman ruled that the Committee was not competent to deal with the question of the representation of China. The Acting Chairman's ruling was challenged by the representative of Poland. The Committee upheld that ruling by 7 votes to 2, with 3 abstentions.
11. The Committee elected the following officers:
Chairman: Mr. de Marchena (Dominican Republic);
Vice-Chairman: Mr. B. V. A. Röling (Netherlands);
Rapporteur: Mr. S. Tarazi (Syria).
II. ORGANIZATION OF THE WORK OF THE COMMITTEE
12. Opinion was divided at the outset as to whether the Committee should proceed by following the order in which sub-paragraphs (a) and (b) of paragraph 2 of the operative part of General Assembly resolution 688 (VII) were set out.
13. Some representatives argued that since the two sub-paragraphs were in logical order the Committee should immediately take up consideration of the specific draft definitions of aggression or of the draft statements of the notion of aggression. During that study the various problems referred to in the preamble to the above-mentioned resolution could be taken up and examined. Any problem not dealt with in the course of that study could be taken up at the end of the Committee's work. It would be better to proceed in that manner than to examine those various problems in the abstract.
14. Other representatives held that the Committee should rather begin by examining the various problems referred to in the preamble to General Assembly resolution 688 (VII) and then proceed to select the draft definitions of aggression or the draft statements of the notion of aggression. Mr. Röling (Netherlands) considered that paragraphs 2 (a) and 2 (b) of the operative part of the resolution in question were not in logical order. He thought that their order should have been reversed, since a study of each of the problems referred to in the five sub-paragraphs of the preamble should precede the elaboration of any definition or statement of the notion of aggression. Mr. Maktos (United States) pointed out that after a detailed study of those problems, and especially those enumerated in sub-paragraphs (a) and (b) of the preamble, it would be easier to determine what type of definition should be formulated, if a definition was to be prepared.
15. The Committee finally decided to begin its work with a general discussion of the question of defining aggression.
16. Opinion was also divided on the scope of the Committee's terms of reference.
17. Some representatives submitted that General Assembly resolution 688 (VII) did not compel the Committee necessarily to adopt one or more specific draft definitions of aggression or one or more draft statements of the notion of aggression, but left it entirely free to choose between several courses. Mr. Vallat (United Kingdom) considered that the Committee could confine itself to studying the various problems raised by the question of defining aggression and submit the results of its deliberations to the General Assembly. Mr. Maktos (United States) thought that the Committee might adopt a definite text of a definition or it might not; it might submit several draft definitions with comments; it might submit a collective estimate of the useful elements in the various draft resolutions, explaining why they had been considered useful and which ones had been accepted by some and rejected by others. Mr. Hsu (China) argued that the Committee should first consider whether in view of the changed world situation it was possible and desirable to define aggression; if that study led it to a negative conclusion, the Committee would be freed to decide not to submit any definition to the General Assembly.
18. Other representatives held that the question whether it was possible and desirable to define aggression had already been settled affirmatively by General Assembly resolutions 599 (VI) and 688 (VII) ; there was no need to reopen the question. Mr. Tarazi (Syria) even argued that the Committee could not deal with the matter without exceeding its terms of reference. In the view of those representatives, the essential task entrusted to the Committee under General Assembly resolution 688 (VIT) was not merely to define aggression but also to study the various problems referred to in the preamble to that resolution in relation to specific draft definitions.
19. Three plans of work were submitted in turn to the Committee: one by the representative of the Netherlands (A/AC.66/L.3), and the other two by the representatives of France, Mexico and the Netherlands (A/AC.66/L.5 and A/AC.66/L.5/Rev.1).
20. The object of the first working plan (A/AC.66/L.3), according to its sponsor, was to enable the Committee to consider first the questions listed in paragraphs (a) to (c) of the preamble to General Assembly resolution 688 (VII) and then the draft definitions of aggression submitted to it. That plan was withdrawn and replaced by another submitted jointly by France, Mexico and the Netherlands (A/AC.66/L.5). That text was in turn changed (A/AC.66/L.5/Rev.1) at the suggestion of Mr. Morozov (Union of Soviet Socialist Republics) who felt that the questions listed in General Assembly resolution 688 (VII) could be examined at the same time as the specific proposals for the definition of aggression.
21. Section I (a) 1 of the joint draft working plan (A/AC.66/L.5/Rev.1) provided that the Committee would consider "aggression in the sense of the draft Code of Offences". Some representatives felt that the provision was unnecessary and overlapped with section I (c). It was put to a vote separately and failed to obtain the necessary majority, being rejected by 6 votes to 6.
22. On the proposal of Mr. Morozov (Union of Soviet Socialist Republics), section I (a) 2 of that plan was amended to make it more clear that the Committee's basic task was to consider the notion of armed aggression.
23. Lastly, the word "final" which appeared before the words "draft definitions" in section II were deleted on the suggestion of Mr. Vallat (United Kingdom) who thought that it might introduce a concept of finality with respect to the Committee's decisions as far as the General Assembly was concerned.
24. The draft working plan (A/AC.66/L.5/Rev.1), as amended, was adopted unanimously by the Committee. Its text (A/AC.66/L.6) is as follows:
"I. Discussion of the specific draft definitions of aggression and draft statements of the notion of aggression, submitted to the Committee, with reference to the following questions, in the order as indicated:
"(a) The various forms of aggression:
"1. Aggression in the sense of the Charter,
"2. The question of the activities to be dealt with in the definition: the notion of armed aggression; the question of indirect aggression; economic measures; ideological measures, etc.,
"3. The various types of definitions of aggression (general definition, enumerative definition, mixed definition);
"(b) The connexion between a definition of aggression and the maintenance of international peace and security;
"(c) The problems raised by the inclusion of a definition of aggression in the Code of Offences against the Peace and Security of Mankind and by its application within the framework of international criminal jurisdiction;
"(d) The effect of a definition of aggression on the exercise of the jurisdiction of the various organs of the United Nations;
"(e) Any other problem which might be raised by a definition of aggression.
"II. Adoption of draft definitions of aggression or draft statements of the notion of aggression."
III. TEXTS SUBMITTED TO THE COMMITTEE
25. The following texts were submitted in turn to the Committee:
(1) A draft defintion of aggression submitted by theUnion of Soviet Socialist Republics (A/AC.66/L.2/Rev.1) ;
(2) Two working papers submitted by China (A/AC.66/L.4/Rev.3; A/AC.66/L.7/Rev.2) ;
(3) A working paper submitted by Mexico (A/AC.66/L.8);
(4) A working paper submitted by Bolivia (A/AC.66/L.9).
26. The Committee decided unanimously not to put the above-mentioned texts to a vote but to transmit them as they stood to Member States and to the General Assembly. The texts in question have therefore been annexed to this report.
27. The Committee also decided that the report should mention the principal ideas put forward during the discussions of the concrete drafts of definition of aggression submitted in the Committee, bearing in mind the problems listed in the working plan (A/AC.66/L.6). For a more detailed study of the observations of the members of the Committee, the summary records of the meetings (A/AC.66/SR.1 to A/AC.66/SR.22 inclusive) should be consulted.
The various types of definitions of aggression
I. GENERAL DEFINITION
28. Some representatives favoured a general definition, that is, a definition which instead of listing acts of aggression would contain general formulae applicable to all the cases contemplated. Responsibility for determining the scope of a formula would rest with international organs when a specific case was brought before them. It was pointed out that such a definition, which should synthesize and clarify the notion of aggression as developed in the Charter, would contribute to the evolution of international law. It would also help to avoid the risk either of amending the Charter by an interpretation or of undue rigidity of the Charter terms, which was more serious than vagueness.
29. This type of definition, however, was criticized by other members of the Committee. Mr. Winiewicz (Poland) maintained that such a definition would serve no purpose as it would not refer to the elements constituting the crime. Its vagueness would open the way for dangerous polemics on the nature of a given act; the aggressor could challenge the description given of his act and take advantage of the necessarily lengthy discussions arising out of a definition which was lacking in clarity and precision to continue his aggressive activity. Moreover, that type of definition could not help effectively to combat the many types of aggression.
30. Mr. Morozov (Union of Soviet Socialist Republics) stated that a so-called general definition of aggression was inadequate, as could be seen from the specific proposals for such a definition. For example, aggression had been defined as an international crime, which, in effect, was rather like saying that aggression was aggression. Naturally, such an approach would not help that Committee to carry out the task before it.
II. ENUMERATIVE DEFINITION
31. This type of definition was the subject of various opinions. According to Mr. Winiewicz (Poland), an enumerative definition had the advantages of setting forth the elements which constituted the crime, indicating unequivocally the type of acts to be condemned, and placing the burden of proof upon the aggressor instead of requiring the victim to prove that the action complained of was aggression. In his opinion, the Soviet draft, from this point of view, was a perfect solution of the problem.
32. In the opinion of other representatives, such a definition would be dangerous. It would necessarily be incomplete and would thereby inevitably imply that acts not enumerated did not constitute aggression. That in turn would enable a State to commit aggression by circumventing the definition. The decisions of international organs would be rendered automatic and the re-establishment of peace would thus be made more difficult.
33. Mr. Hsu (China) expressed the opinion that an enumeration could not be regarded as a true definition. It would not be sufficiently scientific and could not serve as guidance either for the organs of the United Nations responsible for the maintenance of peace and security, nor for the courts which might be set up to judge the perpetrators of crimes against humanity. The generally accepted sense of the word "define" showed that enumeration could not achieve the purpose sought which was to make clear the essential nature of a concept. From a purely practical standpoint, an enumeration of crimes could only cause criminals to change their methods. Moreover, on the one hand, the competent political or legal organs would tend to study the methods of aggression rather than the act itself, and on the other, they would not have the proper perspective for judging each individual case, and that was absolutely necessary to prevent the act or to punish the author.
34. Mr. Vallat (United Kingdom) stated that the so-called analytical definitions were the most deceiving. They were not so much definitions as incomplete catalogues of acts constituting aggression. Thus paragraphs 2, 3 and 4 not to mention the all-embracing provision of paragraph 5 had had to be added to the original text of the USSR proposal (A/AC.66/L.2/Rev.1). He questioned the value of a definition which, after listing various acts constituting aggression, stated that any other act declared to be aggression by the Security Council would also come into that category. Either the matter should be left to the Council, in which case there was no need for a catalogue, or the catalogue was effective in itself, in which case a list such as that proposed by the USSR delegation (A/AC.66/L.2/Rev.1) went too far. If applied literally, it would result in acts being wrongly declared as constituting aggression, and governments might argue that any act not covered in the text did not constitute aggression notwithstanding any decision to the contrary by the Security Council.
35. Speaking on the draft resolution he had submitted to the Committee, Mr. Morozov (Union of Soviet Socialist Republics) considered invalid the argument to the effect that the USSR proposal merely listed some acts of aggression and consequently did not give a general definition of that concept. The USSR definition was both synthetic and analytical, as had been recognized by well-known experts on international law. The definition was based on the principle that the definition of the concept of armed attack was of primary importance in defining aggression. The proposal was to confirm the recognized principle of international law that the State which under any pretext or for any reason took the initiative in starting a war, that is to say, was the first in an international conflict to take any of the actions listed in paragraph 1 of the USSR draft definition would be declared to be the attacker. The statement that aggression could not be justified by political, strategic or economic considerations was an essential element in the definition of armed attack as in the definition of aggression as a whole. The ruses commonly used by aggressors to justify their acts must not be resorted to. Another important element in the definition was the statement that in the event of the mobilization or concentration by another State of considerable armed forces near its frontier, the State which was threatened by such action should have the right of recourse to diplomatic or other means of securing a peaceful settlement of international disputes. It could also in the meantime adopt requisite measures of a military nature similar to those described above without, however, crossing the frontier. The aforementioned considerations as a whole gave a general indication of the concept of armed attack. At the same time, it was stated in advance which actions, if committed in the circumstances referred to in the definition, would be regarded as aggression. There was consequently no contradiction in graph the provision of paragraph 5 of the USSR proposal which stated that, in addition to those acts already declared to constitute aggression, the Security Council, as the only organ competent to determine the aggression, could in specific cases declare other acts to constitute aggression. The main purpose of the United Kingdom representative's objections to the USSR proposal for a definition of aggression was, in Mr. Morozov's opinion, to avoid a clear formulation of the concept of aggression, which could only be to the advantage of aggressors.
36. Certain members of the Committee explained, with reference to example, that they considered the test, based on the chronological order of events, of first commission of an act was unworkable. In particular, it did not take adequate account of action by the Security Council or measures taken on the recommendation of the Security Council or the General Assembly.
III. MIXED DEFINITION
37. Some members of the Committee had been in favour of a mixed definition that would start with a text in very general terms describing the characteristics of aggressive activity. This general text would be followed by an enumeration of specific acts, but the enumeration would be neither limitative nor exhaustive. It would not be obligatory but would simply be a series of examples. The advantage of a mixed definition was that it combined the merits and the positive aspects of the general and enumerative definitions. A mixed definition should therefore start with a generic concept including elements specific in their significance and be followed by an enumeration of the types of acts of aggression. The texts submitted by the delegations of Bolivia and Mexico were based on that method of definition.
38. This type of definition had been criticized by other members of the Committee as embodying the defects of the two other types.
IV. LIST OF FACTORS FOR THE COMPETENT ORGANS OF THE UNITED NATIONS
39. Mr. Maktos (United States) said that instead of trying to establish a general formula which would probably be incomplete, it would be better to offer the competent organs of the United Nations, and in the first place the Security Council, a list of factors to be taken into account in deciding a given case. Some other members of the Committee thought this idea constructive and worth examining.
40. Mr. Winiewicz (Poland) on the other hand contended that such a list of factors could only circumvent the important problem of clearly defining aggression and would serve no useful purpose.
The various forms of aggression
I. AGGRESSION IN THE SENSE OF THE CHARTER
41. The majority of the Committee agreed that it was the duty of the Committee to define aggression in the sense of the Charter. However, the relevant Articles of the Charter were interpreted differently by them. Some members were of the opinion that the notion of aggression in the sense of the Charter could be limited solely to armed aggression, whereas the representatives of Bolivia, China, Iran, Mexico, Poland, Syria and the Union of Soviet Socialist Republics maintained that, in the sense of the Charter, the notion of aggression could include other forms of aggression not necessarily consisting in the actual use of armed force. Other members maintained theses that were not strictly identified with either of these views.
42. Some members argued that a comparison of Article I, paragraph 1, and Article 39 of the Charter indicated that aggression constituted a kind of breach of the peace. In referring specifically to aggression, the drafters of the Charter had had in mind the most serious instance of a breach of the peace, namely, the unlawful use of armed force. They had intentionally avoided using the term "war", because that term did not apply to all the cases they wished to take into account.
43. Mr. Chaumont (France), interpreting Article 39 of the Charter, noted that that article made use of three concepts: threats to peace, breaches of the peace and aggression, the last being in fact a case of breach of the peace. The threat to the peace or the breach of the peace did not necessarily imply any judgment, whereas the concept of aggression was of a punitive nature. Article 40 of the Charter, for example, in dealing with measures to be taken to prevent an aggravation of the situation, provided that "the measures ... shall be without prejudice to the rights, claims or position of the parties"; obviously such terms could not apply to an acknowledged aggressor. The actions described as "economic aggression" or "ideological aggression", although they could form part of aggressive activity, really came under the concept of threat to the peace and not under that of aggression. In any case, it would be for the Security Council to decide what use it wished to make of the concept in Article 39.
44. Mr. Vallat (United Kingdom) pointed out that according to Article 2, paragraph 4, of the Charter, Member States had to "refrain ... 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", but that there was no reference to economic, ideological or other measures. It was therefore justifiable to conclude that the use of force was one important element in the concept of aggression in the sense of the Charter. He said further that Article 51 of the Charter provided further evidence in that regard, for it sanctioned the inherent right of individual or collective self-defence if an armed attack occurred against a Member State. Those considerations should suffice to exclude economic and ideological aggression from the definition of aggression in the sense of the Charter.
45. Mr. Röling (Netherlands) observed that, in the interest of peace, the Charter prohibited aggression and sanctioned the adoption of the necessary counter-measures, which might go so far as to include the use of armed force and were themselves liable to disturb the peace. Hence it was important, in defining aggression, to resist the temptation of including in the definition acts susceptible of increasing the possibilitiesof lawfully resorting to armed force.
46. In the light of these various arguments, the draft resolution submitted by the Union of Soviet Socialist Republics (A/AC.66/L.2/Rev. 1) had been criticized by some members of the Committee because it involved a definition which, on the whole, did not relate to the notion of aggression in the sense of the Charter. It was said that although the acts of aggression listed in paragraph 1 of the draft were consistent with the notion of aggression in the sense of the Charter, the same could not be said of the acts of indirect, economic and ideological aggression enumerated in other paragraphs of the draft.
47. Some members of the Committee expressed different views. Mr. Winiewicz (Poland) affirmed that in studying aggression within the meaning of the Charter, the purposes of the United Nations must never be forgotten. The relevant provisions were Article 1, paragraph 2, Article 2, paragraphs 1, 4 and 7 and Article 55. Each of the Principles mentioned in those Articles was considered essential for the maintenance of peace. Any action conflicting with any of those Principles consequently represented a threat to international peace and security, an aggression in the broad sense of the word. While the Charter laid particular stress on armed aggression, it nevertheless recognized the existence of several other forms of aggression. The definition of aggression proposed by the USSR fully met those requirements of the Charter, at the same time stressing the importance of armed aggression.
48. Mr. Morozov (Union of Soviet Socialist Republics) maintained that the USSR proposal for a definition of aggression was in conformity with the Charter. Taken together, Articles 39 and 51 of the Charter made it clear that the concept of aggression as contained in Article 39 was a much wider concept than that of armed attack mentioned in Article 51. Yet the recognition of that fact could not mean that the grounds on which States could use armed force in self-defence would be extended, since Article 51 made it clear beyond doubt that armed attack was the sole justification in such cases.
49. Mr. Castañeda (Mexico) maintained that, in principle, the Charter could not be legally interpreted as prohibiting the inclusion of elements other than armed force in the concept of aggression. In fact, Article 41 of the Charter authorized the adoption, in the cases provided for in Article 39, of measures of prevention and punishment not involving the use of armed force, which meant that if aggression took a form other than armed attack, measures other than resort to armed force could be taken. It was thus incorrect to say that in the sense of the Charter only armed attack justified the use of force.
50. In reply to the argument that Article 2, paragraph 4, of the Charter would exclude any form of aggression other than the use of armed force, the representative of Mexico recalled that paragraph 3 of the same article imposed on the Member States the obligation to settle their international disputes by peaceful means. Just as a State refusing to settle its disputes by peaceful means could not necessarily be regarded as an aggressor, so it could not be concluded from Article 2, paragraph 4, that only resort to armed force constituted aggression. He expressed doubt, however, not so much as to the possibility of extending the concept of aggression, as to the desirability of doing so, for the reason given in the working paper submitted by Mexico (A/AC.66/L.8).
51. Speaking on similar lines, Mr. Araoz (Bolivia) urged that, to obtain a satisfactory understanding of aggression within the meaning of the Charter, the Charter should not be examined Article by Article, but as a whole. Thus, a literal interpretation of Article 2, paragraph 4, might lead to the assumption that, as conceived by the Charter, aggression had a limited meaning, whereas in the light of the other provisions of the Charter, that particular text assumed a quite different significance and provided a sound basis for defining the various forms of aggression. And those acts of aggression, as distinct from the use of armed force, were in contravention of Article 2, paragraph 4, Article 39 and Chapter IX, particularly Article 55.
52. Mr. Adamiyat (Iran) said that, within the meaning of the Charter, there were other forms of aggression apart from armed aggression. Any act which served the same ultimate purpose as armed attack or involved the use of coercion to endanger the independence of a State should be considered as aggressive. That interpretation was supported by an eminent jurist, Sir Robert Phillimore, who had said:
"Where the sufficient and only reason of a provision is undisputed and certain, such provision may be extended to cases to which the same reason applied, although the provision be not comprised within the significance of the terms employed... It was a provision in a treaty that a certain city should not be enclosed within walls; at the time when the treaty was made, walls were the only species of fortifications in use. It would not be lawful to fortify that city by means of fosses and earthworks, because the spirit and intention of the treaty was to prevent the fortification of the town." |3|
In the same way, economic aggression, although not specifically named in the Charter, was included in the Charter's general condemnation of all acts of aggression.
53. Referring to the judgments rendered by the Tribunals of Nürnberg and Tokyo and more particularly to the case of the Anschluss, Mr. Röling (Netherlands) said they distinguished between aggressive war and aggressive action. Only aggressive wars were declared criminal. Hence, the drafters of the Charter bad understood by "aggression" only something that was very close to war and confined to the use of force. Consequently, the notion could not be made to include measures which related rather to the concepts of threats to the peace and breaches of the peace.
54. Mr. Hsu (China), on the other hand, pointed out that while the Nuirnberg Tribunal had distinguished between "aggressive action" and "aggressive war", had not actually stated that only the latter constituted criminal acts of aggression. While in its judgment the Tribunal had kept strictly to the terms of its Statute, it had nevertheless been aware of the important problems of international law which arose and had in fact considered all forms of aggression as crimes. It should also be remembered in what circumstances the Statute of Nürnberg and the Charter of the United Nations had been drafted. Today those circumstances had changed and the time had come for a clear and precise definition of the various forms of aggression, taking into account not the letter but the spirit of the Nürnberg Statute and of the Charter of the United Nations.
II. ACTS TO BE INCLUDED IN THE DEFINITION
A. The notion of armed aggression
1. The scope of the notion of armed aggression
55. Certain members referred to Article 2, paragraph 4, of the Charter, and expressed the view that there could be no question of aggression within the meaning of the Charter except in the case of the use of armed force against the territorial integrity or political independence of another State. It was asserted that aggression could also be deemed to mean the use of force directed not only against the political independence or territorial integrity of the sovereign State, but against a territory placed under an international régime.
56. Mr. Hsu (China) expressed the opinion that aggression consisted in the illegal use of force, not only with a view to violating the territorial integrity or political independence of another State, but also to establishing hegemony over other States. He recalled, on the basis of historical examples, that aggression had not always been aimed at the territorial integrity or political independence of another State, but that its purpose had often been to establish some form of hegemony.
57. With regard to the concept of armed aggression in the light of the elements of force which constituted it, Mr. Röling (Netherlands) expressed the opinion that the use of force should not always and systematically be regarded as aggression within the meaning of the Charter. In that connexion, he referred to subparagraph 6 B (j) of the draft resolution submitted by the Union of Soviet Socialist Republics (A/AC.66/L.2/Rev.1), which provided that frontier incidents might not be used as justification for war. Nevertheless, he did not see why the draft took a much more serious view of an attack on aircraft (paragraph 1 (c)) ; such an attack might result from factors very similar to those which gave rise to frontier incidents. He pointed out that not every act of violence necessarily gave the victim the right of self-defence. In order to go to war in application of that right, a country must be the victim of obvious aggression so serious as to leave it no recourse but to take up arms in order to safeguard its territorial integrity or political independence.
58. Replying to Mr. Röling's remarks concerning point I (c) of the USSR draft definition of aggression, Mr. Morozov (Union of Soviet Socialist Republics) maintained that a frontier incident remained a frontier incident, whether it occurred on land, at sea or in the air, and could not therefore be regarded as a justification for armed attack in accordance with the provision of paragraph 1 of the USSR proposal. Paragraph 1 (c) of the Soviet Union draft definition of aggression did not speak of frontier incidents; it provided rather that in an international conflict the action taken by a State which first deliberately attacked the aircraft of another State should be characterized as an act of aggression.
59. Mr. Vallat (United Kingdom) did not limit the term "force" to armed force in the traditional sense. He thought that the objects towards which acts were directed might be a better criterion for a definition of aggression than the character of the acts themselves. Article 2, paragraph 4 of the Charter indicated that basically acts of aggression were those directed against the territorial integrity or political independence of any State.
2. The threat of the use of force
60. The members of the Committee expressed different opinions on the question whether the definition should include the threat of force, or whether the threat of use of armed force may give the right for individual or collective self-defence and whether it is necessary to include anything connected with it into the definition of aggression.
61. Certain members of the Committee interpreted Article 2, paragraph 4, of the Charter as authorizing the threat of the use of force to be considered equivalent to aggression. Nevertheless, Mr. Röling (Netherlands) stated that, for threat of the use of force to be regarded as aggression, thereby authorizing the exercise of the right of self-defence, it was necessary, firstly, that the threat should be imminent, that is, that it should be on the point of being carried out and, secondly, that it should be directed against the political independence or territorial integrity of a State. He made a distinction, however, between two notions, that of the threat of resort to force, provided in Article 2, paragraph 4 of the Charter, and that of threats to the peace provided for in Article 39 of the Charter; the first corresponded to a situation in which it was probable that a State would use force against the territorial integrity or political independence of another State and the second corresponded to a position where it was probable that peace would be violated. The second notion, which was not identical with the first, affected the functions of the Security Council, which bore responsibility for ensuring the maintenance of international peace and security.
62. Mr. Hsu (China) maintained that a threat to peace included the threat to use force. According to Article 1 of the Charter, a threat to peace was different from a dispute; whereas a dispute was essentially capable of being settled by peaceful means, a threat to the peace implied the possibility of aggression or a threat to use force. A threat to use force should therefore be regarded as indirect aggression. If indirect aggression was to be condemned, a threat to the peace, insofar as it involved recourse to force, should also be condemned.
63. Mr. Castañeda (Mexico) expressed the view that in conformity with the verbatim text of Article 51 of the Charter, only armed attack could justify recourse to self-defence. A solution contrary to that principle would be dangerous because it would authorize preventive war. In any case, if an analogy could be used, while it was true that the legal codes and jurisprudence of the various countries differed in defining the circumstances and events justifying recourse to self-defence, one common element could be said to exist in the various national legislations, namely, that the threat must be acompanied by an effort to carry it out before recourse to self-defence could be justified. The same principle might perhaps be followed on the international level, but in reality the problem was related to that of the application of the definition by the competent organs of the United Nations. But, as regards the definition itself, nothing should be understood as suggesting justification of recourse to self-defence if no armed attack had taken place.
64. Mr. Chaumont (France) stated that if a general definition were adopted, the threat of aggression might be added to the definition, as in that case the competent organ would not be strictly bound. The circumstances in which a threat of attack might be considered equivalent to the attack itself must be closely defined in order to leave no justification whatever for a so-called preventive war.
65. Certain members of the Committee objected to any attempt to introduce the concept of threat of aggression into the definition. They stated that the Charter made no such allowances. Mr. Morozov (Union of Soviet Socialist Republics) considered that the inclusion in the definition of aggression of any provisions justifying the right of a State to be the first to attack another State on the grounds of self-defence against the threat of aggression woud radically undermine the significance of the definition of aggression. It would provide the aggressor with a loophole, for he would justify his aggressive activities by reference to self-defence. That would be contrary to the Purposes and Principles of the Charter. In that connexion Mr. Morozov also recalled the terms of Article 51 of the Charter which referred to the "inherent" right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations.
3. Aggressive intent
66. Certain members of the Committee considered that animus aggressionis constituted a characteristic element of the use of force. They pointed out that the draft resolution submitted by the Union of Soviet Socialist Republics (A/AC.66/L.2/Rev.1) provided for no special conditions in which the acts referred to in its paragraph 1 might be committed without aggressive intent. Mr. Chaumont (France) observed that that draft resolution defined the aggressor rather than the aggression itself and that it was not consistent in defining the operation of the factor of intention. For example, in paragraph 1 (c), bombardment was stated to be aggressive per se, with no proviso that intent must be proved, whereas the same paragraph also contained the expression "deliberate attack on ... ships or aircraft". The same applied to paragraph 1 (a), which named as the aggressor the State which first declared war against another State. That excluded any examination of intention. The danger of an automatic application of the definition must be guarded against and scope must be left for interpretation in the light of circumstances.
67. In opposing those arguments, Mr. Morozov (Union of Soviet Socialist Republics) pointed out that it followed from the very nature of the activities enumerated in the Soviet definition of aggression (declaration of war, invasion, etc.) that they could only be committed intentionally.
68. It was pointed out, moreover, that even if the list of acts contained no allusion to intention, nothing could prevent a competent international organ from proving it. It was also pointed out that it might be advisable to take intention into consideration when the aggressor would be called upon to account for his actions; at the time when force was used, the criterion should be the scope of the action undertaken and not the purposes of its author: the question was whether the territorial integrity or political independence of the victim was at stake. It was then and only then that the use of force could be qualified as aggression. The view was also expressed that the criterion for the definition of an aggressor, which was generally recognized in international law, was the principle upon which the Soviet Union's definition of the concept of aggression was based. According to that principle, the commission by a State of the acts enumerated in the definition automatically constituted conclusive evidence of aggressive intentions, provided that they were committed in an international conflict and were committed first in relation to the other State. Mr. Morozov (USSR) considered that a different presentation of the matter might result in attempts to justify an attack made upon a State on the ground that the attacker allegedly had no aggressive intentions, a plea to which, as history showed, aggressors had frequently resorted.
B. The notion of indirect aggression
69. In the opinion of certain members of the Committee, the notion of indirect aggression should not be introduced into the definition of aggression. They maintained that, within the meaning of the Charter, indirect aggression might be regarded not as aggression, but as a threat to peace or a breach of the peace. Other members of the Committee considered that, within the meaning of the Charter, indirect aggression was one of the forms of aggression; it should be included in any definition which was drawn up. Some members maintained that indirect aggression might come within the meaning of aggression in the sense of the Charter in case the use of force or the threat of the use of force was involved. Other members of the Committee felt that that formula expressed the notion of indirect aggression inaccurately and erroneously.
C. The notion of economic aggression
70. Mr. Araoz (Bolivia) maintained that economic aggression violated fundamentally three basic principles of the United Nations: the principle of the political independence of States, that of their sovereign equality and that of non-interference in their domestic affairs. An act of aggression was one which threatened the sovereignty of a State, that is to say, its political dependence or its territorial integrity. Political independence was closely linked with economic independence; thus anything which threatened economic independence was as much an act of aggression as was armed aggression. Aggression was not merely the use of armed force. Economic pressure often produced the same effects as did military aggression. Such pressures were in direct contradiction of Article 2, paragraph 4, and Article 55 of the Charter. Article 39 could not serve as a basis for rules to combat economic aggression, but it enabled any use of force against international co-operation and the right of peoples to self-determination to be so described. There were several reasons why economic aggression might be described as aggression. Firstly, the characteristics of armed aggression were the same as those of economic aggression, the latter differing from the former only in the use of force in an indirect or disguised form. Moreover, the constituent elements of the two ideas were the same: they both came from the same generic concept of aggression. Armed aggression was a recourse to force, economic aggression was a recourse only to pressure, but it could lead a country not only to civil war and loss of independence, but also reduce it to poverty and famine.
71. Mr. Tarazi (Syria) pointed out that underdeveloped countries suffered from economic aggression. The Charter proclaimed the principle of the sovereign equality of States. If a great Power made exorbitant demands in return for the assistance it gave to a weak nation, it was acting contrary to the spirit of the Charter. When those demands threatened the independence of the country concerned, they amounted to aggression.
72. Mr. de Marchena (Dominican Republic) observed that account should be taken of indirect forms of aggression, among which it seemed to be agreed to include "economic aggression". Although it was true that in many cases it was a matter of discriminatory practices by certain countries in world trade and economic affairs, there was no doubt that those practices should place acts giving rise to "economic aggression" among forms or means of indirect aggression. The Dominican Republic had called for an analysis of the various aspects of indirect aggression, and, since it had suffered the effects of commercial and economic discriminatory practices, it trusted that the Committee would not shrink from studying the question closely, particularly in the light of the opinions expressed during the debate. Only through an exchange of ideas would it be possible to determine whether it was feasible to formulate useful definitions within the scope of resolution 688 (VII) of the General Assembly.
73. Mr. Adamiyat (Iran) pointed out that economic aggression was one of the most significant forms of indirect aggression. It was made possible by the differentiation in the economic potentialities of various States. That inequality enabled the highly industrialized nations to take advantage of the less developed countries and to cause an economic paralysis directly endangering the economic stability, and thereby the political independence of the under-developed countries. Coercive economic and political measures taken against a State directly or indirectly and designed to impede the exercise of its sovereignty over its natural resources or its efforts towards economic development constituted the most important factor in economic aggression. Although economic aggression was not expressly mentioned in the Charter, it was nevertheless true that it was included among the acts condemned by the Charter as acts of aggression.
74. Mr. Morozov (Union of Soviet Socialist Republics) pointed out that the definition of the concept of aggression he had submitted had been prepared with due regard for the statements made by the delegations of a number of States, particularly of Asia and Latin America, which had declared themselves in favour in principle of the Soviet proposal regarding the need to define aggression in the interests of maintaining peace and security and which had expressed a desire that the list of acts of aggression should also include acts of economic, ideological and indirect aggression. There was an act of economic aggression wherever a State, taking the initiative, adopted measures of economic pressure infringing the sovereignty of another State and its economic independence, and threatening the foundations of the economic life of that State; adopted measures in regard to another State impeding the exploitation by that State of its own natural resources or the nationalization of those resources; imposed on another State an economic blockade.
75. Certain members of the Committee declared that it would be contrary to the letter and spirit of the Charter to expand the notion of aggression to include anything other than armed attack. The definition of aggression in the sense of the Charter merely constituted an interpretation of the Charter. According to Mr. Vallat (United Kingdom), any attempt to ascribe to the concept of aggression a scope exceeding that attributed to it by the Charter would amount to an attempt to amend the Charter. Mr. Amado (Brazil) pointed out that, although it was true that the concept of economic aggression was becoming more and more important, that concept had not been raised at San Francisco. The idea of indirect aggression in all its forms was not contemporary with the Charter, but subsequent to it. If those new concepts of aggression were recognized, a State which considered its liberty attacked by economic pressure would be able to protect itself against that attack only by lodging a complaint with the Security Council. Yet the complaint could not be heard unless a dispute existed which could be regarded as a threat to the peace. If economic pressure were brought to bear without constituting a threat to the peace, it would not exist in the sense of the Charter. If action against economic aggression were to be taken under the system of collective security set up by the Charter, such aggression would have to be equated with an act falling within the provisions of Article 39.
76. Mr. Maktos (United States) said that serious consequences might result from extending the idea of aggression. Although it was true that a State's political independence depended on its economic independence, they could not both be placed on the same level. If such a mistake were made, it would weaken the whole concept of aggression. The definition proposed would be ineffective in the very case in which it should in principle be of the maximum use, that of armed aggression. The prestige of the United Nations could only suffer as a result.
77. The concept of economic aggression had been criticized especially in connexion with the right of self-defence provided for in Article 51 of the Charter. Those who argued against it said that economic aggression could not justify the exercise of the right of self-defence, since Article 51 was to apply only in the case of armed attack. Moreover, if it was introduced into the definition, it might automatically increase the possibilities of legitimate recourse to armed force, which could constitute a factor liable to disturb the peace rather than maintain it. Against that argument it was pointed out that, owing to the existence of the United Nations, a victim of aggression was not absolutely free to defend itself by all possible means. In the event of direct aggression, it might exercise its right of self-defence until the competent organs of the United Nations took the necessary steps, but in the case of indirect aggression it could not take such action, in view of the absence of the element of urgency which alone justified the exercise of that right. It was essential, however, to recognize the victim's right to take retaliatory measures and it was obvious that it could never use force to uphold that right.
78. Mr. Castañeda (Mexico) considered that acts constituting what was known as economic aggression might; if they constituted a threat to the peace, give rise to equally effective action by the competent organs of the United Nations, under Article 39 of the Charter, even if such acts were not held to be aggression. But, even on the supposition that they did not constitute a threat to the peace, there was no doubt that measures of economic pressure (like subversive activities and some forms of propaganda) were illicit activities, contrary to the principle of non-intervention which played such an important part in the inter-American juridical system; there was no question that they were expressly prohibited by article 15 of the Charter of the Organization of American States.
D. The notion of ideological aggression
79. Some members of the Committee felt that it would be dangerous to include any reference to ideological aggression or propaganda in a definition. Mr. Maktos (United States of America) was of opinion that a pretext for attacking the freedom of the press might thereby be afforded. Aggressors undoubtedly used psychological methods. It could even be said that there was a psychological or ideological element in every aggression. The acknowledgment of such a fact did not, however, authorize anyone to state that any activity that might affect the views of men was aggression. It would be going too far to speak of ideological aggression. It would also distort the idea of aggression properly so-called by weakening the scope of the term and diminish its usefulness.
80. Commenting on the draft resolution submitted by the Union of Soviet Socialist Republics (A/AC.66/L.2/Rev.1), Mr. Vallat (United Kingdom) thought that whilst certain elements of the indirect, economic and ideological measures outlined in paragraphs 2, 3 and 4 of that draft might fit into the concept of aggression, in the aggregate they would be alien to the concept of direct or indirect use of armed force referred to in Article 2, paragraph 4, of the Charter.
81. Similarly, sub-paragraph (b) of paragraph 4 of the draft resolution in question was criticized by the United States representative as tending to induce the Committee to concern itself with a problem, that of atomic weapons, which in fact came within the purview of other United Nations organs. If that proposal, and that involving consideration by the Committee of the question of economic aggression, a question which concerned the Economic and Social Council rather than the Security Council, were retained, the United Nations would forfeit the respect and sympathy of public opinion. The prestige of the United Nations demanded the avoidance of all haste and of any unwarranted extension of the principles of the Charter.
82. Other members of the Committee declared themselves in favour of the notion of ideological aggression and argued that it should be introduced into the definition of aggression. Mr. Morozov (Union of Soviet Socialist Republics) considered that ideological aggression constituted one of the forms of aggression. He pointed out how exceptionally dangerous for international peace and security were the encouragement of war propaganda, the encouragement of propaganda for the use of atomic, bacterial, chemical and other types of weapons of mass destruction and also the promotion of the propaganda of fascist-nazi views, racial and national exclusiveness, hatred and contempt for other peoples. In opposing the arguments of the United States representative, Mr. Morozov pointed out that, if the General Assembly adopted the USSR proposal, peace would be consolidated and the authority and role of the United Nations in maintaining international security would be enhanced. In Mr. Morozov's opinion, the Committee was competent to examine all matters relating to the definition of aggression. The principle of freedom of the press must not be used as a pretext to justify war propaganda and the other acts of ideological aggression specified in the USSR proposal.
E. Other forms of indirect aggression
83. Mr. Adamiyat (Iran) expressed the wish that the definition should include, under the heading of indirect aggression, intervention in another State's internal or foreign affairs. From the standpoint of international law, such interference would constitute a threat to peace and to national independence. To that form of indirect aggression it would also be necessary to add, as a corollary, direct or indirect incitement to civil war, threats to internal security, and incitement to revolt by the supply of arms or by other means. All those acts should appear in the wording of the contemplated definition. Mr. Araoz (Bolivia) said that he unreservedly supported the Iranian representative's view.
84. According to the draft resolution submitted by the Union of Soviet Socialist Republics (A/AC.66/L.2/Rev.1) any State which encouraged subversive activity against another State (acts of terrorism, diversion, etc.), promoted the outbreak of civil war within another State, or promoted an internal upheaval in another State or a reversal of policy in favour of the aggressor should be declared to have committed an act of indirect aggression.
85. According to the working paper submitted by China (A/AC.66/L.4/Rev.3) the arming of organized bands or third States in order to launch them against a State marked out as victim, the planting of fifth columnists in a victim State or sending subversive agents there, and inciting the citizens of the State to civil war, by means of propaganda, should be considered acts of aggression.
86. Mr. de Marchena (Dominican Republic) said that paragraph 2 (a) of the USSR draft resolution (A/AC.66/L.2/Rev.1) referred to encouraging "subversive activity against another State (acts of terrorism, diversion, etc.)" as an act of "indirect aggression". However, paragraph 1 (f) of the resolution including among acts of direct aggression "support of armed bands organized in its own territory which invade the territory of another State... " There seemed to be a certain relationship of cause and effect between the two cases, and they should be studied with special care before classifying them under two specific concepts. The Dominican Republic considered that subversive activity of either type—for example, the organization of armed bands to invade the territory of another State or to stir up civil war in that State-were forms of aggression which the Committee ought to define. He recalled that at the sixth Inter-American Conference in Havana, a convention had been signed and ratified by a large majority of American States laying down the rights and duties of the contracting parties in case of civil wars. The provisions of the convention covered cases of activities of armed bands, traffic in arms, incitement to civil war and a whole series of acts aimed at disturbing regional peace and harmony in the Americas. There would be nothing to prevent the extension of those rules to the international level. Article 15 of the Bogota Charter explicitly condemned any interference, direct or indirect, by one State in the internal affairs of another. Subversive activities, when they included inter alia the arming of certain groups, training them by permitting them to use the facilities provided by the country maintaining them against another State, and by receiving subsidies and other assistance in preparation for an attack on another State, were the most reprehensible and insidious forms of indirect aggression. Since such acts tended to destroy the structure of the State and its public institutions by disrupting the normal life of its inhabitants and jeopardizing peace, they were positive forms of aggression. As such, they justified relatiatory measures and the exercise of the right of self-defence by the State thus endangered.
The connexion between a definition of aggression and the maintenance of international peace and security
87. The representatives of Bolivia, France, Iran, Mexico, Poland, the Dominican Republic, Syria and the USSR pointed out that a definition of aggression was possible and desirable for the maintenance of international peace and security. Others took the view that such a definition would not only not be useful, but would in fact be dangerous to the maintenance of international peace and security.
88. According to the members of the Committee who declared themselves in favour of defining aggression, such a definition would contribute to the development of international law and to the principles embodied in the Charter. If the definition was not in itself sufficient to prevent aggression, it would nevertheless provide an effective instrument for preventing that crime; it would discourage a possible aggressor and would constitute a serious warning to him. Moreover, it would serve as a guide to international organs and would enable them to avoid arbitrary decisions in the event of their being called upon to determine the aggressor. It would also have the further advantage of enlightening the public.
89. In the opinion of those members of the Committee who expressed themselves against defining aggression, such a definition would, firstly, be useless; aggressors would not be discouraged by a definition; experience had shown the uselessness of such a definition just as it had shown that its absence had never yet made itself felt, whether in the operation of the system of collective security established by the Covenant of the League of Nations and the United Nations Charter, or in the judgments of the tribunals set up after the Second World War to punish war criminals.
90. Mr. Dons (Norway) recalled in that connexion that the main difficulties met with in practice had nothing to do with the definition of aggression as such, but were frequently due to ignorance of the facts of a given situation. It was hard to determine who was the aggressor because some of the States concerned deliberately concealed the facts, or presented them in a false light. A definition, however framed, would be of no use unless the facts were first agreed upon; in United Nations bodies views had been divided not on the aggressive nature of some particular act, but on whether that act had really been committed.
91. Some members asserted that to define aggression would even be dangerous, especially in the present state of international relations. It would assist the aggressor by affording him a valuable means of circumventing it and interfering with his victim's measures of self-defence. It would hinder the action of the international organs called upon to designate the aggressor and would lead them to adopt decisions which in certain cases might aggravate international tension instead of allaying it.
92. Some members of the Committee expressed the view that it was practically impossible to draft a satisfactory definition of aggression. Moreover, a defective definition would be dangerous. It might trap the innocent while allowing the aggressor to escape.
93. Mr. Morozov (Union of Soviet Socialist Republics) stated that such assertions were without foundation and that a correct solution of the question of defining the concept of aggression and the adoption by the General Assembly of a clear-cut definition would be of great importance for the maintenance of international peace and security and, in particular, for the elimination of the possibility of justifying aggression. The Security Council which, according to Chapter VII of the Charter, was the only organ competent to designate the aggressor must be guided by that definition in determining the State guilty of aggression.
94. Mr. Winiewicz (Poland) stressed that the previous discussions of the General Assembly and resolutions 599 (VI) and 688 (VII) made it sufficiently clear that a definition of aggression was not only possible, but advisable and useful. Those discussions and documents established already the connexion between the definition of aggression and the maintenance of international peace and security. Definition of crime was an essential part of national law and should be an essential part of international law. A definition of aggression, like every other act of condemnation would—among its many advantages—constitute a preventive obstacle, a serious warning to those who might be tempted to commit aggression. Thus, a definition would strengthen peace and help to maintain international security. The Soviet proposal (A/AC.66/L.2/Rev.1) served those purposes.
The problems raised by the inclusion of a definition of aggression in the code of offences against the peace and security of mankind and by its application within the framework of international criminal jurisdiction
95. Mr. Chaumont (France) recalled that his delegation had always favoured the inclusion of a definition of aggression in a code of offences against the peace and security of mankind, along with the establishment of an international criminal court. However, pending final decisions on those questions, his delegation believing that a definition of aggression would serve a useful purpose in United Nations activities, was prepared to collaborate in the Committee's work to that end.
96. Mr. Röling (Netherlands), after stating that a definition of aggression to be applied by the political organs of the United Nations could play only a negligible part in the maintenance of international peace and security, since it would bind neither the Security Council nor the General Assembly of the United Nations, expressed the view that such a definition would have a great chance of succeeding in the domain of international criminal jurisdiction. The objections that could be raised to a definition of aggression intended to be applied under the system of collective security would not all apply to a definition to be used in the more restricted field of international criminal jurisdiction. Mr. Röling stressed, however, that two problems might arise from the application by an international criminal court of a definition of aggression: firstly, a decision by such a court bearing on a case of aggression might hamper the Security Council in its essential function, which was to maintain international peace and security; it might hinder its action in the peaceful settlement of the dispute. Secondly, the Security Council and the international criminal court might pronounce two contradictory decisions on a case of aggression brought simultaneously before both of them. To obviate that difficulty, the text of the definition of aggression should include a provision under which the international criminal court would be bound by the Security Council's decisions, which would be taken on the basis of that definition. It might, however, well be that the crime of aggression would be considered, for the time being, as less comprehensive than the concept of aggression in the sense of Article 39 of the Charter. If that was the case, an international criminal court might find an act, considered as aggression by the Security Council, not criminal in the sense of a code of international criminal law.
97. In its observations on the draft Code of offences against the peace and security of mankind and on the question of defining aggression, |4| the Netherlands Government proposed that the concept of aggression should be defined as follows:
"Aggression is the threat or use of force by a State or government against the territorial integrity or political independence of another State or against a territory under international rigime in any manner, whatever the weapons employed and whether openly or otherwise, for any reason or for any purpose other than individual or collective self-defence against such a threat or use of force or in pursuance of a decision or recommendation by a competent organ of the United Nations."
The effect of a definition of aggression on the exercise of the jurisdiction of the various organs of the United Nations
98. The members of the Committee were agreed that any definition of aggression included in a General Assembly resolution would merely have the status of a recommendation. It would not have a binding character. However, some members of the Committee stressed that such a definition would exercise great moral authority over the international organs called upon to pronounce on a case of aggression.
99. Mr. de Marchena (Dominican Republic) pointed out that, even though the General Assembly's resolutions had no binding force, it was nevertheless true that the rules or criteria contained in them might acquire the value of general principles of international law analogous to those consecrated by many treaties and conventions. Every General Assembly resolution added new elements to the application of the Charter and the definition of its purposes. The influence of a definition of aggression would therefore be questionable.
100. Some members of the Committee expressed the view that a definition accepted by a large majority of the Member States could not fail to exert a great influence on the exercise of their jurisdiction by the various organs of the United Nations. Mr. Röling (Netherlands) stated that a definition adopted unanimously, or at least by all the permanent members of the Security Council, would infleunce that Council's decisions. Consequently, if the Committee succeeded in framing such a definition, that definition would exert a profound influence on international relations. Conversely, a decision taken by a narrow majority and not adopted by the permanent members of the Security Council would scarcely have any value. In this relation, he pointed out that a definition adopted by the General Assembly would have less chance to be followed by the Security Council if it contained strictly binding provisions, as was the case with the Soviet draft.
ANNEX Texts submitted to the Committee I. DRAFT RESOLUTION SUBMITTED BY THE UNION OF SOVIET SOCIALIST REPUBLICS (A/AC.66/L.2/Rev.1)
The Special Committee on the Question of Defining Aggression recommends to the General Assembly the adoption of the following resolution:
The General Assembly,
Considering it necessary to formulate directives with a view to determining which party is guilty of aggresion,
1. 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 ports of another State;
(f) Support of armed bands organized in its own territory which invade the territory of another State, or refusal, on being requested by the invaded State, to take in its own territory any action within its power to deny such bands any aid or protection.
2. That State shall be declared to have committed an act of indirect aggression which:
(a) Encourages subversive activity against another State (acts of terrorism, diversion, etc.);
(b) Promotes the outbreak of civil war within another State;
(c) Promotes an internal upheaval in another State or a reversal of policy in favour of the aggressor.
3. That State shall be declared to have committed an act of economic aggression which first commits one of the following acts:
(a) Takes against another State measures of economic pressure violating its sovereignty and economic independence and threatening the bases of its economic life;
(b) Takes against another State measures preventing it from exploiting or nationalizing its own natural riches;
(c) Subjects another State to an economic blockade.
4. That State shall be declared to have committed an act of ideological aggression which:
(a) Encourages war propaganda;
(b) Encourages propaganda in favour of using atomic, bacterial, chemical and other weapons of mass destruction;
(c) Promotes the propagation of fascist-nazi views, of racial and national exclusiveness, and of hatred and contempt for other peoples.
5. An act other than those listed in the preceding paragraphs may when committed by a State be deemed to constitute aggression if declared by resolution of the Security Council in a particular case to be an attack or an act of economic, ideological or indirect aggression.
6. Attacks such as those referred to in paragraph 1 and acts of economic, ideological and indirect aggression such as those referred to in paragraphs 2, 3 and 4 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:
(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 or 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.
7. 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 adopt requisite measures of a military nature similar to those described above, without, however, crossing the frontier.
II. WORKING PAPER No. 1 SUBMITTED BY CHINA (A/AC.66/L.4/Rev.3)
Aggression is a crime against the peace and security of mankind. It consists of the employment of force, open or under cover, armed or unarmed, by a State for the violation, impairment or destruction of the territorial integrity or political independence of another State, or for the subversion of its political and social order, or, in a case of dispute with another State, for the coercion of that State in place of pacific settlement. Among other acts, it includes:
(a) Waging war, declared or undeclared, general or limited;
(b) Arming organized bands or third States for offence against a State marked out as victim;
(c) Planting fifth columnists or subversive agents in a victim State;
(d) Inciting civil strife in a victim State by propaganda;
(e) Imposing blockades, naval or economic.
Employment of force in self-defence or in reprisal, subject to the conditions laid down in international law for the exercise of these rights, and in carrying out a decision or recommendation of a competent organ of the United Nations is legitimate.
III. WORKING PAPER No. 2 SUBMITTED BY CHINA (A/AC.66/L.7/Rev.2)
The General Assembly,
Recalling its resolutions 599 (VI) and 688 (VII),
Mindful of the responsibilities of the Security Council concerning aggression under Article 1, paragraph 1, and Chapter VII of the Charter, and of the function of the General Assembly envisaged in Assembly resolution 377 A (V),
Considering that, although the question whether aggression has occurred must be determined in the circumstances of each particular case, it would nevertheless be advisable to formulate certain principles as guidance,
Recommends that the Security Council in the discharge of its responsibilities under Article 1, paragraph 1, and Chapter VII of the Charter, and the Members of the United Nations, when the Assembly is called upon to consider an item pursuant to resolution 377 A (V), take account inter alia of the following principles:
(1) That aggression is a crime against the peace and security of mankind;
(2) That it consists of the unlawful use of force by a State against another State;
(3) That the unlawful use of force may be open or under cover, and the force unlawfully used may be armed or unarmed;
(4) That the purpose of the unlawful use of force may be the violation, impairment or destruction of the territorial integrity or political independence, or the subversion of political and social order, or, in a case of dispute, the coercion of an opponent in place of pacific settlement;
(5) That the use of force is lawful when it is resorted to in accordance with a decision or recommendation of a competent organ of the United Nations, or in self-defence against an armed attack pending the taking of measures by the competent organs of the United Nations necessary for the maintenance of peace;
(6) That the employment of comparable methods in reprisal against an attack of unarmed force, open or under cover, is likewise lawful when the competent organs of the United Nations neglect to take effective collective measures for the prevention or removal of the attack, or for its suppression, as the nature of the case may demand.
IV. WORKING PAPER SUBMITTED BY MEXICO (A/AC.66/L.8)
The proposed definition of the Soviet Union (A/AC.66/L.2/Rev.1) could be considerably improved and would be acceptable to the Mexican delegation with the following changes:
1. The insertion after the preamble of the following paragraph:
"In an international conflict aggression shall be regarded as the direct or indirect use of force by the authorities of one State against the territorial integrity or political independence of another State or for any purpose other than legitimate individual or collective defence or compliance with a decision or recommendation of a competent organ of the United Nations. In particular, the commission of any of the following acts shall be regarded as aggression:
(There would then be inserted paragraphs (a) to (f) of paragraph 1 of the Soviet draft.)
Paragraph 5 of the Soviet draft definition would be deleted.
2. In view of the influence which the definition of aggression may have on the application and interpretation of Article 51 of the United Nations Charter, it seems, in the opinion of the Mexican delegation, hazardous to extend the concept of aggression to include separate elements of the use of force. Thus, acts constituting so-called indirect, economic or ideological aggression should be regarded as aggression only if they involve or are accompanied by the use of force. Consequently, for the purposes of the definition:
(a) Such acts when actually constituting aggression are already covered by the general definition proposed in paragraph (1).
(b) Even though such acts did not constitute aggression, they might justify enforcement measures by the Security Council as provided in Article 39 of the Charter in the same manner as though aggression had been committed if by their effect on the victim State or for any other reason they constituted a threat to the peace. This circumstance should be particularly emphasized in our Committee's report to the Assembly.
The deletion of paragraphs 2, 3 and 4 of the Soviet draft is accordingly proposed.
3. Paragraph 6, first part. Amend the wording to conform with the suggested deletion of paragraphs 3, 4 and 5. Add the words "or social" after the words "strategic or economic". Delete that part of the paragraph beginning with the words: "or by the desire to exploit ..." up to the words: "its territory".
Amend the wording of paragraph 6, sub-paragraph B, item (a), so as to include those treaties which by their very nature justify the use of force if they are violated.
V. WORKING PAPER SUBMITTED BY BOLIVIA (A/AC.66/L.9)
The General Assembly,
Considering it necessary to define some acts of aggression in order to maintain international peace and security, in accordance with the Purposes and Principles of the United Nations Charter,
Hereby resolves as follows:
1. Independently of acts of aggression designated as such by the competent international organs of the United Nations, the invasion by one State of the territory of another State across the frontiers established by treaties or judicial or arbitral decisions and demarcated in accordance therewith, or, in the absence of marked frontiers, an invasion affecting territories under the effective jurisdiction of a State shall in all cases be deemed to constitute an act of aggression.
2. A declaration of war, an armed attack with land, sea or air forces against the territory, ships or aircraft of another State, support given to armed bands for purposes of invasion, and the overt or covert inciting of the people of one State by another State to rebellion for the purpose of disturbing law and order in the interests of a foreign Power shall also be defined as acts of aggression.
3. Any threat or use of force against the territorial integrity or political independence of any State or in any other manner incompatible with the purposes of the United Nations, including unilateral action whereby a State is deprived of economic resources derived from the proper conduct of international trade or its basic economy is endangered so that its security is affected and it is rendered unable to act in its own defence or to co-operate in the collective defence of peace shall likewise be deemed to constitute an act of aggression.
4. Apart from the cases provided for in paragraphs 1 and 2, which shall constitute sufficient grounds for the automatic exercise of the right of collective self-defence, other acts of aggression shall be defined as such, when they take place, by the competent organs established by the United Nations Charter and in conformity with its provisions.
Source: Official Records of the General Assembly, Ninth Session, Supplement No. 11 (A/2638), Report of the Special Committee on the Question of Defining Aggression, 24 August to 21 September 1953, pp. 1-15.
Editorial Note: This is a true copy of the above-referenced original document. This document is reproduced in Benjamin B. Ferencz's work "Defining International Aggression - The Search for World Peace", Vol. 2, as Document No. 6.
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