Defining International Aggression
The Search for World Peace



Six tapestries adorn the halls of the Palace of Nations at Geneva. They tell the story of man's progress and aspirations. The artists depict the evolution of social life from the family, to the clan, the village, the feudal estates, the national State, and finally a universal Federation in which all people of all races are joined in a circle of peace. It has taken some 6000 years of man's recorded history to approach the frontiers of a world order in which equality and tranquility are combined. All this time man has lived and died with violence. What has endured is the unquenchable hope that, some day, the current of history will sweep away the prevailing anarchy whereby peoples and states decide for themselves when they may assault their neighbors. The determination to curb aggression is evidenced by the striving to define it. |1|

The awareness of the interdependence of all life on earth is a new reality. Transnational interaction for a better world now blossoms in areas which were unimagined only a few decades ago. Problems of population control and socio-economic transformation engage the combined attention of all nations. Food, energy, the seas, the sky and the air we breathe are increasingly the objects of both international competition and cooperation, as man comes to recognize that his survival depends upon a rational and equitable distribution of all vital resources. As long as violence, and the fear of violence, continue to drain the substance of life and destroy its quality, the legitimate aspirations for a more just society must remain dangerously frustrated. The proliferating capacity for thermonuclear annihilation intensifies the urgency for an effective system of peaceful change. If nations do not decide soon to replace the present pattern of systematic slaughter by a rule of reason, there may be no one left to make the choice.

Scholars and statesmen have labored for over half a century to fashion the framework of an agreed understanding delimiting the tolerable uses of armed force. Their efforts reflect the doubts, the retreats, the vacillation, and the dissents which characterize a peaceful alteration of any existing social order. The process whereby the concept of "aggression" was defined must be viewed not merely in the perspective of the past, or the hesitant reality of the present, but also as part of the dream of the future.

(1) A Glance at History to the First World War. (to 1918)

We are told that it was at least 400 years before Christ that the Chinese philosopher, Mo Ti, urged that international aggression be abandoned and that wars be outlawed as the greatest of all crimes. |2| Yet, man's history is a chronicle of bloodshed and war. The Ancient Greek city States, despite their high level of civilization, clashed and destroyed themselves in the Pelopennesian Wars. The Empire of Alexander the Great, enlightened and humanistic for its time, was torn asunder by the conflicting Hellenistic Kingdoms. In the 2nd and 3rd centuries B.C. Rome spread its power over vast empires which it governed by Roman law in relative tranquility for almost two centuries, before it too succumbed to internal upheaval. The growth of Byzantium, the expansion of Islam, and the emergence of the Papacy were accompanied by constant conflict against infidels, dissidents or invaders.

In Feudal Europe of the Middle Ages it was the absolute prerogative of the sovereign to employ force of arms as an instrument of national policy. War was the approved and lawful method of resolving disputes. As long as there existed some central authority, such as the Catholic church, which, by virtue of Divine Right, could determine that only one cause was "just", and the other "unjust", and which could then apply the sanctions of excommunication and interdiction, it was not necessary that States which were not directly involved in the conflict should take action in support of either side. On the contrary, it was their duty to limit the scope of the conflict by remaining neutral. |3|

Those not directly involved were abjured by Grotius to "do nothing whereby he who supports a wicked cause may be rendered more powerful, or whereby the movements of him who wages a just war may be hampered." |4| The duty to refrain from aiding one who "supports a wicked cause" is essentially the idea of not helping an aggressor. It is the root of what is found today in the U.N. Charter provisions which call upon Members to "refrain from giving assistance to any State against which the United Nations is taking preventive or enforcement action". |5| The policy, which has variously been labelled neutrality, non-discrimination, non-interference, restraint, or even indifference, was later to be coupled with a more positive duty to come to the aid of the victim of aggression. The transition from the requirement of simple restraint to the obligation ofpositive action was, however, a development which took at least two centuries.

Grotius had also urged that disputes be settled by independent judges or arbiters in order to limit the ceaseless wars which were plaguing Europe. |6| The merit of the idea was recognized, but it took almost three centuries for it to be accepted, and then only in part, so that it remained ineffective. The essential ingredient of compulsory jurisdiction was repeatedly rejected.

Leagues of Protestant Princes fought Leagues of Catholic Princes and when the 30 Years' War was ended by the Peace of Westphalia in 1648, the Holy Roman Empire was replaced by a new system of independent and equal national States. The fine art of diplomacy and the creation of religious, territorial or political alliances were the principle means to be employed in order to obtain or retain positions of power.

With the increase of commerce, the rise of colonialism, and growing nationalist feeling, the inadequacy of the existing methods of preventing violence soon became increasingly apparent. A number of distinguished thinkers in various parts of the world began to see the outlines of a better system. William Penn, the British Quaker, urged that a "Sovereign Court" be established to deal with disputes between States. If any State refused to submit its dispute or accept the decision of the court all of the other States would unite against the recalcitrant one, which would also have to pay reparations and all the expenses incurred in mounting the allied armies. |7| Rousseau proposed international Federations in 1761. |8| Kant's "Essay on Eternal Peace" favored a "Völkerbund" or Federal Union of Nations. |9|

In 1838 Jeremy Bentham proposed that there be a "common court of judicature for the decision of differences between the several nations." |10| At about the same time, the American peace advocate, William Ladd, proposed a "Congress of Nations" to deal with "the intercourse of nations in peace and war." |11| None of these proposals had any visible impact, until the beginnings of a breakthrough occurred at the start of the 20th century.

It was in 1899 that the Czar of Russia, unable to bear the burdens of rearmament, and faced with the fact that France and Germany had recently equipped their armies with new artillery pieces, convened the First Hague Peace Conference of 26 States for the Friendly Settlement of International Disputes. |12| Although the disarmament efforts failed, the Conferences of 1899, and its successor in 1907, did produce new and widely accepted rules for the conduct of war, and a convention was drafted for the Pacific Settlement of International Disputes. |13| It contained a formal plan of mediation, but only "as far as circumstances allow". It was considered "desirable" that strangers to a dispute should offer their good offices, but it was specifically provided that such mediation or good offices "have exclusively the character of advice and never have binding force". A Permanent Court of Arbitration was established, but attempts to make recourse to arbitration compulsory were unsuccessful. |14|

The value of third-party intervention was perceived but compulsory jurisdiction of an objective international body was not something which the States were prepared to accept in 1899 or 1907, any more than they would accept it in the future years when the Covenant of the League of Nations was considered, or the International Court of Justice was founded.

In the early nineteen hundreds, with conflict seething in the Balkans, a number of private groups, societies, and individuals, took up or actively espoused the idea of a League of Nations to help prevent war. |15| The idea received too little support to prevent the outbreak of World War I. It was to be taken up again, this time more seriously, as the casualties of the war began to be counted.

Millions of soldiers and millions of civilians had perished in the battles. Many millions more had been wounded or had succumbed to epidemics or famine. In the face of such disaster there arose a universal call for some new system which might put an end to armed conflict. President Woodrow Wilson became the most articulate spokesman for a new organization "to guarantee peace and justice throughout the world." Addressing a Joint Session of Congress on January 8, 1918, President Wilson outlined the basis for peace. His "14 Points" culminated with a call for "A general association of nations ... under specific covenants for the purpose of affording mutual guarantees of political independence and territorial integrity to great and small states alike." |16| The world had grown weary of aggression and its consequences.

(2) The League of Nations

    (a) The Peace Conference and the Covenant (1918-1920).

The war over and the dead buried, all men's hearts cried out for a better order of society. The world's leaders were to assemble in Paris for a Peace Conference which was intended to prove that the enormous losses were not in vain. The concept of a League of Nations envisioned an association of governments freely chosen by their peoples and meeting together in a democratic process to maintain harmony and peace in the world. The League would enact, develop and enforce international laws for the benefit of society as a whole, and would create new institutions to resolve whatever controversies might arise, and to impose whatever sanctions might be required to enforce its judgments. Such at least was the dream. |17|

Toward the end of 1917 a Supreme Inter-Allied War Council had been established at Versailles to render the war efforts more effective. Following the same pattern, the four major Powers – France, England, Italy and the United States, joined by Japan, designated their Premiers and Foreign Ministers to form a Council of Ten to prepare the terms of the treaty of peace. It convened what came to be known as "The Paris Peace Conference". Numerous special commissions were designated to deal with the many problems which were anticipated once an armistice was signed.

The Commission to Study the Responsibility of the Authors of the War concluded that Germany and Austria, as well as Turkey and Bulgaria, had declared war "in pursuance of a policy of aggression, the concealment of which gives to the origin of this war the character of a dark conspiracy against the peace of Europe". |18| Article 231 of the Versailles treaty called for the surrender of the Kaiser for trial by an allied court. Here can be seen the forerunner of the concept that aggressive war was a crime against peace for which there could be international criminal responsibility of the head of state. |19|

The Commission considered the problem of establishing a "high tribunal" which could try offenders not merely for the traditional war crimes, but also for the acts which brought about the war. The United States disapproved of the idea of an international tribunal and the possibility of legal charges against Heads of State for such vague concepts as "Crimes against Humanity". |20| It would take the suffering of one more world war to bring about a reversal of the U.S. position.

Undoubtedly the most important Commission established at the Paris Peace Conference was the one assigned the problem of creating the League of Nations and drafting the Covenant which would guide the actions of the League. The Committee, under the chairmanship of President Woodrow Wilson, who had become the foremost champion of the League idea, included some of the most respected intellectual and moral leaders of the time. |21| They were, however, not unmindful of the political realities of the society in which they lived. After 4 months of intensive effort, and some watering down, a Covenant of the League was adopted on April 28, 1919. (DOCUMENT 1).

The Covenant of the League set forth its purpose "to achieve international peace and security" through "international law" and "the maintenance of justice". Effective control was vested in the founding Members. Germany was excluded, and newcomers would only be admitted upon approval of two-thirds of the Assembly and acceptance of the rules regarding military forces and armaments. |22| The League proposed to act through an Assembly, representing each Member, and a Council consisting of the major allied powers together with a limited number of other representatives whom they would select from time to time. |23| The President of the United States was, by the specific terms of the Covenant, to summon the first meeting. |24|

Recognizing that the maintenance of peace required a reduction of national armaments, the Covenant called for a permanent Commission to study and advise on the subject. |25| This was a very weak substitute for an international military force which had initially been proposed by the French but which had been rejected. |26|

The first formal consideration of the question of aggression appeared in Art. 10 of the Covenant. The Members undertook

    to respect and preserve as against external aggression the territorial integrity and existing political independence of all Members of the League. In case of any such aggression or in case of any threat or danger of such aggression the Council shall advise upon the means by which this obligation shall be fulfilled.

the Covenant restricted the types of aggression with which it was concerned. Its attention was focused on external aggression against the territorial integrity and existing political independence of all Members. It has been argued that Art. 10 was, for President Wilson, the key article and one which would protect small states from the ambitions of the great. |27| The reading of the text tends to support a conclusion that it was, as finally accepted, designed to preserve the existing boundaries and political structure of the Members from being overturned by any external forces. The existing democracies would band together to "make the world safe for Democracy".

Art. 11 was a catch-all, authorizing the League to "take any action which might be deemed wise and effectual to safeguard the peace of nations". Members agreed that any dispute likely to lead to rupture would be submitted to arbitration or consideration by the Council. |28| A clause added that in no case would Members resort to war "until three months after the award" or report of the Council.

War continued to be a recognized and permissible alternative, despite the general preambular provision of "the obligation not to resort to war". Traditional diplomacy remained the primary technique for reconciliation of differences. It was left to the Members themselves to decide whether a dispute was suitable for submission to arbitration. If arbitration was agreed upon, then other Members were bound not to go to war against the party which accepted the arbitral award. |29| It was also left to the parties themselves to decide whether an issue should be submitted to the Permanent Court of International Justice which was subsequently established. |30|

If the parties did not decide to submit to arbitration or judicial settlement, they were obliged to submit the dispute to the Council. The Council, however, could only issue a report and make recommendations. If the Council, after excluding the parties to the dispute, reached a unanimous agreement, the other Members were only obliged to remain neutral, or "not go to war with any party to the dispute which complies with the recommendation of the report". In the absence of unanimity by the Council the Members were free to do as they saw fit. |31| How to close this "gap in the Covenant", was to become a source of later deliberation.

If any Member did in fact go to war without waiting for the three months prescribed in Art. 12, or against a Member who had complied with an arbitral award, or decision, or who had accepted the unanimous recommendations of the Council, then ipso facto that violator would "be deemed to have committed an act of war against all other Members". Under such circumstance the Members undertook to subject the Covenant-breaking State to sanctions including the severance of all trade or financial relations. There were general promises of mutual assistance and agreement of free passage to the forces of any Member cooperating to defend the Covenant. Violators could be expelled from the League. |32|

Although all obligations inconsistent with the terms of the Covenant were to be abrogated, |33| it was specifically stated that the Covenant would not affect the validity of regional understandings for securing the maintenance of peace, such as the Monroe Doctrine. |34| This discordant provision, inserted at the last moment, was intended to placate the United States Senate. It marred the Covenant, antagonized many, and failed to achieve its purpose.

The basic security plan of the Covenant was:

    1. All arms were to be brought under the control of the Council,
    2. Private manufacture of arms would be prohibited,
    3. Members would exchange full information about armaments,
    4. Aggression against any Member would be recognized, and,
    5. Effective sanctions would immediately be employed against the aggressor.

The plan failed in every single point.

Despite all the safeguards and the retention of almost complete freedom of action, the isolationist United States Senate refused to give its consent to the Treaty. The failure of the world's richest and most powerful nation to accept the Covenant or to become a Member of the League was bound to destroy the possibility of the League ever becoming an effective instrumentality for world peace.

While the United States vacillated, or went its own way, the other major powers were determined to organize the League and to try to establish security systems as envisioned by the Covenant and the Versailles Treaty. The League Council proceeded to establish its rules, set up the Secretariat, and convene the Assembly. |35| At its first meeting the Assembly accepted the text of the Statute of the Permanent Court of International Justice, although the proposal of the Distinguished Jurists Committee, that the Court have compulsory jurisdiction, was rejected by the great powers. |36| The Committee of Jurists had also recommended the establishment of an International Criminal Court to try crimes against the universal law of nations. The Assembly, on advice of the Third Committee, rejected the idea, noting that there was as yet no international penal law recognized by all nations. |37| A resolution of the International Law Association that there was an urgent need for an International Criminal Court was largely ignored. |38|

The Assembly appointed a Temporary Mixed Commission for the Reduction of Armaments (T.M.C.) which consisted of a committee of experts from various fields. It supplemented the work of the purely military Permanent Advisory Commission on Military, Naval and Air Questions (P.A.C.), which was charged with responsibility for submitting plans for disarmament and security. The T.M.C. was to produce the first scheme for mutual security and disarmament.

    (b) The Draft Treaty of Mutual Assistance (1923)

During the Third Assembly in 1922, the Council was requested to have the T.M.C. prepare for submission to governments, a Treaty of Mutual Guarantee embodying certain principles which the Assembly laid down. |39| (DOCUMENT 2 (a)) The treaty would have to recognize 1) that no disarmament scheme could be fully successful unless it was universal; 2) that armament reduction would only be acceptable to many governments if they received in exchange a guarantee of the safety of their country; 3) that such a guarantee should provide immediate and effective assistance in the event any signatory was attacked; and lastly that the guarantees would only be called into play if the government attacked had previously agreed to reduce its arms. The guarantee and disarmament were interdependent. One was the reward for the other.

The plan could be carried out in whole or in part by either general or partial treaties. The T.M.C. was also asked to consider the possibility of concluding similar agreements on a regional basis. |40|

By the following year the Fourth Assembly had before it the proposed text of the document which had gone through several drafts and was now called a Treaty of Mutual Assistance. (DOCUMENT NO. 2 (b)) It was seen as the suggested method for implementing Art. 8 of the Covenant. The first of its 18 Articles, declared: "aggressive war is an international crime", which the High Contracting Parties agreed not to commit. The parties jointly and severally undertook to furnish assistance to any signatory which was the object of a war of aggression, provided it had conformed to the disarmament requirements. |41| A party threatened by aggression could also summon the Council of the League. |42| The Council was expected to decide, within 4 days, which party was the object of aggression and whether they were entitled to claim assistance. |43| The other parties were then to furnish whatever assistance the Council considered likely to be the most effective. |44| The aggressor could also be charged with reparations. |45| The parties were obliged to recognize the compulsory jurisdiction of the Permanent Court with regard to interpretations of the Treaty. |46|

The key to triggering the whole defensive system was action by the Council determining which party was the aggressor. The Council, as in the Covenant, would have to act unanimously, excluding only those parties which were engaged in hostilities. It was anticipated that such a determination could be made within four days. Yet nowhere in the Treaty was there any definition of what would constitute an act of aggression.

An exculpatory sentence was contained in Art. 1 in which it was stated that it would not be a war of aggression if a State was acting pursuant to a unanimous recommendation of the Council, a verdict of the Permanent Court or an arbitral award, providing there was no intent (by the party resorting to war), to violate the political independence or territorial integrity of the party which refused to accept the award. This was the only reference to the intent of the parties, an element which was to become the subject of great debate over the many years during which the subject of aggressive war was to be considered.

It was not long before objections were raised against the obvious deficiencies in the proposed Treaty. |47| Several Delegations expressed the opinion that "under the conditions of modern warfare it would seem impossible to decide, even in theory, what constitutes a case of agression". |48| The previous definition of aggression had been "mobilization or the violation of a frontier", and this double test, they said, had now lost its value, since now whole countries were mobilized, frontiers were hard to ascertain, and actions by air or naval forces could disregard frontiers. Even "armed forces" could not be identified since irregular troops or police forces could be used. They perceived that the problem of support for armed bands, or indirect aggression would also have to be resolved, but it is doubtful whether they realized that it would still be debated half a century later.

Having noted the difficulty of defining aggression the Delegates tried to set forth precise criteria of what seemed to them to be essential military steps before aggression could be committed. The sequence of preparing for aggression, from a military point of view, would have to be: The organization of industrial mobilization, the collection of stocks of raw materials, the setting up of war industries, the preparation for and the actual military mobilization, and finally hostilities. By the time the character of such steps was recognized it would be too late to act to avert war.

The Delegates also looked to other, non-military, criteria which might give the examiner some impression of whether aggression was about to take place. This included the political attitude and propaganda of the possible aggressor, the attitude of the press and population, and policies on the international market, but these were considered too vague to allow preventive action. They concluded therefore that every aggression "gives rise to a 'particular case' which does not come within the scope of a general treaty". |49|

A Special Committee of the Temporary Mixed Commission commented on the definition of aggression. (DOCUMENT 2 (c)) The Members noted that it would be theoretically desirable, if it could be done, to set down an exact definition of aggression which the Council could then simply apply to determine which party was the aggressor. They agreed, however, that, in the light of the views expressed by the P.A.C., and some of the Delegates, such a precise definition was not possible. They did not, however, seem quite as pessimistic as their professional military colleagues. In their view "If the troops of one power invade the territory of another, this fact in itself constitutes a presumption that the first power has committed a wrongful act of aggression". |50| Here we see the beginnings of the doctrine, which was later to be universally accepted, that the onus rests with the State which is the first to invade, but it only gives rise to a presumption of aggression.

The Special T.M.C. Committee Members recognized that the presumption was not conclusive and that where troops were close to each other it might be difficult to ascertain which party had acted first. They suggested therefore that, as a matter of tactic, the Council try first to arrange a separation of forces wherever there seemed to be a conflict brewing. Some of the Members felt that refusal to agree to a separation would be either proof that the refusing party was the aggressor or could lead to such an inference. |51| The Committee agreed that a large scale attack by one party upon the territory of another would be decisive evidence of aggression. (The reference to a "large scale" attack seemed to anticipate the preclusion of "minor incidents",a point which was to appear again in the 1970's.) Similarly, a surprise attack by poison gas from the air would be decisive.

The Members were inclined to agree that it would not be possible to draw up a precise definition and that whatever definition was accepted would still face the difficulty of being interpreted when applied to specific circumstances in the light of the other elements mentioned by the P.A.C. They felt therefore that the best policy might be for the Council to call upon the parties to abstain, or to cease hostilities and agree to be bound by either the recommendation of the Council or a decision of the Permanent Court. The invitation might "be accompanied by an intimation that the party which refused would be considered the aggressor". |52|

The Committee concluded:

    "It is clear, therefore, that no simple definition of aggression can be drawn up, and that no simple test of when an act of aggression has actually taken place can be devised. It is, therefore, clearly necessary to leave the Council complete discretion in the matter, merely indicating that the various factors mentioned above may provide the elements of a just decision." |53|

The factors indicating aggression were summarized as:

(a) Actual industrial and economic mobilization, which could be carried out by a State or "by persons or societies on foreign territory". The Committee thereby anticipated that the organization of subversive activities abroad might constitute an element in determining aggression.

(b) "Secret military mobilization by the formation and employment of irregular troops, or by a declaration of a state of danger of war which would serve as a pretext for commencing hostilities". The use of armed bands and mobilization under a pretext of defense would also indicate an aggressive design.

(c) "Air, chemical or naval attack".

(d) "The presence of armed forces of one party on the territory of another".

(e) Refusal to withdraw forces behind the line indicated by the Council.

(f) "A definitively aggressive policy" and the refusal to submit the dispute to the Council or the Permanent Court, and to refuse to accept the recommendation or decision rendered. The Committee recognized the difficulties but felt that the Council would "probably be in a position to form an opinion as to which of the parties is really actuated by aggressive intentions". |54|

The Council referred the Draft Treaty of Mutual Assistance to a Committee of Jurists which found even more difficulties. The Jurists did not like the reference to "aggressive war" and preferred to characterize as an international crime a war which was "contrary to the provisions of the Covenant". |55|

The Draft Treaty of Mutual Assistance was sent to all governments, including those not Members of the League, for comments to be submitted to the Council. It did not take long for the United States, England, Russia and Germany to make clear their absolute opposition. (DOCUMENT 3 (a)) Almost every government recognized that the Council could not possibly act quickly or reliably unless and until there were some clear criteria to make it possible to decide which of two warring states was the aggressor. The Draft Treaty of Mutual Assistance was dead. |56|

    (c) The Protocol for the Pacific Settlement of International Disputes (1924)

An American group drew up an amended treaty of mutual guarantee which was submitted to the League Assembly in 1924. (DOCUMENT 3 (b)) The plan, which also contained various resolutions on disarmament and sanctions, was deceptively simple. It was a contract with a sanction attached. Aggressive war was denounced as "an international crime". |57| The Contracting Parties undertook not to commit it. |58| The Permanent Court would decide whether aggression had been committed. |59| It was recognized that certain preparatory acts not amounting to a state of war could be aggressive and were prohibited. |60| Even in the absence of a state of war, the use of military force would be an act of aggression, unless it was taken "for the purpose of defense against aggression or the protection of human life". Mobilization was deemed preparation for aggression. Any signatory claiming violation could submit the case to the Permanent Court, and any signatory failing to accept the jurisdiction of the Court within 4 days would be deemed an aggressor. |61| Economic sanctions or force could be applied against an aggressor within the discretion of each signatory. |62|

Under the American plan there was no need to involve the Council of the League, to which the United States did not belong. The problem of deciding whether aggression had been committed was relegated to the Court, which presumably would be able to make a just determination. The key point was that the parties could not resort to force but would have to submit their dispute to an impartial judicial body for binding determination. The willingness to submit to arbitration or adjudication was seen as the test of whether a party was guilty of aggression. What was meant by "defense against aggression", or military force used for "the protection of human life", was not explained in the American Plan. It was rather obvious from past U.S. attitudes that such questions would be decided by each sovereign State.

The American Plan, although considered and compared with other plans, was never accepted or even seriously debated. (DOCUMENT 3 (c)) It was merged into a new plan put forward by the British and the French which sought to combine various elements from the aborted Treaty of Mutual Assistance and the American proposal.

The official title of the new proposal was "The Protocol for the Pacific Settlement of International Disputes". (DOCUMENT 3 (d)) It sought to combine into one agreement the key elements of Arbitration, Security and Disarmament. It was designated a "Protocol" to make it clear that it was considered a document to implement, and not replace, the provisions of the Covenant of the League. A report of the First Committee, prepared by Mr. Politis of Greece, and a report by Mr. Benes, Rapporteur of the Third Committee, dealt more comprehensively than ever before with the question of determining the aggressor. (DOCUMENT 3 (e))

Mr. Politis noted that the object of the Protocol was to guarantee security of states by developing methods for the pacific settlement of disputes "and the effective condemnation of aggressive war". |63| Compulsory arbitration was the fundamental basis of the proposed system. The "gap in the Covenant", which allowed war under certain circumstances, was to be closed by prohibiting all wars of aggression. "No purely private war between nations will be tolerated". |64| Under Art. 2 of the protocol the signatories agreed not to go to war against any other signatory "except in case of resistance to acts of aggression" or pursuant to the agreement of the Council or the Assembly. "The right of legitimate self-defense continues" said Mr. Politis. "The State attacked retains complete liberty to resist by all means in its power any acts of aggression of which it may be the victim". |65| A state could participate in collective measures of force, it authorized by the League, and it would then be acting, not on its own, but as an agent of the world community.

The signatories would be bound to accept compulsory jurisdiction of the Permanent Court, although they could do so with a wide range of possible reservations. |66| The procedures for settling disputes as laid down in the Covenant were to be strengthened. |67| National sovereignty was protected in that matters held by the Court to be within the domestic jurisdiction of a state were not subject to compulsory arbitration. |68| Amicable methods of settlement prescribed by the Covenant were not to be excluded. |69| The signatories would undertake "to abstain from any act which might constitute a threat of aggression". |70|

Art. 10 of the draft Protocol was a key article. Under its terms any state resorting to war in violation of the Covenant or the Protocol was to be condemned as an aggressor. Violation of the rules for demilitarized zones was equivalent to a resort to war. Refusal to submit a dispute to the prescribed pacific settlement procedures was itself an act of aggression, unless the Council unanimously decided otherwise. Thus, under the new plan, positive action by the Council was required to negate the presumption of aggression which arose from failing to submit the dispute to peaceful settlement. Refusal to accept an armistice, or the violation of its terms, was also an act of aggression, immediately calling forth the prescribed sanctions by the other signatory states.

The sanctions were economic, financial and military, and reparations were to be paid by the aggressor. |71| Signatory states specifically undertook to participate in an International Conference for the Reduction of Armaments which was set for Geneva on June 15, 1925, thereby showing the close connection between the entire Protocol and the ultimate disarmament objectives. |72|

The effectiveness of the Protocol depended upon the speedy identification of the aggressor. "There are two aspects to the problem", said Mr. Politis. "First, aggression has to be defined, and secondly, its existence has to be ascertained". |73| The Committee considered the definition of aggression to be a relatively easy matter. That state would be the aggressor which:

    "resorts in any shape or form to force in violation of the engagements contracted by it under the Covenant (if, for instance, being a Member of the League of Nations, it has not respected the territorial integrity or political independence of another Member of the League) or under the present Protocol (if, for instance, being a Signatory of the Protocol, it has refused to conform to an arbitral award or to a unanimous decision of the Council)". |74|

The use of force in violation of the Covenant or refusal to accept the award of the Court or the unanimous decision of the Council was aggression.

Ascertaining whether aggression had occurred was considered to be much more difficult. "When one country attacks another, the latter necessarily defends itself, and when hostilities are in progress on both sides, the question arises which party began them". |75| Unanimous decision by the Council, even excluding the parties in dispute, was not considered a satisfactory approach since it subjected the defending State to the hazard that some Council Member might not be prepared to recognize a certain use of force as aggressive. Majority vote of the Council would also not be satisfactory since those who didn't concur could hardly be expected to apply sanctions as required by the agreement. The Protocol framers thought they found the solution by having created a presumption that aggression had occurred unless certain procedures were followed, and thereby having shifted the burden of proof of aggression until the unanimous decision of the Council might rule otherwise. The presumption of aggression would arise when a resort to war was accompanied by: 1) A refusal to accept the procedure of pacific settlement or to submit to the decision resulting there from; 2) Violation of the provisions of the Protocol prohibiting rearmament while a dispute was under advisement; or 3) Disregarding a decision that the dispute concerned was a purely domestic matter, and refusing to submit that question to the Council or the Assembly for possible conciliation. |76|

In the absence of the conditions giving rise to the presumption it was still up to the Council to decide whether or not aggression existed. If it acted unanimously there would be no problem, but if the Council could not agree, then it could call for an armistice by two-thirds vote. The party refusing to honor such an armistice would thereby be rendered an aggressor. A determination of aggression would automatically bring into play all of the sanctions and obligations of the guarantor states.

An important point was made that even a state acting against an aggressor does not possess entire freedom of action. "The force employed by it must be proportionate to the object in view and must be exercised within the limits and under the conditions recommended by the Council". |77|

The Third Committee under the chairmanship of Mr. Benes, assigned the task of drafting the articles dealing with the question of sanctions and disarmament, believed they were on the threshold of a new form of political life. Mr. Benes recognized that each state would still remain the judge of what sanctions it would apply, but it would no longer be the judge of what it should do. The sanctions would vary with the nature of the aggression. Under the system of the Covenant each party could decide for itself whether the unanimous decision of the Council regarding which state was the aggressor was justified and whether the obligation to apply economic sanctions was operative at all. Under the proposed new system of the Protocol it was the Council which would decide which state was the aggressor and sanctions would be required 'loyally and effectively". Mr. Benes considered that both previous loopholes had been closed – the one allowing the Council's recommendations not to be followed, and the further possibility that the Council itself might fail to reach unanimity so that no determination of aggression would exist and no sanctions would be required. |78| If both States were held to be aggressors then economic and financial sanctions, but not military sanctions, would be applied against both. |79|

In calling for acceptance of the new system, Mr. Benes reminded the Assembly: "The peace of the world is at stake". |80| The Protocol was adopted unanimously, but by its terms it was to come into effect only upon ratification by the requisite number of states, and only upon the condition that the plan for the reduction of armaments went into effect. |81| There was the catch!

Although France immediately announced full support for the Protocol, the enthusiasm at Geneva did not carry over to other distant capitals. In England a Conservative Government had just ousted the Labour Party. Commonwealth members found no the joy in prospect of having to apply sanctions to maintain European boundaries. The idea of compulsory arbitration was as unpopular in the Foreign Office as it was in the U.S. Senate. By the time the Council met in March 1925 the fate of the Protocol was sealed. Like the Draft Treaty of Mutual Assistance before it, the Protocol for the Pacific Settlement of International Disputes was to be discarded into the trashcan of man's unrealized dreams.

(3) Early Security Plans Outside the League

    (a) The Treaty of Mutual Guarantee and the Treaties of Locarno (1925)

As the funeral for the Geneva Protocol was being prepared the German government proposed a "Rhineland Pact" between Germany, France, Britain and Italy to guarantee the Franco-German frontier and the territorial status of the Rhine. This provided the British with the incentive to put aside the discussion of the Protocol in favor of disarmament arrangements between governments directly concerned with specific problems. The delegations turned their eyes toward a new series of conferences which were to take place in 1925 in Locarno.

The series of agreements which emerged were designed to deal with some of the specific disputes then threatening the peace of the nations concerned.

The basic document, which was the model for similar agreements between France and Poland, and France and Czechoslovakia, was the Treaty of Mutual Guarantee between Germany, Belgium, France, Great Britain and Italy. (DOCUMENT 4) It was intended to supply certain supplementary guarantees within the framework of the Covenant. The parties agreed to maintain the inviolability of the frontiers fixed in the Treaty of Versailles. |82| Germany and Belgium and also Germany and France, as the principal parties in dispute, agreed not to resort to war against each other, except, in "the exercise of the right of legitimate defense". Self defense was contemplated if one party violated the undertaking not to attack, invade, or resort to war, or if there was a "flagrant breach" of the Versailles provisions relating to a demilitarized zone, providing "such breach constitutes an unprovoked act of aggression and by reason of the assembly of armed forces in the demilitarized zone immediate action is necessary"... |83| (Underlining added.) No explanation of what facts would signify that the action was either "flagrant", "unprovoked" or "aggression" was offered.

Resort to war would also be permissible if it was done pursuant to Art. 16 of the Covenant, or a decision taken by the Assembly or the Council under Art. 15, but in the latter case only if it was directed against "a state which was the first to attack". |84|

Differences were to be settled by peaceful means and conflicts were to be submitted to judicial decision which the parties agreed to accept. Other problems would go to a newly created Conciliation Commission, and if the Commission's proposals or other arbitral or judicial decisions, were not accepted the question would go to the Council of the League to be dealt within the limits prescribed by the Covenant. |85|

During the Locarno meetings no one paid much attention to the question of trying to define aggression, or of trying to pin down precisely what was meant by "flagrant", "unprovoked", or some of the other vague terms in the Treaty. The defects were concealed by an event which occurred within 10 days after the Locarno meetings were concluded and which was to raise public hopes that a procedure for peaceful settlement of disputes had finally been devised.

A border incident occurred between Greece and Bulgaria, both Members of the League, which caused the Secretary General of the League to convene the Council to deal with a threat of war. The British, French and Italians joined to put an end to the hostilities. There was an immediate cease-fire, withdrawal from occupied territories, appointment of a commission to investigate and report to the Council, and agreement by both parties to be bound by the Council's decision. The Council found that the pleas of both sides that they had acted in self defense were unjustified, that responsibility was divided and that some reparations should be paid by Greece. This success, coupled with the new treaties signed at Locarno, seemed to confirm the impression that the Covenant could work effectively without any more detailed agreements than those already concluded.

The Locarno Treaty went into force in September 1926. Under the illusion that nothing more was required, attention was directed during the next few years to additional bilateral or multi-lateral security arrangements.

With the states on her western flank forming alliances the Soviet Union began to look to her own defenses. In 1925 she signed a Treaty of Friendship and Neutrality with Turkey, in which the parties agreed to refrain from aggression, to form no alliances with others, and to refrain from any hostile act in the event of hostilities with third parties. |86| The following year Russia went a step further, and in her Treaty of Non-Aggression with Lithuania the parties also agreed to a conciliation commission to resolve differences which might arise between them. |87| A year after that in its Treaty of Guarantee and Neutrality with Persia the Soviets were to go even further, and prohibit acts of subversion or the organization of any groups directed against the government of the other party. |88|

The major powers, the United States, Germany and Russia, were outside the League and yet no effective decisions regarding world peace could be concluded without them. 1926 was a year which concentrated on the problems connected with the admission of Germany into the League and the enforcement of the Versailles Treaty. The Senate of the United States had made it clear that although it would authorize U.S. signature to the statute for the World Court, it would be subject to the reservation that "such adherance shall not be taken to involve any legal relation on the part of the United States to the League of Nations"'.... The Court could only act on matters affecting the United States if the United States agreed, and even this restricted adherence to the Court could not be construed to "require the United States to depart from its traditional policy of not intruding upon, interfering with, or entangling itself in the political questions of policy or internal administration of any foreign state" or "to imply a relinquishment by the United States of its traditional attitude toward purely American questions". |89| It was within the framework of the planned Disarmament Conference that more effective cooperation was to be sought.

    (b) The Preparatory Commission for the Disarmament Conference and Model Treaties of Non-Aggression (1926-1928)

The United States, Germany and the Soviet Union, although not Members of the League, played an active role in the preparations for the Disarmament Conference foreseen by the Versailles Treaty and the Covenant. The Commission to prepare the conference appointed a Committee on Arbitration and Security which was to consider the entire question of reducing the need for armaments by providing alternate forms of security to the participants. It was clear that there could be no feeling of safety until there was some guarantee that collective and effective sanctions would be applied promptly in the event of aggression. A prerequisite for such action was a method for determining without delay which State was in fact the aggressor. The provisions of the Covenant were vague and other early efforts at definition had been inconclusive.

While the Disarmament Conference was being prepared the International Law Association, the Inter-Parliamentary Union, and the First International Congress of Penal Law, under the leadership of Prof. V.V. Pella of Bucharest, urged that an international court be established to deal with international crimes, and particularly with aggression. |90| On September 24, 1927 the Assembly resolved "That all wars of aggression are, and always shall be, prohibited" and denounced wars of aggression as '"an international crime". (DOCUMENT 5) No definition of aggression was attempted, but the subject attracted growing attention by the Committee on Arbitration and Security.

Mr. Politis, the Rapporteur dealing with the security question, presented a comprehensive overview of the prevailing situation. (DOCUMENT 6) He recognized that security depended upon guarantees: 1) That a State would not be attacked; and 2) That if attacked it would receive prompt and effective aid from other countries. This was the scheme behind Art. 10 and 16 of the Covenant. The requirement of unanimity by the Council was only one of the elements making the outcome uncertain. Disarmament depended upon security, and security, according to the Committee, was dependent upon arbitration. All were interdependent. Not only did states have to be free from the danger of aggression but they would also have to be free from the fear of aggression, if they were expected to disarm.

Mr. Politis recognized that a world security pact would be desirable but, in the light of past experience, he did not consider that feasible. Instead he urged that there be created a series of regional pacts to supplement the existing treaties then being concluded among many states in search of mutual security. The Draft Treaty of Mutual Assistance of 1923, the Protocol of 1924, and the Rhine Pact of 1925 could serve as useful models for new regional treaties which would exclude recourse to war, establish procedures to settle disputes without violence, and prescribe a system of mutual assistance in the event of breach. He noted that:

    "It will be essential to make it quite plain that the condemnation related only to aggressive war ... Force may still be resorted to for purposes of legitimate defense, in the application of Art. 16 of the Covenant, in execution of a decision of the Assembly or Council of the League, or when action is undertaken, in virtue of Art. 15, Par. 7, of the Covenant, against a State guilty of aggression". |91|

For the purposes of a regional security pact Mr. Politis felt that it would be sufficient, despite the difficulty of determining unprovoked aggression, to say that the term "aggressor":

    "shall be applicable to any contracting state that resorts to force in violation of the undertakings entered into by it in the regional pact; for example, if it offers armed resistance to a final decision".

Mr. Rutgers submitted a Memorandum on Articles 10, 11 and 16 of the Covenant. |92| In dealing with the question of defining aggression he concluded that he did not feel called upon to offer a precise definition but considered it more practical to "enumerate some of the facts which, according to circumstances, may serve as evidence that aggression has taken place". He felt that any attempt to lay down rigid or absolute rules would, in the existing circumstances, not lead to any practical result. "It must be recognized" said Mr. Rutgers, "that the results which it (the Council) will obtain cannot be regarded as complete or as applicable to every case. A particular act may be deemed to raise, or not to raise, a presumption of aggression having regard to the circumstances under which it was committed." |93|

In searching for criteria which would be useful in determining acts of aggression, Mr. Rutgers looked to past treaties, the proceedings of the Assembly and Council, and the records of the Draft Treaty of Mutual Assistance. These were extracted to include: "Invasion", "attack on a considerable scale launched by one State on the frontiers of another State", "a surprise attack by aircraft ...with the aid of poisonous gases", "actual industrial and economic mobilization, carried out locally or by persons or societies on foreign territory", "secret military mobilization by the formation of irregular troops, or by pretending that there was the danger of war and using that as a pretext for commencing hostilities", "air, chemical or naval attack", "the presence of armed forces ... on the territory of another", or the refusal to withdraw behind a line indicated by the Council. A "definitely aggressive policy" and a refusal to let the Council or the Permanent Court decide the issue were additional factors to be considered.

To these elements, which the Special Committee of the Temporary Mixed Commission had already listed, the Rutgers Committee added that the violation of certain undertakings would also signify aggression, such as the refusal to abide by agreed methods for the pacific settlement of disputes or to observe military restrictions which had been accepted. |94| The Committee listed many of the treaties which contained military restrictions such as the partial demilitarization of certain areas, and noted that a violation "would in many circumstances – in the absence of any express stipulation – raise a presumption of aggression". |95|

Mr. Rutgers agreed with Mr. Politis that the violation of a demilitarized zone, such as set forth in the Rhine Pact, would justify the legitimate right of defense, but it was coupled with the condition that it be "an unprovoked act of aggression" requiring immediate defensive action to meet the assembly of forces by the other side. The Committee endorsed the rules laid down in the Rhineland Pact, according to which the guarantor states could intervene immediately in case of a "flagrant violation" of the demilitarized zone, providing it was considered an "unprovoked act of aggression" calling for immediate response. The Council would then be seized of the question and could by unanimous decision, excluding the belligerant parties, determine the issue. The provisions of the Protocol of Geneva were also referred to approvingly, according to which the burden of proof was to be shifted, and a state was to be presumed the aggressor, unless the Council unanimously decided otherwise, if the State refused to accept the procedure for pacific settlement, violated an injunction of the Council, or disregarded a decision that the dispute was a purely domestic matter.

"It is clear", said Mr. Rutgers, "that the nature and extent of the cooperation which the parties to the dispute are willing to afford to the Council cannot fail to exercise considerable influence upon the decision of that body". The degree of cooperation therefore was to be another indicator of aggression.

In considering how to implement the Council's broad authority under Art. 11, to "take any action" to safeguard the peace, Mr. Rutgers felt that no code of procedure could be established as a guide. "The infinite variety of events that may occur in political life cannot be confined in advance in watertight compartments". |96| The role recommended to the Council was to keep in close touch with the situation through its Members and their diplomatic agents, and to try to reconcile differences by reminding the parties of their treaty obligations, by sending commissions of inquiry, by trying directly to settle the issues, and by trying to mitigate the effects of any rupture which might have taken place. Having thus become deeply involved in trying to prevent, limit, or put an end to the hostilities, it was felt by the Committee that the Council's interaction with the problem would make it possible for the Council Members to determine which State was really the aggressor. Said the committee:

    "It is not necessarily the State to whose conduct the crisis was originally due which is to be regarged as the aggressor; in certain eventualities it might possibly be the other party which ought to be regarded as the aggressor, if it has deliberately refused to conform to the Council's recommendations ". |97|

It was noted that the recommendation of the Council would not only influence the parties and face them with the possibility that failure to comply would trigger coercive measures against them, but it would also serve as a source for influencing public opinion.

"It must be recognized", said Mr. Rutgers, "that it would be extremely desirable to arrive at a generally accepted interpretation which would put an end to many controversies". |98| The trouble was that there were no rules, and Mr. Rutgers feared that the existence of hard and fast criteria would force a nation to decide whether there had been "resort to war" at a time when there was still room for doubt, and thereby destroy the possibility for mediation by the Council before hostilities began. In short, clear cut criteria might hamper the chances for a peaceful settlement.

The Rutgers Committee concluded:

    "A hard-and-fast definition of the expression 'aggression' (Art. 10), and 'resort to war' (Art. 16) would not be free from danger, since it might oblige the Council and the Members of the League to pronounce on a breach of the Covenant and apply sanctions at a time when it would still be preferable to refrain for the moment from measures of coercion. There would also be the risk that criteria might be taken which, in unforeseen circumstances, might lead to a State which was not in reality responsible for hostilities being described as an aggressor". |99|

After noting that committee members had differed, the Assembly adopted the resolution put forth by the Committee, which simply stated that the criteria of aggression contained in the Committee's documents usefully summarized the studies previously made. |100|

The Arbitration and Security Committee, finding itself bogged down in general discussions about ambiguous phraseology, and recognizing the impossibility of making any substantial progress in having the major powers accept binding interpretations, turned its attention to the drafting of a wide assortment of Model Treaties which States might choose if they were inclined to seek their security safeguards by such means.

A "General Act" called for the pacific settlement of all disputes by arbitration, conciliation or judicial determination, or a combination of all three. A choice of treaties or conventions gave the signatories the option of coupling the renunciation of force, with guarantees of mutual assistance against a violator. The Model Treaties of non-aggression, either on a collective or a bilateral basis, provided that the parties would not "attack or invade each other or resort to war". A specific exception was made, however, if the action was taken as part of a right of legitimate defense in opposing an attack, invasion or act of war. Force was also permissible if taken pursuant to Article 15 Paragraph 7 and Article 16 of the Covenant, or pursuant to a decision of the Assembly or the Council. The Assembly of 1928 approved and recommended the nine models presented for selection. |101| The General Act was the only one which actually came into force, only to be repudiated a few years after its birth.

    (c) The General Treaty for the Renunciation of War, – (The Kellogg-Briand Pact) (1928)

The work of the League was overshadowed by the leading international event of 1928. On the 10th anniversary of the U.S. entry into the war the French Foreign Minister, Aristide Briand, had sent a message to the American people calling for an agreement with the United States mutually outlawing war as an instrument of national policy. |102| The United States had thereupon of such a treaty prepared its own draft and circulated it to a number of governments on June 23, 1928. It was accompanied by an explanatory note, which stated:

    "There is nothing in the American draft of an anti-war treaty which restricts or impairs in any way the right of self-defense. That right is inherent in every sovereign state and is inherent in every treaty. Every nation is free at all times and regardless of treaty provisions to defend its territory from attack or invasion and it alone is competent to decide whether circumstances require recourse to war in self-defense ... Express recognition by treaty of this inalienable right, however, gives rise to the same difficulty encountered in any effort to define aggression. It is the identical question approached from the other side. Inasmuch as no treaty provision can add to the natural right of self-defense, it is not in the interest of peace that a treaty should stipulate a juristic conception of self-defense since it is far too easy for the unscrupulous to mold events to accord with an agreed definition". |103|

The General Treaty for the Renunciation of War as an instrument of National Policy, popularly known as the Kellogg-Briand Pact, or the Pact of Paris, was signed in Paris on August 27, 1928. (DOCUMENT 7) It was eventually ratified by almost all of the countries of the world. It consisted of only two brief articles. Recourse to war was renounced as an instrument of national policy, and the parties pledged that the solution of all disputes would never be sought except by pacific means.

The interpretation which the U.S., and Great Britain, put on the treaty destroyed the hope that it could really be effective in achieving its noble goals. The U.S. right to self-defense encompassed not merely the territory of the U.S. but also any other area in which the U.S. decided that it had a vital interest. The British considered their domain to include all territories under British sovereignty. |104| Under such circumstances it was obvious why there was no desire to define aggression. Almost every act of war could be justified under the guise of self-defense. A war of aggression would never again be waged – except in self-defense. The Pact was, in fact, a plan for maintaining the peace by guaranteeing the status quo. It was doomed to failure – but that became apparent only later.

(4) The Road to World War Two

    (a) The Beginning of the End (1929-1932)

The world economic crisis of 1929 diverted public attention from the problems of disarmament. The United States and Great Britain were working on arrangements to diminish the size of their Navies and the League's Preparatory Commission for the Disarmament Conference remained nearly paralyzed. German proposals to improve the means of preventing war by having states agree in advance to accept the recommendations of the Council were debated, together with Finland's plan to arrange for funds in advance which might be available to any state threatened with aggression. |105| Problems of minorities and reparations were in the fore. Nationalism and militarism were on the rise. At the end of 1930 the Preparatory Commission closed five years of its work. Its disarmament proposals inspired no enthusiasm.

When the Assembly met in 1931 it was in an atmosphere of gloom. A sub-committee had been set up to consider amendments to the Covenant, in order to bring the Covenant into harmony with the Pact of Paris. The Rapporteur was M. Henri Rolin of Belgium, and his report considered the question of self-defense and aggression.

M. Rolin concluded:

    "... in the present state of the law, the satisfactory enumeration of the distinctive characteristics either of aggression or of legitimate self-defense appears difficult and even impossible". |106|

He referred to the report which M. de Brouckere had made in 1926 which had noted some of the difficulties in drawing the line between aggression and self-defense. A victim of aggression could, for example, become the aggressor unless the defense was "proportionate to the seriousness of the attack and justified by the imminence of the danger".

The Committee felt that "assistance given spontaneously by a Member of the League to another Member which has been the victim of flagrant aggression would not constitute a violation of the prohibition of recourse to war". The intervening state, once having decided who was the aggressor, did not have to wait for a decision Council of the on that subject, but could apply the sanctions foreseen in the Covenant. What those sanctions might be was best left to the individual Member's discretion. The Committee saw no acceptable way to improve the situation. States were not ready, even theoretically, to increase their obligations, and the Committee felt there was no viable alternative but to rely on the good faith of the Members. |107|

A General Convention to Improve the Means of Preventing War was signed in Geneva on Sept. 26, 1931, by representative of 22 States, but it contained nothing more than precautionary steps designed to prevent incidents from growing into wars. |108|

The Assembly, not knowing what else it could do, looked for action to the Disarmament Conference which was scheduled to take place in February 1932. Before the Disarmament Conference could meet, Japan, in clear violation of the restrictions against the use of armed force in both the Covenant and the Kellogg Pact, invaded Manchuria. Japan argued that she was acting against lawless elements in self-defense, to protect her vital interests in line with the doctrine expressed by the U.S. and British governments when they ratified the Pact of Paris! |109|

Under the League's interpretation of Article 11 of the Covenant, unanimous action by the Council was required before it could take any action to safeguard the peace. With Japan in opposition, the Council was legally stymied. The United States was not ready to risk coercive action against Japan. Britain, also in the midst of a depression, would not act alone, and France, fearing a rearmed Germany, had no desire to engage Japan as an additional enemy. Russia feared to offend Japan. Without any one of the major powers being willing to take coercive action, or to apply the sanctions envisaged by the Covenant, it became all too obvious that the League was only a paper tiger.

As the Disarmament Conference was assembling, Japan extended its attack to Shanghai. China, as authorized by Art. 15 of the Covenant, called for action by the Assembly. A time-consuming investigation was made in an attempt to settle the dispute. The League, after an objective report was received, rejected the arguments of self-defense. |110| On March 27, 1933 Japan withdrew from the League. The demonstration of power by Japan exposed the weakness of the League. What most states considered to be a clear act of aggression had taken place, vast territories had been seized from a member of the League, and the League proved itself impotent to do anything about it. The rift in the wall of the League would soon bring the entire structure tumbling down.

    (b) The Futile Disarmament Conference (1932-1934)

The Worldwide Disarmament Conference, which had been planned and hoped for since the end of the war, was attended by all of the 64 nations of the world, with the exception of 4 small Latin American countries. France began by putting on the table an elaborate plan according to which the most dangerous weapons would be set aside to be used only in self-defense or on orders of the League's Council. A standing international police force would be created for use by the Council. Compulsory arbitration would be required. Aggression would be defined, and an effective system of sanctions would apply in case of breaches of either the anticipated new Disarmament Convention or the Covenant. (DOCUMENT 8) The plan was far ahead of its time. In 1932 the great powers caught up in internal political turmoils, suffering from economic uncertainties and beset by fears, were not prepared to accept any such commitments.

During the first year of its existence the Disarmament Conference was bogged down in debates about which weapons could be classified as defensive or offensive, and whether adequate security against aggression could be provided if such weapons were eliminated or reduced. Germany withdrew from the Conference until a formula was presented which seemed to assure her that she would receive equality of rights. While they were talking disarmament, most of the major powers were, despite major depressions, rearming. A war was in progress and a greater war was already brewing.

On November 14, 1932 France put forth a new proposal for collective security, prohibiting economic relations with the aggressor and refusing to recognize any situation brought about in violation of an international undertaking. There would be a right to assistance in case of aggression and a special fact-finding commission to report to the Council. |111| This too came under consideration in 1933.

Despairing of any effective action by the Disarmament Conference, the Soviet Union continued to enter into treaties of non-aggression with its neighboring States. The Treaty with Finland declared:

    "Any act of violence attacking the integrity and inviolability of the territory or the political independence of the other High Contracting Party shall be regarded as an act of aggression, even if it is committed without declaration of war and avoids warlike manifestations." |112|

It was thereby recognized that a declaration of war might be irrelevant and that aggression could take many forms. The Soviet Treaty with Latvia spoke of "any act of aggression directed against the other" and "acts of violence directed against the territorial integrity and inviolability or the political independence of the other." |113| The use of different terms implied that there was a distinction between acts of "aggression" and acts of "violence." The Treaty with Estonia prohibited "political agreements manifestly directed in an aggressive sense against the other party." |114| The Treaty with Poland prohibited ''aggressive action.'' |115| Nowhere were these distinctions explained, and it must have occurred to some of the parties that until there was a more precise formulation the effectiveness of such treaties was questionable. It would not be long before the Soviet Union would seek to correct the shortcoming.

The existence of a disarmament conference did not deter the major powers from channelling arms to two South American states actively engaged in hostilities. Between Paraguay and Bolivia lay a large undeveloped region known as The Chaco. Each country claimed it, and eventually the border skirmishes exploded into war. Both belligerants were members of the League bound to uphold the Covenant and both had ignored the obligation to submit the dispute to peaceful settlement. The League was brushed aside as the parties tried to settle the dispute by force of arms or via various commissions of South American States acting under U.S. domination. |116|

In May 1933 Paraguay, in an attempt to stop the flow of munitions to Bolivia, formally declared the existence of a state of war. When the League intervened by sending a Commission to the scene, the proposals of the Commission were rejected by Paraguay. Her neighbors were not ready to impose sanctions by breaking off economic and financial relations. The Assembly urged an arms embargo only against Paraguay. In response Paraguay notified its decision to withdraw from the League. When peace came a few years later it was not as a result of the effective functioning of the League but rather a consequence of the exhaustion of both parties. |117|

In a territorial dispute between Colombia and Peru, League action was equally ineffective, although the conflict was settled before large-scale fighting erupted. |118| The lesson had been learned from Japan that the League could be flouted with near impunity.

    (c) The Proposed Soviet Definition of Aggression and the Politis Report (1933)

When the World Disarmament Conference reconvened in 1933 its prospects for success were anything but inspiring. As the debate resumed on the French Plan for General Disarmament and the Organization of Peace, the Soviet Delegate, M. Litvinoff, stated the position of his government on the whole subject. (DOCUMENT 9) He noted that the U.S.S.R. was the only country in the world which had destroyed the capitalist system, and which was being boycotted by the majority of States. In such circumstances he felt that no State could be expected to submit itself to the judgment of any international body composed of those who were clearly hostile to it. The French proposal for international sanctions inevitably gave rise to the questions, "How is the aggressor to be determined, and who is to determine the aggressor". |119|

While rejecting the impartiality of any of the existing agencies which might determine the aggressor, the Soviet representative felt that should the establishment of such organs come up for discussion it would have to be recognized that his government would be entitled to the same measure of impartiality and fairness expected by other States. He did not anticipate that the fulfillment of that legitimate demand would encounter much difficulty. The implication was that an objective international forum would be acceptable to the U.S.S.R.

The key problem for M. Litvinoff was that there was no universally acknowledged definition of aggression, and as long as there were different interpretations, and States continued to insist, as had been done by the U.S. and the U.K., when signing the Kellogg-Briand Pact, that they alone could decide when they were acting in self-defense, no international tribunal would ever be able to identify the aggressor in any armed conflict. Said M. Litvinoff:

    "if we wish to see inaction the Briand-Kellogg Pact, together with the extension proposed by the French delegation, and to secure the minimum of authority, impartiality and confidence to the international organ to be called into life by these extensions, we shall have to give it instructions for its guidance, and that means, first of all, defining war and aggression and the distiction between aggression and defense, and once for all condemning those fallacious justifications of aggression with which the past has familiarized us". |120|

Mr. Litvinoff then presented a comprehensive definition of aggression for consideration. The Soviet draft definition consisted of a preamble and three paragraphs. The Preamble recognized the right of all states to independence, security, territorial inviolability and self-defense within its own frontiers, and that the definition was a guide to an international organ which might be called upon to determine the aggressor. The opening substantive article declared that the aggressor would be that State which was the first to take any one of five different actions: (a) A declaration of war; (b) Invasion of another state; (c) Bombardment of territory or attacking another State's armed forces; (d) Landing armed forces on another State's territory, or remaining there longer than permitted; and (e) Naval blockade. The Second paragraph, which was considered the most important, listed various situations which were frequently used to justify aggression, and specifically excluded them as a valid excuse for an attack. "No considerations whatsoever of a political, strategical or economic nature", in particular the internal situation of a State or any of its acts or laws, would justify any State being the first to take any one of the five prohibited acts of aggression. It would be permissible under the Third paragraph, however, for an endangered State to match the threat of mobilized armed forces on its frontier. |121|

It may be recalled that in 1924 the Soviet Union had opposed the Draft Treaty of Mutual Assistance, partly because they thought it impossible to define the aggressor. They recognized then that a "first strike" might, under certain circumstances be defensive. |122| Now the picture had changed.

"We make no pretensions to absolute definitions", said M. Litvinoff, "since such are hardly possible or conceivable... We are ready to admit the imperfections of the document we are placing before you; we are ready to listen to your objections, to advance and accept amendments, additions and the like". |123| The principles which were important to the Soviet delegate were the inviolability of recognized frontiers, and non-interference in the affairs, development, legislation, or administration of another State. It would take over 40 years for the Soviet proposals, with modifications, to be accepted.

The Belgian Delegation submitted a proposal on the fact-finding procedure to be followed in case of aggression or threat of aggression. Both the Soviet and the Belgian proposals were referred to the Political Commission of the Disarmament Conference. The reactions of some of the Members can best be seen from some of the Minutes. (DOCUMENT 10)

The Chinese Delegate, representing a country which was widely regarded as being a victim of aggression at that time, bemoaned the discrepancy between theory and practice. He was, however, prepared to support the Soviet definition. Norway and France appreciated the Soviet reference to international organs, and Poland approved the Soviet ideas. The German delegate noted the deterent character of a definition but felt it should be more elastic. |124| Mr. Anthony Eden, speaking for the United Kingdom, made it clear that he considered the attempt to draw up a precise definition of aggression to be a waste of time. |125| Sweden favored increasing the Council's powers, |126| and Japan wanted to be sure that all of the facts were considered. |127| The United States representative also challenged the utility of a rigid definition. He thought it wiser to establish criteria which each government might find helpful in reaching a decision on aggression. |128| His interest in retaining independence of action was unmistakable. Italy shared the doubts of England and the United States.

The question of defining aggression was accordingly referred to still another committee, the Committee on Security Questions, consisting of 17 nations, under the Chairmanship of M. Politis, which was also charged with considering the Belgian Proposal and a United Kingdom proposal for consultation and good offices to prevent hostilities. |129|

The Politis Report of May 24, 1933 (DOCUMENT 11) proposed that the definition of aggression be contained in a specific act which would become part of the proposed General Convention for the Reduction and Limitation of Armaments. The draft Act was annexed, and the report contained a brief commentary on each of the articles, which were based on the Soviet definition submitted by M. Litvinoff.

The preamble had been reworded without much substantive change. Which party was the first to use force remained the decisive determinant of aggression, but a reservation was added making the determination subject to the agreements in force between the parties to the dispute. This was aimed at safeguarding the possibility of taking steps prescribed by such other agreements as the Covenant, without thereby committing an aggressive act. |130| The reservation brought a new element of uncertainty, into the definition.

The acts which would constitute aggression remained essentially unchanged, although there were slight improvements in wording and sequence. A declaration of war, invasion, attack on territory, vessels or aircraft, with or without a declaration of war, naval blockade, and finally

    "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 measures in its power to deprive those bands of all assistance or protection". |131|

The Soviet draft had spoken of "landing" or "introducing" armed forces into another State without permission, or "infringement of the conditions of such permission". |132| The Politis Committee varied not merely the terms, since "provision of support" was much broader, but it also added a new concept, which had not previously been recognized, – that the failure to take whatever steps were within ones power to restrain armed bands was in itself an act of aggression. The Committee recognized that the measures which were within a State's power to take would have to be determined in each case, and this too was a new element of flexibility. |133|

Some members felt that the Soviet draft went too far in its article describing that no considerations of any kind could be used to justify aggression. The Committee was prepared to agree that:

    "No political, military, economic or other considerations may serve as an excuse or justification for the aggression referred to in Article 1".

but they preferred, with some reservations, to add a Protocol instead of the long Soviet list illustrating the scope of the non-exculpating acts. They agreed that a listed act of aggression would constitute sufficient "provocation" to justify retaliation by acts of a similar nature. |134|

Even within the Committee itself, Germany, Hungary, Italy, Spain, Switzerland and the U.K. showed a preference for an elastic definition which would permit all the circumstances to be taken into account for consideration by an international body which could either resort to arbitration, if it could not agree unanimously, or could regard as the aggressor that state which refused to cease hostilities. |135|

M. Politis also submitted a draft of a European Security Pact. (DOCUMENT 12) It did not seek to impose new obligations of mutual assistance since such obligations would not have been accepted. |136| It did, however reproduce certain clauses from the proposed Act Defining Aggression, and hoped thereby to give it broader acceptance. What was omitted from the definition was the listing of naval blockade as an act of aggression, since it was thought that blockade should not always involve an obligation to provide assistance. |137|

The Politis Report came before the General Commission for discussion. (DOCUMENT 13) In explaining his report M. Politis noted that the definition had the advantage that it warned States of the acts they must not commit. Public opinion would now be able to form a judgment. The definition would facilitate the work of an international organ charged with responsibility for determining the aggressor, which by virtue of the definition would be less tempted to seek political grounds to excuse aggression. |138| The definition was designed so that it could be accepted by all States. In the absence of universality, however, it would only bind those agreeing to accept its terms. Using force to assist a victim of aggression would not be aggression.

In declaring that more progress had been made in his committee than had been possible for the past 10 years, M. Politis expressed appreciation for the Soviet initiative, even though the Soviet Union was not a member of the League. He felt the progress was possible because they had separated the definition of aggression from the question of sanctions which was a separate issue, and they had separated the term "aggressor" from the term "war", which was itself ambiguous. The definition dealt only with "resort to force" and not the existence of a state of "war" in the strict sense. |139| This, said M. Politis, was the greatest success of the Conference to date.

M. Politis found no opposition to the Belgian proposal for the creation of fact-finding bodies to investigate alleged acts of aggression. |140| As for the Act Defining Aggression, however, the reception was, as expected, quite different.

Spain was clearly opposed. |141| Germany wanted more elasticity and picked up the discrepancies between the Act and the draft of a European Pact for security in that the latter did not include blockade as an act of aggression. A few days before President Franklin D. Roosevelt had sent a message proposing:

    "That all the nations of the world should enter into a solemn and definite pact of non-aggression. That they should solemnly reaffirm the obligations they had assumed to limit and reduce their armaments and, provided these obligations were faithfully executed by all signatory Powers, individually agree that they would send no armed force of whatsoever nature across their frontiers". |142|

This new development provided the German representative with the excuse to call for further study and coordination. |143| Mr. Eden had already voiced the objections of Great Britain, which were strongly shared by Italy, Hungary and Bulgaria. |144|

Wellington Koo of China supported the Act and felt that objections could be met by agreeing that the enumerated acts of aggression were not exhaustive. |145| The main support for M. Politis came from M. Paul-Boncour of France. He called the definition "one of the keystones, if not the chief keystone, of the edifice of mutual international security...". |146|

In replying to the objections raised in two days of debate, M. Politis invited those who had amendments to make them. With this opening the President called for some of the most articulate advocates, – Mr. Dougalevski of the USSR and Mr. Politis, on the one hand, and in opposition, Mr. Eden of the U.K. and Mr. de Madariaga of Spain, to meet again and try to reconcile their views. |147| Whether they ever met again does not appear from the available records. One conclusion is clear – they were never to reach agreement.

    (d) The League Crumbles (1933-1940)

The atmosphere at the Disarmament Conference was one of confusion, mistrust and apathy. The discussions in the Committees failed to influence what was happening in the world outside of the meeting halls in Geneva. As Germany under Hitler began to mobilize and demand disarmament by the other European countries or equality for Germany, those who considered themselves threatened began to scramble for new alliances. |148|

The USSR sought to reinforce its regional security system with a ring of buffer states. On July 3, 1933 a Convention for the Definition of Aggression was signed by the USSR and Romania, Poland, Afghanistan, Persia, Latvia, Estonia and Turkey, and later acceded to by Finland. It accepted the precise wording of the definition of aggression as recommended by the Politis Committee on May 24, 1933, "until such time as those rules shall become universal". Within the next two days similar agreements were signed with Czechoslovakia, Turkey and Yugoslavia, and then Lithuania. (DOCUMENT 14)

In September 1934 Russia joined the League in the hope that some League members might come to her defense if Germany attacked. |149| On October 14, 1933 Germany, refusing to bow to the "Diktat von Versailles" withdrew from the Disarmament Conference and from the League. |150| Rearmament and not disarmament became the order of the day.

In the following year nations were too busy planning to commit or defend against aggression to be concerned with defining it. Italy's aggression against Ethiopia found the great powers in the League too frightened, and too divided, to take effective action as envisioned by the Covenant and the many subsequent treaties. They talked and argued while the Italian armies marched. The limited economic sanctions which were applied were too little and too late. |151|

Man's attempt to set up a new world order of peace was now sliding down a very slippery slope. It was Hitler's turn to defy the League. His remilitarization of the Rhineland violated the Versailles Treaty and successfully challenged the Treaty of Locarno. The States affected, despite the legal authority and the moral basis for action, pursued instead their own national interests and did nothing to stop the German defiance. No State could rely on the Covenant or the League for protection against aggression. King Alexander of Yugoslavia was murdered while on a state visit to Marseilles in Oct. 1934. France urged the League to take effective action against political crimes. The answer was to appoint a committee to prepare a convention against terrorism and for the establishment of an international criminal court. |152|

Beginning in 1936, until the spring of 1939, German and Italian "volunteers" fought side by side with rebels seeking to overthrow the Spanish government. The government's call for an urgent meeting of the Council to deal with the clear case of aggression produced nothing but diplomatic maneuvering. |153|

On July 5, 1937, Afghanistan, Iraq, Iran and Turkey signed a treaty in which they all agreed to refrain from any act of aggression against any of them. (DOCUMENT 15) The signatories recognized the need to define aggression and self-defense. The treaty set forth specifically when force was permissible and not permissible. Any one of 4 listed acts was deemed to be an act of aggression: Declaration of war, invasion, attack against the territory, vessels or aircraft of another State, or directly or indirectly aiding an aggressor. Legitimate self-defense was permissible, and it was specifically defined as resistance to one of the listed acts of aggression. Action pursuant to Art. 16 of the Covenant was not to be considered as aggression, nor action taken pursuant to a decision of the Assembly or Council, or under Art. 15 of the Covenant, if it was directed against a State which attacked first. Action taken to assist a State which was subject to attack in violation of the Pact of Paris would also be permissible. Although blockade was not listed as an act of aggression and assistance to armed bands was also omitted, each of the parties undertook to prevent the formation or activities of armed bands within its borders, if such bands might subvert the established institutions of the other. |154| The treaty was a very substantial improvement on similar non-aggression pacts of the past, but adhesion to traditional views was still very strong.

By 1937 the committee of distinguished jurists which had been appointed in 1934, completed its draft Convention for the Prevention and Punishment of Terrorism and the establishment of an International Criminal Court. No State, other than India, was prepared to ratify it. |155|

The few remaining years of the League are a story of vacillation, apprehension and retreat. The obligations of the Covenant became scraps of paper as States began to return to the international anarchy which had marked the condition of the world before the outbreak of World War I. With the world racing to rearm the question of disarmament disappeared from the agenda, and with it all further discussion of the definition of aggression.

At the Harvard Law School a group of distinguished scholars were completing their work on a Draft Convention on the Rights and Duties of States in Case of Aggression. Their study could only define aggression in very general terms as

    resort to armed force by a State when such resort has been duly determined, by a means which the State is bound to accept, to constitute a violation of an obligation. |155a|

As each State declared that it alone would be the judge of its own action, all hope of collective security was abandoned. In the face of threats of aggression nations praying for peace stood paralyzed, and hoped that the threat would somehow disappear if sufficient concessions were made. Czechoslovakia was annexed and the issue was not even brought to the League. On September 1, 1939 Germany invaded Poland. The League was silent. World War II was on the way.

On November 30, 1939, Soviet troops invaded Finland, seizing territory which the Finn's had refused to lease, although deemed vital for Soviet defense. Finland and the Soviet Union were bound by the Covenant, they were both parties to the Pact of Paris, both had signed a non-aggression pact in 1932, and Finland had acceded to the 1933 Soviet Convention for the Definition of Aggression. It was a perfect test case, and Finland called for a meeting of the Council in accordance with Art. 15 of the Covenant. The Council and the Assembly acted. (DOCUMENT 16)

An objective report set forth the violations by the Soviet Union of its treaty obligations and the Covenant. The facts were compared with the definition of aggression. |156| "The Soviet Government", said the Report, "is also directly contravening the very definite obligations laid down in the Convention for the Definition of the Aggressor which it signed and in the preparation of which it took a decisive part". |157|

In the 20th year of its life, for the first time in its history, in addition to appealing to its members to provide material and humanitarian assistance to Finland, the Assembly and the Council declared the Soviet Union to be no longer a Member of the League. |158| Some measure of financial assistance was provided to Finland, but having already lost all respect and influence the League could no longer be effective. Following upon the acts of aggression by Japan, Italy and Germany, in which the League had hesitated to exercise its power, it was, in the words of M. Paul-Boncour of France, "a tardy awakening of the universal conscience". |159|

The Assembly adjourned within the next two weeks and the League's agencies began to flee for refuge to other parts of the world. The system of security which had been envisioned by the Covenant had failed. Not having learned the lessons of history, and not being ready to take the steps required to identify aggression and to repel it, the world was doomed to redouble and relive the horrors of the past.


1. In a learned text reviewing the quest for a definition of aggression Prof. Julius Stone concluded that the hopes of securing peace by inventing a precise mechanically operating definition was "a snare and a delusion". Aggression and World Order, ix (1958). Professors Myres McDougal and Florentino P. Feliciano, in a brilliant analysis of the factors which decision makers would have to consider in determining the limits of permissible and impermissible coercion, rejected a defeatist view, and concluded that it was intellectually possible and practically indispensible to clarify the policy of international coercion in order to enhance minimum order and optimum human dignity. Law and Minimum World Public Order, Chap. 3 (1961). Other outstanding studies include: Komarnicki, W., La Définition de l'Aggresseur dans le Droit International Moderne (1949); Aroneanu, E., La Définition de l'Aggression; Exposé Objectif (1958). More recent studies to which the present author is also deeply indebted include: Broms, B., The Definition of Aggression in the United Nations (1968), Thomas, A. and Thomas A.J. Jr., The Concept of Aggression in International Law, (1972), Schwebel, S.M., Aggression, Intervention and Self-Defense in Modern International Law, II Recueil des Cours (1972). [Back]

2. Harley, J., Documentary Textbook of the U.N., 2 (1950). [Back]

3. See Nussbaum A., A Concise History of the Law of Nations (1947); See Wright, Q., A Study of War (1965), for an intensive historical study of war and related problems. [Back]

4. The Law of War and Peace, Vol. III, cap. 17, Sec. 3 (1625), cited in Scott, J.B. Ed. Classics of International Law (1925) at 786. [Back]

5. Art. 2 Sec. 5. [Back]

6. See Note 4 supra at 560-561. [Back]

7. See Selections from the Work of William Penn. ed. I. Sharpless (1915), "Essay Toward the Present and Future Peace of Europe" (1693). Reprinted in Int'l Conciliation, No. 394 (1943). [Back]

8. Jugement sur la Paix Perpetuelle, English Ed. Vaughan C.E. [Back]

9. World Peace Foundation (1914). Also Kant, Perpetual Peace, Smith, C. Trans. (1903). [Back]

10. The Work of J. Bentham, part viii, Bouring's Ed. "Plan for a Universal and Perpetual Peace". Also Grotius Soc. Publ. Texts for Students of Int'l Relations, No. 6. (1927). [Back]

11. An Essay on a Congress of Nations, Carnegie End. (1916), See Beales, The History of Peace (1931). [Back]

12. See Scott J.B., The Hague Conventions and Declarations of 1899 and 1907. [Back]

13. Malloy's Treaties II, 2020-2022, 2228-2229. [Back]

14. See Scott, J.B. The Hague Peace Conferences, I, 321-385 (1909). [Back]

15. See Marburg, T., Development of the League of Nations Idea, Ed. by J.H. Latane, 2 Vols. (1932). In 1917, it was stated that aggressive war was a crime against mankind. See Text on International Law, Academy of Sciences of USSR, Moscow at 403. [Back]

16. U.S. Documents, Serial No. 7443, Doc. No. 765. See also Cong. Rec. May 29, 1916, at 8854, for a typical Wilson speech saying: "... the world is even now on the eve of a great consumation... when coercion shall be summoned not to the service of a political ambition or selfish hostility, but to the service of a common order, a common justice and a common peace." [Back]

17. See Smuts, J.C., The League of Nations, A Practical Suggestion (1918). For much of the background material concerning the origins and growth of the League and its history see also Walters, F.P., A History of the League of Nations (1960). [Back]

18. German White Book Concerning the Responsibility of the Authors of the War, 15-24, Carnegie Endow. (1924). [Back]

19. See Glueck, S., War Criminals-Their Prosecution and Punishment, 19-36, (1944) for a summary of action taken against war criminals pursuant to the Versailles Treaty. [Back]

20. See Memorandum of Reservations y the United States, 14 A.J.I.L. 95-154 (1920). [Back]

21. See Day, C. "The Atmosphere and Organization of the Peace Conference, in House and Seymour, Eds. What Really Happened at Paris 16-18 (1921); For a comprehensive text see Temperly, H.W.V., A History of the Peace Conference of Paris (1920) See also Miller, D.H., The Drafting of the Covenant (1928). [Back]

22. Art. 1. [Back]

23. Art. 4 Subsequent amendments increased the non-permanent members from four to six, and later to nine. [Back]

24. Art. 5 [Back]

25. Art. 8, and 9. [Back]

26. See Walters, Note 17 supra at 61-63. [Back]

27. Id. at 48. [Back]

28. Art. 12. Later amendments made it clear that the court to which such disputes would be referred would be the Permanent Court of International Justice described in Art. 14. For amended Covenant see Secretariat of the League of Nations, Ten Years of World Cooperation (1930). [Back]

29. Art. 13. [Back]

30. Art. 14. [Back]

31. Art. 15. [Back]

32. Art. 16. [Back]

33. Art. 20. [Back]

34. Art. 21. [Back]

35. See LNOJ (1920). [Back]

36. See LNOJ 33-38 (1920). [Back]

37. See L.O.N. Records of the First Assembly, Third Committee, 10th Meeting, p. 764. [Back]

38. See Report of the Thirty -First Conf. of the Int'l Law Assoc. held in Buenos Aires in 1922, Vol. I, p. 74. [Back]

39. Resolution XIV. Text contained in DOCUMENT 2 (a) at 114. [Back]

40. Resolution XV. [Back]

41. See Art. 2. [Back]

42. See Art. 3. [Back]

43. See Art. 4. [Back]

44. See Art. 5. [Back]

45. See Art. 10. [Back]

46. See Art. 15. [Back]

47. See DOCUMENT 2 (a) 114-120. [Back]

48. Id. at 116. [Back]

49. Id. at 118; See also Zimmern, A., The League of Nations and the Rule of Law, 1918-1935 (1939) for an analysis of the vacillation by Members of the League. [Back]

50. DOCUMENT No. 2 (c) at 183. [Back]

51. Id. at 183-184 Para. 4. [Back]

52. Id. 184 Para. 7. [Back]

53. Id. 184 Para. 8. [Back]

54. Id. 185. [Back]

55. LNOJ Spec. Supp.No. 16, 209-210 (1923). [Back]

56. See Cooke, W.H. and Stickney, E. Eds. Readings in European International Relations Since 1879, 946 (1931). [Back]

57. DOCUMENT 3 (b), Art. 1. [Back]

58. Id. Art. 2. [Back]

59. Id. Art. 3. [Back]

60. Id. Art. 4. [Back]

61. Id. Art. 5. [Back]

62. Id. Art. 6. [Back]

63. DOCUMENT 3 (e) at 197. [Back]

64. Id. [Back]

65. Id. at 198. [Back]

66. Id. Art. 3. [Back]

67. Id. Art. 4. [Back]

68. Id. Art. 5. [Back]

69. Id. Art. 6. [Back]

70. Id. Art. 8. [Back]

71. Id. Art. 11-15 [Back]

72. Id. Art. 17 [Back]

73. Id. at 204. [Back]

74. Id. [Back]

75. Id. [Back]

76. See Id. 204-205. [Back]

77. Id. 206. [Back]

78. Id. 209. [Back]

79. Id. 210. [Back]

80. Id. 212. [Back]

81. Art. 21. [Back]

82. DOCUMENT 4, Art. 1. [Back]

83. Id. Art. 2. [Back]

84. Id. [Back]

85. See Id. Art. 3,5. [Back]

86. See LNTS (1935) 335-357, Dec. 17, 1925. [Back]

87. See LNTS (1927) 152-154, Sept. 28, 1926. [Back]

88. LNTS (1931) 292-293, Oct. 1. 1927. [Back]

89. Cong. Record, Vol. 67, 2824-2825 (Jan. 27, 1926). [Back]

90. See Report of the 34th Conference of the International Law Association, 110 (1926); Union Interparlementaire, XXIII Conference, 205-242; Premier Congrès International de Droit Pénal, Actes du Congrès. Prof. Pella was to be the outstanding champion of the idea of an International Penal Court until his death in New York in 1952. See 46 AJIL 709-710. [Back]

91. DOCUMENT 6, at 17. [Back]

92. Id. 24-40. [Back]

93. Id. at 25. [Back]

94. Id. [Back]

95. Id. at 26. [Back]

96. Id. at 28. [Back]

97. Id. at 31. [Back]

98. Id. at 32-33. [Back]

99. Id. at 40. [Back]

100. LNOJ, Spec. Supp. No. 64, 113-115 (1928). [Back]

101. See LNOJ, Spec. Supp. No. 63 (1928); Resolutions and Recommendations Adopted by the Assembly During its Ninth Ordinary Session, Sept. 3 to 26th, 1928 contains the Assembly Resolution at p. 16, and the General Act at Annex 1, p. 20-26, as well as texts of the Model Treaties. At about the same time a Pan-American Conference meeting in Havana resolved to prohibit all aggression and declared that a "war of aggression constitutes an international crime against the human species". See Proceedings of the Amer. Society of Int'l Law 22nd Annual Meeting, 14-15 (1928). [Back]

102. See N.Y. Times, April 6, 1928, p. 5. [Back]

103. See Proc. of Amer. Soc. of Int'l Law, (1928) at 143; Notes exchanged between the U.S. and other Powers, inShotwell, J.T. War as an Instrument of National Poli and its Renunciation in the Pact of Paris (1929); Miller, H., The Peace Pact of Paris (1928). See also Sohn, L.B. Cases on U.N. Law 935 (1956). [Back]

104. See note 103 supra, and Meyers, Origins and Conclusion of the Paris Pact (1929). For different views see Wright, Q. "The Meaning of the Pact of Paris", 27 AJIL 39 (1933), and Borchard, E.M. Ed. Comment, "War and Peace", 27 AJIL 114 (1933). [Back]

105. See Walters, note 17 supra. at 382. [Back]

106. LNOJ, Spec. Supp. No. 94, 145-149, at 146 (1931). [Back]

107. See Id. at 149. [Back]

108. L.o.N. Conf. for Red. of Armaments, Vol. II,3 13-321, Series of L.o.N. Public. IX Disarmament 1935, IX:4. A violation of the restrictions was prima facie evidence of having resorted to war. See Art. 5. [Back]

109. See the LNOJ and Records of the Assembly and the Council (1932); Lauterpacht, "Resort to War and the Interpretation of the Covenant during the Manchurian Dispute" 28AJIL 43-60 (1934); See also Willoughby, W.W., The Sino-Japanese Controversy and the League of Nations (1935). Japan's "Doctrine", the Monroe Doctrine and England's "Monroe Doctrine" are compared at 627-654. [Back]

110. See Hudson, M., The Verdict of the League: China and Japan in Manchuria (1933); The Final Report appears in 27 AJIL 119-152 (1933). [Back]

111. See Conf. Doe. D-146, LN Conf. for Red. of Armaments, Conference Documents, Vol. II, 435, Series of L.o.N. Public. IX Disarmament 1935, IX:4. [Back]

112. LNTS (1935) 395-399, Jan. 21, 1932. [Back]

113. LNTS (1934) 123-125, Feb. 5, 1932. [Back]

114. LNTS (1932) 305-307, May 4, 1932. [Back]

115. LNTS (1933) 49-51, July 25, 1932. [Back]

116. See Jessup, P.C., and Wood, B. The Chaco Award, The Independent Jour. of Columbia Univ. Dec. 9, 1938. See also editorial 33 AJIL 126 (1939). [Back]

117. See LNOJ, Spec. Supp. No. 132, 47-51 (1934); Spec. Supp. No. 133, 49; 28 AJIL 138-217, Supp. (1934). See also Proceedings of the Commission of Inquiry and Conciliation, Mar. 13-Sept. 13, 1929, Washington, D.C. [Back]

118. See Woolsey, L.H., "Leticia Dispute Between Columbia and Peru", 27 AJIL 317-324 (1933), and 29 AJIL 94-99 (1935). [Back]

119. DOCUMENT 9 at 236. [Back]

120. Id. at 237. [Back]

121. Id. at 237-238 [Back]

122. See supra. DOCUMENT 3, at 138. [Back]

123. DOCUMENT 9 at 239. [Back]

124. DOCUMENT 10 at 52. [Back]

125. Id.. at 53. [Back]

126. Id. at 54. [Back]

127. Id. at 55. [Back]

128. Id. [Back]

129. Id. at 56; See Conf. Doc. D. 157. Mar. 16, 1933, Conf. Docs. Vol. II, p. 476. [Back]

130. DOCUMENT 11 at 4-5. [Back]

131. Id. at 16. [Back]

132. See DOCUMENT 9 at 238, Art. 1 (d). [Back]

133. See DOCUMENT 11 at 9. [Back]

134. Id. at 10. [Back]

135. See Id. at 4. [Back]

136. See DOCUMENT 12 at 4. The draft submitted by the U.K. provided that in case of a breach of the Pact of Paris the parties would meet, but any action would require the concurrence of the major Powers. See Conf. D. 157 (1), Mar. 16, 1933. [Back]

137. DOCUMENT 12 at 7. [Back]

138. DOCUMENT 13 at 500. [Back]

139. See Id. at 502. [Back]

140. See DOCUMENT 12 supra. at 18. [Back]

141. See DOCUMENT 13 at 547-548. [Back]

142. See Minutes of the General Commission, Series B, Vol. II, p. 462, May 19, 1933. Text in Official Documents, AJIL (1933) at 155; See Finch, G.A., Ed. Comment, "A Pact of Non-Aggression" 27 AJIL 725 (1933). [Back]

143. DOCUMENT 13 at 549. [Back]

144. See Id. at 550-552. The subject was also discussed at 510-517, which have not been reproduced as part of the document. [Back]

145. Id. at 551. [Back]

146. Id. at 552. [Back]

147. Id. at 557. On June 18, 1934 it was reported that the recommended conversations to define aggression had not yet been held. See Conf. D/C.G./C.S.S./2 at 14. In July M. Dougalevsky died. [Back]

148. See Anti-War Treaty of Non-Aggression and Conciliation signed at Rio de Janeiro, Oct. 10, 1933 by six South American States, LNTS (1935) 405-413. In view of the U.K.'s refusal to assume any new obligations on the continent, and hesitation by other States, only new regional arrangements seemed feasible. See Conf. D./C.G. 169 (1) July 5, 1934. Conf. Docs. Vol. III, April 1936. IX Disarm. 1936 IX.4. [Back]

149. See Walters, note 17 supra. at 579-585. [Back]

150. See Id. at 550, 565, 768. The withdrawal was made final and irrevocable on Dec. 12, 1937, a day after Italy gave notice of withdrawal from the League. [Back]

151. See Serup, A. L'Article 16 du Pacte et son Interpretation dans le Conflit Italo-Ethiopien 58-100 (1938). [Back]

152. See LNOJ, 15th Year, No. II, 1760, 1839-1840 (1934). [Back]

153. See Padelford, N.J. International Law and Diplomacy in the Spanish Civil Strife, 121-143 (1939). [Back]

154. DOCUMENT 15 at 27. [Back]

155. See Historical Survey of the Question of Int'l Criminal Jurisdiction, U.N. Memo. Doc. A/CN.4/7 Rev. 1 (1949). See also Proceedings of the Int'l Conf. on the Repression of Terrorism, Geneva, Nov. 1-16, 1937, Official No. C.94.M.47. 1938 (V). Series of L.o.N. Publ. V Legal V.3. [Back]

155a. See 33 AJIL Supp. 821-909 at 811 (1939). The study also contains a comprehensive bibliography. The Harvard definition was similar to one suggested by Quincy Wright in 1935. See "The Concept of Aggression in International Law", 9 AJIL 373 (1935) at 395. [Back]

156. DOCUMENT 16 at 539. [Back]

157. Id. at 540. [Back]

158. See Id. at 508,540. [Back]

159. Id. at 507. [Back]

Editorial Note: This document corresponds to Part I of "Defining International Aggression - The Search for World Peace", Vol. 1, by Benjamin B. Ferencz.

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Published online by Equipo Nizkor - 26 March 2013