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Defining Aggression: Where it Stands and Where it 's Going

Published online by Cambridge University Press:  28 March 2017

Benjamin B. Ferencz
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Extract

It is seemingly easier to evoke aggression than to dispel it, and easier to commit aggression than to define it. What has been universally condemned as “the gravest of all crimes against peace and security throughout the world ” has yet to be consensually particularized. On the eve of its hundredth meeting, the U.N. Special Committee on the Question of Defining Aggression, the fourth United Nations body to deal with the topic since 1952, adjourned without having carried out its instructions. It did conclude by irresolute acclamation that progress had been made and that it should continue its work in 1973. Despite the semblance of unanimity, both points were not free from doubt. Defining aggression has perplexed legal scholars for nearly half a century. Those who are dedicated to the rule of law and to a rational system of conflict management may wish to consider some of the current disputations aS well as the expectations and requirements of the days or years to come.

Type
Research Article
Information
American Journal of International Law , Volume 66 , Issue 3 , July 1972 , pp. 491 - 508
Copyright
Copyright © American Society of International Law 1972

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References

1 General Assembly Res. 380 (V), Nov. 17, 1950.

2 U.N. Doc. A/AC. 134/L.38.

3 U.N. Doc. A/AC. 134/SR.99, pp. 5–9.

4 U. of Calif. Press, 1958; reviewed in 52 A.J.I.L. 364 (1958).

5 Law and Minimum World Public Order 121–260 (1961); reviewed in 58 A.J.I.L. 711 (1964).

6 Text on International Law, Academy of Sciences of U.S.S.R., Moscow, p. 403.

7 Stone, Aggression and World Order, at 29 (1958).

8 Stone, op. cit. at 32; 2 Oppenheim, International Law 154, note 1 (6th ed., 1944).

9 See 27 A.J.I.L. Supp. (1933) for the texts of the Conventions Defining Aggression as signed on July 3, 4 and 5, 1933.

10 U N . Charter, Ch. I, Art. 1, Sec. 1.

11 Stone, op. cit. above, at 42 note 6, 44; Kelsen notes that the term “other breaches of the peace” as used in Art. 1 was intended to include aggression as a form of breach of the peace. He concludes therefore that Art. 39, by indicating that it is something different is in error. The Law of the United Nations 14, note 1 (1950).

12 Int. Conf. on Military Trials, London, at 375 (1945) (Dept. of State Pub. 3080).

13 Ibid, at ix.

14 Ibid, at 312.

15 Ibid, at 303.

16 Ibid, at 423.

17 The Case Against the Nazi War Criminals, at 79 (1946).

18 G. A. Res. 377 A (V), Nov. 3, 1950, 45 A.J.I.L. Supp. 1 (1951); see Sohn, United Nations Law 229–247.

19 For the history of the question of defining aggression, see General Assembly, 7th Sess., Official Records, Annexes, Agenda Item 54, Doc. A/2211.

20 U.N. Pub. 67.V.4, p. 64; 45 A.J.I.L. Supp. 126 (1951).

21 See Survey of Previous U.N. Action on the Question of Defining Aggression, U.N. Doc. A/AC. 134/1, March 24, 1968.

22 GAOR, 22nd Sess., Supp. No. 16 (A/6716) at 84.

23 GAOR, 23rd Sess., Agenda Item 86, A/7185/Rev. 1.

24 GA0R, 24th Sess., Supp. No. 20 (A/7620), Feb. 24–April 3, 1969; GAOR, 25th Sess., Supp. No. 19 (A/8019), July 13–Aug. 14, 1970; GAOR, 26th Sess., Supp. No. 19 (A/8419), Feb. 1–March 5, 1971.

25 U.N. Doc. A/AC.134/SR.99.

26 See U.N. Doc. A/7185/Rev. 1, above.

27 Ibid, at 34.

28 The texts are contained in U.N. Doc. A/7620, note 24 above, pp. 4–10.

29 Ibid, at 32.

30 U.N. Doc. A/AC.134/L.22, July 24, 1970.

31 Ibid, at 64.

32 Ibid, at 53.

33 U.N. Doc. A/8419, note 24 above.

34 Ibid., Annex III.

35 Ibid, at 37.

36 Ibid, at 21.

37 U.N. Doc. A/AC.134/L.37, Annex I, Feb. 29, 1972.

38 Ibid., Add. 1, Annex II.

39 Ibid., Add. 2.

40 U.N. Doc. A/AC.134/L.40, March 1, 1972.

41 A proposal by Guyana, which was later dropped, noted certain irreconcilable principles and called upon the Committee to decide by majority vote which text should be taken as the basis for discussion. U.N. Doc. A/AC.134/L.39, March 1, 1972.

42 The six-Power draft used the term “conscious that a primary purpose.”

43 The six-Power draft here inserted the clause “to that end.”

44 The six Powers used the word “provides.”

45 See U.N. Doc. A/8419, note 24 above, at 39.

46 The thirteen-Power draft said “pacific methods.”

47 The six- and thirteen-Power drafts are essentially agreed on this provision, which does not appear in the Soviet draft. The language used herein is a slight modification of the proposed texts, but has been adopted verbatim from the Declaration on Principles of International Law Concerning Friendly Relations and Co-operation Among States. U.N. Doc. A/RES/2625 (XXV), Oct. 24, 1970, reproduced in 65 A.J.I.L. 243 at 247 (1971).

48 The text as here suggested was not considered by the Committee. It has been synthesized by the author by extracting the most important remaining preambular provisions contained in the three drafts. There is omitted the phrase from the U.S.S.R. preamble that the definition “would facilitate the rendering of assistance to the victims of aggression and the protection of his lawful rights and interests.” This phrase was not included in earlier Soviet proposals nor in the drafts of the other Powers. There is also omitted the denunciation of armed aggression as the most serious form which should be defined first, since this idea was apparently dropped. The Soviet emphasis on the power of the Security Council, which was reaffirmed in 1972 in U.N. Doc. A/AC. 134/ L.37/Add. 1, p. 5, has been included.

49 The language of the six Powers was a bit weaker. They suggested “Adopts the following definition” and referred to aggression as “a term to be applied by the Security Council.” This raised objections that it sounded like an exercise in grammar rather than international law. U.N. Docs. A/AC.134/SR.57 at 2, and SR.60 at 7.

50 U.N. Doc. A/AC.134/L.37, Annex I, p. 1.

51 Ibid., Add. 1, p. 3.

52 Ibid.

53 Ibid., Annex I, p. 1.

54 Ibid.

55 Prof. Baxter has noted that Art. 39 does not compel the Council to reach a decision concerning an aggressor and that its decisions are usually reached on political grounds. The Law of Armed Conflicts 95 (Carnegie Endowment for Int. Peace, 1970).

56 U.N. A/AC.134/L.37, Add. 1, p. 1.

57 U.N. Doc. A/AC.134/L.37, Annex I, p. 1.

58 Ibid., Add. 1, p. 3.

59 U.N. Doc. A/AC.134/SR.98, p. 6.

60 Note 57 above, p. 2.

61 See note 47 above, at 246; see a Survey of this Declaration by Robert Rosenstock, 65 A.J.I.L. 713 (1971).

62 Note 56 above, at p. 3.

63 Note 24 above, A/7620, at p. 9.

64 A/8019, ibid., pp. 12–14, A/8419, pp. 11–13. Brownlie argues that animus aggressionis is only relevant in determining criminal responsibility of individuals for crimes against peace. International Law and the Use of Force by States, at 377 (1963).

65 A New York Times article by Israel Shenker quotes a representative of the U.S. Mission: “When the idea came up we said, ‘What a lot of nonsensel’ We told people that it was a useless idea, and then we decided you can’t beat something with nothing, so we put up a draft and then we were committed to going along with the exercise.” Dec. 9, 1971, p. 14.

66 Note 56 above, p. 2.

67 Ibid., Annex I, p. 3.

68 U.N. Doc. A/AC.134/SR.57, at p. 7.

69 Note 57 above, p. 3.

70 Note 12 above, p. 294.

71 U.N. Pub. 67.V.4, p. 65.

72 Note 56 above, p. 4.

73 A/8419, note 24 above, p. 64. Quincy Wright maintained that aggression which invokes the authority of the U.N. to act requires the threat or use of armed force. “The Prevention of Aggression,” 50 A.J.I.L. 526 (1956). See editorial by Richard A. Falk, below, p. 576.

74 During the 1970 sessions Mr. Mutuale of the Congo drew attention to the principle of proportionality (U.N. Doc. A/AC.134/SR.72, p. 7). The American delegate, Mr. Stephen M. Schwebel, noted that the use of force would have to be proportionate (op. cit. SR.63, p. 5). Mr. H. Steel of the United Kingdom hinted that, if self-defense would be permissible against indirect aggression, it might be possible to agree that only such force would be used as was reasonably necessary to secure that defense (op. cit. SR.74, p. 8). The French and the Norwegians also saw that a compromise might be possible by recognizing that indirect aggression belonged in the definition if the nature of the permissible response were restricted (ibid., p. 4). “The criterion of the legality of the measures taken in self-defense is proportionality.” Bowett, Self-Defense in International Law 269 (1958).

75 U.N. Doc. A/AC.134/SR.97, p. 4.

76 Note 57 above, p. 4. See Emerson, , “Self-Determination,” 65 A.J.I.L 459 (1971)Google Scholar.

77 Note 57 above.

78 G. A. Res. 2734 (XXV), Dec. 16, 1970, U.N. General Assembly, 25th Sess., Supp. No. 28 (A/8028); see Waldock, “The Regulation of the Use of Force,” 81 Hague Academy, Recueil des Cours 455–514 (1952), who states: “There is now abundant evidence in State practice of the development of a customary rule imposing a duty not to recognize the fruits of aggression” (p. 481).

79 See G. A. Res. 95(1), Dec. 11, 1946.

80 Rossides of Cyprus, Alcivár of Ecuador, Pollard of Guyana, Capotorti of Italy, and Chkhikvadzé and Kolesnik of the U.S.S.R.

81 U.N. Doc. A/AC.134/SR.99, p. 10.

82 Cited by McDougal, op. cit. note 5 above, p. 218.

83 “Reprisals Involving Recourse to Armed Force,” 66 A.J.I.L. 1 at 3 (1972).

84 “The Beirut Raid and the Law of Retaliation,” 63 A.J.I.L. 441 (1969).

85 Note 5 above, at 218.

86 See note 39 above.

87 62 A.J.I.L. 701 (1968). Cf. Sohn, , “The Definition of Aggression,” 45 Virginia Law Re. 697 (1959)CrossRefGoogle Scholar; Falk, Legal Order in a Violent World 496–517 (1968); see also Wright, , “The Concept of Aggression in International Law,” 29 A.J.I.. 373 (1935)Google Scholar, and “The Prevention of Aggression,” 50 ibid. 514 (1956).

88 G. A. Res. 2734 (XXV), Dec. 16, 1970, and Res. 2880 (XXVI), Dec. 21, 1971.

89 U.N. Doc. A/AC.134/SR.95.

90 Oppenheim and Lauterpacht put it well when they said: “Definitions represent that element of certainty in the operation and observance of the law which is no less essential in international relations than within the State. A definition may also be instrumental in making it more difficult for States to pursue a policy of treating the conception of self-defense as identical with the defense of any interest to which they attach importance.” 2 Oppenheim, International Law 156 (6th ed., 1944).

91 Note 20 above, at 27.

92 U.N. Doc. E/CN.4/1075, Feb. 15, 1972.

93 See G. A. Res. 898 (IX), Dec. 14, 1954; Res. 1187 (XII), Dec. 11, 1957. See also J. Graven, “Critique et Sort du Projet de Cour Internationale,” Ch. 18 in Stone and Woetzel (eds.), Toward a Feasible International Criminal Court (Geneva, World Peace Through Law Center, 1970).