War of aggression

Possibly the first trial for waging aggressive war is that of the Sicilian king Conradin in 1268.^[5]

Definitions

The origin of the concept, the author Peter Maguire argues, emerged from the debate on Article 231 of the Treaty of Versailles of 1919: "Germany accepts the responsibility of Germany and her allies for causing all the loss and damage to which the Allied and Associated Governments and their nationals have been subjected as a consequence of the war imposed upon them by the aggression of Germany and her allies."^[6] Maguire argues:

Originally President Wilson resisted the effort to brand Germany with war guilt, but French and British leaders forced him to compromise. Naming Germany an 'aggressor' introduced the concept into positive international law.^[7]

The Japanese invasion of Manchuria had a significant negative effect on the moral strength and influence of the League of Nations. As critics had predicted, the League was powerless if a strong nation decided to pursue an aggressive policy against other countries, allowing a country such as Japan to commit blatant aggression without serious consequences. Adolf Hitler and Benito Mussolini were also aware of this, and ultimately both followed Japan's example in aggression against their neighbors: in the case of Italy, against Ethiopia (1935-7) and Albania (1939); and Germany, against Czechoslovakia (1938-9) and Poland (1939).^[8]

In November 1935, the League of Nations condemned Italy's aggression in Ethiopia and imposed economic sanctions.^[9] The prominent jurist Hans Kelsen argued that in the Ethiopian case, the League had "at least made certain efforts to fulfill its duty in the cases of illegal aggression undertaken by member states against other member states."^[10]

The Convention for the Definition of Aggression

Two Conventions for the Definition of Aggression were signed in

The signatories of both treaties were also signatories of the Kellogg–Briand Pact prohibiting aggression, and were seeking an agreed definition of the latter. Czechoslovakia, Romania and Yugoslavia were members of the Little Entente, and their signatures alarmed Bulgaria, since the definition of aggression clearly covered its support of the Internal Macedonian Revolutionary Organization.^[12] Both treaties base their definition on the "Politis Report" of the Committee of Security Questions made 24 March 1933 to the Conference for the Reduction and Limitation of Armaments, in answer to a proposal of the Soviet delegation. The Greek politician Nikolaos Politis was behind the inclusion of "support for armed bands" as a form of aggression.^[13] Ratifications for both treaties were deposited in Moscow, as the convention was primarily the work of Maxim Litvinov, the Soviet signatory.^[14] The convention defined an act of aggression as follows:

• Declaration of war upon another State.
• Invasion by its armed forces, with or without a declaration of war, of the territory of another State.
• Attack by its land, naval or air forces, with or without a declaration of war, on the territory, vessels or aircraft of another State.
• Naval blockade of the coasts or ports of another State.
• Provision of support to armed bands formed in its territory which have invaded the territory of another State, or refusal, notwithstanding the request of the invaded State, to take, in its own territory, all the measures in its power to deprive those bands of all assistance or protection.

The League prerogative under that convention to expel a League member found guilty of aggression was used by the League Assembly only once, against the Soviet government itself, on December 14, 1939, following the Soviet invasion of Finland.^[15][16]

Primary documents:

• Text of the Convention of 3 July
• Text of the Convention of 4 July
• Text of the Convention of 5 July

The Nuremberg Principles

In 1945, the

In 1950, the

Reading the Tribunal's final judgment in court, British alternate judge Norman Birkett said:

The charges in the Indictment that the defendants planned and waged aggressive wars are charges of the utmost gravity. War is essentially an evil thing. Its consequences are not confined to the belligerent states alone, but affect the whole world. To initiate a war of aggression, therefore, is not only an international crime; it is the supreme international crime differing only from other war crimes in that it contains within itself the accumulated evil of the whole.^[1]

Associate Supreme Court Justice William O. Douglas charged that the Allies were guilty of "substituting power for principle" at Nuremberg: "I thought at the time and still think that the Nuremberg trials were unprincipled. Law was created ex post facto to suit the passion and clamor of the time."^[19]

The United Nations Charter

The relevant provisions of the

• Article 1:
  • The Purposes of the United Nations are:
    1. To maintain international peace and security, and to that end: to take effective collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace, and to bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of the peace;
    2. To develop friendly relations among nations based on respect for the principle of
       peoples
       , and to take other appropriate measures to strengthen universal peace;
• Article 2, paragraph 4
  • All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.
• Article 33
  • The parties to any dispute, the continuance of which is likely to endanger the maintenance of international peace and security, shall, first of all, seek a solution by negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their own choice.
  • The
    Security Council
    shall, when it deems necessary, call upon the parties to settle their dispute by such means.
• Article 39
  • The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security.^[20]

The Inter-American Treaty of Reciprocal Assistance (Rio Pact)

The Inter-American Treaty of Reciprocal Assistance, signed in Rio de Janeiro on September 2, 1947, included a clear definition of aggression. Article 9 stated:

In addition to other acts which the Organ of Consultation may characterize as aggression, the following shall be considered as such:

1. Unprovoked armed attack by a State against the territory, the people, or the land, sea or air forces of another State;
2. Invasion, by the armed forces of a State, of the territory of an American State, through the trespassing of boundaries demarcated in accordance with a treaty, judicial decision, or arbitral award, or, in the absence of frontiers thus demarcated, invasion affecting a region which is under the effective jurisdiction of another State.^[21]

Further discussions on defining aggression

The discussions on definition of aggression under the UN began in 1950, following the outbreak of the Korean War. As the western governments, headed by Washington, were in favor of defining the governments of North Korea and the People's Republic of China as aggressor states, the Soviet government proposed to formulate a new UN resolution defining aggression and based on the 1933 convention. As a result, on November 17, 1950, the General Assembly passed resolution 378,^[22] which referred the issue to be defined by the International Law Commission. The commission deliberated over this issue in its 1951 session and due to large disagreements among its members, decided "that the only practical course was to aim at a general and abstract definition (of aggression)".^[23] However, a tentative definition of aggression was adopted by the commission on June 4, 1951, which stated:

Aggression is the use of force by a State or Government against another State or Government, in any manner, whatever the weapons used and whether openly or otherwise, for any reason or for any purpose other than individual or collective self-defence or in pursuance of a decision or recommendation by a competent organ of the United Nations.^[24]

General Assembly Resolution 3314

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On December 14, 1974, the

This definition makes a distinction between aggression (which "gives rise to international responsibility") and war of aggression (which is "a crime against international peace"). Acts of aggression are defined as armed invasions or attacks, bombardments, blockades, armed violations of territory, permitting other states to use one's own territory to perpetrate acts of aggression and the employment of armed irregulars or mercenaries to carry out acts of aggression. A war of aggression is a series of acts committed with a sustained intent. The definition's distinction between an act of aggression and a war of aggression make it clear that not every act of aggression would constitute a crime against peace; only war of aggression does. States would nonetheless be held responsible for acts of aggression.^[citation needed]

The wording of the definition has been criticised by many commentators. Its clauses on the use of armed irregulars are notably vague, as it is unclear what level of "involvement" would entail state responsibility. It is also highly state-centric, in that it deems states to be the only actors liable for acts of aggression. Domestic or transnational insurgent groups, such as those that took part in the Sierra Leone Civil War and the Yugoslav Wars, were key players in their respective conflicts despite being non-state parties; they would not have come within the scope of the definition.^{[citation needed]}

The Definition of Aggression also does not cover acts by international organisations. The two key military alliances at the time of the definition's adoption, NATO and the Warsaw Pact, were non-state parties and thus were outside the scope of the definition.^[26] Moreover, the definition does not deal with the responsibilities of individuals for acts of aggression. It is widely perceived as an insufficient basis on which to ground individual criminal prosecutions.^[27]

While this Definition of Aggression has often been cited by opponents of conflicts such as the 1999 Kosovo War and the 2003 Iraq War, it has no binding force in international law. The doctrine of Nulla poena sine lege means that, in the absence of binding international law on the subject of aggression, no penalty exists for committing acts in contravention of the definition. It is only recently that heads of state have been indicted over acts committed in wartime, in the cases of Slobodan Milošević of Serbia and Charles Taylor of Liberia. However, both were charged with war crimes, i.e., violations of the laws of war, rather than with the broader offence of "a crime against international peace" as envisaged by the Definition of Aggression.

The definition is not binding on the Security Council. The United Nations Charter empowers the General Assembly to make recommendations to the United Nations Security Council but the Assembly may not dictate to the Council. The resolution accompanying the definition states that it is intended to provide guidance to the Security Council to aid it "in determining, in accordance with the Charter, the existence of an act of aggression".^[28] The Security Council may apply or disregard this guidance as it sees fit. Legal commentators argue that the Definition of Aggression has had "no visible impact" on the deliberations of the Security Council.^[29]

Rome Statute of the International Criminal Court

The

• Right of conquest
• Command responsibility
• Crime against peace
• Peremptory norm
• International criminal law
• International law
• Invasion
• Jus ad bellum
• List of war crimes
• Nuremberg principles
• Preventive war
• War crime
• War of liberation

Notes

References

List of reference documents (alphabetical by author):

• Lyal S. Sunga The Emerging System of International Criminal Law: Developments in Codification and Implementation, Kluwer (1997) 508 p.
• Lyal S. Sunga Individual Responsibility in International Law for Serious Human Rights Violations, Nijhoff (1992) 252 p.
• H. K. Thompson, Jr. and Henry Strutz, Dönitz at Nuremberg: A Reappraisal, Torrance, Calif.: 1983.
• J. Hogan-Doran and B. van Ginkel, "Aggression as a Crime under International Law and the Prosecution of Individuals by the Proposed International Criminal Court" Netherlands International Law Review, Volume 43, Issue 3, December 1996, pp. 321–351, T.M.C. Asser Press 1996.

External links

Wikiquote has quotations related to War of aggression.

• Dinstein, Yoram. Aggression, Max Planck Encyclopedia of Public International Law
• Amendments to the Rome Statute of the International Criminal Court on the crime of aggression
• Stefano Pietropaoli, Defining evil. The war of aggression and international law
• From Nuremberg to Kampala – Reflections on the Crime of Aggression, Address by Judge Dr. jur. h. c. Hans-Peter Kaul of the ICC at the 4th International Humanitarian Law Dialogs, 2010^{[permanent dead link]}
• Historical Review of Developments relating to Aggression, 2003 (UN publication)