War of aggression

A war of aggression, sometimes also war of conquest, is a military conflict waged without the justification of self-defense usually for territorial gain and subjugation. The phrase is distinctly modern and diametrically opposed to the prior legal international standard of "might makes right", under the medieval and pre-historic beliefs of right of conquest. Since the Korean War of the early 1950s, waging such a war of aggression is a crime under the customary international law.

Wars without international legality (e.g. not out of self-defense nor sanctioned by the United Nations Security Council) can be considered wars of aggression; however, this alone usually does not constitute the definition of a war of aggression; certain wars may be unlawful but not aggressive (a war to settle a boundary dispute where the initiator has a reasonable claim, and limited aims, is one example).

The International Military Tribunal at Nuremberg, which followed World War II, called the waging of aggressive war "essentially an evil thing...to initiate a war of aggression...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] Article 39 of the United Nations Charter provides that the UN Security Council shall determine the existence of any 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".

The Rome Statute of the International Criminal Court refers to the crime of aggression as one of the “most serious crimes of concern to the international community”, and provides that the crime falls within the jurisdiction of the International Criminal Court (ICC). However, the Rome Statute stipulates that the ICC may not exercise its jurisdiction over the crime of aggression until such time as the states parties agree on a definition of the crime and set out the conditions under which it may be prosecuted.

Sources and definitions of the crime

The Convention for the Definition of Aggression

On July 3, 1933, the first convention that defined aggression was signed in London by representatives of Romania, Estonia, Latvia, Poland, Turkey, USSR, Iran and Afghanistan. It was initiated by Soviet Foreign Minister Maxim Litvinov in response to threats of use of force by the German government following Hitler's rise to power.^[2] The government of Finland acceded to the convention on January 31, 1934. 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 convention became operative on October 16, 1933. It was registered in League of Nations Treaty Series on March 29, 1934.^[3]

This convention served as the basis for further discussions on defining aggression.

Another convention repeating the same definition was signed on July 4, 1933 by representatives of the Soviet Union, Romania, Czechoslovakia, Turkey and Yugoslavia. It became effective on February 17, 1934 and was registered in League of Nations Treaty Series on April 26, 1934.^[4]

A separate convention to the same effect was concluded between the governments of the Soviet Union and Lithuania, since the Lithuanian government refused to accede to any protocol on which the government of Poland was signed, since the Polish government kept the Vilna area which was a disputed region between Poland and Lithuania, and Lithuanian authorities treated Polish rule over Vilna as a military occupation of its constitutional capital. The separate Soviet-Lithuanian convention was signed on July 5, 1933. Ratifications were exchanged in Moscow on December 14, 1933, and the convention went into effect on the same day. It was registered in League of Nations Treaty Series on April 16, 1934.^[5] It repeated the definitions of the previous conventions.

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.^[6][7]

The Nuremberg Principles

In 1945, the London Charter of the International Military Tribunal defined three categories of crimes, including crimes against peace. This definition was first used by Finland to prosecute the political leadership in the war-responsibility trials in Finland. The principles were later known as the Nuremberg Principles.

In 1950, the Nuremberg Tribunal defined Crimes against Peace, in Principle VI, specifically Principle VI(a), submitted to the United Nations General Assembly, as:^[8][9]

(i) Planning, preparation, initiation or waging of a war of aggression or a war in violation of international treaties, agreements or assurances;

(ii) Participation in a common plan or conspiracy for the accomplishment of any of the acts mentioned under (i).

See: Nuremberg Trials: "The legal basis for the jurisdiction of the court was that defined by the Instrument of Surrender of Germany, political authority for Germany had been transferred to the Allied Control Council, which having sovereign power over Germany could choose to punish violations of international law and the laws of war. Because the court was limited to violations of the laws of war, it did not have jurisdiction over crimes that took place before the outbreak of war on September 1, 1939."

For committing this crime, the Nuremberg Tribunal sentenced a number of persons responsible for starting World War II. One consequence of this is that nations who are starting an armed conflict must now argue that they are either exercising the right of self-defense, the right of collective defense, or - it seems - the enforcement of the criminal law of jus cogens. It has made formal declaration of war uncommon after 1945.

During the trial, the chief American prosecutor, Robert H. Jackson, stated:

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.

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.", he wrote. "Law was created ex post facto to suit the passion and clamor of the time."^[10]

The United Nations Charter

The relevant provisions of the Charter of the United Nations mentioned in the RSICC article 5.2 were framed to include the Nuremberg Principles. The specific principle is Principle VI.a "Crimes against peace", which was based on the provisions of the London Charter of the International Military Tribunal that was issued in 1945 and formed the basis for the post World War II war crime trials. The Charters provisions based on the Nuremberg Principle VI.a are:

• 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 equal rights and self-determination 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.^[11]

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:

• a. Unprovoked armed attack by a State against the territory, the people, or the land, sea or air forces of another State;
• b. 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".^[12]

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, 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)".^[13] 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".^[14]

General Assembly Resolution 3314

On December 14, 1974, the United Nations General Assembly adopted Resolution 3314, which defined the crime of aggression. This definition is not binding under international law, but it is often cited in opposition to military actions.^{[citation needed]}

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.

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.

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.^[15] 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.^[16]

Although 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".^[17] 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.^[18]

Rome Statute of the International Criminal Court

The Rome Statute of the International Criminal Court lists the crime of aggression as one of the most serious crimes of concern to the international community, and provides that the crime falls within the jurisdiction of the International Criminal Court (ICC).

However, Article 5.2 of the Rome Statute states that "The Court shall exercise jurisdiction over the crime of aggression once a provision is adopted in accordance with articles 121 and 123 defining the crime and setting out the conditions under which the Court shall exercise jurisdiction with respect to this crime. Such a provision shall be consistent with the relevant provisions of the Charter of the United Nations."^[19] The Assembly of States Parties of the ICC adopted such a definition at the 2010 Kampala Review Conference.^[20]

A United Nations factsheet on the ICC states:

What about aggression? Isn't it in the Statute?

Aggression has been included as a crime within the Court's jurisdiction. But first, the States Parties must adopt an agreement setting out two things: a definition of aggression, which has so far proven difficult, and the conditions under which the Court could exercise its jurisdiction. Several proposals have been considered. Some countries feel that, in line with the UN Charter and the mandate it gives to the Security Council, only the Council has the authority to find that an act of aggression has occurred. If this is agreed, then such a finding by the Council would be required before the Court itself could take any action. Other countries feel that such authority should not be limited to the Security Council. There are proposals under consideration that would give that role to the General Assembly or to the International Court of Justice, if an accusation of aggression were made and the Security Council did not act within a certain time. In September 2002, the Assembly of States Parties to the Court established a special working group, open to all States, to elaborate proposals for a provision on aggression.^[21]

See also

• Right of Conquest
• Command responsibility
• Crime against peace
• International criminal law
• International law
• Jus ad bellum
• Legality of the Iraq War
• List of war crimes
• Nuremberg Principles
• War crime

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.

External links

• 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
• Historical Review of Developments relating to Aggression, 2003 (UN publication)