Defining International Aggression, The Search for World Peace
United Nations Agenda item 54
Official Records, New York, 1952-1953
DOCUMENT A/2162 and Add.1 |1|
Comments received from governments regarding the draft code of offences against the peace and security of mankind and the question of defining aggression
[Original text: English, French,
Spanish and Russian]
[27 August 1952]
NOTE BY THE SECRETARY-GENERAL
1. The General Assembly, on 13 November 1951, decided to delete item 50 (c) of the provisional agenda of its sixth session relating to the draft code of offences against the peace and security of mankind prepared by the International Law Commission at its third session (A/1858, chap. IV) and to include the item in the provisional agenda of its seventh session (A/1950, para. 4). The Secretary-General, by a letter of 17 December 1951, invited the attention of the governments of States Members to the draft code, and invited them to communicate to him before 1 June 1952 any comments or observations thereon which they might wish to make, for such use as the General Assembly might find desirable.
2. On 31 January 1952, the General Assembly adopted resolution 599 (VI) on the question of defining aggression. By that resolution, the Assembly, inter alia, requested Member States, when transmitting to the Secretary-General their observations on the draft code of offences against the peace and security of mankind, to give in particular their views on the problem of defining aggression. The Secretary-General invited the attention of Member States to the resolution by a letter of 6 February 1952.
3. By 25 August 1952, replies had been received from the Governments of Bolivia, Chile, Costa Rica, Denmark, Egypt, France, India, Indonesia, Iraq, the Netherlands, Nicaragua, the Union of Soviet Socialist Republics and Yugoslavia. These replies are reproduced below. Any additional replies that may be received will be reproduced as addenda to the present document.
1. BOLIVIA
Communication from the permanent delegation of Bolivia to the United Nations
New York, 11 July 1952
The permanent delegation of Bolivia ... has the honour to send herewith, for such action as may be deemed appropriate, the study prepared by Dr. Manuel Duran P., Professor of Criminal Law and Dean of the Faculty of Law of the University of San Francisco Xavier, at Sucre, Bolivia, on the draft code of offences against the peace and security of mankind.
SOME COMMENTS ON THE DRAFT CODE OF OFFENCES AGAINST THE PEACE AND SECURITY OF MANKIND
Since the principle nullum crimen sine lege is the guarantee par excellence of the rights of the individual, I consider that the drafting of an international penal code defining the offences should be the first step towards bringing to trial persons liable for violations of international law.
No comment is offered on the meaning of the expression "offences against the peace and security of mankind" as interpreted in paragraph 58 (a) of the Introduction, but the writer would like to comment on the content: whereas, in accordance with article 2 (9) of the draft code, acts by the authorities of a State or by private individuals, committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group as such, are treated as offences, such acts constitute first and foremost attacks on the integrity of mankind, so that the expression should be expanded to read: "offences against the peace, security and integrity of mankind", though the comments below on the acts covered by article 2 (9) should be taken into consideration.
In order better to define the nature of the offences referred to in article 1, it would not be superfluous to stress that they are "ordinary offences in international law" for which the privileged treatment reserved for political offences cannot be claimed.
Article 2 (1), which proceeds to specify offences against the peace and security of mankind, says: "Any act of aggression, including the employment by the authorities of a State of armed force against another State ..." etc. However, if any act of aggression constitutes an offence against the peace and security of mankind and "no attempt [was] made to enumerate such acts exhaustively", the adverb "including" is redundant, because of all the acts of aggression the most serious is characterized precisely by the employment of armed force against another State. Accordingly, if that was the Commission's intention, the word "principally" or some other equivalent expression should have been used, instead of "including", to show that the employment of force constitutes an aggravating circumstance and hence adds to the liability of the agent.
I also believe it is worthwhile to define and clarify the concept of "national or collective self-defence" and the conditions which must be fulfilled before it can be regarded as a justification, lest the authorities of a State be able to claim the protection of supposed self-defence.
Article 2 (5) should, in addition, contain a reference to action by the authorities of a State to foment or encourage "fifth columns" or unlawful penetration, for experience has shown that "fifth-column activity" is one of the most effective ways of weakening a country's defensive capacity in the interests of another and so of compromising international peace.
With reference to article 2 (8), it should be pointed out that many historical examples show that international law does not always reflect the desires and aspirations of certain peoples concerning the nationality of their preference: either frontiers are fixed arbitrarily by treaties signed as the result of a war, or else situations continue to exist which are incompatible with the fundamental rights of States and to which a solution must be found. In such cases, annexation proper would not be involved, but rather the assertion of a claim (rei vindicatio) to a territory inhabited by persons whose wishes would have to be consulted and respected. Accordingly, not only annexation "contrary to international law" but also annexation contrary to the will of the inhabitants of a territory ought to be defined as an offence.
Article 2 (9), whereby the crime of genocide is defined as a punishable offence, speaks of acts by the authorities of a State or by private individuals, committed with "intent to destroy, in whole or in part, a national, ethnical, racial or religious group ... including..." the acts referred to in its five sub-paragraphs. I consider that, in addition to the intent to destroy, killing and causing serious bodily or mental harm to members of the group, the article should mention the case where a group is subjected to living conditions which render its normal life within the national community impossible and which are incompatible with the free development of its activities and personality. This paragraph also suggests a question: Do the offences mentioned in it really endanger or disturb the maintenance of the peace and security of mankind? If the answer is not conclusively affirmative, the possibility would have to be considered of adding in the general title—"Offences against the peace and security of mankind"—the word "integrity" as proposed in the comments on paragraph 58 (a).
It would be desirable to add expressly in article 4 that, in the case of an offence ordered by the law or imposed by authority, the legality of the act does not constitute a sufficient defence.
Finally, with regard to the provision (article 5) that the penalty "shall be determined by the tribunal exercising jurisdiction over the individual accused, taking into account the gravity of the offence", while it was not thought possible to prescribe a specific penalty for each offence, in deference to the generally accepted principle nulla poena sine lege it will be necessary to lay down in the code, in a separate article, that the competent tribunal will be authorized to impose the most adequate penalty, taking into consideration not only the gravity of the offence but also the personality of the offender.
(Signed) Manuel DURAN P.
Professor of Criminal Law
2. CHILE
Letter from the permanent delegation of Chile to the United Nations
New York, 17 March 1952
I have the honour to inform you that the Government of my country feels that the draft code submitted by the International Law Commission covers all the cases necessary for the effective judgment of offences against the peace and security of mankind and that consequently it may be approved without the introduction of any amendments or additions to the text.
(Signed) Carlos VALENZUELA
Counsellor,
Permanent delegation of Chile to the United Nations
3. COSTA RICA
(a) Letter from the Minister for External Relations concerning the draft code of offences against the peace and security of mankind
San José, 10 June 1952
The Government of Costa Rica ventures to make the following observations on the said draft:
1. The Government of Costa Rica realizes that, in view of the limitations imposed by the present state of international affairs, the code, on becoming operative, will have to pass through a transitional stage, in which it will have to follow the prudent if somewhat untechnical course of compromise. This is the reason for the provision that the code is to be applied by national tribunals. However, the Government of Costa Rica wishes to place on record its view that, preferably, the offences covered by the code should be tried by an international criminal court rather than by national tribunals, as soon as the difficulties which now prevent the organization of such a court are overcome. The competence of the international court would be beyond challenge, whereas that of a national tribunal would be open to criticism in many respects, in particular on the grounds that it would never try a case with sufficient impartiality. Internationally, it would be more feasible to set up a court in each case, with independent ideas and capable of proceeding with unimpeachable fairness. The very existence of international law demands as a logical consequence that its rules should be interpreted and applied in the light of supra-national considerations.
However, since the drafting of a statute of an international criminal court is only in its preparatory stage, and as quite possibly years may elapse before such a body can be set up, the Government of Costa Rica considers that the idea of temporarily delegating jurisdiction in respect of crimes against humanity to national tribunals is the only way in which the draft code can be made viable.
2. I should like now to refer to article 5 of the draft. This is open to serious criticism on technical grounds, for even though the Commission says that it has taken into account the generally accepted principle nulla poena sine lege, the truth is that this maxim of criminal law presupposes a clear determination beforehand of the penalty applicable to each category of offence, and the fact that the article in question states that there shall be penalties and that these penalties shall be determined by the tribunal concerned, does not accord with this principle. A penalty determined by a tribunal, at its discretion, after an offence has been committed, and to be applied to persons whose identity is known, does not answer the requirement of uniform and general punishment which the theory of criminal law demands.
Although the Government of Costa Rica realizes that in the present international situation it is difficult to reach agreement on so delicate a point, for it would require a genuine effort at international understanding, there are many uncontestable scientific arguments which militate against the unsatisfactory application of the principle nullum crimen, nulla poena sine lege in this code. If this article is allowed to stand as drafted, the code will be open to the same criticisms as were levelled against the Nürnberg Tribunal, which had to institute and apply penalties that had not been previously determined by any rule of positive law. It is my Government's view that the code should be drafted in the light of the principles which have evolved in criminal law over the centuries, and that there must be no inconsistency in applying these principles, for they reflect a technical requirement which involves the validity of the code as positive law on the one hand, and a safeguard against arbitrary action on the other.
With regard to the remaining articles, my Government has no further comment to make. It finds them perfectly satisfactory as regards both form and content.
(Signed) Fernando LARA
(b) Letter from the Minister for External Relations concerning the definition of aggression
San José, 3 July 1952
...
I have the pleasure to transmit to you a supplement to our note of 10 June 1952 concerning the question of defining aggression pursuant to the resolution [599 (VI)] adopted by the General Assembly on 31 January 1952.
The concept of "aggression", which is defined in Spanish as the act of killing, maiming or inflicting some injury on persons, may be an act of physical or moral violence. The term has the same meaning in the other languages of civilized peoples.
The Ministry feels that aggression so defined is in perfect accordance with the meaning which the United Nations Charter gives to that concept and that to seek new definitions may lead to confusion about the value of that term, since there would be, on the one hand, the plain and simple acceptation which derives from all modern languages and the new term devised specially for use in international law, between which there would necessarily be differences of opinion concerning the meaning of each or the situations to which each applied.
Moreover, if the meaning of the word has to be restricted in order to provide this special acceptation of the term "aggression", this Ministry thinks that the result would be contrary to the desired intention, because it would be tantamount to restricting the discretionary powers of judges with respect to it. This is proved by the variety of opinions, expressed by the jurists requested to study the expediency of a new definition pursuant to resolution 378 B (V) of the United Nations General Assembly, on the meaning of the concept, and by the tendency of some of them to indicate or point out, to a limited extent, the various acts which constitute aggression.
To keep the concept of aggression within a closely defined and precise margin, as was advocated in one of the proposals, or to determine, by reference to cases in point, the situations in which it occurs, may lead to authorizing by implication countries prone to aggression to seek means of violating international peace and security by methods not covered by the limited definition or in the list of specific cases.
This Ministry therefore feels that it would be preferable not to seek new definitions and to accept the word "aggression" in its simple and current meaning. But if, for juridical reasons, it is considered really expedient to have a definition of the said term for the exclusive use of public international law, this Ministry would favour an abstract formula which would allow judges who have to deal with each case of international violence sufficient scope in determining whether that crime against mankind, as it is understood today by all civilized, law-abiding men, has or has not been perpetrated. With regard to the last point, the Costa Rican Government considers the most satisfactory of the proposals to be that of Mr. Georges Scelle, which states: "Aggression is an offence against the peace and security of mankind. This offence consists in any resort to force contrary to the provisions of the Charter of the United Nations, for the purpose of modifying the state of positive international law in force or resulting in the disturbance of public order".
(Signed) Fernando LARA
4. DENMARK
Communication from the permanent delegation of Denmark to the United Nations
New York, 10 July 1952
...
The draft code of offences against the peace and security of mankind has been carefully examined by the competent authorities, which have stated that in their opinion the proposals of a definition of aggression hitherto submitted cannot be considered satisfactory and also that they doubt whether it would be possible or desirable, for the time being at least, to formulate such a definition.
5. EGYPT
Letter front the Minister for Foreign Affairs of Egypt
Cairo, 12 June 1952
..
I have the honour to communicate to you the following:
I
1. The General Assembly of the United Nations having decided, on 13 November 1951, in the course of its sixth session, to withdraw from its provisional agenda item 50 (c) ("Draft code of offences against the peace and security of mankind"), and to place the item on the provisional agenda of its seventh session, the Egyptian Government was requested to communicate to the Secretary-General of the United Nations, before 1 June 1952, any comments or observations which it would like to offer on the draft. Subsequently, the General Assembly, under resolution 599 (VI), adopted on 31 January 1952 at its 368th plenary meeting, requested the governments of Member States, when transmitting their observations oil the draft code of offences against the peace and security of mankind to the Secretarv-General, to give, in particular, their views on the problem of defining aggression.
2. So far as the definition of aggression is concerned, the Egyptian Government cannot share the point of view expressed by Mr. Spiropoulos in the section of his report (A/CN..4/44) entitled "The Possibility and Desirability of a Definition of Aggression" submitted to the International Law Commission at its third session. According to this view, a legal definition of aggression would be an artificial construction, which could never be comprehensive enough to comprise all imaginable cases of aggression, since the methods of aggression are in a constant process of evolution.
3. In criminal law—whether international or municipal—it is always desirable to define concepts and their constituent elements, for certainty is the sine qua non of any penal system for the prevention and punishment of crime.
4. Furthermore, the Egyptian Government is of the opinion that, while as a rule the fact of aggression may be inferred from the circumstances peculiar to each individual case, it is nevertheless possible to define the idea of aggression by reference to its constituent elements. Moreover, simultaneously with the definition of aggression in general terms, it is possible to draw up a precise list of the acts treated as "acts of aggression", though the enumeration should not be exhaustive but should be so drafted as to allow for the addition of other acts which may appear with the evolution of the methods of aggression.
5. A definition of aggression expressed in general terms as suggested would then comprise the three constituent elements of aggression, namely:
(1) The legal element, which is the incompatibility of the act of aggression with the rules of the positive and customary international law in force.
(2) The material element, which would deal with questions of attempted and indirect aggression.
(3) The moral element, which is represented by the existence of a premeditated intention to commit aggression and the absence of legal justification.
II
6. With reference to the code of offences against the peace and security of mankind, the Egyptian Government is of the opinion that the draft prepared by the International Law Commission at its third session is acceptable as a basis for discussion at the next session of the General Assembly.
However, even at this stage, the following observations might be made:
(1) Article 3 of the draft code provides that "The fact that a person acted as Head of State or as responsible government official does not relieve him from responsibility ..."
This article seems to be in flat contradiction with the recognized principles of constitutional law, and hence unlikely to be acceptable to a good many of the Member States, particularly the monarchical countries.
It is, indeed, a principle of the monarchical system that the monarch is not liable and that, furthermore, his person is inviolable. This non-liability is the corollary of the legal fact that, in democratic constitutional monarchies, power is in effect exercised by the cabinet and parliament and not by the sovereign in person. And it is a well-known axiom that liability follows power.
(2) Article 4 of the draft code provides that "The fact that a person charged with an offence defined in this code acted pursuant to order of his government or of a superior does not relieve him from responsibility provided a moral choice was in fact possible to him". The Egyptian Government is of the opinion that this article is not so clearly drafted as it should be. The expression "moral" is rather vague and therefore open to controversy and varying interpretations. It would be better to adopt another, less ambiguous, word.ing such as the following:
"The fact that a person acted pursuant to order of his government or of a superior does not relieve him from responsibility in international law, provided that, in the existing circumstances, the possibility of acting contrary to such order was open to him."
(3) Article 5 of the draft code provides that "The penalty for any offence defined in this code shall be determined by the tribunal exercising jurisdiction over the individual accused, taking into account the gravity of the offence".
The International Law Commission took the view that a provision of this kind would be desirable in view of the generally accepted principle nulla poena sine lege.
It seems to the Egyptian Government that by this article, in the wording proposed, the power to determine the Penalty for each offence is delegated to the competent court. This delegation of power is not only a departure from the principle nulla poena sine lege, but would also represent a real danger, since the discretion of the judges on the competent court might be influenced by various considerations, not necessarily of a legal nature.
Accordingly, it would be preferable to try to determine an adequate penalty for each offence, with minimum and makimum penalties where necessary.
For the time being, the Egyptian Government wishes to confine itself to these brief and preliminary observations, while reserving the right to revert to the subject on the occasion of the general debate at the next Assembly.
(Signed) A. HASSONA
6. FRANCE
Letter from the Ministry for Foreign Affairs of France
Paris, 25 June 1952
In your letter of 6 February 1952 ... you were good enough to draw my attention to the resolution (599 (VI)) of 31 January 1952 in which the General Assembly recommended that the Member States, when submitting their observations to you on the draft code, should "give in particular their views on the problem of defining aggression".
I have the honour to inform you herewith of my Government's views on this last point, thus completing the preliminary indications given you on this matter in my letter of 28 February 1950 (A/CN.4/19, pages 117-118).
1. As stated in that letter, the French Government has constantly favoured the establishment of an international penal jurisdiction ajnd the definition of offences which might be brought before that jurisdiction. It still takes this position and hopes that agreement will be reached on what elements constitute aggression (as well as other international crimes) for the purposes of its prevention and punishment. Such an agreement, even though of no immediate practical consequence, would nevertheless represent an important step towards achieving more satisfactory results.
2. That being the case, the French Government's view of how the drafting of such a definition would affect the competence of the United Nations organs and the operation of certain provisions of the Charter should be noted.
The idea of aggression appears in two places in the Charter, in Chapter VII and in Article 51. Whereas Article 51 authorizes self-defence only if an armed attack occurs against a Member of the United Nations, the Security Council may take action in situations (threats to the peace, breaches of the peace) other than cases of aggression. The same comment applies in respect of action by the Assembly under resolution 377 (V).
In view of the provision in Chapter VII, a definition of aggression would allow for the right to act in situations not covered by the definition. Moreover, it was recognized at San Francisco that no organ was competent to impose an interpretation of the Charter on another organ. A General Assembly resolution on aggression could not therefore be binding on the Security Council. Lastly, while a definition expressing the common view of a large majority could provide useful guidance to political organs, every such organ would necessarily retain its inherent competence to judge for itself, so that such a definition could serve only as a directive which was in no way exclusive.
As regards the operation of Article 51, each State concerned which has been the victim of an act of force or which is party to a mutual assistance agreement must decide whether self-defence is legitimate in the case in point. Such decisions should obviously be made in good faith, but no authority has the right to substitute itself for the State until the Security Council has taken the necessary action to maintain international peace and security. A definition of aggression adopted by the General Assembly may serve to guide the State but does not affect its fundamental prerogative to judge the situation.
Thus a definition of aggression does not mean that political bodies are bound to operate automatically as a result, though such a definition can lighten their task by enabling them to base their decision on a more precise concept.
3. It may be added that a definition formulated in advance and having the advantage, therefore, of being considered impartial and objective would enable public opinion at the same time to understand and appreciate more clearly the action of organs of the United Nations or of States exercising their right of self-defence.
4. The above comments show that, in the French Government's opinion, a definition of aggression being admittedly both possible and desirable, the General Assembly should, despite the obvious difficulties, attempt to draft such a definition.
The history of this problem, dating from the time of the League of Nations, and the guidance to be drawn from the debates in the First Committee of the General Assembly in 1950 and of the Sixth Committee in 1952, together with the valuable information supplied in the report (A/1858) of the International Law Commission, show that the choice can be narrowed down to two types of formulae, those which may be described as analytical or enumerative and those which may be called synthetic or abstract. The International Law Commission decided in favour of the latter solution without, however, being able to reach any real definition, as is evident from paragraph 53 of its report.
The French Government reserves the right to give a full explanation of its views on this fundamental choice when the question comes before the General Assembly and to have an exhaustive debate on the various concrete proposals for definitions which may be submitted at that time.
It seems essential, however, to affirm the following principles here and now:
(a) The French Government does not have in mind an ideal, optimum formula which it thinks likely to give full satisfaction and to cover all forms of aggression, but it believes that, by discussions undertaken in a spirit of goodwill, co-operation and juridical understanding, it should be possible to find a formula that was adequate for the purposes which a definition of aggression may be expected to serve.
(b) The French Government rejects any enumerative definition claiming to be complete and limitative. Such a definition, far from being of real use, might paralyse action by the competent bodies, fail to allow for possible unforeseen forms of aggression and thereby play into the hands of the aggressors.
(c) The French Government likewise considers that a synthetic definition which was too broad and too abstract and which would merely repeat the provisions already contained in other terms in documents such as the United Nations Charter would not be of any real help in deciding whether aggression had occurred, and would consequently be useless.
(d) The French Government feels that the work of the General Assembly should aim at combining if possible the analytical and the synthetic approach. An enumerative list would be included only by way of illustration to emphasize the most characteristic cases of aggressive circumstances and would not be exhaustive, while the abstract portion would enable the competent body to preserve its freedom of judgment and of initiative, for such freedom is indispensable if it is to be able to cope with any type of situation that may arise.
Thus, as the General Assembly is not in a position to arrive at any enumerative definition which would be binding on political bodies, any resolution, if it is to be politically effective, will have to be based, as far as possible, on a snthetic definition with examples. The States, the Council and the Assembly itself will have to take it into account as the expression of a common or very broadly shared conviction, without thereby excluding a priori the possibility of classifying undefined situations as aggression.
(Signed) A. PARODI
7. INDIA
Letter from the Ministry of External Affairs of India
New Delhi, 7 May 1952
I have the honour to refer to your letters dated 17 December 1951 and 6 February 1952, in which ... the comments of governments of Member States were called for on: (a) the draft code of offences against the peace and security of mankind, and (b) the question of defining aggression.
As regards (a), the Government of India is considering the matter and has no comments to offer at this stage. With regard to (b), the Government of India does not desire to make any comments at present beyond what has already been stated by its representative during the discussion of this question in the sixth session of the General Assembly. |2|
(Signed) R. K. NEHRU
Commonwealth Secretary
8. INDONESIA
Letter from the permanent representative of Indonesia to the United Nations
New York, 4 June 1952
In accordance with the instructions of my Government, I have the honour to transmit the following message for your consideration:
"The Government of Indonesia, having carefully studied the records of the proceedings of the General Assembly during its sixth session regarding the question of defining aggression, and complying with the request mentioned in the resolution (599 (VI)) adopted by the General Assembly at its 368th plenary meeting, has the honour to draw the attention of the Secretary-General to the following:
"The Indonesian Government is happy to note that a great number of States have expressed their desire to establish a definition of aggression. The Indonesian Government has also noted the general genuine desire of almost all members, originating from a feeling of insecurity, to fill this gap in the present Charter. In view of this, the Indonesian Government has no doubt that renewed efforts will be made toward this end during the next session of the General Assembly which will bring about satisfactory results concerning this most important question.
"The Government of Indonesia wishes to convey the idea to those members who have assumed a skeptical attitude in this matter that the building and rebuilding of a system which could ensure or give more guarantees for security and world peace should go on, despite the international tensions and even despite wars, since law is still intended to outlast war. It must be remembered that the League of Nations had its origin in war and that the present United Nations Charter was also born of war. Why should we not, therefore, work toward the perfection of the Charter, despite the international tensions which exist?
"While, in principle, the Government of Indonesia prefers a general definition of aggression, it is not wholly averse to the insertion of an article within this definition which would enumerate some acts of aggression. In this connexion, however, the Government of Indonesia wishes to state that, in determining what would constitute an act of aggression, the utmost attention should be given to the real proportions of such alleged acts in relation to their importance vis-à-vis the geographical location and potentialities of the States concerned.
"The Government of Indonesia intends to dwell in detail on this point, which has been only roughly mentioned herein, at the forthcoming seventh session of the General Assembly."
(Signed) L. N. PALAR
Ambassador,
Permanent Representative to the United Nations for the Republic of Indonesia
9. IRAQ
Communication from the Ministry for Foreign Affairs of Iraq
Baghdad, 26 July 1952
The Ministry of Foreign Affairs ... has the honour to submit herewith the observations of the Iraqi Government on the draft code of offences against the peace and security of mankind with particular reference to the question of defining aggression.
The Iraqi Government is of the opinion that the draft code should contain a definition of aggression. It is clear that acts of aggression constitute the greatest danger to the peace and security of mankind. Two world wars have taught humanity the unforgettable lesson that the surest way to disaster is the appeasement of aggression. The Charter of the United Nations has clearly recognized this fact in the Preamble and Articles 1 and 2 and Chapter VII. The General Assembly, in its resolution 380 (V) of 17 November 1950, held the view that aggression "is the greatest of all crimes against peace and security throughout the world". Furthermore, the Assembly in its fifth session adopted various resolutions to strengthen the collective security system under the Charter, and in all those resolutions aggression and the threat of aggression were recognized as the deadliest enemies of peace and security. The Security Council, in its prompt and effective action in June and July, 1950, fully realized the grave dangers to the peace that were inherent in the aggression committed against the Republic of Korea and immediately determined the aggressor and devised means to resist his aggression. In view of these facts, it seems logical that a draft code of offences against the peace and security of mankind should contain a definition of the greatest and most dangerous offence, aggression.
From the discussions that were held in the General Assembly and the International Law Commission it was evident that the problem of definition resolved itself to two questions. The first relates to the possibility of providing an exhaustive enumeration of acts of aggression. The Iraqi Government is of the opinion that such an enumeration is neither possible nor desirable in view of the diversity of the means that are employed by the aggressors. The second question is whether it is possible or desirable to provide an enumerative list which would contain the obvious and universally recognized acts of aggression. Such an enumeration would not be exhaustive but indicative and would be useful for the purpose of guidance. Subsequent additions or alterations to the draft could be made by the General Assembly or the Security Council whenever a need arises. There is nothing to preclude the General Assembly or the Security Council from determining acts of aggression even if such acts were not listed in the draft.
For this reason the Iraqi Government proposes that article 2, paragraph 1 [of the draft code] should read as follows:
A. Any of the acts listed below except the use of armed force for the purpose of national or collective self-defence or in pursuance of a decision by a competent organ of the United Nations: (The list of acts should be a matter for the consideration of the General Assembly at its forthcoming session).
B. The enumeration of the acts listed in paragraph 1 will not prejudice the right of the General Assembly and the Security Council to determine acts of aggression other than those listed in the above paragraph.
Such an amendment would combine the analytic and pragmatic methods of defining aggression. The danger of an exhaustive list would thus be eliminated and the competent organs of the United Nations would have useful guiding principles for the future determination of aggression.
The Iraqi Government proposes the following paragraph (13) to be added to article 2 of the draft code:
"Failure of a State to observe and implement resolutions of the General Assembly and the Security Council that are designed for the preservation of peace and the prevention of international tension".
This paragraph, in the view of the Iraqi Government, is essential as an adequate safeguard against future violations of the decisions of the United Nations. It is the belief of the Iraqi Government that this would enhance the respect for the United Nations and strengthen its authority as the organ entrusted with the preservation of the peace and security of mankind.
10. NETHERLANDS
Letter from the permanent representative of the Netherlands to the United Nations
New York, 11 July 1952
... I have the honour, upon instructions received, to enclose herewith two copies of the observations by the Netherlands Government on the draft code of offences against the peace and security of mankind.
These observations are based on the report of the commission of experts which was appointed by the Netherlands Government to study both the draft statute for an international criminal court (A/2136) and the subject mentioned above.
The observations constitute the preliminary opinion of the Netherlands Government. The Netherlands Government reserves its right further to define its opinion at a later stage.
(Signed) D. J. VON BALLUSECK
OBSERVATIONS BY THE NETHERLANDS GOVERNMENT
ON THE DRAFT CODE OF OFFENCES AGAINST THE PEACE AND SECURITY OF MANKIND
General
The Netherlands Government is of the opinion that, simultaneously with the study which is being made of the establishment of an international criminal court, the study of the codification of international criminal law should be pursued, so that a code may be drawn up which will be acceptable to the greatest possible number of States and which may serve as a basis for the law to be applied by an international criminal court.
The Government welcomes the efforts which have been made so far to draw up such a code, and believes that the draft prepared by the International Law Commission it, in principle, acceptable. However, the Government would like to make some observations on this draft.
The title of the code might give rise to misunderstandings as the "offences against the security of mankind" should be taken to include the crimes against humanity and the conventional war crimes. As, however, the title of the code is a term of current use, the Government does not suggest an alteration of this title.
Article 1
No observations.
Article 2, paragraph (1)
Article 2, paragraph 1, is the proper place for inserting a definition of the notion of "aggression".
When considering the notion of "aggression", one should realize that aggression may have political results, whereas at the same time individuals may be held responsible according to criminal law. Seen from a political point of view aggression may afford a ground for self-defence. The individuals responsible for this aggression may be punished. Apart from this criminal (penal) liability for aggression the possibility exists that individuals may be held responsible for the preparation of aggression and other offences against peace.
First of all the question rises whether it is possible and desirable to define aggression. The Government answers both questions in the affirmative. The opinion expressed by a number of representatives during the third session of the International Law Commission and in the Sixth Committee at the sixth session of the General Assembly, to the effect that aggression is a conception which does not lend itself to further definition, is rejected by the Government.
The Government is of the opinion that the amended version of Mr. Alfaro's definition which was put to the vote by the International Law Commission (A/1858, paras. 49-51) is a good starting point. However, it seems advisable to supplement the definition on three points.
In the first place the use of force must be aimed at the territorial integrity or political independence of a State. Aggression only occurs if this integrity or independence is impaired or immediately threatened. Moreover, this criterion corresponds to the provision contained in paragraph 4 of Article 2 of the Charter of the United Nations.
In the second place it seems desirable to mention a "territory under international regime" as another object of aggression, together with political independence and territorial integrity. In this way the use of force against territories which are not sovereign States (e.g., Trust Territories) or whose, status has not yet been decided upon is also denounced as aggression.
Finally, it seems desirable to specify the notion of self-defence by adding that self-defence must be used against the condemned acts, i.e., the threat or use of force, under the conditions referred to above. The difficulty of defining aggression results from the vagueness of the term "self-defence", because this notion is always used to define aggression. Therefore, it seems desirable to stipulate explicitly that self-defence can only be spoken of if the action is directed against such threat or use of force.
After ample consideration, the Government has come to the conclusion that, next to the use of force, the threat of such use should also be designated as aggression, but only in the sense of immediate threat of armed force.
The Government believes that armed violence is the chief element of the notion of aggression and that the so-called economic and ideological aggression can never constitute a reason for armed self-defence.
In the opinion of the Government, the definition of aggression in a political sense might read as follows:
"Aggression is the threat or use of force by a State or government against the territorial integrity or political independence of another State or against a territory under international régime in any manner, whatever the weapons employed and whether openly or otherwise, for any reason or for any purpose other than individual or collective self-defence against such a threat or use of force or in pursuance of a decision or recommendation by a competent organ of the United Nations".
Article 2, paragraph (2)
As the definition of aggression as proposed by the Government already contains the threat of armed force, this paragraph can be deleted.
Article 2, paragraph (3)
In connexion with the proposal to insert in paragraph (1) of article 2 a definition of aggression, paragraph (3) of article 2 may be formulated more concisely and read as follows:
"The preparation of aggression by the authorities of a State".
Article 2, paragraphs (4), (5), (6), (7) and (8)
No observations.
Article 2, paragraphs (9) and (10)
Paragraphs (9) and (10) of article 2 refer to analogous crimes. There are, however, some differences between the notion of genocide laid down in paragraph (9) and the notion of crimes against humanity laid down in paragraph (10). Unlike the crimes against humanity, there need not necessarily be a relation between genocide, and aggression or war. Another difference is that genocide is characterized by the intention to destroy a national, ethnical, racial or religious group as such. In the case of crimes against humanity, only the persecutions are linked with special motives, including political motives. For the rest, the crimes against humanity consist of acts which are in themselves inhuman acts against any civilian population. Whereas, on the one hand, the crimes against humanity have become a well-established notion in international criminal law as a result of the sentences pronounced by post-war tribunals, and, on the other hand, the notion of genocide has been laid down in a Convention already accepted by a number of States, the Government is of the opinion that, at the present stage of development of international criminal law, the distinction between the two provisions could be maintained.
When formulating paragraph (10), there are no sufficient grounds for deviating from the wording of the Charter of Nürnberg by adding the words "cultural grounds". By inserting these words no new element is added to the Nürnberg provision, which became less clear by this addition.
The Government would like to point out that the "crime against humanity" would only come under international jurisdiction if the national authorities did not deal with such crime.
As regards paragraph (10), the Government would like to remark that in view of the history of the matter the required connexion with other offences should be limited to the crimes against peace, mentioned in paragraphs (1) to (8), inclusive, of article 2.
Article 2, paragraph (11)
No comments.
Article 2, paragraph (12)
As regards the inchoate crimes enumerated in paragraph (12), the Government feel that some distinction should he made.
In connexion with the history of the matter, three categories of offences may be distinguished, viz.:
A. Crimes against peace (article 2, paragraphs (1) to (8), inclusive);
B. Genocide and crimes against humanity (article 2, paragraphs (9) and (10));
C. Crimes in violation of the laws or customs of war (article 2, paragraph (11)).
As regards group A, the Government wants to make the following observations. Conspiracy should be taken in the limited sense of the Nürnberg sentences, where conspiracy was limited to cases in which the accused had a function on policy-making level.
Direct incitement should be limited to direct incitement to aggression as defined in paragraph (1) of article 2.
There is no ground for penalizing attempts, because attempts at these offences are inherent in the definition of these offences, or in other cases attempts are incompatible with the very definition of the offences. This does not apply to paragraph (4) of article 2, but it is not desirable to declare attempts at crossing the frontier by armed bands punishable as well.
As regards complicity, this form should be excluded as it does not occur in the Nürnberg sentences. The acts of those who should be deemed to be criminally responsible for crimes against peace should fall under the definition of the offences; consequently, there is no need here for separate penalization of complicity.
As regards groups B and C, the Government is of the opinion that the four forms enumerated in paragraph (12) of article 2 should all be maintained.
Article 3
The Government does not quite understand what is meant by the words "responsible government officials" and why these officials are mentioned in article 3. It seems that the adjective "responsible" was used to qualify officials who are ultimately responsible for the government policy. This was obviously meant to express, in other words, the idea that even the highest government officials do not enjoy immunity. The Government, however, wonders whether such a provision is really necessary.
Article 4
The Government suggests the ingertion after the word "responsibility" of the words "in case he could be aware of the criminal character of the act". Article 4 can only apply in case the accused knew or could have known that the order was given in violation of international law.
Article 5
No observations.
Final remark
No provision has been inserted to the effect that, in case of the accused's being exempt from criminal responsibility, no punishment will be inflicted. However, the Government thinks it may take it for granted that the drafters of the code have proceeded on the presumption that this is considered to be a rule of unwritten law.
11. NICARAGUA
Letter from the Ministry for Foreign Affairs of Nicaragua
Managua, D.N., 26 May 1952
... I have the honour to inform you that the Government of Nicaragua accepts the definition of aggression laid down in the Act of Chapultepec of 1945, part I, third section, later confirmed by the Treaty of Rio de Janeiro of 1947, to the following effect:
"Every attack of a State against the integrity or the inviolability of the territory, or against the sovereignty or political independence of a State".
(Signed) Alejandro MONTIEL ARGUELO
12. UNION OF SOVIET SOCIALIST REPUBLICS
Communication from the permanent delegation of the Union of Soviet Socialist Republics to the United Nations
New York, 8 April 1952
The delegation of the Union of Soviet Socialist Republics to the United Nations ... has the honour to state that the views of the Government of the USSR on the question of defining aggression were expressed by the delegation of the USSR to the sixth session of the General Assembly, which delegation submitted concrete proposals on the subject.
13. YUGOSLAVIA
(a) Letter from the permanent representative of Yugoslavia to the United Nations
concerning the draft code of offences against the peace and security of mankind
New York, 18 June 1952
With reference to the decision of the General Assembly of 13 November 1951 not to examine the draft code of offences against the peace and security of mankind but to include it in the provisional agenda of the seventh session (A/1950, para. 4), I have the honour to communicate the following observations of the Government of the Federal People's Republic of Yugoslavia.
The Government of the Federal People's Republic of Yugoslavia considers that the adoption of the code of offences against the peace and security of mankind would provide the United Nations with a new and important weapon in the struggle for the maintenance of international peace and security, and would mean a significant contribution to the further development and codification of international law.
While the Government of the Federal People's Republic of Yugoslavia considers that the draft code prepared by the International Law Commission is generally satisfactory and can serve as a basis for the elaboration of a final text, it feels that certain modifications along the following lines would be desirable:
1. The wording of paragraph (4) of article 2 lacks clarity and precision as regards the determining of responsibilities for the incursion into the territory of a State by armed bands. This offence should be so defined as to provide clearly for the responsibility both of the individual members of the bands and of the authorities of a State who tolerate or organize them.
2. In paragraph (10) of article 2, crimes against humanity are qualified as offences against the peace and security of mankind only when "such acts are committed in execution of or in connexion with other offences defined in this article". Crimes against humanity, when committed in an organized manner, are in themselves offences against the peace and security of mankind, regardless of whether they have or not been committed in connexion with other offences against the peace and security of mankind. The definition of this offence would greatly gain in precision if due consideration were given to the fact whether it had been committed in an organized manner, because only organized acts of this kind may be considered offences against the peace and security of mankind, regardless of whether the offences (or the offenders) are mass or individual offences (or offenders). Paragraph (10) of article 2 should, therefore, be amended by the insertion of the word "organized" after the words "such as" and by the deletion of the part of the sentence which "when reads such acts are committed in execution of or in connexion with other offences defined in this article".
3. In paragraph (11) of article 2, it should be explicity stated that acts in violation of the laws or customs of war are considered offences against the peace and security of mankind, regardless of the nature of the armed conflict. This paragraph should, therefore, be amended by the addition of the words "in the course of an armed conflict of any kind".
4. The definition contained in article 3 is unsatisfactory, because it merely provides that the fact that a person acted as Head of a State or as responsible government official does not relieve him of responsibility, while this fact should actually constitute an aggravating circumstance. This article should therefore be modified to read: "The fact that a person acted as Head of State or as responsible government official constitutes an aggravating circumstance with regard to responsibility for committing any of the offences defined in the present code, provided that such offences may also be committed by other persons".
5. In article 4 there is the provision that a person who acted pursuant to order of his government or of his superior may be considered responsible for committing any of the offences defined in the code only if "a moral choice was in fact possible to him". The inclusion of a provision on the possibility of a moral choice as a condition for responsibility for the commission of these offences would have an adverse effect both as regards prevention and as regards an effective application of the code by the courts. The last sentence of this article should therefore be amended, in conformity with article 8 of the Charter of the Nürnberg Tribunal, to read "but may be taken into consideration in mitigation of punishment, when the court deems fit".
6. The Government of the Federal People's Republic of Yugoslavia is further of the opinion that consideration should be given to other acts which may be defined as offences against the peace and security of mankind, and should therefore be included in the code, such as, for instance, an economic blockade and other similar forms of economic pressure, war-mongering propaganda, membership in criminal organizations, and crimes of omission, i.e., the responsibility of persons who fail to prevent, or do not take the necessary measures to prevent, the commission of any of the crimes defined in the code, provided they were in a position to do so.
7. In addition to these more general observations, the Government of the Federal People's Republic of Yugoslavia considers that, for the sake of greater precision, the following ideas should be more clearly stated:
(a) With reference to article 1 of the draft code, it should he made clear that responsibility under international law is not precluded by the fact that an offence is not punishable under the municipal law of the country of the person who has committed it.
(b) The word "planning" should be retained in the English text of paragraph (3) of article 2, in order to lay more emphasis on combating the preparation of aggression.
(c) Article 5 should be reworded in order to make it clear that the court may pasts any sentence, including sentence of death. This should be done in order to avoid any possible discussion on the powers of the court in the event municipal law does not provide for the nature of the punishment for certain offences, and also in order to ensure that the code would be observed even by States which did not accede to the international criminal court, as well as pending the establishment of such a court.
In submitting these general observations, the Government of the Federal People's Republic of Yugoslavia would like to express its appreciation to those who have taken part in the drafting of the code for the successful manner in which they have accomplished their task. It also believes that these observations will mean a contribution to the discussion of the questions to which they refer.
(Signed) Ales BEBLER
Permanent representative of the Federal People's Republic of Yugoslavia to the United Nations
(b) Letter from the permanent representative of Yugoslavia to the United Nations concerning the definition of aggression
New York, 18 June 1952
I have the honour to refer to resolution 599 (VI) adopted by the General Assembly of the United Nations on 31 January 1952, and in particular to paragraph 3 of its operative part.
With regard to the problem of defining aggression, the Government of the Federal People's Republic of Yugoslavia does not feel it has anything to add to the views set forth by the Yugoslav delegation at the sixth session of the General Assembly. The Government of the Federal People's Republic of Yugoslavia still considers that it is both legally possible and politically opportune to define aggression and to adopt such a definition as would provide a guiding principle to the competent United Nations organs in the performance of their functions with regard to the maintenance of international peace and security.
While the existence of a definition of aggression cannot, of course, in itself prevent acts of aggression, it would, none the less, in addition to its considerable moral and political effect, make it more difficult for an aggressor to seek to justify his aggressive intentions, both in the eyes of his own people and of those of other peoples and of the world community at large, by means of hypocritical propaganda. The existence of a definition of aggression would make it possible both for States and for the competent United Nations bodies to ascertain, clearly and without hesitation, the occurrence of acts of pressure, and, especially, of acts of aggression.
As regards the principles of such a definition, the Government of the Federal People's Republic of Yugoslavia considers, as was stated by the Yugoslav delegation at the sixth session of the General Assembly, that the present conditions of constant flux and development require a definition which would be enumerative without, however, being exhaustive, i.e., a definition which, while enumerating the "traditional" types of acts of aggression, would still leave the competent United Nations organs the possibility of qualifying as aggressive certain other acts which have not been included in the definition.
Although certain elements of a definition of aggression are contained in the draft code of offences against the peace and security of mankind, the Government of the Federal People's Republic of Yugoslavia is of the opinion that the adoption of a specific definition of aggression would, nevertheless, be desirable. It may well be that such a definition would provide the basis for either a general treaty on the definition of aggression or for regional or bilateral treaties among both Member and non-member States of the United Nations.
The Government of the Federal People's Republic of Yugoslavia maintains its point of view as expressed at the sixth session of the General Assembly, which may be summarized as follows:
1. It is both legally possible and politically expedient to define aggression. Such a definition would contribute to the progressive development of international law, it being obvious that such a development does not preclude the elaboration of concepts contained in the Charter of the United Nations.
2. A definition of aggression should enumerate the various acts which have so far constituted the "traditional" types of aggression, because where such acts are concerned there can be no question of invoking the political expediency of resorting to the use of force.
3. Such a definition should be flexible and provide explicitly for the possibility that the competent United Nations body, i.e., the Security Council as a rule and the General Assembly exceptionally, may define as aggression other forms of use of force or pressure which may appear in the future.
(Signed) Ales BEBLER
Permanent representative of the Federal People's Republic of Yugoslavia to the United Nations
14. UNITED KINGDOM OF GREAT BRITAIN AND NORTHERN IRELAND
Letter from the permanent delegation of the United Kingdom to the United Nations
New York, 3 September 1952
... The United Kingdom Government offers the following comments of a legal and procedural nature on the draft code of offences against the peace and security of mankind as drawn up by the International Law Commission at its third (1951) session. These comments are offered without prejudice to any attitude which Her Majesty's Government may adopt generally towards the code when it is debated in the General Assembly.
I
2. There is one preliminary observation of a procedural character to be made. The draft code figured originally as item 49(c) on the provisional agenda (A/BUR/126 and Corr.1) of the last (sixth) session of the General Assembly, but was deleted on the recommendation of the General Committee. |3| This recommendation was based on the view expressed by Mr. Bebler (Yugoslavia) to the effect that "the draft code had only recently been communicated to governments and, in accordance with article 16 of the Statute of the International Law Commission, a one-year period of study should be allowed". |4|
It was, however, further recommended that this item be included in the provisional agenda of the seventh session of the Assembly. In so doing, it was apparently overlooked that this same article 16 of the Commission's Statute |5| also requires (see its sub-paragraphs (i) and (j)) that, when the comments of governments are furnished, they shall be considered by the Commission's rapporteur on the subject, who is to prepare, in the light of the comments, a final project for consideration and adoption by the Commission. The Commission is then (sub-paragraph (j) of article 16) to submit this final draft to the General Assembly "with its recommendations". It is thus clear (a) that the comments of governments do not themselves go to the Assembly as such; and (b) that what goes to the Assembly is a revised draft drawn up by the Commission after considering the comments of governments, and that the Assembly is entitled to have, with this revised draft, the final recommendations of the Commission.
3. It would therefore, in the opinion of the United Kingdom Government, be premature and indeed irregular for the question of the draft code to be included in the provisional agenda of the seventh session of the Assembly. According to article 16, the Assembly can only discuss the final draft as elaborated by the Commission after the latter has considered the comments of governments. The present draft of the code is not such a draft, nor are the ultimate recommendations of the Commission available. Moreover, it is the Commission, not the Assembly, which has the task of studying the comments of governments. It is only after the Commission has carried out this study and done any further necessary work on the draft that the matter can properly come before the Assembly. This could not therefore occur prior to the eighth session.
4. Should this item nevertheless figure in the provisional agenda of the seventh session, the United Kingdom Government must reserve the right to raise the question on the above grounds.
5. The same point was apparently also overlooked in drafting the General Assembly's resolution (599 (VI)) of 31 January 1952, on the question of defining aggression, where reference was made to the fact that the draft code would be considered at the seventh session. However, as paragraph 1 of the operative part of that resolution directed that the question of defining aggression be placed on the agenda of the seventh session in any event, as a separate item, this question would not be affected by the postponement of the consideration of the draft code, nor would such postponement prevent governments from acceding to the request made in paragraph 3 of the resolution, asking them, when commenting on the draft code, to furnish their views in particular on the question of defining aggression.
6. It appears indeed that there would be some advantage in separating the two matters. If the Assembly adopts a definition of aggression at its next session, it would be desirable and sufficient (if a definition of aggression were considered necessary in the code) to reproduce this same definition, or refer to it. If on the other hand, the Assembly does not adopt a definition of aggression, it would clearly be inappropriate for one to figure in the code.
II
7. On the substance of the draft code, there is one general observation to be made. Although called draft code of "offences" against the peace and security of mankind, the code is in fact, as its article 1 says, concerned with international "crimes". It deals, therefore, and can only deal, with acts that are not merely illegal or contrary to international law, but are also criminal, that is to say, have an inherent element of criminality. By no means every illegal act has this character. While it may be that most of those enumerated in paragraphs (1) to (12) inclusive, of article 2 of the draft code have or can have it, the matter needs scrutiny, for most of these paragraphs are framed in such wide and general terms that they could be held to cover acts not illegal at all in certain circumstances, or which, even if technically illegal, would be wanting in any real element of criminality. The conception of an international crime is of so serious a character as to forbid its use for the purpose of covering any but acts of a manifestly criminal nature.
III
8. The following comments are offered on the individual articles of the draft code:
Article 1
Purely as a matter of drafting, this article seems to be defective since it merely lays down the general principle that offences against the peace and security of mankind are crimes under international law. This is no doubt true, but it is in a sense self-evident for it constitutes the very basis on which the preparation of the draft code was called for. A better form of words for article 1 would seem to be something on the following lines:
"The offences specified in article 2 of the present code shall be regarded as offences against the peace and security of mankind and as crimes under international law".
This would entail a consequential alteration of the opening part of article 2 (see below). As regards the remaining words of article 1 "for which the responsible individuals shall be punishable", while there is no actual objection to this phrase, it is not clear what its exact effect is in the context, or whether it is really necessary. The term "punishable" is ambiguous. An individual may be actually punishable in the sense that there is an existing law in one or more countries to whose jurisdiction he is or might be amenable which makes him liable to punishment in respect of certain offences; or it may mean that he is potentially punishable in the sense that it is open to governments at any time to make provision under their laws for punishing him for certain offences, or by concerted action to make him punishable by an international court. These further steps would all have to be worked out. They are not part of the draft code itself, and they would depend very largely on what steps were taken or could be taken to give the code executive force, a matter to which the Commission draws attention in sub-paragraph (d) of paragraph 58 of its report (A/1858). It really goes without saying, as a matter of general principle, that if a certain act is an offence and a crime he who commits it must be actually or potentially "punishable", but the statement has little practical significance if not related to the arrangements to be made for enforcing such liability.
Article 2
If article 1 is amended as above suggested, the preambular phrase of article 2 might read:
"The offences against the peace and security of mankind referred to in article 1 of the present code are as follows".
Paragraph (1)
In the opinion of the United Kingdom Government, this paragraph should simply read: "Any act of aggression", omitting all the words which at present follow the word "aggression". The reasons for this view were fully explained in the statements made on behalf of the United Kingdom in the Sixth Committee during the last session of the General Assembly. Briefly, it has all along been the view of the United Kingdom Government that a satisfactory definition of aggression, covering all those cases that are truly in the nature of aggression but without prejudicing the measures of defence which it may be necessary to take or to prepare in order to rqsist aggression, is extremely difficult to find, and that some which have been suggested are dangerous. The definition, if such it be, included in the present text of article 2 has the further objection that it is incomplete and singles out for mention only some aspects of aggression. This is indeed expressly recognized by the Commission in the third paragraph of its commentary on this article. There is a further objection to the partial definition contained in paragraph (1), that it employs terms which themselves require definition.
All these considerations suggest that it would be preferable to omit the entire phrase coming after the words "Any act of aggression". In practice it will never be possible to establish aggression except in the light of the particular circumstances in which the act concerned takes place. No municipal system of law attempts to specify or define what particular acts constitute the crime of murder, since one and the same act may be murder, or may be excusable or even justifiable homicide, according to the circumstances in which it is committed. Precisely the same principle applies to aggression. In the opinion of the United Kingdom Government it is sufficient, for the purpose of the draft code, to specify that aggression is an offence against the peace and security of mankind and an international crime, without attempting to define it.
Paragraph (2)
There is no objection of principle to this paragraph, but taken in combination with the existing wording of paragraph (1), it illustrates very well the dangers attendant upon attempts to define aggression, particularly if these are of a partial or incomplete character. Paragraph (2), taken in conjunction with the present wording of paragraph (1), would enable a would-be aggressor State to represent that preparatory measures of a defensive character taken by other States constituted a threat to employ "armed force against another State", consequently a threat of aggression, and consequently an offence under paragraph (2). The answer that the measures were defensive would be met by the rejoinder that they were regarded by the would-be aggressor as constituting a threat, and the would-be aggressor might well be able to represent himself as having a good theoretical case on the basis of the actual language of the draft code. While the specious character of this argument might be evident, it is nevertheless undesirable that the language of the draft code should be such as could be used to support such contentions or enable an intending aggressor to employ them for propaganda purposes.
Paragraph (3)
These considerations apply with even greater force to this paragraph, and in particular the use of the term "armed force" in the second line is dangerous. This paragraph, as it now reads, would afford an excellent basis on which an intending aggressor State could challenge the defensive measures, preparations or arrangements of another State or group of States, on the ground that they were not defensive but were directed against itself. The paragraph refers specifically to preparation, and would tend to hamper in an important degree the necessary preparatory measures of States arming for resistance to aggression.
A further danger of this paragraph is revealed by the Commission's commentary on it. "Planning" is only to be punishable if it results in actual preparatory acts, but at what precise point does planning become preparation? It would be perfectly possible for an ill-disposed State to allege that mere consultations about possible join, defensive measures to be undertaken by a group of States constituted not merely planning but actual preparation.
The paragraph would be much less objectionable if the word "aggression" were substituted for "armed force" in the second line. But in that case it would be necessary to omit the rest of the paragraph. The paragraph would then read:
"The preparation by the authorities of a State for the employment of aggression",
or simply
"The preparation of aggression by the authorities of a State".
Nothing more than this is necessary.
Paragraph (4)
Although the commentary on this paragraph makes clear what is intended, the drafting of the paragraph itself is such that if it stood alone (as it would do in the eventual code) it would be difficult to be sure exactly what it meant, and in particular by whom the offence was being committed. On its language, and in view of the phrase "incursion into the territory of a State", it might almost suggest that the offence was being committed by the State into whose territory the incursion was taking place. It should be made clearer than is at present the case that an offence is committed by the members of any armed bands that effect such incursions. Another weakness of the paragraph is the very fact that it relates directly only to the members of the armed bands themselves, and not to the authorities of the State from which the incursion comes, although, as explained in the commentary, such authorities may be liable under paragraph (12) of article 2 by reason of their complicity. There is a certain lack of realism in this system, since under modern conditions it is an extremely difficult and unlikely thing for organized incursions of armed bands to take place from the territory of one State into that of another State without the complicity, active or tacit, of the authorities of the State. While to a certain extent the question of State activity can be regarded as covered by paragraphs (5) and (6) of article 2, it would seem preferable to have a provision which would, in terms, state that it is an offence for the authorities of a State to allow their territory to be used as a base of operations or as a point of departure for the incursion of armed bands into the territory of another State.
Such action on the part of the authorities of a State ought also to be brought under the head of aggression, if that term is defined at all (see above).
Paragraphs (5) and (6)
These contain further examples of indirect aggression which should certainly be included under aggression, if that term is to be defined.
The phrases "terrorist activities" and "terrorist acts" in paragraph (6) are not defined, and there is a danger that this paragraph, and also paragraph (5), may afford a basis on which States acting in bad faith can attack the actions and policies of neighbouring countries. It would be easy to contend, for instance, that propaganda directed against totalitarian systems of government was an activity "calculated to foment civil strife in another State" within the meaning of paragraph (5). It would be easy to represent that certain activities directed to encouraging the resistance of populations to totalitarian excesses constituted the encouragement of "terrorist" activities in another State.
While no objection of principle is seen to these two paragraphs, and they are indeed a necessary part of any enumeration of offences against the peace and security of mankind, it is desirable that their drafting should be very carefully considered in order that they may not lend themselves to possible abuse.
Paragraph (7)
This paragraph is of a very wide and sweeping character. While it may be desirable in practice to impose sanctions against breaches of treaties providing for the limitation of armaments and other kindred matters, it would seem that this is rather something which should be done by the treaties themselves, and it is questionable how far it is desirable to try to do it by declaring all such breaches to be automatically offences against peace and security, and to be international crimes. In this connexion the observations made in part II above are relevant. While it may be that deliberate and major breaches of such treaties could properly be regarded as having a criminal character, it is the fact that many breaches of this kind are of a minor, unintentional or technical, character. Since it is very difficult to see exactly where the line should be drawn, it might be preferable to omit this provision altogether, and to rely on the terms of any future conventions on the limitation of armaments for the sanctions to be imposed in the event of breaches.
Paragraph (8)
While there is no objection of principle to this provision, there is some doubt from the technical point of view whether it is actually necessary in the context. Illegal annexation of territory results either from direct aggression or from some means of indirect aggression. This is recognized by the commentary which says that "Illegal annexation may also be achieved without overt threat or use of force, or by one or more of the acts defined in the other paragraphs of the present article". It would seem probable that illegal annexation, though it might be effected in various ways, would in fact normally involve one or more of the acts already specified in the previous paragraphs (1) to (6). If this is so, then an offence constituting an international crime will already have been committed by virtue of one of these paragraphs, and nothing will be added by specifying the annexation as a separate offence. The annexation would indeed merely be the outcome or result of the previous act which would constitute the offence.
The paragraph is also open to criticism in that the phrase "Acts by the authorities of a State resulting in the annexation, etc.", while it may be necessary in order to cover annexation effected by indirect means, is of a very vague and general character. There may be endless controversy as to whether a given act has or has not actually resulted in annexation, in the sense of being one of the causes of it. The truth is that where an act clearly has this result, and the annexation is manifestly illegal, the act itself will be an offence under one of the previous paragraphs. If it is not already an offence of itself under one of those paragraphs, it will usually be difficult, if not impossible, to show that the annexation was a resultant of that act. In other words, it will be very difficult to bring the case under paragraph (8) at all. This is an additional factor suggesting that paragraph (8) may add little or nothing to what has gone before.
It is not proposed that the idea contained in paragraph (8) should be entirely omitted from the code, but merely that its placing and wording may require further consideration.
Paragraph (9)
No special comment. This paragraph merely follows the wording of the Convention on Genocide.
Paragraph (10)
In this paragraph it seems necessary to examine the effect of the final phrase "when such acts are committed in execution of or in connexion with other offences defined in this article". This phrase makes it clear that the limitation to connexion with acts of war contained in the Nürnberg Charter is not to apply; but it has itself a limiting effect and would enable the authorities of a State to behave in the most inhuman way against sections of their own population so long as they could show (which in many cases they probably could) that this behaviour had no direct connexion with any act of the kind specified in the previous paragraphs of article 2. More accurately, it would prevent such behaviour from constituting an offence against peace and humanity or an international crime unless occurring in connexion with one of the specified acts. Possibly it is precisely one of the intentions of this phrase to make it clear that inhuman treatment by a government of its own population, however reprehensible, is a domestic matter and only comes within the class of offences against peace and humanity if occurring in connexion with one of the specified acts. The reasons for this view are not altogether evident. A government's own population may not be "humanity" at large, but it is a section of humanity. Nor can it be assumed that peace will not be disturbed merely because the action takes place within a country's own borders. The phrase could almost be read as a licence to a government to behave inhumanly so long as it avoids doing so in connexion with one of the specified acts.
Another effect of the inclusion of this phrase is to render the whole paragraph in a sense superfluous since an offence will already have been committed in any event by reason of the accompanying specified act.
Another effect of the inclusion of this phrase is to render the whole paragraph in a sense superfluous since an offence will already have been committed in any event by reason of the accompanying specified act.
A point of quite a different character is that this paragraph may well prove susceptible of grave abuse for propaganda or political purposes, by encouraging accusations to be made in respect of necessary or justifiable measures taken by the authorities of a State for the enforcement of law and order within their territory or for reasons of security. In no circumstances, of course, is an "inhuman" act justifiable, but there may be room for argument as to what is inhuman, and nothing is easier than to make accusations of inhuman conduct in order to serve an ulterior or political end. From this point of view, the limiting phrase "when such acts are committed in execution of or in connexion with other offences defined in this article" would afford a necessary safeguard.
While the idea qnderlying this paragraph is therefore unquestionably right, it would seem that its implications have not been fully thought out and require further consideration.
Paragraph (11)
No special comment.
Paragraph (12)
While this paragraph is right in principle, its application, when it is related to some of the previous paragraphs, may give rise to grave difficulties. It is possible, for instance, to understand a threat of aggression under paragraph (2), but what exactly is an "attempt" to threaten aggression? It is also possible to understand the preparation of aggression or the preparation of the employment of armed force under paragraph (3), but what is an "attempt to prepare"? Examples of this difficulty could be multiplied and they also arise on the other parts of the paragraph. There is, for instance, the ambiguity about the term "complicity", to which attention is drawn in the commentary. It would indeed seem that, by reason of the general language of its subhead (iv), this paragraph includes precisely those cases which the commentary says should not be regarded as involving "complicity". This term therefore requires specific definition or limitation.
There is also much in this paragraph which can lend itself to abuse. The reference to incitement, for instance, could be made the basis of accusations directed against perfectly legitimate comments in the Press of other countries, and of allegations that these comments constituted incitement to commit aggression or to interfere with the internal affairs of another State.
Article 3
It will be recollected that the reference to Heads of States in its relation to constitutional monarchies gave rise to considerable difficulties during the drafting of the Convention on Genocide. It might be well to give this point further consideration in the light of the discussions which took place at that time, to which no reference is made in the commentary on this article.
Article 4
Since everything here turns on the exact meaning of the phrase "provided a moral choice was in fact possible to him", it is for consideration whether the article should not include some of the phraseology at present contained in the commentary, for instance, the very last sentence of the commentary (though that, too, contains terms such as the word "possible", the effect of which in the context is open to a number of different interpretations).
Article 5
This article seems quite out of place in the context of the draft code. In so far as the various offences specified in the code are, or are made, offences under the municipal laws of different countries, it will be for the laws of those countries to specify the nature of the penalties for any offence, and for the judge in any given case to impose the actual penalty. In so far as the question of punishment, and of the penalties to be imposed, is regulated by an international convention, it will be for that convention to prescribe the penalties and for the parties to the convention to make these penalties applicable under their municipal laws, and for competent international courts to apply them in any case to which the convention is applicable. The draft code does not require any of this to be done, nor does this provision in the draft code have of itself any direct effect. It would seem, therefore, better to omit it. An additional reason is that its inclusion may actually suggest something which is extremely undesirable, namely, that the same offence may be susceptible of several sorts of punishment of differing degrees of gravity, according to the ideas of the particular tribunal before which it happens to come. This may be inevitable, in so far as offences are in fact tried and punished before municipal courts, but there seems to be no reason for giving some sort of apparent consecration to this position in one of the articles of the code.
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Source: Official Records of the General Assembly, Seventh Session, Annexes, Agenda Item 54: Question of defining aggression: report of the Secretary-General, Comments received from governments regarding the draft code of offences against the peace and security of mankind and the question of defining aggression, Doc. A/2162 and Add.1, Aug. 27, 1952, pp. 2-16.
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