War of aggression
Encyclopedia
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
. Possibly the first trial for waging aggressive war is that of Conradin von Hohenstaufen
in 1268.
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."
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.
, 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. The government of Finland
acceded to the convention on January 31, 1934. The convention defined an act of aggression as follows:
The convention became operative on October 16, 1933. It was registered in League of Nations Treaty Series on March 29, 1934.
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.
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. 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.
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:
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:
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."
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:
, signed in Rio de Janeiro on September 2, 1947, included a clear definition of aggression. Article 9 stated:
. 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)". However, a tentative definition of aggression was adopted by the commission on June 4, 1951, which stated:
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.
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. 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.
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". 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.
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." The Assembly of States Parties of the ICC adopted such a definition at the 2010 Kampala Review Conference.
A United Nations factsheet on the ICC states:
Self-defense
Self-defense, self-defence or private defense is a countermeasure that involves defending oneself, one's property or the well-being of another from physical harm. The use of the right of self-defense as a legal justification for the use of force in times of danger is available in many...
usually for territorial gain and subjugation. The phrase is distinctly modern and diametrically opposed to the prior legal international standard of "might makes right
Might makes right
Might makes right is an aphorism with several potential meanings :* In English, the phrase is most often used in negative assessments of expressions of power....
", under the medieval and pre-historic beliefs of right of conquest
Right of conquest
The right of conquest is the right of a conqueror to territory taken by force of arms. It was traditionally a principle of international law which has in modern times gradually given way until its proscription after the Second World War when the crime of war of aggression was first codified in the...
. Since the Korean War
Korean War
The Korean War was a conventional war between South Korea, supported by the United Nations, and North Korea, supported by the People's Republic of China , with military material aid from the Soviet Union...
of the early 1950s
1950s
The 1950s or The Fifties was the decade that began on January 1, 1950 and ended on December 31, 1959. The decade was the sixth decade of the 20th century...
, waging such a war
War
War is a state of organized, armed, and often prolonged conflict carried on between states, nations, or other parties typified by extreme aggression, social disruption, and usually high mortality. War should be understood as an actual, intentional and widespread armed conflict between political...
of aggression is a crime under the customary international law
Customary international law
Customary international law are those aspects of international law that derive from custom. Along with general principles of law and treaties, custom is considered by the International Court of Justice, jurists, the United Nations, and its member states to be among the primary sources of...
. Possibly the first trial for waging aggressive war is that of Conradin von Hohenstaufen
Conradin
Conrad , called the Younger or the Boy, but usually known by the diminutive Conradin , was the Duke of Swabia , King of Jerusalem , and King of Sicily .-Early childhood:Conradin was born in Wolfstein, Bavaria, to Conrad...
in 1268.
Wars without international legality (e.g. not out of self-defense nor sanctioned by the United Nations Security Council
United Nations Security Council
The United Nations Security Council is one of the principal organs of the United Nations and is charged with the maintenance of international peace and security. Its powers, outlined in the United Nations Charter, include the establishment of peacekeeping operations, the establishment of...
) 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
Territorial dispute
A territorial dispute is a disagreement over the possession/control of land between two or more states or over the possession or control of land by a new state and occupying power after it has conquered the land from a former state no longer currently recognized by the new state.-Context and...
where the initiator has a reasonable claim, and limited aims, is one example).
The International Military Tribunal at Nuremberg
Nuremberg Trials
The Nuremberg Trials were a series of military tribunals, held by the victorious Allied forces of World War II, most notable for the prosecution of prominent members of the political, military, and economic leadership of the defeated Nazi Germany....
, 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."
Article 39 of the United Nations Charter
United Nations Charter
The Charter of the United Nations is the foundational treaty of the international organization called the United Nations. It was signed at the San Francisco War Memorial and Performing Arts Center in San Francisco, United States, on 26 June 1945, by 50 of the 51 original member countries...
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
Rome Statute of the International Criminal Court
The Rome Statute of the International Criminal Court is the treaty that established the International Criminal Court . It was adopted at a diplomatic conference in Rome on 17 July 1998 and it entered into force on 1 July 2002. As of 13 October 2011, 119 states are party to the statute...
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
International Criminal Court
The International Criminal Court is a permanent tribunal to prosecute individuals for genocide, crimes against humanity, war crimes, and the crime of aggression .It came into being on 1 July 2002—the date its founding treaty, the Rome Statute of the...
(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.
The Convention for the Definition of Aggression
On July 3, 1933, the first convention that defined aggression was signed in London by representatives of RomaniaRomania
Romania is a country located at the crossroads of Central and Southeastern Europe, on the Lower Danube, within and outside the Carpathian arch, bordering on the Black Sea...
, Estonia
Estonia
Estonia , officially the Republic of Estonia , is a state in the Baltic region of Northern Europe. It is bordered to the north by the Gulf of Finland, to the west by the Baltic Sea, to the south by Latvia , and to the east by Lake Peipsi and the Russian Federation . Across the Baltic Sea lies...
, Latvia
Latvia
Latvia , officially the Republic of Latvia , is a country in the Baltic region of Northern Europe. It is bordered to the north by Estonia , to the south by Lithuania , to the east by the Russian Federation , to the southeast by Belarus and shares maritime borders to the west with Sweden...
, Poland
Poland
Poland , officially the Republic of Poland , is a country in Central Europe bordered by Germany to the west; the Czech Republic and Slovakia to the south; Ukraine, Belarus and Lithuania to the east; and the Baltic Sea and Kaliningrad Oblast, a Russian exclave, to the north...
, Turkey
Turkey
Turkey , known officially as the Republic of Turkey , is a Eurasian country located in Western Asia and in East Thrace in Southeastern Europe...
, USSR, Iran
Iran
Iran , officially the Islamic Republic of Iran , is a country in Southern and Western Asia. The name "Iran" has been in use natively since the Sassanian era and came into use internationally in 1935, before which the country was known to the Western world as Persia...
and Afghanistan
Afghanistan
Afghanistan , officially the Islamic Republic of Afghanistan, is a landlocked country located in the centre of Asia, forming South Asia, Central Asia and the Middle East. With a population of about 29 million, it has an area of , making it the 42nd most populous and 41st largest nation in the world...
. It was initiated by Soviet Foreign Minister Maxim Litvinov
Maxim Litvinov
Maxim Maximovich Litvinov was a Russian revolutionary and prominent Soviet diplomat.- Early life and first exile :...
in response to threats of use of force by the German government following Hitler's rise to power. The government of Finland
Finland
Finland , officially the Republic of Finland, is a Nordic country situated in the Fennoscandian region of Northern Europe. It is bordered by Sweden in the west, Norway in the north and Russia in the east, while Estonia lies to its south across the Gulf of Finland.Around 5.4 million people reside...
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.
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.
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
Vilnius region
Vilnius Region , refers to the territory in the present day Lithuania, that was originally inhabited by ethnic Baltic tribes and was a part of Lithuania proper, but came under East Slavic and Polish cultural influences over time,...
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. 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.
The Nuremberg Principles
In 1945, the London Charter of the International Military TribunalLondon Charter of the International Military Tribunal
The London Charter of the International Military Tribunal was the decree issued on August 8, 1945, that set down the laws and procedures by which the Nuremberg trials were to be conducted.The charter stipulated that crimes of the European Axis Powers could be tried...
defined three categories of crimes, including crimes against peace. This definition was first used by Finland
Finland
Finland , officially the Republic of Finland, is a Nordic country situated in the Fennoscandian region of Northern Europe. It is bordered by Sweden in the west, Norway in the north and Russia in the east, while Estonia lies to its south across the Gulf of Finland.Around 5.4 million people reside...
to prosecute the political leadership in the war-responsibility trials in Finland
War-responsibility trials in Finland
The war-responsibility trials in Finland was a trial of the Finnish wartime leaders held responsible for "definitely influencing Finland in getting into a war with the Soviet Union and United Kingdom in 1941 or preventing peace" during the Continuation War, 1941-1944. Unlike other World War II...
. The principles were later known as the Nuremberg Principles
Nuremberg Principles
The Nuremberg principles were a set of guidelines for determining what constitutes a war crime. The document was created by the International Law Commission of the United Nations to codify the legal principles underlying the Nuremberg Trials of Nazi party members following World War II.- Principle...
.
In 1950, the Nuremberg Tribunal
Nuremberg Trials
The Nuremberg Trials were a series of military tribunals, held by the victorious Allied forces of World War II, most notable for the prosecution of prominent members of the political, military, and economic leadership of the defeated Nazi Germany....
defined Crimes against Peace, in Principle VI, specifically Principle VI(a), submitted to the United Nations General Assembly
United Nations General Assembly
For two articles dealing with membership in the General Assembly, see:* General Assembly members* General Assembly observersThe United Nations General Assembly is one of the five principal organs of the United Nations and the only one in which all member nations have equal representation...
, as:
- (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
Nuremberg Trials
The Nuremberg Trials were a series of military tribunals, held by the victorious Allied forces of World War II, most notable for the prosecution of prominent members of the political, military, and economic leadership of the defeated Nazi Germany....
: "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
World War II
World War II, or the Second World War , was a global conflict lasting from 1939 to 1945, involving most of the world's nations—including all of the great powers—eventually forming two opposing military alliances: the Allies and the Axis...
. 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
Criminal law
Criminal law, is the body of law that relates to crime. It might be defined as the body of rules that defines conduct that is not allowed because it is held to threaten, harm or endanger the safety and welfare of people, and that sets out the punishment to be imposed on people who do not obey...
of jus cogens. It has made formal declaration of war
Declaration of war
A declaration of war is a formal act by which one nation goes to war against another. The declaration is a performative speech act by an authorized party of a national government in order to create a state of war between two or more states.The legality of who is competent to declare war varies...
uncommon after 1945.
During the trial, the chief American prosecutor, Robert H. Jackson
Robert H. Jackson
Robert Houghwout Jackson was United States Attorney General and an Associate Justice of the United States Supreme Court . He was also the chief United States prosecutor at the Nuremberg Trials...
, 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
William O. Douglas
William Orville Douglas was an Associate Justice of the United States Supreme Court. With a term lasting 36 years and 209 days, he is the longest-serving justice in the history of the Supreme Court...
charged that the Allies
Allies of World War II
The Allies of World War II were the countries that opposed the Axis powers during the Second World War . Former Axis states contributing to the Allied victory are not considered Allied states...
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
Ex post facto law
An ex post facto law or retroactive law is a law that retroactively changes the legal consequences of actions committed or relationships that existed prior to the enactment of the law...
to suit the passion and clamor of the time."
The United Nations Charter
The relevant provisions of the Charter of the United Nations mentioned in the RSICCRome Statute of the International Criminal Court
The Rome Statute of the International Criminal Court is the treaty that established the International Criminal Court . It was adopted at a diplomatic conference in Rome on 17 July 1998 and it entered into force on 1 July 2002. As of 13 October 2011, 119 states are party to the statute...
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
London Charter of the International Military Tribunal
The London Charter of the International Military Tribunal was the decree issued on August 8, 1945, that set down the laws and procedures by which the Nuremberg trials were to be conducted.The charter stipulated that crimes of the European Axis Powers could be tried...
that was issued in 1945 and formed the basis for the post World War II
World War II
World War II, or the Second World War , was a global conflict lasting from 1939 to 1945, involving most of the world's nations—including all of the great powers—eventually forming two opposing military alliances: the Allies and the Axis...
war crime trials. The Charters provisions based on the Nuremberg Principle VI.a are:
- Article 1:
-
- The Purposes of the United NationsUnited NationsThe United Nations is an international organization whose stated aims are facilitating cooperation in international law, international security, economic development, social progress, human rights, and achievement of world peace...
are:- To maintain international peace and security, and to that end: to take effective collective measures for the prevention and removal of threats to the peacePeacePeace is a state of harmony characterized by the lack of violent conflict. Commonly understood as the absence of hostility, peace also suggests the existence of healthy or newly healed interpersonal or international relationships, prosperity in matters of social or economic welfare, the...
, 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 justiceJusticeJustice is a concept of moral rightness based on ethics, rationality, law, natural law, religion, or equity, along with the punishment of the breach of said ethics; justice is the act of being just and/or fair.-Concept of justice:...
and international lawInternational lawPublic international law concerns the structure and conduct of sovereign states; analogous entities, such as the Holy See; and intergovernmental organizations. To a lesser degree, international law also may affect multinational corporations and individuals, an impact increasingly evolving beyond...
, adjustment or settlement of international disputes or situations which might lead to a breach of the peaceBreach of the peaceBreach of the peace is a legal term used in constitutional law in English-speaking countries, and in a wider public order sense in Britain.-Constitutional law:...
; - To develop friendly relations among nations based on respect for the principle of equal rightsCivil rightsCivil and political rights are a class of rights that protect individuals' freedom from unwarranted infringement by governments and private organizations, and ensure one's ability to participate in the civil and political life of the state without discrimination or repression.Civil rights include...
and self-determinationSelf-determinationSelf-determination is the principle in international law that nations have the right to freely choose their sovereignty and international political status with no external compulsion or external interference...
of peoples, and to take other appropriate measures to strengthen universal peace;
- 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
- The Purposes of the United Nations
- 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.
The Inter-American Treaty of Reciprocal Assistance (Rio Pact)
The Inter-American Treaty of Reciprocal AssistanceInter-American Treaty of Reciprocal Assistance
The Inter-American Treaty of Reciprocal Assistance was an agreement signed on 1947 in Rio de Janeiro among many countries of the Americas...
, 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".
Further discussions on defining aggression
The discussions on definition of aggression under the UN began in 1950, following the outbreak of the Korean WarKorean War
The Korean War was a conventional war between South Korea, supported by the United Nations, and North Korea, supported by the People's Republic of China , with military material aid from the Soviet Union...
. 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
International Law Commission
The International Law Commission was established by the United Nations General Assembly in 1948 for the "promotion of the progressive development of international law and its codification."It holds an annual session at the United Nations Office at Geneva....
. 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)". 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".
General Assembly Resolution 3314
On December 14, 1974, the United Nations General AssemblyUnited Nations General Assembly
For two articles dealing with membership in the General Assembly, see:* General Assembly members* General Assembly observersThe United Nations General Assembly is one of the five principal organs of the United Nations and the only one in which all member nations have equal representation...
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.
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
Sierra Leone Civil War
The Sierra Leone Civil War began on 23 March 1991 when the Revolutionary United Front , with support from the special forces of Charles Taylor’s National Patriotic Front of Liberia , intervened in Sierra Leone in an attempt to overthrow the Joseph Momoh government...
and the Yugoslav Wars
Yugoslav wars
The Yugoslav Wars were a series of wars, fought throughout the former Yugoslavia between 1991 and 1995. The wars were complex: characterized by bitter ethnic conflicts among the peoples of the former Yugoslavia, mostly between Serbs on the one side and Croats and Bosniaks on the other; but also...
, 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
Warsaw Pact
The Warsaw Treaty Organization of Friendship, Cooperation, and Mutual Assistance , or more commonly referred to as the Warsaw Pact, was a mutual defense treaty subscribed to by eight communist states in Eastern Europe...
, were non-state parties and thus were outside the scope of the definition. 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.
Although this Definition of Aggression has often been cited by opponents of conflicts such as the 1999 Kosovo War
Kosovo War
The term Kosovo War or Kosovo conflict was two sequential, and at times parallel, armed conflicts in Kosovo province, then part of FR Yugoslav Republic of Serbia; from early 1998 to 1999, there was an armed conflict initiated by the ethnic Albanian "Kosovo Liberation Army" , who sought independence...
and the 2003 Iraq War, it has no binding force in international law
International law
Public international law concerns the structure and conduct of sovereign states; analogous entities, such as the Holy See; and intergovernmental organizations. To a lesser degree, international law also may affect multinational corporations and individuals, an impact increasingly evolving beyond...
. The doctrine of Nulla poena sine lege
Nulla poena sine lege
Nulla poena sine lege is a legal principle, requiring that one cannot be punished for doing something that is not prohibited by law. This principle is accepted as just and upheld by the penal codes of constitutional states, including virtually all modern democracies...
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
Slobodan Milošević
Slobodan Milošević was President of Serbia and Yugoslavia. He served as the President of Socialist Republic of Serbia and Republic of Serbia from 1989 until 1997 in three terms and as President of the Federal Republic of Yugoslavia from 1997 to 2000...
of Serbia
Serbia
Serbia , officially the Republic of Serbia , is a landlocked country located at the crossroads of Central and Southeast Europe, covering the southern part of the Carpathian basin and the central part of the Balkans...
and Charles Taylor of Liberia
Liberia
Liberia , officially the Republic of Liberia, is a country in West Africa. It is bordered by Sierra Leone on the west, Guinea on the north and Côte d'Ivoire on the east. Liberia's coastline is composed of mostly mangrove forests while the more sparsely populated inland consists of forests that open...
. However, both were charged with war crimes, i.e. violations of the laws of war
Laws of war
The law of war is a body of law concerning acceptable justifications to engage in war and the limits to acceptable wartime conduct...
, 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
United Nations Charter
The Charter of the United Nations is the foundational treaty of the international organization called the United Nations. It was signed at the San Francisco War Memorial and Performing Arts Center in San Francisco, United States, on 26 June 1945, by 50 of the 51 original member countries...
empowers the General Assembly to make recommendations to the United Nations Security Council
United Nations Security Council
The United Nations Security Council is one of the principal organs of the United Nations and is charged with the maintenance of international peace and security. Its powers, outlined in the United Nations Charter, include the establishment of peacekeeping operations, the establishment of...
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". 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.
Rome Statute of the International Criminal Court
The Rome Statute of the International Criminal CourtRome Statute of the International Criminal Court
The Rome Statute of the International Criminal Court is the treaty that established the International Criminal Court . It was adopted at a diplomatic conference in Rome on 17 July 1998 and it entered into force on 1 July 2002. As of 13 October 2011, 119 states are party to the statute...
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
International Criminal Court
The International Criminal Court is a permanent tribunal to prosecute individuals for genocide, crimes against humanity, war crimes, and the crime of aggression .It came into being on 1 July 2002—the date its founding treaty, the Rome Statute of the...
(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." The Assembly of States Parties of the ICC adopted such a definition at the 2010 Kampala Review Conference.
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.
See also
- Right of ConquestRight of conquestThe right of conquest is the right of a conqueror to territory taken by force of arms. It was traditionally a principle of international law which has in modern times gradually given way until its proscription after the Second World War when the crime of war of aggression was first codified in the...
- Command responsibilityCommand responsibilityCommand responsibility, sometimes referred to as the Yamashita standard or the Medina standard, and also known as superior responsibility, is the doctrine of hierarchical accountability in cases of war crimes....
- Crime against peaceCrime against peaceA crime against peace, in international law, refers to "planning, preparation, initiation, or waging of wars of aggression, or a war in violation of international treaties, agreements or assurances, or participation in a common plan or conspiracy for the accomplishment of any of the foregoing"...
- International criminal lawInternational criminal lawInternational criminal law is a body of international law designed to prohibit certain categories of conduct commonly viewed as serious atrocities and to make perpetrators of such conduct criminally accountable for their perpetration. Principally, it deals with genocide, war crimes, crimes against...
- International lawInternational lawPublic international law concerns the structure and conduct of sovereign states; analogous entities, such as the Holy See; and intergovernmental organizations. To a lesser degree, international law also may affect multinational corporations and individuals, an impact increasingly evolving beyond...
- Jus ad bellumJus ad bellumJus ad bellum is a set of criteria that are to be consulted before engaging in war, in order to determine whether entering into war is permissible; that is, whether it is a just war....
- Legality of the Iraq WarLegality of the Iraq WarThe legality of the invasion and occupation of Iraq has been widely debated since the United States, United Kingdom, and a coalition of other countries launched the 2003 invasion of Iraq...
- List of war crimes
- Nuremberg PrinciplesNuremberg PrinciplesThe Nuremberg principles were a set of guidelines for determining what constitutes a war crime. The document was created by the International Law Commission of the United Nations to codify the legal principles underlying the Nuremberg Trials of Nazi party members following World War II.- Principle...
- War crimeWar crimeWar crimes are serious violations of the laws applicable in armed conflict giving rise to individual criminal responsibility...
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)