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in the penal law of modern states. If the sanction provided for as a reaction against a delict is punishment, the delict may be called a crime. The crimes which an international security organization tries to prevent are crimes against international peace, or, what amounts to the same thing, crimes against international security. There can be no doubt that the main crime against security, the illegal use of armed force by one state against another, can be committed only at the order or with the authorization of the supreme organs of the state, the head of the state or other members of the government, for only these individuals have the legal power to make use of the armed forces of the state. If individual responsibility for a crime against international security is to be established, the treaty constituting the international security organization must provide for punishment of the individuals who, in their capacity as organs of a state and in violation of the treaty, have ordered or authorized the armed forces of a state to take action against another state, or have ordered or authorized or personally performed any act which must be considered as aggression, especially the act of threatening with the use of armed force. For this purpose, the constituent treaty must confer upon an international court the power to try the individuals accused of a crime against security and, if they are found guilty, to inflict a definite punishment on them. This means a considerable deviation from the principle of traditional international law which holds that only states and not individuals can be parties to a case before an international court. 38 To comply with the generally recognized principle of penal law that no crime should be punished unless the punishment is determined by a pre-established law, the constituent treaty should specify the penalties which the court is authorized to inflict upon guilty individuals.
Acts performed, ordered or authorized by the government are acts of state. According to a principle of general international law, a state can exercise jurisdiction over another state through its courts, and this means jurisdiction over acts of another state, and thus make the organ of another state individually responsible for a violation of international law, only with the consent of this state. Insofar as an international court is a common court of the states which are contracting parties to the treaty by which a court or its jurisdiction is established, an international court can try individuals for having violated international law by acts of state, and this means in their capacity as organs of a state, only with the consent of this state. In other words, the state over whose acts an international court exercises jurisdiction by inflicting punishment upon the individuals who have performed these acts, must be a contracting party to the treaty establishing the jurisdiction of the court or must express its consent to
this jurisdiction in some other way. If such a court is established only after aggression has taken place, it stands to reason that only the government of a state defeated in the war which was the consequence of the aggression, will consent to the prosecution of former members of its government.37 Hence, individual criminal responsibility for crimes against international security should be pre-established in the treaty constituting the security organization. If the organization is universal, there is no difficulty in applying the provision concerned. However, if the organization is not universal and a non-member state is the aggressor, the prosecution of organs of this state for having committed the act of aggression is legally possibly only if the government of the non-member state consents. It should be noted, however, that according to an opinion advocated by some authorities, the rule of general international law requiring the consent of a state to the prosecution of an individual who in his capacity as an organ of this state has violated international law by committing a crime against international security, has been abrogated by the practice of states, especially by the Agreement signed on 8 August 1945 in London for the prosecution of the major war criminals of the European Axis.38
Whether individual criminal responsibility for violations of international law, and especially for crimes against international security, should be extended to acts performed at superior order, is a delicate question. If this question is answered in the affirmative, not only the member or members of the government who ordered the illegal use of armed force, but all members of the armed force who executed the order, would be punishable. This, of course, is absurd. Hence, the principle of excluding the plea of superior order should be restricted with respect to the crimes to which it may be applied, as well as with respect to the conditions under which a crime committed at superior order should be considered punishable.
Although individual criminal responsibility for violations of inte national law by acts of state is certainly a very effective means of preventing these violations and especially of preventing the illegal use of armed force, it is evident that the sanctions constituting this responsibility do not suffice if, in spite of such responsibility established by the constituent treaty, an act of aggression has actually taken place and a military action is necessary to stop the aggression and save the victim, to the extent that this is possible.
Individual criminal responsibility for violations of international law by acts of state is not a consideration in case of internal aggression constituted by a revolutionary movement within a member state, for revolutionary acts are not acts of state and violate only national law and not international law. The situation is different if a security
treaty provides for enforcement action against a revolutionary movement within a member state and if the insurgents are recognized as a belligerent power. The internal aggression constituted by the revolutionary movement is then analogous to aggression by a non-member state against a member state, for the government of the insurgents cannot be considered to be a contracting party to the security treaty. Consequently, the provisions of the treaty concerning individual criminal responsibility for acts of aggression are not applicable to the members of the revolutionary government. Only the collective responsibility implied in the enforcement action taken against the revolutionary movement applies. It should not be ignored that even within the national law of modern states the principle of collective responsibility cannot be completely replaced by that of individual responsibility. There are cases where only the former is applicable.
(F) SANCTIONS CONSISTING OF THE FORFEITURE OF RIGHTS
As pointed out in a previous chapter, sanctions may consist of the forcible deprivation of rights. The expulsion of a member state from a security organization is such a sanction. It implies the forfeiture of all the rights a state has in its capacity as a member of the organization. However, the consequence of expulsion is that the state concerned is also released from the obligations imposed upon it by the constituent treaty.40 For this reason, expulsion is not an appropriate sanction within a security organization which intends to be universal. More appropriate is a forefeiture of rights not accompanied by a release from obligations, especially the forfeiture of specific rights, e. g., the right to participate in the voting of a collegiate organ in which the state is represented.41
1. Cf. the excellent study: International Sanctions. A Report of a Group of Members of the Royal Institute of International Affairs. Oxford University Press, London, New York, Toronto, 1938. Quoted in the following as: International Sanctions.
2. This was the case under the Covenant of the League of Nations which in Article 16, paragraph 1 (cf. infra, p. 134) imposed upon the members only an obligation to take economic sanctions. As far as military sanctions were concerned, the members were under no obligation; they were only authorized to take such action.
3. According to Article 16, paragraph 2, of the Covenant of the League of Nations, the Council had the power to make recommendations concerning the execution of the military sanctions. Under this Article the Council had no competence with respect to the execution of the economic sanctions by the members. However, Article 10 provided : "The Members of the League undertake to respect and preserve against external aggression the territorial integrity and existing political independence of all Members of the League. In case of
any such aggression or in case of any threat or danger of such aggression the Council shall advise upon the means by which this obligation shall be fulfilled.” In so far as the "means” referred to in this Article had the character of economic sanctions in the sense of Article 16, paragraph 1, the Council was competent to make recommendations also concerning the execution of these measures. Under the Charter of the United Nations the execution of the sanctions—military as well as non-military-is reserved to the Security Council, and the members are obliged to carry out the decisions of the Council. Article 39 provides : “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.” Article 25 stipulates : “The Members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with the present Charter.” In addition, Article 48 provides : “1. The action required to carry out the decisions of the Security Council for the maintenance of international peace and security shall be taken by all the Members of the United Nations or by some of them, as the Security Council may determine. 2. Such decisions shall be carried out by the Members of the United Nations directly and through their action in the appropriate international agencies of which they are members.” Decisions of the Security Council concerning enforcement measures involving or not involving the use of armed force as sanctions are to be taken according to Article 27, paragraph 3, by an affirmative vote of seven members including the concurring votes of the five permanent members. If, however, the Security Council, because of lack of unanimity of the permanent members, fails to exercise its responsibility with respect to execution of sanctions, the General Assembly is authorized by the Resolution “Uniting for Peace” (cf. p. 139) to recommend to the members collective measures including, in the case of a breach of the peace or act of aggression, the use of armed force.
4. Article 4 of the Covenant of the League of Nations provided : "1. The Council shall consist of representatives of the Principal Allied and Associated Powers (United States of America, the British Empire, France, Italy and Japan), together with Representatives of four other Members of the League. These four Members of the League shall be selected by the Assembly from time to time in its discretion. Until the appointment of the Representatives of the four Members of the League first selected by the Assembly, Representatives of Belgium, Brazil, Greece and Spain shall be Members of the Council. 2. With the approval of the majority of the Assembly, the Council may name additional Members of the League, whose Representatives shall always be Members of the Council; the Council with like approval may increase the number of Members of the League to be selected by the Assembly for representation on the Council. 3. bis. The Assembly shall fix by a two-thirds' majority the rules dealing with the election of the non-permanent Members of the Council, and particularly such regulations as relate to their term of office and the conditions of reeligibility.”
Article 23 of the Charter of the United Nations reads as follows: "1. The Security Council shall consist of eleven Members of the United Nations. The Republic of China, France, the Union of Soviet Socialist Republics, the United Kingdom of Great Britain and Northern Ireland and the United States of America shall be permanent members of the Security Council. The General Assembly shall elect six other Members of the United Nations to be non-permanent members of the Security Council, due regard being specially paid, in the
first instance to the contribution of Members of the United Nations to the maintenance of international peace and security and to the other purposes of the Organization, and also to equitable geographical distribution. 2. The nonpermanent members of the Security Council shall be elected for a term of two years. In the first election of the non-permanent members, however, three shall be chosen for a term of one year. A retiring member shall not be eligible for immediate re-election. 3. Each member of the Security Council shall have one representative."
5. It is significant that the Covenant of the League of Nations-in contradistinction to the Charter of the United Nations—does not contain an express provision concerning self-defense. This right is presupposed as self-evident. The provisions of Article 16, paragraph 1, of the Covenant concerning economic sanctions only transform the right of so-called collective self-defense into an obligation, (the economic sanctions considered as a use of force not involving armed force); and the provisions of Article 16, paragraph 2, confer upon the Council only the power to make recommendations with respect to the exercise of the right of collective self-defense by military measures.
The exercise of the right of individual and collective self-defense, expressly stipulated in Article 51 in the Charter of the United Nations, differs clearly from the execution of sanctions taken as enforcement measures by the central organ of the United Nations, the Security Council, under Articles 39–50. The right of individual and collective self-defense may be exercised only as long as the central organ of the United Nations, the Security Council, does not intervene ("until the Security Council has taken the measures necessary to maintain international peace and security”).
Under Article 51 so-called collective self-defense is a right of the members. By an agreement of the members, this right may be transformed into an obligation. In this way regional security organizations may be established within the framework of the relatively universal security organization of the United Nations. (As to the question of whether or not these organizations are "regional arrangements" within the meaning of Chapter VIII of the Charter, cf. infra, p. 252). They constitute important implementations of Article 51 of the Charter. Such an agreement is the Inter-American Treaty of Reciprocal Assistance signed at the Inter-American Conference for the Maintenance of Continental Peace and Security at Rio de Janeiro on 2 September 1947. Article 3, paragraph 1, of this treaty stipulates: "The High Contracting Parties agree that an armed attack by any state against an American State shall be considered as an attack against all the American States and, consequently, each one of the said Contracting Parties undertakes to assist in meeting the attack in the exercise of the inherent right of individual or collective self-defense recognized by Article 51 of the Charter of the United Nations.” Another agreement implementing Article 51 of the Charter is the treaty signed by Belgium, France, Luxembourg, the Netherlands and Great Britain at Brussels on 17 March 1948. Article 4 of this treaty provides : "If any of the High Contracting Parties should be the object of an armed attack in Europe, the other High Contracting Parties will, in accordance with the provisions of Article 51 of the Charter of the United Nations, afford the Party so attacked all the military and other aid and assistance in their power.” The most important treaty for the organization of collective self-defense is the so-called North Atlantic Treaty signed at Washington on 4 April 1949 by Belgium, Canada, Denmark, France, Iceland, Italy, Luxembourg, Netherlands, Norway, Portugal, United Kingdom, United States of America, and adhered to by Greece and Turkey. Article 3 of the Treaty stipulates: "In