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on the will of the organ determining the aggressor, while in case there is no pre-established definition, the determination of the aggressor cannot be performed without a conscious and deliberate action of a competent organ morally responsible for this action. Such action is necessary in both cases.
No general norm can be applied automatically in a concrete case, because such an application always requires the creative function of a law-applying organ. The procedure by which a general norm prohibiting aggression by attaching a sanction to this conduct is applied in a concrete case can never be the automatic consequence of this norm, even if the norm contains the most detailed definition of aggression. The execution of a sanction prescribed in the general norm is not possible without the ascertainment of a fact that occurs only after the general norm has been established: an act of aggression performed by a definite state at a definite time and at a definite place. This ascertainment, as a function of the law-applying organ, is necessary whether the general norm does or does not contain a definition of aggression, and it requires a conscious and deliberate action constituting the responsibility of the acting organ, whether its liberty of action in determining an aggressor is more or less limited. It is true that it is always limited, but only to a certain extent, since a certain degree of discretion is always left to the law-applying organ.20 However, it must be admitted that the moral responsibility of the organ determining the aggressor is much greater if this organ must define aggression itself than if the definition is pre-established and the discretion the organ may exercise in determining the aggressor is very limited.
(ii) The arguments against a pre-established definition of aggression.
Among the arguments set forth against a pre-established definition of aggression are some which can easily be refuted. One is that no definition of aggression will discourage "major” aggressors whose motives are military and political.21 While this may be true, it is not an argument against a particular method of organizing international security but a pessimistic evaluation of the possible effectiveness of any international security organization. The other argument was presented in the famous statement made on 26 November 1927 by Sir Austen Chamberlain in the House of Commons in which he said that a definition of aggression (especially by enumerating the acts of aggression) “will be a trap for the innocent and a sign-post for the guilty.” The possibility that a state may accomplish a plan most harmful to another state and yet evade the most carefully formulated definition of aggression can certainly not be denied. However,
neither can it be denied that this possibility may be restricted to a certain extent if potential aggressors are informed in advance which of their acts will probably lead to a most undesirable reaction on the part of the security organization. Consequently, potential aggressors may make some effort to alter their aggressive actions in order to avoid these reactions. There is no legal prohibition which cannot be eluded in some way, but this is certainly not sufficent reason to renounce a legal regulation of human relations. During the discussion of the Report of the Special Committee on the question of defining aggression in the Sixth Committee, the representative of the United Kingdom justified his rejection of a pre-established definition also by the statement: “The real safeguard against aggression lay not in definition, but in disarmament.” 22 It stands to reason that a definition in itself has no effect. The effect is expected from the application of a legal rule attaching a sanction to an act which, in accordance with a definition contained in this rule, has been declared by the law-applying organ to be an act of aggression. It cannot be denied that a legal rule which precisely determines the act prohibited by it, may have a greater effect than a rule which does not answer the question as to what exactly is prohibited.
The arguments which may reasonably be set forth for or against a pre-established definition of aggression are, in principle, the same as those which may be advanced for or against the rule-of-law principle. The most important argument in favor of inserting into the treaty constituting an international security organization a definition of aggression, provided that this term is used in the treaty, or what amounts to the same thing, the main reason why the constituent treaty should determine as precisely as feasible the conduct of states against which the sanctions stipulated by the treaty are to be directed, is that all the members of a security organization have a legitimate right to know in advance what conduct is prohibited. It cannot be denied that a legal order is most unsatisfactory if it leaves its subjects in complete uncertainty about the content of their obligations.23 This is especially true if the sanctions provided for by a legal order have the character of punishment, if the law is penal law, if the constituent treaty establishes individual criminal responsibility for all or even some of its violations.24 If such a treaty does not define the crimes which constitute aggression, for the commission of which individuals may be punished, but leaves the definition of these crimes to the lawapplying organ, such crimes may very well be regarded, if not formally at least substantially, as so-called crimen sine lege, and the punishment inflicted by the organ upon a person found guilty of such a crime may very well be considered to be poena sine lege. This means that establishing individual criminal responsibility for crimes con
stituting aggression without defining these crimes in advance implies the violation of a fundamental principle generally recognized in the field of criminal law: nullum crimen et nulla poena sine lege, no crime and no punishment without a pre-established general norm defining, as precisely as possible, the crime as well as the punishment. This is the application of the rule-of-law principle to criminal law.25
If the opposite principle of leaving the definition of aggression to the law-applying organ is adopted in a security system, it is usually justified by the argument that it guarantees the flexibility of the legal order.28 There can be no doubt that lawmakers in general, and those who on behalf of their states conclude a treaty constituting an international security system in particular, cannot foresee all the possible circumstances under which a pre-established general norm has to be applied and cannot provide for unforeseen circumstances in which an application of the norm may lead to unsatisfactory results. However, this problem is not particular to a system of international security, but applies to any legal order. The disadvantage involved is a consequence of the rule-of-law principle and may be considered to be outweighed or at least compensated for by the advantages of this principle. In regard to this rule-of-law principle, it may be added that the greater the discretion left to the law-applying organ, the greater the possibility of its decisions being influenced by motives other than the sincere intention of realizing the main purpose of a security system which is to react against an aggressor, or, as it is usually formulated, the greater the possibility of being influenced by political considerations. An organ competent to determine the aggressor, especially if this function is left to the individual states, will hesitate to apply the constituent treaty in conformity with its spirit if the state against which the sanctions provided for by the treaty are to be directed is very powerful or is united with the state competent to determine the aggressor by a common interest other than an interest in the collective security for which the international organization is established. If the answer to the question of which state is the aggressor depends on a definition of aggression by the law-applying organ, the state acting as an organ of the security organization will naturally find justification for an attitude determined by its political interests. (jj) 18 aggression a political concept and not a legal one?
It is because of this possibility that the method of defining aggression in advance is sometimes opposed. This opposition is frequently justified by a doctrine which holds that aggression is not a legal concept, or not an exclusively legal concept, but a political concept or a partially political concept. The conclusion this doctrine reaches is
that only legal, and not political, concepts can or should be defined in advance; or, that as far as the problem of collective security in general or the concept of aggression in particular are concerned, legal functions cannot be separated from political considerations; or, assuming that juridical considerations cannot be divorced from political factors, 27 that the treaty constituting an international security organization is not a legal but a political instrument and consequently has to be formulated and interpreted in a political way and not from a strictly juridical standpoint.
In the opinion of the author these views are theoretically untenable. A concept is legal if its object is a set of legal norms or social relationships constituted by legal norms, and a concept is political if its object is a set of norms other than legal norms or the social relationships constituted by such norms. There is no reason to assume that political concepts are less definable than legal concepts or that only legal concepts must be more or less precisely defined. The question of whether or not a concept is definable and if it is, to what extent it is definable, is a logical question which has nothing to do with the legal or political character of a concept. It cannot be maintained that concepts employed in political norms, in contradistinction to concepts employed in legal norms, should not be defined in advance in order to allow the organ applying the political norms the greatest possible liberty of action, because a pre-established definition of a legal concept may be rejected for the same reason. It is a peculiarity of the law that it regulates its own creation and application. However, the creation and application of the law are always determined not only by legal norms but also by non-legal, political norms, or, as it is usually formulated, by political considerations. This is not particular to a legal system of international security. The establishment of the historically first constitution of a legal community, a state, for example, is determined exclusively by political norms. The creation of statutes under a constitution is determined by the legal norms of the constitution but usually only insofar as the legislative procedure in which the statutes are to be created is concerned. The content of statutes is determined only by non-legal, i. e., political norms. The application of statutes by courts and other law-applying organs is determined to a much greater extent by legal norms (by the statutes themselves) and to a much lesser extent by non-legal, political norms than the creation of statutes. If discretion is left to an organ competent to create or to apply the law, in fulfilling its function the organ may be influenced by other than legal norms—that is, by political norms or, as it is usually formulated, by political considerations. However, the influence of political norms or political con
siderations must take place only within the framework of the legal norms determining the function of the organ. Since the function of either a law-creating or a law-applying organ can never be determined completely by legal norms, the legal function really cannot be separated from political considerations, except in the sense that political considerations cannot be eliminated in that area of an organ's function that is not determined by legal norms. In this sense, political considerations cannot be divorced from the function of a law-applying organ within a system of international security, whether the constituent treaty prohibiting aggression does or does not contain a definition of this concept. However, there is more room for political considerations if the treaty does not contain such a definition. Since the treaty is a legal instrument, stipulating legal obligations and legal rights of the contracting parties on the basis of general international law, the concept of aggression employed in the treaty is a legal concept. However, in defining the concept of aggression, the lawmakers—that is, the contracting parties—are directed not by general international law, if this law does not prohibit aggression, but by political principles. Insofar as the concept of aggression is both a legal and a political concept, just as the treaty itself is both a legal and a political instrument, the same is true if the definition of aggression is left to the law-applying organ. This is a consequence of the fact that the legal functions of creating and applying the law are always determined not only by legal but also by non-legal, political norms.
As far as the interpretation of the constituent treaty, or the interpretation of any legal instrument, is concerned, it is neither legal nor political because no interpretation is specifically legal or specifically political; all possible methods of interpretation are applicable to all possible objects of interpretation. A constitution, a treaty, or a political agreement which has no legal character at all can be interpreted in the same way as the Bible or Shakespeare's Hamlet.
It follows from this analysis that the above mentioned view which rejects a pre-established definition of aggression by referring to the political character of the concept, or of the constituent treaty employing this concept, is open to argument. However, it does not follow that a pre-established definition of aggression cannot be rejected. What does follow is that such a rejection must be justified in another way and can best be justified by arguments in favor of a high degree of flexibility of a security system which, as pointed out, can be achieved only at the expense of the degree of security. However, a reasonable degree of flexibility of this system can be established without abandoning the attempt to define aggression in the treaty constituting the international security organization.