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of self-defense may be exercised only "if an armed attack occurs," that means: if such an attack actually takes place, a preventive war on the part of a member state is illegal.
2. According to the wording of Article 51, the exercise of the right of selfdefense is justified only in case of an armed attack “against a Member of the United Nations." However, according to an almost generally accepted interpretation of Article 51, the right of collective self-defense may also be exercised in case of an armed attack against a non-member state. Of. supra, p. 61. Since the Charter of the United Nations does not define the term "armed attack" used in Article 51, the members of the United Nations in exercising their right of individual or collective self-defense may interpret "armed attack" to mean not only an action in which a state uses its own armed force but also a revolutionary movement which takes place in one state but which is initiated or supported by another state. In this case, the members could come to the assistance of the legitimate government against which the revolutionary movement is directed.
Such an interpretation would be consistent with the fact that, according to the wording of Article 39, in case the Security Council considers such a revolutionary movement to be a threat to or breach of the peace, it may take enforcement measures against the revolutionary forces as well as against the state which has initiated or supported this movement, to assist the attacked government. Article 39 authorizes the Security Council to take measures “to maintain or restore international peace and security.” It says nothing about the party against which these measures are to be taken.
3. According to Article 51 of the Charter of the United Nations, the right of individual or collective self-defense may be exercised "until the Security Council has taken the measures necessary to maintain international peace and security.” According to Article 39, the Security Council “shall determine the existence of any threat to the peace, breach of the peace, or act of aggression.” Hence as soon as the Security Council intervenes, it must decide which state is the aggressor and which is the defender. However, according to the wording of Articles 39 and 51, the Security Council is not bound to take enforcement measures only against the state which it considers to be the aggressor—that is, only against the state it considers to be guilty of an "armed attack.” The Council may take any measures which it considers necessary to restore peace.
4. For instance, Article 10 of the Covenant of the League of Nations stipulated : “The Members of the League undertake to respect and preserve as 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.” Of. Article 2, paragraph 4, of the Charter of the United Nations.
5. The question as to whether aggressive intent should be considered as an essential element of the concept of aggression has been discussed in the Special Committee on the Question of Defining Aggression, established by Resolution 688 (VII) adopted by the General Assembly in its 408th plenary meeting on 20 December 1952. Cf. the Report of this Committee: General Assembly, Official Records: Ninth Session, Supplement No. 11 (A/2638), p. 8.
6. Cf. the Report of the Secretary-General of the United Nations entitled : Question of Defining Aggression. United Nations General Assembly. Seventh Session. Document A/2211, 3 October 1952, p. 55 (hereafter referred to as : Doc. A/2211).
6a. The International Law Commission, in its Report Doc. A/1858, p. 9, declared itself in favor of including indirect aggression in the definition of aggression. The report speaks of "indirect forms of aggression such as the fomenting of civil strife by one State in another, the arming by a State of organized bands for offensive purposes directed against another State, and the sending of 'volunteers’ to engage in hostilities against another State.” The report refers to Resolution 380 (V) of 17 November 1950, in which the General Assembly "Solemnly reaffirms that, whatever the weapons used, any aggression, whether committed openly, or by fomenting civil strife in the interest of a foreign Power, or otherwise, is the gravest of all crimes against peace and security throughout the world."
7. Cf. Document A/2211, p. 48.
7a. The Draft Treaty of Disarmament and Security prepared by an American Group (Declaration outlawing Aggressive War) stipulated : "Article 1. The High Contracting Parties solemnly declare that aggressive war is an international crime. They severally undertake not to be guilty of its commission. Article 2. A State engaging in war for other than purposes of defence commits the international crime described in Article 1. Article 3. The Permanent Court of International Justice shall have jurisdiction, on the complaint of any Signatory, to make a judgment to the effect that the international crime described in Article 1 has or has not in any given case been committed. Article 4. The High Contracting Parties solemnly declare that acts of aggression, even when not amounting to a state of war, and preparations for such acts of aggression, are hereafter to be deemed forbidden by international law. Article 5. In the absence of a state of war, measures of force by land, by sea or in the air taken by one State against another and not taken for the purpose of defence against aggression or for the protection of human life shall be deemed to be acts of aggression. General or partial mobilization may be deemed to be preparation for an act of aggression. Any Signatory which claims that another Signatory has violated any of the terms of this Declaration shall submit its case to the Permanent Court of International Justice. A Signatory refusing to accept the jurisdiction of the Court in any such case shall be deemed an aggressor within the terms of this Declaration. Failure to accept the jurisdiction of the Court within four days after notification of submission of a claim of violation of this Declaration shall be deemed a refusal to accept the jurisdiction.” League of Nations. Official Journal. Special Supplement No. 26 (1924), p. 169.
8. Cf. Doc. A/2211, p. 57. The International Convention concerning the Use of Broadcasting in the Cause of Peace, signed at Geneva on 23 September 1936, imposes upon the contracting parties the obligations to refrain from broadcasting within their respective territories matter of "such a character as to incite the population of any territory to acts incompatible with the internal order or the security of a territory of a High Contracting Party" (Article 1), and to ensure that transmissions "shall not constitute an incitement either to war against another High Contracting Party or to acts likely to lead thereto" (Article 2). In its Resolution 424 (V) adopted 14 December 1950, the General Assembly "invites all Governments to refrain from radio broadcasts that would mean unfair attacks or slanders against other peoples anywhere and in so doing to conform strictly to an ethical conduct in the interest of world peace by reporting facts truly and objectively.” Of. also infra, pp. 210 f.
In the Nuremberg Trial "aggressive acts” were proved to have been committed against Austria and Czechoslovakia, although the Nazi-Government had
reached its goal without the use of armed force, by internal subversive actions and the threat of violence. Cf. Pompe, op cit., p. 21.
9. Cf. Doc. A/2211, p. 58.
9a. Pompe, op. cit., p. 53, distinguishes four categories of aggression “depending whether or not aggression is seen in direct conection with war and whether or not aggression is considered as an exclusively military action. The first, original concept indicates the military beginning of a war, the second includes an aggressive policy which causes a war. A further extension of 'aggression' comprises, in principle, every (illicit) use of armed force against another State, including the threat of armed force. And finally there is the last category, since at one time or another all sorts of either illegal, or merely unfriendly acts harmful to other States have in the course of the last years been named 'aggression.'
10. Cf. Doc. A/2211, p. 36.
11. In his report on the Project of a Treaty of Mutual Assistance (Projet de Traité d'Assistance Mutuelle) presented at the Fourth Assembly of the League of Nations, Document A 111, 1923, IX (1st part), Mr. Benes declared : “Under the conditions of modern warfare it would seem impossible to decide even in theory what constitutes an act of aggression."
12. In a Memorandum on “The System of Sanctions of Article 16 of the Covenant and the Future Rôle of Neutrality," presented to the International Studies Conference on Collective Security (1934–1935), Dr. G. Cohn of the Danish Institute of History and Economics stated: “The system of sanctions should be directed against war as such, as a fact, without regard to its psychological basis. From this point of view defensive war must be included as well as offensive war, so that the states not involved in the conflict may not be obliged to make a choice which would at the same time necessitate the moral condemnation of one of the Powers, but may simply be confronted with the state of war as a fact which must be prevented and combated, in the common interest of all the nations. It is of little importance to determine who, from a purely formal standpoint, is playing the part of the aggressor. War is forbidden in all cases and for all parties, and it cannot provide any kind of advantage, whether economic, political or legal ... The Council should decide when sanctions are to be applied and when they are to cease, so that the different Powers may not have on this point any individual responsibility, and so that it may thus be quite clear that they are not seeking an individual advantage and are not letting themselves be guided by selfish sympathies, but are acting solely in the general interest of the League of Nations as a whole. The decision of the Council should be binding on all, and should be reached by a modified majority-of three-fourths, for example and under such conditions that the representatives on the Council of the belligerent States (buth the aggressor and the State which has been attacked) would not have the right to vote. All dispositions, whether economic, political or military, should proceed from the League of Nations as such, and not from its individual members." Collective Security, pp. 402 f. In his book: Neo-Neutrality, New York, 1939, Dr. Cohn dealt with neutrality as a part of the system of war-prevention. As such, he asserted that it "is essentially different from traditional neutrality. The latter was based on an equal evaluation of the belligerents, with consequent impartiality toward both under detailed rules for war and neutrality. Traditional neutrality took a dependent and passive attitude toward war. It was oriented by war. Neo-neutrality, on the other hand, is based on an equal devaluation of the war in all cases; it does not seek its own raison d'être in reflections as to whether it has in one situation or another a moral or legal claim
to assert its nonparticipation as a right; it takes an exception in principle to participation in war in any form. It does not recognize the supremacy of the law of war; it replaces it instead with a system of combined sanctions and neutrality which centers about an effort to suppress and prevent war of every kind. The neo-neutral states are in reality those states which, without becoming a party to war, are participants in the system of sanctions designed to prevent war. They do not participate, and under no circumstances will participate, in war. Moreover, they do not recognize war as a legal situation, they recognize no obligation of impartiality, and they are willing to apply any means to prevent or to stop the war to the limit of their ability without themselves participating in it.” Op. cit., pp. 253-4. Consequently a security system must provide only for economic but not for military sanctions. Neo-neutrality asks in all cases of war "that the peaceful sanctions which are available to the League be extended and made sufficiently severe to compel cessation of the war." Op. cit., pp. 29–30. However, it is very doubtful that economic sanctions can be made "sufficiently severe.” Dr. Cohn did not go so far as to deny the right of self-defense within a system of neo-neutrality. He said: "To Neo-neutrality, it is of interest only to state the limits of what constitutes self-defense in international law. These limits are to be determined by a study of the analogous situation of the limits of the concept of self-defense in municipal penal law and have nothing to do with the traditional rules of war or neutrality.” Op. cit., p. 331. He thought that the right of selfdefense under international law was totally different from the right of self-de fense under national law. He asserted that self-defense under national law, i. e. “the right to use force for protection against an attack (vim vi defendere), is subject to quite definite legal restrictions (depending upon the purposes) for which there is no exact analogy nor application with respect to defensive war. The right of self-defense presumes the preexistence of a certain relation between the object of the attack and the means of defense which can be used. These limitations upon the right of self-defense naturally vary somewhat in different penal codes; nonetheless a common thought pervades them, which clearly indicates the distinct difference between this right and that of defensive war ... But defensive war recognizes no limitations of this nature.” Op. cit., pp. 196-7.
The international right of self-defense may be limited within an international security system and thus be assimilated to the right of self-defense as established under national law, but it cannot be eliminated. If it exists, the distinction between a permitted defensive war and a prohibited aggressive war is inevitable, and then it is impossible to direct sanctions "against both belligerents," as the principle of neo-neutrality requires. Op. cit., p. 282.
Cohn opposes his doctrine of neo-neutrality to the theory of aggression not only because he wants to avoid the politically undesirable moral condemnation of a state as an aggressor, but also because the theory of aggression makes concepts of criminal law such as “crime” and “guilt” the basis of a system of international security, and—as he assumes—there is no room for concepts of criminal law in international relations. He says: "The theory of aggression makes the penal concepts of private law the basis of an international system of warprevention. Aggression is counted a crime, to be punished by the application of sanctions .. It should be remarked, however, that no system of war-prevention can be founded upon the guilt of the individual leading statesmen in the aggressor state nor upon the collective guilt of an entire people. The conception of guilt between nations cannot be built upon analogies in municipal penal law. All the requisite conditions for a criminal arraignment of the aggres
sor as in municipal law, are lacking . . . Neo-neutrality, on the other hand, excludes in principle the question of guilt and of penal law concepts in the suppression of war.” Op. cit., pp. 332-3. The fundamental concept of criminal law is that of punishment; the concept of crime is of secondary nature, for a human conduct is a crime if it is the condition of a punishment. Punishment is as pointed out-a reaction against a violation of the law, that is to say, it is a sanction. The characteristic of this sanction is that its purpose is prevention by deterrence, in contradistinction to a sanction the purpose of which is to repair the damage caused by the violation of the law. The concept of "guilt” (intention, negligence) is neither essential to nor specific of criminal law. There exists criminal responsibility not based on guilt, so-called absolute criminal responsibility; and there are rules of civil as well as international law which refer to intention or negligence as conditions of sanctions. Besides, Cohn admits "the fact that criminal blame or responsibility may be connected with the outbreak of war.” (Op. cit., p. 333.) Since the sanctions established by general international law as well as those stipulated in a system of international security are reactions against violations of the law with the purpose of prevention by deterrence, there is no essential difference between criminal and international law. Cohn defines neoneutrality as a specific system of sanctions designed to prevent war as an illegal action. Hence his theory does not exclude penal law concepts in the suppression of war.
The term "neo-neutrality” is misleading, for it designates a system of collective security which tries to prevent war by means short of war and within which neutrality in the traditional sense that is, implying the obligation of impartiality-is abandoned.
13. At the Eighth International Studies Conference, London, 1935, Professor Jessup suggested a way to terminate a war which has already broken out and to prevent future wars: "...a united neutral front against two unidentified aggressors or against two belligerents where judgment has not been reached as to which is the guilty party." Collective Security, p. 426. He sought of economic sanctions especially economic boycott of the belligerents by the neutral states. He referred to the action of the League of Nations in the Chaco affair where at least at the earlier stages an embargo was imposed upon both belligerents prior to a judgment as to which party was at fault, and to the Argentine anti-war pact of 1933 which provided for “a common and solidary attitude” of the neutrals towards the belligerents without imposing upon the former the obligation to take military measures against the latter. In his study A Modern Law of Nations (New York 1948), pp. 197 ff., Professor Jessup discusses a hypothetical situation, in which the Security Council in case of a military conflict between two states cannot get immediately the information necessary to determine the aggressor. He suggests that the Security Council in the meantime should announce the existence of a state of emergency and establish a blockade by land, sea and air, applied impartially to the area where the conflict is located and to both parties. He admits that this measure “would be hard on the state which is actually fighting in self-defense. But until there has been time for determination of the right and wrong of the case, no alternative is possible.” Thus the purpose of the suggested procedure is not to avoid the determination of the aggressor.
14. In an article on "The Problem of Aggression and the Prevention of War," American Journal of International Law, vol. 31 (1937), pp. 244 ff., Mr. L. Kopelmanas came to the conclusion “that in case of war or threat of war, international society must possess an organ analogous to the internal police