« ПредыдущаяПродолжить »
for the purpose of acting against acts of war, without raising the question as to which of the belligerents is at fault. It should not be forgotten that the absence of discrimination between the aggressor and the victim would be of a nature to facilitate the action against war through avoiding the wounding of national susceptibilities.” (p. 255). By "police” actions, Kopelmanas meant injunctions directed at both states involved in a war or both states whose attitudes constitute a threat of war. He also meant the enforcement of these injunctions against the state which does not comply with them. In this case, he said: "the aggressive intent of a state may be indicated by its refusal to obey the injunctions of the police, and the action can be directed against it alone. But it must be remembered that the problem of aggression, as it is construed in positive law, is not in question. The police acts against the eventual aggressor ..."
If repressive measures are to be taken against a state responsible for a conduct which shows an intention to commit aggression, the problem of aggression is indeed involved. If the law provides for repressive measures to be directed against a state which does not comply with the injunction of a competent organ, the conduct of this state is a violation of the law and the repressive measures are sanctions, whether or not the organ is called the “police” and its action a “police" action. To regard illegal conduct as evidence of "aggressive intent" amounts to the same thing as regarding one's conduct as an act of aggression, the concept of aggression used in the wider sense as it is actually used in the theory and practice of international law.
Kopelmanas' doctrine is based on the erroneous idea that there is an essential difference between the function of the police and the function of penal repression of disorder. He said: "The penal judge intervenes only after order has been re-established" by the police, whose task is "maintaining good order and security in a given society.” (p. 253). However, the “good order” and security maintained by the police is exactly the same good order maintained by the penal judge, namely, the law and the security guaranteed by this law. Furthermore, the penal judge does not intervene until after order has been re-established by the police. Is order re-established before the murderer or thief is punished? Is order re-established after an individual has been arrested by the police as a suspected murderer or thief but has later been acquitted by the judge as innocent? The preventive measures taken by a "police” organ may also be taken by a judge, especially by an international judge in case of war or threat of war, and the question as to whether or not in this case the judge acts as a "police" organ is simply a terminological question of minor importance. The repressive measures taken by the police are either reactions against non-compliance with its injunction and hence a sanction in exactly the same sense as a punishment inflicted in a judicial procedure on a person for having violated the penal law, or actions the purpose of which is to prepare and secure such judicial procedure.
15. The view that aggression is a concept not susceptible to definition has been advocated most characteristically in a report entitled: "The Possibility and Desirability of a Definition of Aggression,” presented by Mr. Spiropoulos to the International Law Commission in its Third Session 16 May-27 July 1951. (Doc. General Assembly, Official Records, Sixth Session, Supplement No. 9, A/1858). In this report (Document A/CN. 4/44), the author came to the conclusion that the concept of aggression is a "notion per se" which “is not susceptible of definition.” He seems to have had the idea that there are two kinds of concepts, those which are and those which are not definable. However, he did not maintain this view, for he evidently presupposed the possibility of
a definition when he stated that “whenever Governments are called upon to decide on the existence or non-existence of aggression under international law they base their judgment on criteria derived from the 'natural, so to speak, notion of aggression ... and not on legal considerations."
This means that a government can decide whether aggression exists or does not exist only on the basis of definite criteria, and these criteria constitute the definition of the concept of aggression. In the first place, why can this determination be made only by a government. Why not by any law-applying organ, e. g., an international agency, a court, and the like? Secondly, how can this concept be a "natural" concept. It can be only a legal concept, the concept of aggression referred to in the law to be applied, the definition of which has been left to the government, or, more exactly, to the law-applying organ.
The author of the report then proceeded to an analysis of this allegedly "natural" concept of aggression—that is, he tried to construct a definition of this undefinable concept. He said that the notion of aggression is composed of both objective and subjective elements, namely, the fact that a state commits an act of violence and is the first to do so, and the fact that this violence is committed with aggressive intent (animus aggressionis). Hence, his definition of aggression is: an act of violence performed by the state which is the first to do so with aggressive intent.
This is a logically objectionable definition, because in part it constituted a so-called idem per idem—the element to be defined, aggression, appears in the definition. However, this defect could easily be avoided by restating the definition as follows: agression is an act of violence performed by one state with the intention of imposing its own will on another state. The author went on to state that the kind of violence, direct or indirect, or the degree of violence which constitutes aggression cannot be determined a priori but depends on the circumstances of the particular case. This means that he added two other elements to bis definition: (1) the violence must have certain degrees, and (2) it may be direct or indirect. The definition which he tacitly presupposed then runs as follows: aggression is a direct or indirect act of violence, of a certain degree, performed by the state which is the first to do so with aggressive intent (meaning with the intention of imposing its will on the other state). That the kind of violence and its degree cannot be determined a priori does not mean that it cannot be determined at all. If it could not be determined, the government could not decide that aggression does or does not exist. What is meant is only that the determination of these elements is left to the law-applying organ.
16. Official Records of the General Assembly, Sixth Session, Sixth Committee, 286th meeting, paragraph 36.
17. Cf. Doc. A/2211, p. 12.
18. At its 408th plenary meeting on 20 December 1952, the General Assembly adopted Resolution 688 (VII) which reads as follows:
The General Assembly, having regard to its resolution 599 (VI) of 31 January 1952, considering that the discussion of the question of defining aggression at the sixth and and seventh sessions of the General Assembly and in the International Law Commission has revealed the complexity of this question and the need for a detailed study of: (a) the various forms of aggression, (b) the connexion between a definition of aggression and the maintenance of international peace and security, (c) the problems raised by the inclusion of a definition of "aggression in the Code of Offences against the Peace and Security of
Mankind and by its application within the framework of international criminal jurisdiction, (a) the effect of a definition of aggression on the exercise of the jurisdiction of the various organs of the United Nations, (e) any other problem which might be raised by a definition of aggression, considering that continued and joint efforts shall be made to formulate a generally acceptable definition of aggression, with a view to promoting international peace and security and to developing international law,
1. Decides to establish a Special Committee of fifteen members, each representing one of the following Member States : Bolivia, Brazil, China, Dominican Republic, France, Iran, Mexico, Netherlands, Norway, Pakistan, Poland, Syria, Union of Soviet Socialist Republics, United Kingdom of Great Britain and Northern Ireland, United States of America, to meet at the Headquarters of the United Nations in 1953;
2. Requests the said Special Committee: (a) to submit to the General Assembly at its ninth session draft definitions of aggression or draft statements of the notion of aggression; (b) to study all the problems referred to above on the assumption of a definition being adopted by a resolution of the General Assembly;
3. Requests the Secretary-General to communicate the Special Committee's report to Member States for their comments and to place the question on the provisional agenda of the ninth session of the
General Assembly. This resolution seems, in the author's opinion, to presuppose the view that a pre-established definition of aggression is possible and desirable. This was also the opinion of many members of the Special Committee established by the Resolution, but others held that the resolution "did not compel the Committee necessarily to adopt one or more specific draft definitions of aggression or one or more draft statements of the notion of aggression, but left it entirely free to choose between several courses." Report of the Special Committee on the Question of Defining Aggression (A/2638), pp. 2 f. During the discussion of this Report in the Sixth Committee, the representative of the United States declared at the 404th meeting, on 15 October 1954, after having referred to the fact that previous attempts to define aggression have failed: "the failure of the various attempts made in the past showed that it was impossible to reach agreement on an a priori definition of aggression. That had also been the conclusion of the authors of the Charter. There were obvious dangers in a priori definitions. A general definition would leave important concepts, like self-defence, unelaborated, while a list of examples, even if it did not claim to be all-inclusive, would have the disadvantage of singling out certain kinds of aggression for special emphasis. A combination of the two types of definition would run the risk of suffering from the defects of both.—The United States delegation also had a certain distrust of establishing a priori categories for future situations. Rather, the law should develop empirically out of actual cases. Aggression was not simply a combination of predefined elements; in fact, in order to determine whether aggression had occurred, it was necessary to weigh a whole set of complex facts and circumstances. That was why paper definitions had been avoided and the organs of the United Nations, particularly the Security Council, by virtue of Article 39 of the Charter, and also the General Assembly, under the Charter—as indicated by Resolution 377 (V) entitled 'Uniting for peace' had been given responsibilities for deciding what constituted
an act of aggression or a threat to peace ..... to adopt a paper definition might jeopardize the efforts of the General Assembly and the Security Council to maintain international peace and security. In the absence of a definition, there could be no doubt, as the General Assembly had noted at its sixth session, that the existence of the crime of aggression might be inferred from the circumstances peculiar to each particular case. ... The United States believed that the history of efforts to define aggression and the various considerations already referred to pointed to the conclusion that no constructive purpose would be served at this time by the preparation of a formula. The General Assembly should now consider that it had explored to the limits of usefulness the possibilities of defining aggression by a word formula prepared today for possible applications in the future.” United Nations. General Assembly. Ninth Session. Official Records, Sixth Committee (A/C.6/SR. 404) p. 37.
The Special Committee did not suggest a definition of aggression; and the Sixth Committee in its Report of 2 December 1954 (Doc. A/2806) recommended to the General Assembly to establish a new special committee. Following the suggestion, the General Assembly adopted on 4 December 1954 Resolution 895 (IX), in which it established a Special Committee comprising representatives of 19 states, and requested the Committee "to submit to the General Assembly at its eleventh session a detailed report followed by a draft definition of aggression . This report is not yet published.
The Charter of the United Nations does not contain a definition of aggression. Article 1, paragraph 1 declares as a Purpose of the Organization “to take effective collective measures for the suppression of acts of aggression"; and Article 39 authorizes the Security Council to “determine the existence of any ... act of aggression" and then to make recommendations, or decide what measures shall be taken as a reaction against such acts. That means that the Charter leaves it to the Security Council to define in each case the concept of aggression. Only by an amendment could a definition be inserted into the text of the Charter. Such definition would certainly restrict the freedom of action of the Security Council. This was the reason why some members of the Sixth Committee were against a definition of aggression. Cf. the Official Records, especially of the 408th meeting on 25 October 1954, p. 58.
19. Cf. Doc. A/2211, p. 37.
20. In a memorandum presented to the International Studies Conference (1934-1935), Mr. Arnold Forster (of the British Coordinating Committee for International Studies) declared : “A definition [of aggression] ... is of value, but should not be regarded either as an all-inclusive formula or as an automatic test which can always be relied upon to cut with precision through a tangled political situation. It may be of very substantial value as a means of crystallising and extending the new social ethic as to the use of national force, and it should help in the process of curtailing the anarchic liberties too often claimed by imperial Powers; but it will not work by itself automatically. It must be used by an international authority; it must be treated as a guide normally a decisive guide—but not as an immutable law; and in case of doubt, the international authority should be empowered to impose obligatory peaceconserving measures, including an armistice.” Collective Security, p. 308.
21. Cf. Doc. A/2211, p. 40.
23. This is the case under the Charter of the United Nations. Article 39 authorizes the Security Council to take enforcement measures in case of a "threat to the peace, breach of the peace or act of aggression,” but does not
define these concepts, so that the Security Council has discretion in deciding in each concrete case whether or not the conduct of a state constitutes a threat to the peace, breach of the peace or act of aggression. This regulation is particularly objectionable with respect to what the Charter calls a "threat to the peace.” A state cannot foresee what the Security Council may consider to be à "threat to the peace,” and consequently cannot adapt its conduct to the norm, implied in Article 39, of refraining from acts which constitute a threat to the peace.
24. Cf. infra pp. 122 ff.
25. Cf. the statement of the representative of Cuba at the 403rd meeting of the Sixth Committee on 14 October 1954 (A/C.6/SR. 403, p. 35) and of the representative of the Netherlands at the 410th meeting on 28 October 1954 (A/C.6/SR. 410) p. 72.
26. The principle of flexibility is sometimes opposed to the principle of law. In his History of the Peace Conference of Paris (London 1920, Vol. VI, p. 441), H. W. V. Temperley says with respect to the antagonism between the French and the Anglo-American view of international security: “The real divergence lay between the adherents of the rigid, the definite, the logical, in other words the juridical point of view, and those who preferred the flexible, the indefinite, the experimental, the diplomatic; between those who feared human nature and wished to bind the future, and those who believed in human nature and were content to trust the future; between those who desired written guarantees, and those who desire moral obligations only; to be cynical, between those who expected to receive under the Covenant, and those who expected to give; in a word, betweeen the continental point of view and the Anglo-Saxon." There is, however, no opposition between the juridical and the flexible point of view, for the antagonism between rigidity and flexibility exists within the law. They are two different methods of formulating a legal order; nor is the identification of the logical with the juridical point of view correct. A "flexible” legal order must not be illogical. It has to be as logical as a rigid one. Besides, the application of a general legal norm—whether formulated in a flexible or in a rigid way—to a concrete case is not a purely logical operation. Moral-political considerations are always more or less involved.
27. Cf. Doc. A/2211, p. 38.
28. Cf. Ibid. pp. 43 ff., and the Report of the Special Committee on the Question of Defining Aggression (A/2638), pp. 4 f.
29. In the Draft Convention on Rights and Duties of States in Case of Aggression, published by the Harvard Research in International Law, American Journal of International Law, Vol. 33 (1939) Supplement, pp. 823 ff., aggression is defined as "a resort to armed force by a State when such resort has been duly determined, by a means which that State is bound to accept, to constitute a violation of an obligation."
In its observations on the Draft Code of Offences against the Peace and Security of Mankind and on the Question of Defining Aggression, the Netherlands Government proposed that the concept of aggression should be defined as follows: “Aggression is the threat or use of force by a State or government against the territorial integrity or political independence of another State or against a territory under international regime in any manner, whatever the weapons employed and whether openly or otherwise, for any reason or for any purpose other than individual or collective self-defence against such a threat or use of force or in pursuance of a decision or recommendation by a competent organ of the United Nations." Official Records of the General Assembly. Seventh Session,