53 / 464
39
BACK TO THE ILC’S LEGISLATIVE HISTORY: CODE OF CRIMES AGAINST THE PEACE …
crime of aggression. At the same time, the drafting history reveals an oscillation
between the definition of individual conduct and that of the act of State.
2. Formulation of Nuremberg Principles
The Commission was requested, by General Assembly resolution 177 (II),
6
to
formulate the principles of international law recognized in the Charter of the Nurnberg
Tribunal and in the judgment of the Tribunal.
At its second session in 1950, on the basis of the report of the Special Rapporteur
Jean Spiropoulos, the ILC adopted a final formulation of the Principles of International
Law Recognized in the Charter of the Nurnberg Tribunal and in the Judgment of
the Tribunal, and submitted it, with commentaries, to the General Assembly. This
document includes in Principle VI (a) the definition of crimes against peace as
“planning, preparation, initiation or waging of a war of aggression or war in violation
of international treaties, agreements or assurances”.
7
This principle carries over the text from the definition in Article 6 of the Charter of
the Nurnberg Tribunal. Both of them are based on a criminal law approach, defining
the individual acts that may constitute a crime against the peace or aggression.
By resolution 488 (V), the General Assembly decided to send the formulation to
the Governments of Member States for comments and requested the ILC, in preparing
the draft Code of offences against the peace and security of mankind, to take account
of the observations from Governments.
8
3. A long way to the Draft Code of Crimes
It is interesting that the General Assembly entrusted the Commission with the
work on a draft code of offences against the peace and security of mankind by the
same resolution 177 (II) of 1947. This is a relatively well known fact, much more so
than the fact that the General Assembly, in its resolution 378 (V),
9
also decided to
refer to the ILC the task of defining the concept of aggression. This stemmed from the
Soviet proposal in connection with the agenda item “Duties of States in the event of
the outbreak of hostilities”. The Soviet proposal provided that the General Assembly
declares,
inter alia
, that “in an international conflict that State shall be declared the
attacker which first commits” one of the acts enumerated in the proposal.
10
At its session in 1951 the ILC considered the question whether it should enumerate
aggressive acts or to try to draft a definition of aggression in general terms. The opinion
of the Commission was that it was undesirable to define aggression by a detailed
6
GA res. 177 (II), 21 November 1947.
7
The Work of the International Law Commission
. Vol. I,
op. cit
., p. 264.
8
GA res. 488 (V), 12 December 1950.
9
GA res. 378 (V), 17 November 1950.
10
See Official Records of the General Assembly, Fifth Session, Annexes, agenda item 72, doc. A/C.1/608.