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CYIL 7 ȍ2016Ȏ PROBLEMS WITH THE INCLUSION OF AGGRESSION…
Together with the peremptory prohibition of resorting to force there is
a logical transformation of status in an armed conflict. The former equal position
of belligerents has changed in the relationship of an aggressor and the State
exercising its right of self-defence. This situation cannot be settled by means of the
contractual autonomy of the belligerents as in the past but by way of the institution
of international responsibility. It sets down the above mentioned erga omnes legal
consequences (i.e. towards the whole international community of States),20 This
effect must be in conformity with every following contractual act.
The above statement is a generalization of the post-war practice. Every one of the
acts following, as regards their content, had been conceived by the Allied Powers in
relation to the defeated Axis countries concerning their responsibility, inter alia, for
starting the Second World War. Intended are the so-called Potsdam Declaration,21
Treaty of Peace with Japan (San Francisco, 8 September 1951),22 and Treaties of Peace
with the Satellite Powers of the European Axis (Paris, 10 February 1947). 23
The punishment of war criminals performed as well. Both international and
domestic courts conducted trials of accused individuals. That of Nuremberg was
really international because it was treaty-based.24 But the International Military
Tribunal for the Far East was rather a domestic one than that its intrinsic origin is
the question of criteria for its determination. Czech Yearbook of Public & Private International Law,
Vol. 6 (2015), p. 119.
20 See note 15 above.
21 See Report of the Confernce of the Heads of
Governments of Great Britain, the United States and USSR (Potsdam, 2. 8. 1945), American Journal of
International Law, AJIL 39 (1945), Suppl., p. 245.
22 Also San Francisco Peace Treaty. See United
Nations Treaty Series (UNTS), vol. 136, p. 45.
23 See ,_1947. With Italy, UNTS, vol. 49, p. 3; Bulgaria,
UNTS, vol. 41, p. 21; Hungary, UNTS, vol. 41, p. 135; Roumania, UNTS, vol. 42, p. 3.
24 See Agreement for the Prosecution and Punishment
of the Major War Criminals of the European Axis, and Charter of the International Military Tribunal.
London, 8 August 1945. In: D. Schindler and J. Toman, The Laws of Armed Conflicts. Leiden, Boston:
Martinus Nijhoff Publisher, 1988, pp. 912-919. In Art. 6 are formulated (a) CRIMES AGAINST
PEACE: namely, planning, preparation, initiation or waging of a war of aggression, or a war in violation
of international treaties, agreements or assurances, or participation in a common plan or conspiracy for
the accomplishment of any of the foregoing. This wording is duplicated in article 5 (a) of the Tokyo
Charter (see below). By way of contrast, according to the Peace Treaty of Versailles (1919), Article 227
sets down that William II, formerly German Emperor, is responsible for a supreme offence against
international morality and the sanctity of treaties (sic ).