CYIL 2014

THE DEFINITION OF AGGRESSION AND THE USE OF FORCE

of aggression and a decision of individual members to apply economic sanctions was

not dependent upon prior decision of the Council or the Assembly. In case of any

such aggression or in case of any threat or danger of such aggression the Council

should only advise upon the means by which this obligation should be fulfilled.

Aggression of one state against another state was discussed for the first time in

connection with the Draft Treaty of Mutual Assistance of 1923. This draft, declaring

that “an aggressive war is an international crime”, was approved by the Assembly but

contained no definition of aggression and did not enter into force. The Permanent

Advisory Commission of the LN in its report on the definition of aggression of 1923

came to the conclusion that “it would seem impossible to decide, even in theory what

constitutes a case of aggression.”

The Special Committee of the Temporary Mixed

Commission of the LN noted that “no simple definition of aggression can be drawn

up, and no simple test of when an act of aggression has actually taken place can be

devised. Therefore it is clearly necessary to leave the Council (of the League) complete

discretion in the matter…”

Obligations imposed by Art. 10 of the Covenant was

one of the factors for which the U.S. refused to ratify the Covenant. Canada then in

the first Assembly of the LN in Dec. 1920 suggested the deletion of this Art.10. This

attempt failed because in 1923 Persia voted against this proposal and unanimity was

required.

Also the 1924 Protocol for the Pacific Settlement of Disputes pronounced

in the Preamble that “a war of aggression” constitutes “an international crime”. The

Protocol was signed, but not ratified. The Geneva Protocol of 1924 even noted that

any state which failed to comply with the obligations according to the Protocol or

the Covenant to employ procedures of peaceful settlement was “an aggressor”.

seems that at the time the term “aggression” was not always understood in the sense

of “war” or “aggressive war”. In his report of Dec.1, 1926 to the Committee of the

Council of the LN L.de Brouchére noted: “We find in history many instances of

violence and aggression which have not led to war, either because the matter was

settled... before a state of war was established”.

The report in this way distinguished

“aggression” and “war”.

Under the Briand-Kellogg Pact “a war of aggression” was illegal but without

indication that aggression was already a crime resulting from international customary

law, reflecting resolutions of the LN and some unratified international treaties. The

main proponent of a definition of aggression at that time was the Soviet Union. On

February 1933 the Soviet Union submitted to the Disarmament Conference its draft

of a detailed definition of aggression. On the basis of this proposal a special report

See in YILC 1951, Vol.3, p. 6; Report L.N.O.J., Spec. Suppl. No. 16, 1923, p. 144; see also Brownlie,

I.,

supra

note 1, pp. 352-358.

Ibid

., p. 61, L.N.O.J, Special. Suppl. No. 16, 1923, Annex 4, p. 183.

Lauterpacht, H., International Law: A Tretise, London, 1952, p. 355.

Brownlie, I.,

supra

note 1, p. 353.

Doc. League of Nations, A.14.1927. V, p. 68, quoted in Henkinn, L., Pugh R., Schachter O., Smith, H.

–

International Law

, St. Paul 1986, p. 681; see also Report of the Secretary-General of the United

Nations on the Question of Defining Aggression UN Doc. AR211, 3 Oct 1952, p. 52.