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73
THE DEFINITION OF AGGRESSION AND THE USE OF FORCE
definition of aggression, was, on 14 December 1939, even expelled from the LN in
response to its invasion of Finland.
G. Scelle declared as early as 1936 and reaffirmed in 1954 that under positive
international law, with all its deficiencies, recourse to force constitutes the “crime of
aggression”. This broad concept of Scelle’s of aggression equating every recourse to
violence with war and every war with “aggression” (all recourse to violence = war; all
war = aggression) was critically discussed by J. Stone.
12
C. A. Pompe characterized
“aggression as the use or imminent threat of force on the part of a State, whether
acting openly or indirectly, which leaves the State against which it is directed
nothing other than military means to preserve its territorial integrity or political
independence, or which disturbs the international
status quo.
Some prominent
lawyers, such as P. Bastid, V. V. Pella, P. J. Alfaro and others, saw the Soviet draft of 1933
of inestimable value.
13
President Roosevelt in his statement of 23 December 1933
required “a simple declaration that no nation will permit any of its armed forces
to cross its own borders into the territory of another nation”. In his view “such an
act would be regarded by humanity as an act of aggression...”
14
Q. Wright wrote in
1935 that “an aggressor is a state which may be subjected to preventive, deterrent or
remedial measures by other State because of its violation of an obligation not to resort
to force”. In another place he observed that “an aggressor is a State which is under an
obligation not to resort to force, which is employing force against another State, and
which refuses to accept an armistice proposed in accordance with a procedure which
it has accepted to implement its no-force obligation”.
15
Signs of aggression were enumerated in an opinion which was jointly submitted
by the Belgian, Brazilian, French and Swedish delegation in the Permanent Advisory
Commission of the LN in 1923. According to this document signs of aggression
would appear even in such acts as organisation on paper of industrial mobilisation or
actual military mobilisation. Among factors on which governments could base the
impression of an aggressive intention were mentioned the political attitude of the
possible aggressor, his propaganda, the attitude of his press and population or his
policy on the international market.
16
According to Art. 1 of the Draft Treaty of Mutual
Assistance of 1923 a war should not be considered as a “war of aggression” if waged
by a state which is party to a dispute and has accepted the unanimous recommendation
of the Council or the verdict of the PCIJ. In Art. 10 (1) of the draft of Geneva Protocol
for the Pacific Settlement of International Disputes of 2 October 1924 “every State
which resorts to war in violation of the undertakings contained in the Covenants
or in the present Protocol is an aggressor.” Between the two world wars, a number
of cases actually occurred which were generally thought to involve aggression. The
12
Stone, J.,
supra
note 1, pp. 7-9.
13
Ibid.
, p. 8-9.
14
Ibid
., p. 215.
15
Wright, Q., The Concept of Aggression in International Law, AJIL 1935, N. 1, pp. 373, 375, 381.
16
Stone, J.,
supra
note 1, p. 209; see Appendix of selected draft definitions.