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JOSEF MRÁZEK
CYIL 5 ȍ2014Ȏ
“first” to attack might give the enemy a great tactical advantage. It was even argued
that the Soviet definition with the first use might even be a “trap for the innocent”.
28
Looking at the
travaux préparatiores
of the UN Charter, it seems to be clear that
the notion of “aggression” was rather uncertain and difficult to define. Some delegates
in San Francisco equated the terms “aggression” with “armed attack”.
29
The main item
linked to “aggression” was always the right to self-defense. In 1956, e.g., Q. Wright
wrote: “An act of aggression is the use or threat to use force across an internationally
recognized frontier, for which a government,
de facto
or
de jure
, is responsible because
of acts or negligence, unless justified by a necessity for individual or collective self-
defence by the authority of the United Nations to restore international peace and
security, or by consent of the State within whose territory armed force is being used.
“
30
In some original draft versions of Art. 51 a notion of self-defense was considered
as a response to aggression or repression of it. Finally the drafters of the UN Charter
decided to link the exercise of self-defense under Art. 51 directly to “armed attacks”.
3.2 The Nuremberg Principles
The Nuremberg Charter in Art. VI defined crimes against peace as “planning,
preparation, or waging of a war of aggression, or a war in violation of international
treaties, agreements, assurances, or participation in a common plan or conspiracy for
the accomplishment of any of the foregoing”. A particular definition of “aggression
war” was adopted neither in the Nuremberg Charter nor in the subsequent Judgment.
The US representative tried to have such a definition included in the Nuremberg Charter,
but his effort were rebuffed.
31
The Tribunal maintained that the solemn renunciation in
the Briand-Kelogg Pact as an instrument of national policy involved the conclusion that
resorting to such a war was illegal and a crime against peace. The crime of aggression is
the only one of three crimes charged in the Nuremberg and Tokyo Trials which is not
currently being prosecuted by any existing international criminal courts.
In the Judgement of the IMT in Nuremberg it was stated: “The first acts of
aggression referred to in Indictment are the seizure of Austria and Czechoslovakia
and the first war of aggression charged in the Indictment is the war against Poland…”
There are the chapters “Preparation for Aggression”, “The Planning of Aggression”,
“The Aggression Against Poland”, “The Aggression against Yugoslavia and Greece” or
“The Aggressive War Against the Union of Soviet Socialist Republics”, “War Against
the United States”.
32
During the Nuremberg Trial the main American prosecutor,
Robert H. Jackson, e.g. proclaimed: “To initiate a war of aggression therefore, is not
28
US Treaties and Other International Acts Series No. 153, p. 12, quoted in Stone, J.,
supra
note 1,
Appendix p. 214.
29
See e.g. UNCIO, Vol. 6, p. 721.
30
Wright, Q., The Prevention of Aggression, AJIL 1956, No. 2, pp. 514, 526.
31
Henkin, L., Pugh, Schachter, O., Smith, H., International Law,
supra
note 8, p. 672.
32
See Judgement of the International Military Tribunal for the Trial of German Major War Criminals
Nuremberg 30 September and 1October 1946, London , His Majesty Stationery Office, lmd. 6964,
pp. 13, 14, 22, 33 bhm.