CYIL 2014

THE DEFINITION OF AGGRESSION AND THE USE OF FORCE

only an international crime; it is the supreme international crime, differing only

from other war crimes in that it contains within itself the accumulated evil of the

whole”. The IMT stressed, “that resort to a war of aggression is not merely illegal, but

is criminal.”

It seems that in Nuremberg there was no clear legal distinction made

between “acts of aggression” and “crimes of aggression”. All the acts mentioned in

the London Statute were punishable by the Tribunal as crimes “under” or “against”

international law. Among crimes against peace were namely “planning, preparation,

initiation or waging of a war of aggression” or “a war in violation of international

treaties…”

The IMT at Nuremberg was acting successfully without having an exact definition

of aggression. Those who planned and directed aggressive war were liable to individual

criminal punishment. In the post-war period it was generally and gradually recognized

that the crime of aggression must be better defined. There were various arguments

in favour of a definition of aggression, and against it as well.

The IMT has been

criticized for several reasons as a court of victors and as using

ex post

law. Later, in the

post-war period it was sometimes argued by some politicians and commentators that

“aggression” is predominantly a political and not legal question.

W. Friedmann wrote in 1964 that there was no reason to believe that the nations of

the world could not theoretically agree on the concepts of “invasion”, “armed attacks” or

“blockade”. He maintained that differences are “essentially of a political and ideological,

not of a logical character”. In his view the decision whether an unlawful aggression has

occurred in a particular case should be left to the competent authority. An agreed

definition of various types of aggression should be regarded as an indispensable

through not automatic guide for the decision maker

. S.M. Schwebel, in his lecture

at the Hague Academy of International law in 1972, mentioned that “aggression can

of course be defined” but raised, as many others did (e.g. I. Brownlie), at the same

time a question, “whether a definition is desirable”. He came to the conclusion that

“it would remain to be seen how valuable such a definition would really be”.

The principles of international law recognised in the Nuremberg Charter and

Judgment were affirmed by unanimous vote of the UNGA in its resolution 95 (I.)

of 11 December 1946. By its resolution 177 (II.) of 21 November 1947 the UNGA

directed the ILC to: a) formulate the principles of international law recognized in the

Charter of the Nuremberg Tribunal and in the Judgement of the Tribunal ; b) prepare

a Draft Code of Offences against the Peace and Security of mankind.

Ibid

Schwebel, S. M.,

supra

note 1, pp. 533-6.

Friedmann, W., The Changing Structure of International Law, Columbia University Press, 1964,

pp. 254-5.

Schwebel, S. M.,

supra

note 1, p. 531.