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The Road to World Peace

 

By Benjamin B. Ferencz

published: September 1986

source: The Jewish Spectator, Fall 1986

 

It is widely held, particularly in the United States, that with sufficient determination and application, all problems can be resolved in a fairly brief period of time. The enormous strides made on the American continent since 1776, the landing of American astronauts on the moon, and the feats of modern technology all lend credence to this pervasive sense of human invincibility. But despite such feelings of euphoria, one should not expect quick or easy solutions to problems that have plagued mankind for millennia, such as war. However, I shall offer a frame of reference which I hope will stimulate thought and thereby help to illuminate the path to future peace.

 

My approach is cautiously optimistic. Without faith that human betterment is possible, despondency would stifle the initiative required to avert the fulfillment of human endeavor and only through confidence in the future can humankind muster the courage and strength to do what is required for survival. I have therefore chosen to view the historical glass as half-full rather than half-empty.

 

Despite all the threats of war, an objective analysis of the facts shows that humankind has been experiencing an erratic and turbulent evolutionary movement toward a more rational world order. More progress has been made during the past four decades in this respect than in all of previous recorded history. Only in fairly recent times have people begun to understand the interdependence, complexity and fragility of life on this planet. New organizations and instrumentalities are being created and improved in an effort to enhance the quality of life everywhere. There has been a gradual awakening of the human conscience. Awareness that changes for the better are taking place, and the ability to see the wavering line of progress, should lend encouragement to those who are determined to make such advances more effective.

 

To be aware of the action that is required now, it is important to understand the lessons of history. Misinterpreting the past leads to misunderstanding the present and misjudging the future. There are those who argue that history proves that killing other human beings is an immutable characteristic of man’s nature and that all efforts to curb this natural destructive tendency are futile. I am not inclined to accept this melancholy Hobbesian theory of inherent human brutality. I do not believe that we are foredoomed to share the fate of the dinosaur. The human instinct for survival, coupled with the intellect that distinguishes man from beast, has thus far intervened to protect humankind from extinction. Despite lapses and regressions, we learn, and are learning, from errors of the past. There is nothing inevitable about war or peace; whether we survive or not depends on us.

 

The reality we face is that close to five billion people of vastly different cultures and values – of varied national, religious, racial an ethnic attachments – now inhabit our planet. A few have great wealth, while hundreds of millions suffer hunger or malnutrition. Some nations have great strength, others are weak. Tyranny and fear dominate large masses. National pride swells in the hearts of newly independent nations, while self-determination remains an unfulfilled dream of oppressed minorities in all parts of the globe. By fair means or foul, hostile political and religious ideologies vie for acceptance and power. Acts that are condemned as illegal aggressions by some are hailed as wars of liberation by others. One group’s terrorism is another’s heroism.

The challenge we confront is whether we can subdue this explosive mélange to fashion the conditions needed for a peaceful world. Perfect solutions should not be expected. It is inevitable that conflicts will continue, just as they do within many families. The fact that remedies are less than perfect does not mean that the search for improvements should be abandoned; to do so would invite consequences infinitely more disastrous. We can find in the lessons of the past the needs of the present, new policies to guide us.

 

In our search for the path to world peace, let us focus on what had already been universally accepted as the essential structure for all orderly societies. Since ancient times, every village, town, city and nation-state has come to recognize that a peaceful society requires: (1) laws, (2) courts, and (3) a system of effective law enforcement. To the extent these three conditions are met, there is relative tranquility; to the extent they are absent, there is turmoil.

In the much more heterogeneous and complicated international arena, many laws are inadequate, courts lack binding authority, and enforcement is practically nonexistent. Small wonder that upon taking office in 1982, UN Secretary General, Javier Perez de Cuellar, referred to the “prevailing international anarchy.” Still, in each of these three vital areas some progress has been accomplished, although still much remains to be done.

 

Simply stated, my thesis is that the bridge to peace consists of these three major interlocking components: law, courts, and enforcement. They must all be set in place before the structure can be expected to stand. The foundation-stone of law remains barren without courts, and courts remain ineffective without enforcement. Each part is connected and depends upon the other for support. Moreover, each major buttress requires additional reinforcements. Thus, before international law can become more effective, there must be greater clarification and acceptance of the norms which are to govern international behavior. This, in turn, requires more universally shared values, mutual trust, confidence and willingness to reach agreement through compromise. Until there is general consent to codifying the basic minimum norms of international behavior, one cannot realistically expect broad acceptance of independent courts to interpret those standards – or the granting of power to any independent agency to enforce rules of national conduct.

 

There must also be increased respect for the judicial process and greater willingness to rely on courts rather than on arms to resolve international disputes. If international law enforcement is to become a reality, the United Nations Organization and similar organs for international cooperation must be improved. Nations cannot be allowed to decide for themselves when they will use armed force to protect their interests. National armies must be brought under international control and self-help through warlike action must be replaced by a system of coordinated economic or military sanctions supported by the world community. An International Peace Force must be created as the international law enforcement agency.

 

The immediate and compelling requirement is for a drastic reduction in nuclear weapons that pose an impending threat to civilization. It is common sense that defusing the nuclear hazard must be given top priority. Arms control and disarmament are imperative for other reasons as well. Budgetary deficits, caused primarily by the enormous expense of preparing for war, pose a threat to the economies of the world. The arms race squanders vast resources that are desperately needed to ameliorate economic and social privations that give rise to national unrest. There can be no peace without social justice and no social justice without peace.

 

The present international community consists of 159 sovereign nations. Obtaining universal, or near-universal concurrence to a major revision of the prevailing order cannot be easily achieved. However, as educational and economic inequalities are diminished, and as ideological rivalries become less strident and intolerant than they are today, the pace of progress may be enhanced, although it will take time. As long as law, courts and enforcement (including improved international agencies, disarmament, sanctions and social justice) are lacking, powerful nations will arm themselves and prepare for the defense of their perceived interests. Like an intricate jigsaw puzzle, all of the pieces must fit together and be in place before a more tranquil world can emerge as an acceptable alternative to the present system of terror.

 

If peaceful sanctions prove inadequate, then as a last resort, nations must turn to the international military force that was promised by both the Covenant of the League of Nations and the UN Charter. Article 43 specifically provides accordance the members will “make available to the Security Council, on its call and in accordance with a special agreement or agreements, armed forces, assistance and facilities . . . .” A Military Staff Committee, representing the Chiefs of Staff of the five Permanent Members is to assist the Council in maintaining peace. A detailed plan for the creation of the international force was worked out and consensus was reached on the most important principles in 1947. But very soon thereafter further progress came to an end. The agreement mandated by the Charter was never reached and the vital enforcement arm of the Security Council was never created. The implied promise of the nations that drafted and signed the Charter was never kept.

 

Harry Truman was President of the United States when the “cold war” put an end to American and Soviet cooperation. He unleashed the atomic bomb, inaugurated the United Nations, block Soviet expansion in Greece and Turkey, broke the Soviet blockade of Berlin, created NATO, and ordered US troops to Korea. After he left office, Truman, writing about the requirements for world peace, noted:

 

The leader of one of the greatest nations whose voice can be heard and listened to should go to the Assembly of the United Nations, and advocate an international control of nuclear energy in the interest of all mankind. He should advocate an international police force for the enforcement of control and the maintenance of peace in the Near East, the Far East, the Pacific, the Atlantic, and all around the world.

 

In calling for an international army, Truman was echoing ideas that had been espoused by the amphictyonic councils of ancient Greece, by the French after World War I, by Winston Churchill and other world leaders and that had, in fact, been clearly envisaged by the United Nations Charter. That an international military force can be created and that it can be operated effectively, has already been demonstrated by the workings of the embryo UN Peacekeeping Forces in many parts of the globe. It is not unreasonable to insist that those who hold high office should make greater efforts to honor the spirit of the pledge made to the peoples of the world.

 

A properly equipped UN force, drawn from non-aligned nations or small states that have no major stake in the particular conflict, would be the most appropriate instrument for disarming belligerents and maintaining peace. What terrorist band or group of insurgents, mercenaries or religious fanatics could long stand up to a UN Force – say of a quarter of a million men – assigned to prevent the use of armed vigilance as a means of settling differences?

The time has come for all those who believe in a peaceful world to insist that the Charter plan – even on an ad hoc basis – be honored and tried. Failure of UN members to cooperate in measures of collective security will be a clear indicator that the recalcitrant nation prefers to play power politics with the lives of large numbers of human beings. As long as Permanent Members of the Security Council are unwilling to exercise their enforcement responsibilities under the Charter, many wars will have to be fought until one side collapses in exhaustion, or the combatants themselves recognize that the cost in human suffering demands that some compromise be reached. A system of sanctions under effective international controls, backed by an international peace force – controlled by the would community rather than big powers that have failed to discharge their obligations or live up to their world – is what is needed as an essential component of the effort to enforce international law and peace.

 

It is not enough to settle disputes after they have arisen. If we are to expect voluntary compliance with international law, we must seek to eliminate in advance the injustices – real or perceived – that lead to conflict. Obviously, even major social engineering efforts are likely to remain inadequate until population growth is brought under better control, or there is some drastically new approach to planetary well-being. The time is rapidly approaching when humankind must regard all of the earth’s treasures as a common heritage to be shared on an international and equitable basis. Regional economic unions have already accepted the principle that resources must be allocated in a systematic way that takes account of varied human needs and disparate contributions. Socialist countries have worked with integrated economies for many years, and even every “fre society” or capitalist state has imposed controls and taxes designed to bring about a sharing of wealth between the “haves” and “have-nots.” A system of completely free enterprise no longer exists anywhere on earth. All governments recognize the need for regulations to maintain social equilibrium; it is essentially a matter of degree. The existence of extensive loans from rich nations to poorer nations – loans that may never be repaid – is another manifestation of the same trend.

 

Many countries, on all continents, persecute innocent persons who do not share the religion, race, color or political convictions of those in power. Those who are not themselves the targets of such abuses have too often been willing to shut their eyes to cruelty, if it could be rationalized as being in the interest of the of a cause. Too many people are too tolerant of intolerance. When the misuse of others is ignored or accepted, it threatens us all. If are to live in peace, we must recognize that all persons are entitled to equal opportunity and respect.

 

Oppression can take many forms. Whether a violation of individual liberty comes from the Right or the Left makes very little difference to the victim who is caught in the middle. Those who are denied spiritual sustenance are divested of a vital right. Those who cannot build their own social or cultural institutions, or cherish their ethnic traditions are robbed of their inheritance. Those who are condemned to poverty are deprived. There is nothing more poignant than the sight of an emaciated mother seeking food for her starving infant, or children fleeing in terror from the ruins of a home that has been destroyed by “freedom fighters.” To the father fleeing from his country to find support for his family, it makes little difference if he is restrained by a wall keeping him in, or by frontier guards keeping him out. Until national leaders are willing to accept common responsibility for ameliorating economic and social privation – wherever it occurs – no border will be secure. Political independence without economic independence must breed discontent. It is common sense that clamping down a lid of oppression cannot ease tensions, but only increase them and magnify the dangers of explosion.

 

It is not a matter of North-South dialogue, or South-South dialogue, or East-West confrontation. The Third World is part of our one world. Decision-makers must move away from parochial perceptions and accept the fact that if we are able to live together in relative peace on this interdependent planet, all of humankind must be brought under the protective shield of an enlightened international community prepared to shoulder the obligations of universal caring and sharing.

 

In the final analysis, eliminating justified discontent is a matter of self-interest and self-defense. The strength of a nation does not depend solely upon its capacity to destroy other nations and kill their citizens. National security is dependent upon the spirit of a nation, respect for the integrity and decency of its leaders, and confidence in the justice of its government. An exploitive community without moral fiber will lack cohesion and lost power, despite the vastness of its military arsenal. As long as significant portions of the population feel that they are being used as pawns in an uncertain political struggle – even if they are told that it is for their own good of to fulfill some historical destiny – the lack of confidence will encourage young people into activities and attitudes that will sap the stamina, determination and unity of the country. By contrast, a government that has earned the friendship and admiration of people everywhere need have no fear for the security of its citizens.

 

Fortunately, unbridled national sovereignty is being gradually restricted by the need of coping with common problems on a global basis. Binding international rules govern the environment and outer space. New international tribunals have been created to deal with a host of special problems which – by agreement of sovereign nations – are settled only by peaceful means. The processes of mediation and conciliation are being improved. Disenchantment with the visible weaknesses of the UN Organization has led to persistent demands for reform. Both inside and outside the UN there is a growing awareness of the need for improvements. The growth of regionalism and the alignment of many nations to protect or further their common interests is evidence of the evolutionary, coordinated and more human world is clearly discernable.

 

The most compelling stimulus today toward a peaceful world under law is the fact that there are no rational alternatives. Rival nations seething with hostility now possess weapons capable of destroying all living things. Such power is no longer a safeguard. It is a menace. Mandatory settlement of all international differences by peaceful means is a matter of self-interest, survival and common sense. In the conflict between communism and capitalism, mankind must not become the first victim.

 

It is also common sense that those who purport to believe in the rule of law should support clarification of international law and the strengthening of the international judicial system. If the international community decrees that there are international crimes, such as terrorism and hostage-taking, it is common sense that there should be courts to punish criminals. It is common sense that nations claiming to support the rule of law should accept the jurisdiction of an international court of justice. It is common sense that those who wish to live under the protection of law cannot seek protection in lawlessness.

It is common sense that you cannot stop an arms race without stopping the projection of arms. It makes sense to seek an objective inventory of all the world’s armaments, including an expert estimate of the destructive capability of different weapons systems. If it is confirmed that the capacity to destroy human life exceeds the number of human beings available to be killed, it makes no sense to continue to expand the superfluous destructive capacity. Furthermore, if nuclear weapons are not usable because they would destroy all of civilization, then it is only common sense to ask: “Of what use are such non-usable weapons?” They theory of deterrence through mutual assured destruction is based on mad logic. Those who support the argument that armaments are essential for deterrence often cite the Latin adage: “If you want peace, prepare for was.” But history proves that those who prepared for war usually got what they prepared for. Common sense prescribes: “If you want peace, prepare for peace!”

 

There is no quick or facile solution to the problems of world peace. Ingrained mistrust and ancient hatreds cannot be dissolved overnight. Nor can competing religions, cultures, values or political ideologies be suddenly reconciled. But the obligation of concerned citizens is to try to understand what needs to be done and then to do everything in their power to move in the right direction, in the hope that a more enlightened international order will be able to secure all of humankind.

 

At an unofficial conference, in the spring of 1985, former US Presidents Gerald Ford and Jimmy Carter invited a number of experts and representatives from the Soviet Union and the United States and other countries to consider the arms problem. It was concluded that past arms agreements has been negotiated in good faith and that – with few technical violations by both sides – the accords had been honored. Jimmy Carter came away convinced “that even the more contentious issues could be resolved by the superpowers in a mutually satisfactory way.” He felt that if the President could frame future accords as “executive agreements,” approval by Congress could be done by majority vote without the necessity for two-thirds vote of the Senate that had members who “are philosophically opposed to any reasonable agreement” – and the path might thereby be cleared for further progress.

 

Leaders of the two most powerful nations have given public assurances in the forum of the UN that they are ready and eager to move towards the goals here indicated as being essential for a peaceful world. Soviet Foreign Minister Gromyk, addressing the General Assembly in 1984, acknowledged that world problems “cannot be solved by force.” He favored “prompt measures to reduce and eventually eliminate nuclear weapons altogether.” He saw both the possibility and necessity for raising the level of trust and for easing tensions among states. He called for “general and complete disarmament” as he appealed for peace and “normal relations with the United States.” He promised Soviet cooperation with all nations to help all nations to help ease tensions and create an atmosphere of trust. Mikhail Gorbachev’s policy statement to his own Central Committee on March 11, 1985, was further confirmation to end the arms race.

President Reagan, in 1983, publicly acknowledged: “A nuclear war cannot be won and must never be fought.” When he addressed the UN General Assembly again in 1984, he pointed to the new ties between the United States and China as evidence that the American government was willing to improve relations with countries that ideologically different. “The United States welcomes diversity and peaceful competition,” he said. He acknowledged that there was no sane alternative to arms control and he outlined three objectives of US-Soviet relations:

 

1. “To reduce and eventually to eliminate the threat and use of force in solving international disputes.”

2. “To reduce the vast stockpiles of armaments.”

3. “To establish “greater cooperation and understanding” between the United States and the Soviet Union:

For the sake of a peaceful world, a world where human dignity and freedom is respected and enshrined, let us approach each other with tenfold trust and thousand fold affection. A new future awaits us. The time is here, the moment is now.

The President of the United Sates concluded his statement with a quotation from Tom Paine, the author of Common Sense: “We have it in our power to begin the world over again.”

[1] Dr. Ferencz served as a US Prosecutor at the Nuremburg was crimes trails and as director of post-war restitution procedures providing compensation to survivors of Nazi atrocities. He is the author of the prize-winning book Less Than Slaves and currently is Adjunct Professor of International Law at Pace University. “The Road to World Peace” is abbreviated from Dr. Ferencz’s latest book, A Common Sense Guide to World Peace, by permission of Ocean, Inc.

 

 

 

 

 

 

 

The Future of Human Rights in International Jurisprudence: An Optimistic Appraisal

 

By Benjamin B. Ferencz

published: January 1982

source: The Hofstra Law Review, Volume 10, No. 2, Winter 1982, Hofstra University School of Law

 

The Symposium on the Future of Human Rights in the World Legal Order that appeared in the Winter, 1981 issue of the Hofstra Law Review that appeared in the Winter, 1981 issue of the Hofstra Law Review [1] contained penetrating comments by many outstanding scholars. No one can seriously challenge the theme of Professors McDougal and Chen that mankind now shares in an interdependent and interacting world community. [2] There is, however, serious disagreement about the future of the world. The symposium explored important political, [3] constitutional, [4] and ideological [5] problems, and correctly pointed out that the furtherance of human rights may depend on basic social, economic, and ecological changes. [6] Aware of the fragile nature of human rights, Professor Falk regarded the optimists with a skeptical eye, but he is prepared to take their aspirations for a more humane world seriously, even if international law seems to him to be moving from “weak to weaker.” [7] Professor Sohn took to task some of those who fail to appreciate the advances since World War Two, [8] and the Taubenfelds, focusing on apartheid, found only slow progress in what is still a “tender flower.” [9] The symposium culminated with a leap into the future with Professors Bassiouni and Derby’s outline for an international court to punish human rights violations. [10] An historical review of the development of international law suggests that the concept of international human rights is but in its infancy. This article undertakes, in outline form, such a review, and demonstrates what is, in my estimation, an essential truth: that progress toward the further development of international human rights has just begun.

 

HUMAN RIGHTS BEFORE WORLD WAR TWO

Human life has existed on earth for hundreds of thousands of years. International law is only a few centuries old. Pre-Christian-era codes, associated with such names as Menes, Hammurabi, Moses, Draco, Solon, and Manu outlined standards of conduct for fairly homogenous groups within limited territorial jurisdictions; but international law had not yet been born. The amphictyonic councils of the ancient Greek city-states and the “natural law” imposed throughout the Roman Imperium were early forerunners of a law of nations; [11] but still the concept of human rights had no been created. It was only in connection with the most inhumane of all human activities—war—that humanitarian concepts first evolved. In medieval Europe, endless and unregulated conflict challenged the moral and political authority of the Church, and stimulated such theologians as Saint Augustine (354-430 AD) and Archbishop Isidore of Seville (560-636) to re-examine the early Roman considerations regarding justification for war. [12] The peaceful settlement of conflicts, however, still remained the exception rather than the rule. [13]

 

The twelfth-century crusades continued a regime of blood-letting that lasted two hundred years. Those who opposed the Church risked torture, death, disqualification from office, loss of property, and the eternal damnation of excommunication. Despite, but also perhaps because of, the majestic conception of one universal Christian community, the Church father s found no difficulty in justifying the massacre of infidels who did not share the faith.

 

Medieval prelates, kings, and princes reigned supreme within their fiefdoms, competing for power among themselves, and it was only 1215, on the fields of Runnymede, the King John was forced by his lords to sign the Magna Carta and acknowledge that free men were entitled to judgment by their peers and that even a sovereign was not above the law. As feudalism declined, it became necessary to find a more suitable form of government than the shifting seignories. New institutions were born in the fourteenth and fifteenth centuries to further the commerce on which society depended. Maritime Consuls were given authority to resolve disputes with foreign merchants. Conservators of the Peace could interpret contracts, and the Hanseatic League of the Baltic States created new regulations to stimulate mercantile trade. [14] Pirates, hostis, humani generi, the enemy of all mankind, [15] were driven from the seas. Yet while these measures improved the lives of nearby inhabitants, the motivation was primarily commercial and only indirectly humanitarian.

 

The discovery of America and the colonization of the new world had profound human rights implications and effects. Medieval theology had taught that subjugating infidels was discharging divine will and therefore “barbarians” were not entitled to any humanistic considerations. The genocidal slaughter of the Incas by the Spanish Conquistadores caused some theologians to challenge the means employed to enforce God’s universal laws. Franciscus de Victoria (1480-1546) deplored the intentional slaughter of the innocent and taught that the glory or advantage of the prince was not a valid reason for waging war. No one, he said, should be forced to fight in an unjust war, despite a sovereign’s command; even in self defense, he thought, one must do as little harm as possible to the enemy. [16] Looting and wanton destruction were decried, [17] and the humanitarian rules advocated by Victoria earned him the title of “one of the founders of international law.” [18]

 

Another Spaniard, Judge Advocate Balthazar Ayala, wrote in 1582: “War may not be declared against infidels merely because they are infidels, not even on the authority of emperor or Pope.” [19] An Italian jurist, Alberico Gentili, writing in 1589, recognized the “common law of humanity” as the protector of mankind. [20] In treatises written between 1612 and 1621, Fransisco Suarez recognized that sovereign states, “being members of that universal society . . . when standing alone are never so self-sufficient that they do not require some mutual assistance, association and intercourse, at times for their own greater welfare and advantage, but at other times also of some moral necessity and need.” [21] He perceived the interdependence of nations and the moral need to help others.

 

The name most frequently associated with the birth of international law is that of the Dutch jurist, Huig van Groot (1583-1645), more commonly known as Hugo Grotius. In the Prolegomena to his famous book on war and peace he spoke of the brotherhood of mankind and the need to treat all people fairly. “All men are sprung from the same first parents . . . it is wrong for a man to set a snare for his fellow-man.” [22] He saw the connection between peace and justice and called for humane conduct even in warfare, “lest by imitating wild beasts too much we forget to be human.” [23]

A few years after the death of this great jurist, the 1648 Treaty of Westphalia, [24] often marked as the beginning of international law, brought to an end the Thirty-Years War that had split Germany into hostile religious camps. Europe was reorganized into a pluralistic and secular society of many independent nation-states which assured equal rights to Catholics and protestants. The first chair in international law was occupied at Heidelberg in 1661 by Professor Samuel Pufendorf who taught that “men should perform for each other the duties of humanity.” [25] These beginnings of international law and respect for human rights took place hardly more than three centuries ago.

 

The birth of the sovereign state soon gave rise to ideas of liberty and freedom. Christian von Wolff (1679-1754), in a treatise on the law of nations, espoused the idea that all states were equal and had the right to exist as independent states. [26] Emerich de Vattel expressed similar thoughts but favored diplomatic intervention on behalf of oppressed co-religionists, stating that if “persecution is carried to an intolerable degree . . . all Nations may give help to an unfortunate people.” [27]

 

Soon a number of plans began to appear for a more democratic restructuring of world society. The proposal went under various designations, [28] but the basic idea—that states should join to establish common standards of future behavior—was the same. Jeremy Bentham (1747-1832) is credited with having been the first to use the expression “international law” in reference to such plans. [29]

 

The novel idea that all men are created equal and endowed with certain inalienable rights was proclaimed in the United States Declaration of Independence in 1776. The Bill of Rights of 1791 incorporated notions of freedom of speech, press, and fair trial into the new American Constitution. In France, in 1793, Henri Gregoire, the Bishop of Blois, built on the 1789 French Declaration on the Rights of Man and of the Citizen and advocated a code of immutable principles. [30] Gregoire proposed that “t[he] private interest of one nation [be] subordinated to the general interest of the human family.” [31] His proposal was defeated by the effort has been described as “the fist attempt to present a declaration of a law of nations to the national legislature of a country.” [32] These early stirrings of lawyers and legislatures, speaking out on behalf of what today is called human rights, began only two hundred years ago.

 

The wars of Napoleon at the beginning of the nineteenth century spread the ideas of the French revolution. When the states had brought down the Emperor assembled again at the Congress of Vienna in 1815 they were unable to ignore human rights considerations. Freedom of religion was proclaimed [33] and the slave trade was condemned. [34] Nations began to understand that international conferences could be a useful tool in helping to maintain a peaceful world. The international congresses that reached agreement on such administrative matters as the regulation of postal and telegraphic services also considered means for restricting slavery and traffic in women and children. [35] Arbitration as a substitute for war began to receive increasing attention, [36] and human rights took a great step forward as consideration was given to new rules designed to minimize the suffering that would prove inevitable when war became unavoidable.

It was a former Prussian army officer, Francis Lieber, who in 1863 drafted the most famous code for humanitarian conduct in warfare. [37] At the request of President Abraham Lincoln, who wanted to reduce the suffering of both sides during the American civil war, Lieber drafted the “Instructions for the Government of the Armies of the United States in the Field.” [38] The Lieber Code became a model for later conventions prepared by the International Committee of the Red Cross [39] and for the Hague Conventions of 1899 and 1907. [40] Comprehensive codes of international law and justice were prepared by Professor Bluntschli (1808-1881) at Heidelberg, [41] and by David Dudley Field, the first President of the International Law Association, in New York. [42] In 1910, President William Howard Taft, speaking in support of disarmament, urged the establishment of an international court and the development of a code of international equity. [43]

 

There was a substantial gap, however, between advocacy of humanitarian and peaceable theories and their adoption. Sovereign states were unable to accept the peaceful procedures suggested for the settlement of their disputes. When the Great War began in 1914 it soon appeared that the humanitarian rules for the conduct of war were, to a large extent, obsolete. New weapons, including tanks, planes, and submarines, wrought uncontrollable devastation. Poison gas paralyzed soldiers in the trenches, and civilian populations became the victims, if not the intended targets, of expanded warfare. In the heat of the battle, “military necessity” became the excuse to subordinate humanitarian considerations to the drive for victory. As a reaction to the cruelties of the war, a new sense of international morality began to emerge. In 1919, the Committee of Inquiry into the Breaches of the Laws of War recommended that those who had violated the customs of war and “the laws of humanity” should be brought to trial before an international tribunal. [44] The Commission on Responsibility, established by the Allies, concluded that “however high their position,” those who had violated the laws of war of “the laws of humanity” were subject to criminal prosecution. [45] It was felt that individual human rights deserved protection even in war, despite a sovereign’s command, and further that international criminal law might play a useful role in helping to deter crimes against humanity.

 

The “laws of humanity” were considered too vague to serve as the basis for a criminal indictment in 1919, but the victors agreed that such laws would be clarified in the future in order to defeat any argument that punishment was based on ex post facto law. [46] The Treaty of Versailles required that the Kaiser be placed on trail for “a supreme offence against international morality and the sanctity of treaties,” [47] but he escaped to asylum in Holland. Even those who had violated the traditional rules of war evaded punishment for their atrocities. [48] It was a slow start, yet for the first time in history nations seriously considered imposing criminal penalties on heads of state for violations of fundamental human rights. That historical beginning was but one lifetime ago.

Out of the devastation of the World War One came a determination to create a new structure for international society. Post-war peace treaties contained provisions for protecting the racial, religious, and linguistic rights of minority populations in Europe. [49] The Covenant of the newly formed League of Nations required members to “endeavor to secure and maintain fair and humane conditions of labour for men, women, and children,” [50] “to secure just treatment of the native inhabitants of territories under their control,” [51] and to take measures for the prevention and control of disease. [52] Out of these provisions grew the important work of the International Labor Organization and its numerous efforts in later years to improve the health of persons everywhere. In addition, under the Covenant, mandates territories were to be a sacred trust for the benefit of the local inhabitants. [53]

 

President Woodrow Wilson’s dream for a new world order of international society suffered a fatal blow when an isolationist minority in the United States Senate managed to block the required two-thirds vote for ratification of the Covenant. [54] Despite this setback, the United States continued to play an important role in international committees and conferences sponsored by the League. Former Secretary of War and State Elihu Root, a 1912 recipient of the Nobel Peace Prize, was an important member of the Committee of Jurists, [55] which recommended the creation of an international court with compulsory jurisdiction to settle disputes. In addition, the Committee recommended the establishment of a High Court of International Justice to try crimes against international public order and “against the universal law of nations.” [56] Ideas for a codification of such offenses and for an enforcement agency were supported by many legal scholars. [57] The International Law Association called for a court with jurisdiction over offenses that were “ ‘ contrary to the laws of humanity and the dictates of the public conscience.’” [58] Sovereign states, however, were unwilling to submit themselves to the authority of any impartial tribunal, and the idea of an international court to enforce international human rights disappeared from the agenda of the League. In 1924, the League Assembly agreed to appoint a Committee [59] for the Progressive Codification of International Law. [60] The Committee’s name implicitly recognized that international law would have to change to meet the needs of a changing world.

 

Although scholars and some statesmen recognized the need to create new norms of international behavior and an effective enforcement mechanism, most states preferred to move toward these goals slowly or not at all. They chose the familiar route of multilateral treaties. Their efforts included the Locarno Pacts of 1925 [61] and the general renunciation of war in the Kellogg-Briand Pact of 1928. [62] It was not generally recognized that, in the exchange of understandings, the leading signatories remained free to do as they pleased, if their vital interests were at stake. [63] The absence of a clear code of permissible behavior and the unwillingness of sovereign nations to grant compulsory jurisdiction to an impartial tribunal left international law severely impaired; human rights suffered accordingly. Without an effective system to safeguard the peace, disarmament was unacceptable. In 1931, the Japanese invaded Manchuria and, following the lead of the other powers, called it justified self defense to protect their vital interests. [64] Those with no major stake in the conflict were unwilling to risk their resources to repel aggression. The League began to crumble, and Italy and Germany began to prepare for war.

A dramatic reminder of the need for more effective protection of human rights occurred in 1934. King Alexander of Yugoslavia, on a state visit to France, was assassinated by a terrorist seeking self-determination for Croatia. French Foreign Minister Louis Barthou, an innocent victim, was also killed. Italy refused to extradite the assassin and there was a widespread outcry for action. The League appointed a committee to draft a convention to deter terrorism. By 1935, experts had prepared the requested instruments, including the statutes for an international criminal court. [65] The desire to obtain consensus caused the final 1938 draft [66] of the Convention for the Prevention and Punishment of Terrorism to be substantially weakened, yet no state except India would accept its restraints. [67] Terrorism of a new kind soon reached unimagined dimensions, and, for its failure to act, the world learned that reliance on the old system was as hazardous as leaning on a very weak reed.

 

HUMAN RIGHTS AFTER WORLD WAR TWO

World War Two erupted in all its fury in 1939. Japan attacked the United States at Pearl Harbor in 1941. Germany forced millions of captives from many lands into slavery, [68] but the codes of war, although they served as some deterrent, could not prevent the massive atrocities that accompanied the Nazi racial doctrines and the German concept of “total war.” [69] Culminating a program of intensive persecution, Nazi extermination squads, operating behind the German lines on the eastern front, murdered every Jewish man, woman, and child they came upon. [70] Gypsies and communist functionaries suffered a similar fate. Millions of Russian prisoners of war starved to death. The world witnessed aggression, war crimes, and crimes against humanity on a scale never before imagined in human history. Ancient German cities were razed by retaliatory fire bombs, and Japan was forced to its knees by the incredible explosive force of atomic weapons that could also damage the genes of future generations. Before the devastation was over, many serious thinkers began to insist that there was an urgent need for a reorganization of international society in order to safeguard the human rights all people.

 

Professor René Cassin of France, who was later to receive a Nobel prize for his work on the Declaration of Human Rights, declared as early as 1942 that the most fundamental of all violations of human rights was the waging of a war of aggression. [71] He urged that an international criminal court be created to punish the guilty. [72] Professor Shledon Glueck of the Harvard Law School proposed that an international criminal code be formulated to encompass such crimes as aggression, terrorism, and violations of an “international bill of rights.” [73] The British Government’s 1944 position on the fate of war criminals was identical, in substance and language, with the position it had taken a quarter of a century earlier in 1919. That government adhered to the view that “[i]t is desirable that for the future penal sanctions should be provided for such grave outrages against the elementary principles of international law.” [74] The British Foreign Secretary proposed what he called a “diplomatic disposition” of top Nazi leaders. What he meant, in non-diplomatic English, was that these violators of “international law” should be taken out and shot. [75] United States Secretary of War Henry Stimson and his assistant, John J. McCloy, however, preferred the rule of law. [76]

 

President Harry Truman designated Associate Chief Justice Robert H. Jackson, on leave from the United States Supreme Courts, to represent the United States in preparing a code of offenses to be charged against the German war criminals. A conference was convened in London in June 1945, and within six weeks a consensus was hammered out among the major victorious powers. The London Charter provided that an International Military tribunal, composed of judges from the United States, Great Britain, France and the Soviet Union, would try the accused under prescribed procedures that would guarantee them a fair and public trial. [77] The possible charges included: Crimes Against Peace, or the planning, preparation, and waging of wars of aggression; War crimes, or violations of the traditional rules of war; and Crimes against Humanity, including extermination, enslavement, and other large-scale inhumane acts committed against civilians. [78] The London Charter, signed by nineteen nations, [79] was the first code to confirm that aggressive war was a crime, and that certain violations of human rights could so violate the norms of civilized society that they would be punishable as crimes against humanity. Justice Jackson, who served as Chief Prosecutor for the United States, saw these new charges as part of the natural evolution and development of international jurisprudence. [80] The judgment of the tribunal that met at Nuremberg confirmed that the Charter was “an expression of international law existing at the time of its creation.” [81] “The law is not static,” said the Court, “but by continued adaptation follows the needs of a changing world.” [82]

 

By the authority of a quadripartite law that further clarified crimes against humanity, [83] the United States conducted twelve subsequent trials at Nuremberg in which international law may be said to have been crystallized. It was confirmed that violations of human rights, if of sufficient magnitude, could constitute crimes against humanity, even if committed by a state against its own citizens in time of peace. Superiors’ orders could no longer excuse conduct but might be considered in mitigation. Heads of state were not immune from prosecution. [84] Similar practices were applied in war crimes trials against Japanese nationals, [85] and in trials throughout Europe, including Germany. [86] The first assembly of the United Nations unanimously affirmed the Nuremberg principles in 1946. [87] The idea that aggression was a crime and that there could be crimes against humanity was thus established in theory and practice and confirmed by the world community.

 

While the punishment of war criminals of war criminals was in process, the United Nations was being formed. The U.N. Charter reached beyond the Covenant of the League in its determination “to save succeeding generations from the scourge of war.” [88] It reaffirmed “faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women of nations large and small.” [89] Its goals included economic and social advancement as well as freedom for all, without distinction as to race, sex, language, or religion. [90] The first General Assembly responded promptly [91] to President Truman’s expression of hope that the U.N. would “reaffirm the principles of the Nuremberg Charter in the context of a general codification of offences against the peace and security of mankind.” [92] In addition to affirming the Nuremberg principles, the Assembly declared that genocide was an international crime and appointed a new Committee for the Progressive Development of International Law and its Codification. [93] Legal Scholars demanded the repression of future crimes against humanity [94] as there was a growing awareness that peace involved the protection of human rights.

 

By 1948, the Assembly adopted a Convention on the Prevention and Punishment of the Crime of Genocide. [95] An International Law Commission of fifteen experts representing different legal systems began to prepare a code of offenses and considered the establishment of an international criminal court. [96] By that time, the unity of the war-time allies had broken down and a “cold war” reflected competing ideologies. Special committees were established by the U.N. to deal with the problem of defining aggression and the creation of an international criminal jurisdiction. [97] By 1954, as hostilities in Vietnam increased, progress on the code, the definition, and the court was stymied by the political antagonism between the major powers. The advancement of human rights through law seemed to have reached a plateau where nations had to pause until they again recognized the need for mutual cooperation.

 

Despite these sharp divisions, the clamor for human rights protections was irrepressible. In 1948, the Assembly adopted the Universal Declaration of Human Rights, [98] which was followed in succeeding years by the International Covenants of Civil and Political Rights [99] and on Economic, Social and Cultural Rights, [100] as well as a host of conventions against discrimination. [101] Four Geneva Conventions of 1949, providing more humane treatment for prisoners of war, wounded, and civilians, were widely accepted. [102] Racial discrimination in Rhodesia was described as “a crime against humanity.” [103] Apartheid in South Africa was equally condemned. [104] A 1968 convention provided that statutes of limitations would not apply to war crimes and crimes against humanity. [105] The illegal seizure of aircraft was denounced as a violation of human rights, [106] and the use of mercenaries was called a criminal act. [107] In 1973, the Assembly adopted a convention calling for the punishment of apartheid “irrespective of the motive,” [108] and another convention was adopted to prevent and punish crimes against diplomatic agents. [109] The actions of the United States in Vietnam also came under legal attack as international lawyers challenged the legality of American involvement and methods of warfare. [110] Young people across the world recalled the Nuremberg principles in an effort to bring a halt to violations of human rights in Vietnam. [111] International Law was asserted on a broad scale.

 

Many new nations acquired their independence and statehood after World War Two. The Pre-War colonial system that carried within it the seeds of its own destruction was slowly eroded and replaced by fledgling states demanding a fair share of the world’s humanity. It was only natural that such dynamic changes should be accompanied by turbulence and disruption of the old social order. In the more established nations of Europe and South America it was possible to create new institutions designed to protect human rights within a regional community. In 1950, the Council of Europe reached agreement on a European Convention on Human Rights to be enforced by a Commission and Court of Human Rights at Strasbourg. [112] A similar institution was recently created in San José, Costa Rica by the Organization of American States. [113] Many legal or humanitarian organizations, such as the International Commission of Jurists and Amnesty International, began to monitor and report on human rights violations throughout the world, and supported their arguments by reference to the growing number of United Nations and national declarations and conventions demanding respect for human rights. [114] A UN Declaration called for Friendly Relations and Cooperation among States. [115]

 

It was not until the end of the Vietnam War and a new international atmosphere of détente that the UN, in 1974, achieved a consensus in defining aggression. [116] The definition had its shortcomings, of course, but it was a significant step toward world peace and removed the stumbling-block to further work on the code of crimes against mankind. [117] Several Western states, notably the United States and Great Britain, doubted whether the world was yet ready to formulate or enforce such a code. They felt it would be a waste of time even to make the effort. The overwhelming majority of states, however, recognized the need to set clearer standards about permissible international behavior, and younger states wanted to be heard. It was generally agreed that a revised code would have to include advances that had been made since the draft was tabled in 1954 and that new norms should also be considered. It was argued, for example, that the code should prohibit threats to the environment, the use of nuclear or biological weapons, incitement to racial hatred, and other human rights violations. At the end of 1980, the Secretary-General was instructed to prepare an analytical paper while governments were encouraged to make their views known before the item could be considered further, at the end of 1981. [118]

 

The 100-page analytical paper prepared by the Secretary-General [119] outlined the background of the proposed code and systematically categorized the views of governments as reflected in written comments and statements made during debates on the subject. [120] It was a comprehensive study that illustrated many differences of opinion regarding substantive and procedural aspects of the problem. Almost everyone agreed that a code to protect the security of mankind would be desirable, but many doubted whether the international community was politically ready to formulate such a code or accept an effective enforcement mechanism. The discussion in the Sixth Committee (Legal) manifested considerable caution, hesitation, and indecision; it also revealed determination and hope. [121] The effort of some Western states and Japan to halt further consideration of the subject was overwhelmingly defeated. A consensus resolution keeping the item alive was adopted on December 4, 1981 with only seventeen abstentions. [122] The International Law Commission is to consider the code and report back in 1982 regarding the priority it could accord the subject and whether it could present a preliminary report to the Assembly in 1983. The Resolution also provided that the code be included as a separate item on the Committee’s agenda in 1982, where it would be accorded “priority and the fullest possible consideration.” [123]

 

AN OPTIMISTIC APPRAISAL

Those who doubt the utility of the legal effort to advance human rights have been discouraged by much of what they see: a world at war in many regions and human rights violations everywhere. The pessimists note that many of those states that urge legal controls to inhibit aggression, terrorism, and other crimes against humanity insist on retaining for themselves the freedom to use every conceivable means to attain certain of their own particular goals. [124] The result has been that, in order to attain a consensus, many of the declarations and conventions or laws are deliberately formulated with such ambiguity as to allow the parties to interpret the vague clauses as they may see fit to further their own interests. Human rights abuses by nations against their own citizens are widespread and are often met by terroristic counter-measures, so that it becomes difficult to distinguish terrorism from heroism. It cannot be denied that Machiavellian deception has not yet disappeared from international relations, and many states still cling to outmoded notions of absolute national sovereignty, despite the interdependence of humankind and the menace of thermonuclear annihilation. Faced with such melancholy observations, surely there is more to the doughnut than the hole.

 

I have tried to sketch a few of the jurisprudential developments in support of human rights, but there are, in addition, developments in other areas that contribute to the well-being of people everywhere. A host of acronyms describes the many new agencies created to encourage a more equitable distribution of international resources: The IBRD, [125] IFC, [126] ICSC, [127] UNCTAD, [128] GATT, [129] and UNCITRAL [130] focus on economic aid to underdeveloped nations. The NIEO [131] is directed at a more equitable distribution of the earth’s resources. Perhaps the most dramatic development of recent years has been the effort to obtain a world treaty on the Law of the Sea, which has, as one of its goals, the sharing of the resources of the oceans as the common heritage of mankind. No one could expect such a revolutionary through to be universally acclaimed. In a competitive world it was to be anticipated that some nations would seek to obtain the maximum benefit for themselves. Although no universal agreement has yet been reached, great progress has been made. [132] Plans for comprehensive dispute-settlement machinery are near completion, [133] and, despite recent United States hesitation, there are realistic hopes tat the law of the sea can be codified in the not too distant future. [134] If such substantial progress can be made regarding four-fifths of this planet, can the remaining one-fifth be far behind?

 

Despite the continuing competition and distrust between “super-powers,” more progress in the military field has been made in recent years than would have been dreamed possible not long ago. International peace-keeping forces, under UN supervision, have played a useful role in maintaining peace in various areas of the globe. [135] There are now binding international agreements regarding the testing of nuclear weapons in outer space and on the ocean floor, as well as for the rescue of astronauts and the regulation of satellite broadcasting. [136] There are also agreements governing the activities of states on the moon and on other celestial bodies, [137] and agreements for the limitation of strategic arms are in process. Although the effort to eliminate man’s capacity for self-annihilation is still unfulfilled, more people are beginning to feel that unless we destroy all weapons of mass destruction the weapons will destroy us all.

International environmental controls and worldwide cooperation in the health field are most encouraging. Diseases that once plagued the inhabitants of many lands have been completely eliminated, and there have been impressive gains in population control. Education and scientific information are being exchanged on a scale never before seen in human history. A milestone was reached in 1975 with the signing of the Final Act of the Conference on Security and Cooperation in Helsinki. [138] Thirty-five nations, representing competitive social systems, agreed to honor a wide variety of civil, social, and economic rights, and to have the agreement monitored in later public conferences. [139] This is not to suggest that such agreements are free from fault or function satisfactorily. They do not. Their inadequacies, however, simply demonstrate that dramatic changes from the past and complete acceptance of new norms of international behavior cannot be achieved in a brief period of time. Deviations, repudiations, and hesitations are to be expected, and although disappointment may be justified, despair is never an acceptable substitute for hope.

 

For most of man’s life on earth there has been no such thing as “human rights.” International law itself is still in its infancy, and only during recent years have the deliberations of the early theologians, scholars, and jurists moved from obscure treatises into treaties, from hopeful musings into the conventions and statutes of many lands. Early schemes for restructuring world society found partial fulfillment in the United States Constitution, the League of Nations, and an improved United Nations Organization. It was a great step forward when nations learned, not too long ago, to substitute conference for conflict and to establish humanitarian rules if conflict proves unavoidable. It took two world wars and incalculable suffering to convince sovereign states that judicial process might be a useful tool to help deter aggression and other crimes against humanity. The dissolution of the colonial system was further international affirmation that all people are entitled to equal dignity and equal rights. Universal declarations defined some of those rights, and some enforcement procedures have gone into effect. Despite the enormous complexity of the contemporary world, when seen in the perspective of history, it is, in my judgment, unmistakably clear that substantial progress has been made toward the advancement of human rights on a global scale.

 

In the final analysis, there is something positive to be said in each one of the views presented in the Hofstra symposium. The development of new norms of international behavior, as predicted by Professors McDougal and Chen, [140] has been described; and the types of problems suggested by Professors Rusk, [141] Oliver, [142] and Murphy [143] have also been illustrated in this historical review. The need for social change, as suggested by Professors Schechter [144] and Nanda, [145] should also have become apparent. In addition, the many setbacks and vacillations that have been noted in the development of international human rights may help us to understand, if not to share, the disappointment of Professor Falk. [146] Seen in totality, however, it should be clear that, as noted by Professor Sohn, [147] enormous strides have been made during recent years and that, despite the slow progress recognized by the Taubenfelds, [148] the development of human rights is still in its early stages. Professors Bassiouni and Derby, as pioneers of the new legal discipline of international criminal law, [149] have shown us where we may hope to go if we are to see a more rational world order. Their important outline for an international court [150] that may enforce new rules of international behavior is a beacon to guide those who will take us into the future. I hope that my own admittedly and deliberately optimistic appraisal will give to those who must carry the burden the faith that it can be done in time.

 

* Member of the New York Bar. Former Executive Counsel, Nuremberg War Crimes Trials. J.D., 1943, Harvard Law School.

 

[1] 9 HOFSTRA L. REV. 337 (1981)

[2] McDougal & Chen, Introduction: Human Rights and Jurisprudence, 9 HOFSTRA L. REV. 337 (1981).

[3] E.g. Rusk, A Personal Reflection on International Covenants on Human Rights, 9 HOFSTRA L. REV. 515 (1981).

[4] E.g. Oliver, The Treaty Power and National Foreign Policy as Vehicles for the Enforcement of Human Rights in the United States, 9 HOFSTRA L. REV. 411 (1981).

[5] E.g. Murphy, Objections to Western Conceptions of Human Rights, 9 HOFSTRA L. REV. 433 (1981).

[6] See, e.g., Nanda, World Refugee Assistance: The Role of International Law and Institutions, 9 HOFSTRA L. REV. 449, 467 (1981); Schecter, The Views of “Charterists” and “Skeptics” on Human Rights in the World Legal Order, 9 HOFSTRA L. REV. 357, 396-98 (1981).

[7] Falk, Some Thoughts on the Decline of International Law and Future Prospects, 9 HOFSTRA L. REV. 399, 399 (1981).

[8] Sohn, The International Law of Human Rights: A Reply to Recent Criticisms, 9 HOFSTRA L. REV. 347 (1981).

[9] Taubenfeld & Taubenfeld, Human Rights and the Emerging International Constitution, 9 HOFSTRA L. REV. 347 (1981)

[10] Bassiouni & Derby, Final Report on the Establishment of an International Criminal Court for the Implementation of the Apartheid Convention and Other Related International Instruments, 9 HOFSTRA L. REV. 523 (1981).

[11] See Korff, An Introduction to the History of International Law, 18 AM. J. INT’L L. 246, 252, (1924).

[12] See Goyau, L’Eglise Catholique et Le Droit des Gens, 6 RECUEIL DES COURS 127 (1925).

[13] See Taube, Les Origins de L’arbitrage International; Antiquite et Moyen Age, 13 RECUCEIL DES COURS 69 (1932).

[14] See F. SANBORN, ORIGINS OF THE EARLY ENGLISH MARITIME AND COMMERCIAL LAW 179-81 (1930); C. VANN VOLLENHOVEN, THE LAW OF THE PEACE 6-81 (1936).

[15] See In re Piracy Jure Gentium, 51 T.L.R. 12 (P.C. 1934).

[16] Victoria, De Indis et de lure Belli Relectiones, in 1917 THE CLASSICS OF INTERNATIONAL LAW 163 (no. 7) (1st ed. Lyons 1557)

[17] Id.

[18] Scott, Preface to id. at 5.

[19] Ayala, De Jure et Officiis Bellicis et Disciplina Militari, in [1912] 2 THE CLASSICS OF INTERNATIONAL LAW 20

[20] Gentili, De Iure Belli Libri Tres, in [1933] 2 THE CLASSICS OF INTERNATIONAL LAW 124 (No. 16) (1st ed. n.p. 1612).

[21] F. SUAREZ, ON LAWS AND GOD THE LAWGIVER (n.p. 1612), reprinted in part in [1944] 2 CLASSICS OF INTERNTIONAL LAW 349 (No. 20).

[22] Grotius, Prolegomena to De Jure Belli Ac Pacis Libri Tres, in [1925] 2 THE CLASSICS OF INTERNATIONAL LAW 14 (No. 3) (1st ed. n.p. 1625).

[23] Id. at 861.

[24] Peace of Westphalia, Oct. 14-24, 1648, Holy Roman Empire—Sweden, France—Holy Roman Empire, 1 Parry’s T.S. 119.

[25] Pufendorf, De Jure Naturae et Gentium Libri Octo, in [1934] 2 THE CLASSICS OF INTERNATIONAL LAW 1292 (No. 17) 1st ed. The Hague 1660)

[26] Wolff, Just Gentium Methodo Scientifica Pertracatum, in [1934] 2 THE CLASSICS OF INTERNATIONAL LAW (No. 13) (1st ed. Halle 1749).

[27] Vattel, Le Droit des Gens, in [1916] 3 THE CLASSICS OF INTERNATIONAL LAW 134 (No. 4) (1st ed n.p. 1758).

[28] E.g., I. KANT, PERPETUAL PEACE 16 (L. Beck ed. 1957) (1st ed. Konigsberg 1795) (Federation of Free States); E. NYS, LES ORIGINES DU DROIT INTERNATINOAL 396 (1894) (“grand et magnifique desseins”); W. PENN, An Essay Towards the Present and Future Peace of Europe (1st ed. 1693), in THE PEACE OF EUROPE: THE FRUITS OF SOLITUDE AND OTHER WRITINGS BY WILLIAM PENN 8 (Everyman’s Library No. 724) (Parliament of Europe); Cardinal Alberoni, Cardinal Alberoni’s Scheme (n.p. n.d.) (Dyet), reprinted in 7 AM. J. INT’L L. 83, 105 (1913).

[29] See Colombos, Introduction to J. BENTHAM, PLAN FOR AN UNIVERSAL AND PERPETUAL PEACE 3 (1789 & reprint 1939).

[30] Henri Gregoire, Abbe Gregoire’s Project (1795).

[31] Id. art 5, quoted in W. DARBY, INTERNATIONAL TRIBUNALS 168 (1904).

[32] R. DHOKALIA, THE CODIFICATION OF PUBLIC INTERNATIONAL LAW 46 (1970).

[33] Congress of Vienna , June 9, 1815, art. XLVI, 64 Parry’s T.S. 453, 472; Rie, The Origins of Public Law and the Congress of Vienna, in 36 THE GROTIUS SOCIETY 209, 227 (1951). See generally C. WEBSTER, THE CONGRESS OF VIENNA (2d ed. 1934).

[34] First Peace of Paris, Additional Articles Between France and Great Britain, May 30, 1814, art. I, 63 Parry’s T.S. 171, 193.

[35] See Baldwin, The International Congresses and Conferences of the Last Century as Forces Working Toward the Solidarity of the World, 1 AM. J. INT’L L. 565, 568-78 (1907); id. app. at 808-29.

[36] See 2 L. OPPENHEIM, INTERNATIONAL LAW § 335 (rev. 6th H. Lauterpacht ed. 1944).

[37] U.S. Dep’t of War, General Orders No. 100 (Apr. 24, 1863) (Lieber Code), reprinted in 1 L. FRIEDMAN, THE LAW OF WAR 158-86 (1972).

[38] See Root, Francis Lieber, 7 AM. J. INT’L. L. 453, 453 (1913).

[39] Geneva Convention for the Amelioration of the Condition of the Wounded in Armies in the Field, Aug. 22, 1864, 129 Parry’s T.S. 361.

[40] E.g., Convention on Laws and Customs of War on Land (Hague IV), Oct. 18, 1907, Annex to the Convention art. 4, 36 Stat. 2277, 2296, T.S. No. 539, 205 Parry’s T.S. 277, 290 (adapting Lieber Code provisions on treatment of prisoners of war); id. arts. 46-52, 36 Stat. At 2306-2308, T.S. No. 539, 205 Parry’s T.S. at 295-96 (adapting Lieber Code provisions on status of enemy subjects); see Root, supra note 38, at 466 app. (memorandum of Maj. Gen. George B. Davis, US Army, showing relation of Lieber Code and Hague Convention on Laws and Customs of War on Land); Scott, The Work of the Second Hague Peace Conference, 2 AM. J. INT’L L. Supp. 90 (1908).

[41] J. BLUNTSCHLI, GESAMMELTE KLEINE SCHRIFTEN (1881).

[42] D. FIELD, DRAFT OUTLINES OF AN INTERNATIONAL CODE (1872).

[43] Address by President Taft, Conference of the American Society for the Judicial Settlement of International Disputes (Dec. 17, 1910), reprinted in part in 5 AM. J. INT’L L. 199 (1911).

[44] Committee of Inquiry into Breaches of the Laws of War, First Interim Report 95 (Jan. 13, 1919), quoted in HISTORY OF THE UNITED NATIONS WAR CRIMES COMMISSION 435 (comp. By UN War Crimes Comm’n 1948)

[45] Commission on the Responsibility of the Authors of the War and on Enforcement of Penalties, Report Presented to the Preliminary Peace Conference (Mar. 29, 1919), reprinted in 1 B. FERENCZ, AN INTERNATIONAL CRIMINAL COURT 169 (1980).

[46] See Report of the International Law Commission to the General Assembly, 4 UN GAOR Supp. (no. 10) at 5, UN Doc. A/925 (1949), reprinted in 1949 Y.B. INT’L L. COMM’N 277, 283 UN Doc. A/CN.4/13.

[47] Treaty of Versailles, June 28, 1919, 11 Martens Nouveau Recueil 323.

[48] See LAW OFFICER’S DEPARTMENT, ROYAL COURTS OF JUSTICE, REPORT OF PROCEEDICOURT IN LEIPZIG, CMD. No. 1450 (1921), reprinted in 16 AM. J. INT’L L. 628-40 (1922). See generally S. GLUECK, WAR CRIMINALS (1944).

[49] See Robinson, From Protection of Minorities to Promotion of Human Rights, 1948 JEWISH Y.B. INT’L L. 115.

[50] LEAGUE OF NATIONS COVENANT art. 23(a)

[51] Id. art 23(b).

[52] Id. art 23(f).

[53] Id. art 22, para. 1.

[54] See 59 CONG. REC. 4599 (1920) (49 for ratification; 35 against; 12 not voting).

[55] See Proces-Berbaux of the Proceedings of the Committee of Jurists (The Hague June 16 – July 24, 1920) reprinted in 1 B. FERENCZ, supra note 45, at 193, 194.

[56] Id., reprinted in 1 B. FERENCZ, supra note 45, at 235.

[57] See V. PELLA, DES INCAPACITES RESULTANT DES CONDEMNATIONS PENALES EN DROIT INTERNATIONAL (1920); Phillimore, An International Criminal Court and the Resolutions of the Committee of Jurists, 1922-1923 BRIT. Y.B. INT’L L. 79.

[58] 1 B. FERENCZ, supra note 45, at 40 (quoting Report of the International Law Association, Stockholm, September 8-13, 1924).

[59] League of Nations Res. Of Sept. 22, 1924, LEAGUE OF NATIONS O.J. Spec. Supp. 21, at 10 (1924).

[60] See LEAGUE OF NATIONS O.J. Spec. Supp. 23, at 121 (1924).

[61] Treaty of Locarno, Oct. 16, 1925, 54 L.N.T.S. 289.

[62] Kellogg-Briand Pact, Aug. 27, 1928, 46 Stat. 2343, T.S. No. 796, 94 L.N.T.S. 59.

[63] See J. SHOTWELL, WAR AS AN INSTRUMENT OF NATIONAL POLICY 14, 193 (1929); Address of the Honourable Frank B. Kellogg, 22 AM. SOC’Y INT’L L. PROC. 141, 143 (1928).

[64] See W. WILLOUGHBY, THE SINO-JAPANESE CONTROVERSY AND THE LEAGUE OF NATIONS 627-54 (1935); Lauterpacht, “Resort to War” and the Interpretation of the Covenant During the Manchurian Dispute, 28 A.M. J. INT’L L. 43 (1934).

[65] Committee for the International Conference on the Repression of Terrorism, Report to the Council on the First Session of the Committee, League of Nations Doc. C.184.M.102 1935 V, app. I, at 4 (1935).

[66] Proceedings of the International Conference on the Repression of Terrorism, League of Nations Doc. C.94.M.47 1938 V, at 5 (1938).

[67] See U.N. Doc. A/C.6/418 Annex 1 (Agenda Item 92) at 1 n.1 (1972).

[68] See B. FERENCZ, LESS THAN SLAVES passim (1979).

[69] For accounts of Nazi atrocities during the Second World War, see 1-42 INTERNATIONAL MILITARY TRIBUNAL, TRIALS OF THE MAJOR WAR CRIMINALS BEFORE THE INTERNATIONAL MILITARY TRIBUNAL (1947) (Blue Book) [hereinafter cited as TRIALS OF MAJOR WAR CRIMINALS]; 1-15 NUERNBERG MILITARY TRIBUNALS, TRIALS OF WAR CRIMINALS BEFORE THE NUREMBERG TRIBUNALS (1949) (Green Book) [hereinafter cited as TRIALS OF WAR CRIMINALS].

[70] See The Einsatzgruppen Case, reprinted in 4 TRIALS OF WAR CRIMINALS, supra note 69, at 427 (Case No. 9). The author served as Chief Prosecutor for the United States in this case.

[71] United Nations War Crimes Commission, Document C.56(a) (Sept. 26, 1942) (U.S. Nat’l Archives, Record Group 238, World War Two Crimes).

[72] Id.

[73] Glueck, By What Tribunal Shall Was Offenders Be Tried?, 56 HARV. L. REV. 1059 (1943).

[74] Commission on the Responsibility of the Authors of the War and on Enforcement of the Penalties, Report Presented to the Preliminary Peace Conference, reprinted in 1 B. FERENCZ, supra note 45, at 169; United Nations War Crimes Commission, Report of the Sub Committee Appointed to Consider Whether the Preparation and Launching of the Present War Should be Considered “War Crimes,” U.N. Doc. C.55 (1944).

[75] See Aide-Memoiré from the United Kingdom (Apr. 23, 1943), reprinted in 1 B. FERENCZ, supra note 45, at 450-452.

[76] Report of Robert H. Jackson, United States Representative to the International Conference on Military Trials (1945) (Dep’t of State Pub. No. 3080, 1949) [hereinafter cited as Report of Robert H. Jackson], reprinted in 1 B. FERENCZ, supra note 45, at 435, 435-41.

[77] London Agreement, Aug. 8, 1945, Charter of the International Military Tribunal art. 16, 59 Stat. 1544, 1550, E.A.S. No. 472, 82 U.N.T.S. 279, 294.

[78] Id. art. 6, 59 Stat. 1547, E.A.S. No. 472, 82 U.N.T.S. at 286; see Ferencz, Nuremberg Trial Procedure and the Rights of the Accused, 39 J. CRIM. L.C. & P.S. 144 (1948).

[79] See R. WOETZEL, THE NUREMBERG TRIALS IN INTERNATIONAL LAW 6 (1962).

[80] See Report of Robert H. Jackson, supra note 76, reprinted in part in 1 B. FERENCZ, DEFINING INTERNATIONAL AGGRESSION 370 (1975).

[81] 22 TRIALS OF MAJOR WAR CRIMINALS, supra note 69, at 461 (Judgment: Nazi Conspiracy and Aggression).

[82] Id. at 464.

[83] Allied Control Council Law No. 10 (Dec. 20, 1945), reprinted in 15 TRIALS OF WAR CRIMINALS, supra note 69, at 23.

[84] See T. TAYLOR, FINAL REPORT TO THE SECRETARY OF THE ARMY ON THE NUREMBERG WAR CRIMES TIRALS UNDER CONTROL COUNCIL LAW NO. 10 (1949).

[85] See, e.g., In re Yamashita, 327 U.S. 1 (1946). See generally 1-2 THE TOKYO JUDGMENT (B. Röling & C. Rüter eds. 1977).

[86] See A. RUVKERL, THE INVESTIGATION OF NAZI CRIMES 1945-1978 (1979).

[87] G.A. Res. 95, U.N. Doc. A/64/Add.1, at 188 (1946).

[88] U.N. CHARTER preamble, para. 1.

[89] Id. preamble, para. 2.

[90] Id. art. 55(c)

[91] G.A. Res. 95, U.N. Doc. A/64/Add. 1, at 188 (1946).

[92] 15 DEP’T OF STATE BULL. 954 (1946).

[93] G.A. Res. 94, U.N. Doc. A/64/Add. 1, at 187 (1946).

[94] Les Projets De Conventions Internationales Du Movement National Judicaire, 19 REVUE INTERNATIONAL DE DROIT PENAL 269 (1948).

[95] G.A. Res. 260, U.N. Doc A/519, at 111 (1948); G.A. Res. 260B, U.N. Doc. A/810, at 177 (1948).

[96] See G.A. Res. 177, U.N. Doc. A/519, at 111 (1948); G.A. Res. 260B, U.N. Doc. A/810, at 177 (1948).

[97] For a documentary history on the definition of aggression, see 1-2 B. FERENCZ, supra note 80. For a similar treatment of the effort towards establishment of an international criminal court, see 1-2 B. FERENCZ, supra note 45.

[98] G.A. Res. 217, U.N. Doc. A/810, at 71 (1948). See generally R. Cassin, La Declaration Universalle et la Mise en Oeuvre des Droits de l’Homme (Acad. Of Int’l Law 1951).

[99] G.A. Res. 2200, 21 U.N. GAOR Supp. (No. 16) at 52, U.N. Doc. A/6316 (1966).

[100] G.A. Res. 2200A, 21 U.N. GAOR Supp. (No. 16) at 49, U.N. Doc. A/6316 (1966).

[101] E.g., Declaration on the Elimination of All Forms of Racial Discrimination, G.A. Res. 1904, 18 U.N. GAOR Supp. (No. 15) at 35, U.N. Doc. A/5515 (1963). See generally BASIC DOCUMENTS ON INTERNATIONAL PROTECTION OF HUMAN RIGHTS (L. Sohn & T. Burgenthal eds. 1973).

[102] Geneva Convention Relative to the Treatment of Prisoners of War, Aug. 12, 1949, 6 U.S.T. 3316, T.I.A.S. No. 3364, 75 U.N.T.S. 135; see 47 AM. J. INT’L L. 119, 119 n.l. (Supp. 1953) (convention ratified by 24 countries, some with reservations). See also H. Levie, Prisoners of War in International Armed Conflict 59-60 (International War Studies, Naval War College 1979).

[103] G.A. Res. 2262, 22 U.N. GAOR Supp. (No. 16) at 45, U.N. Doc. A/6716 (1967); G.A. Res. 2022, 20 U.N. GAOR Supp. (no. 14) at 54, U.N. Doc. A/6014 (1966).

[104] G.A. Res. 2145, 21 U.N. GAOR Supp. (No. 16) at 45, U.N. Doc. A/6316 (1966); G.A. Res. 2074, 20 U.N. GAOR Supp. (no. 14) at 60, U.N. Doc. A/6014 (1966).

[105] G.A. Res. 2391 Annex, 23 U.N. GAOR Supp. (No. 18) at 40, U.N. Doc. (1969).

[106] G.A. Res. 2645, 25 U.N. GAOR Supp. (No. 28) at 126, U.N. Doc. A/8028 (1971); see convention on Offenses and Certain Other Acts Committed on Board Aircraft, done Sept. 14, 1963, 20 U.S.T. 2941, T.I.A.S. No. 6768, 704 U.N.T.S. 219; Convention for the Suppression of Unlawful Seizure of Aircraft, done Dec. 16, 1970, 22 U.S.T. 1641, T.I.A.S. No. 7192, 10 I.L.M. 133.

[107] G.A. Res. 2708, 25 U.N. GAOR Supp. (No. 28) at 7, U.N. Doc. A/8028 (1971); G.A. Res. 2548, 24 U.N. GAOR Supp. (No. 30) at 75, U.N. Doc. A/9030 (1974).

[108] G.A. Res. 3068 Annex art. II(c), 28 U.N. GAOR Supp. (No. 30) at 5, U.N. Doc. A/9030 (1974).

[109] G.A. Res. 3166, 28 U.N. GAOR Supp. (No. 30) at 146, U.N. Doc. A/90/30 (1974).

[110] See, e.g., 1-3 THE VIETNAM WAR AND INTERNATIONAL LAW (R. Falk ed. 1972); cf. Ferencz, War Crimes Law and the Vietnam War, 17 AM. U.L. REV. 403 (1968) (comparing Nuremberg Trials and U.S. Aggression in Vietnam)

[111] See D.Amato, Gould & Woods, War Crimes and Vietnam: The “Nuremberg Defense” and the Military Service Register, 57 CALIF. L. REV. 1055 (1969).

[112] Convention for the Protection of Human Rights and Fundamental Freedoms, No. 4, 1950, 213 U.N.T.S. 221.

[113] See American Declaration on Rights and Duties of Man, Final Act at Bogotá, Columbia, O.A.S. Doc. No. 341.1-E 3636, at 38 (May 2, 1948).

[114] The International Committee of Jurists, with its seat in Geneva, issues regular reports of its investigations of human rights violations throughout the world in its publication ICJ Review. A newspaper-like publication called Matchbox is published and distributed by Amnesty International USA.

[115] G.A Res. 2625, 25 UN GAOR Supp. (No. 28) at 121, UN Doc. A/8028 (1970); see Rosenstock, The Declaration of Principles of International Law Concerning Friendly Relations: A Survey, 65 AM. J. INT’L L. 7133 (1971).

[116] G.A. Res. 3314, 29 UN GAOR Supp. (No. 31) at 142, UN Doc. A/9631 (1975).

[117] See J. STONE, CONFLICT THROUGH CONSENSUS 153-76 (1977); Ferencz, The United Nations Consensus Definition of Aggression: Sieve or Substance?, 10 J. INT’L L. & ECON. 701 (1975).

[118] G.A. Res. 35/49, 35 UN GAOR Supp. (No. 48) at 258, UN Doc. A/35/48 (1981). For a summary of current views, see Ferencz, The Draft Code of Offences Against the Peace and Security of Mankind, UN Doc. A/36/535 (1981).

[119] Draft Code of Offences Against the Peace and Security of Mankind, UN Doc. A/26/535 (1981).

[120] Id. at 5-35.

[121] See 26 UN GAOR C.6 (Agenda Item 111), UN Doc. A/C.6/36/SR.58 (1981); id., UN Doc. A/C.6/36/SR. 60; id., UN Doc. A/C.6/36/SR. 66; id., UN Doc A/C/6/36/SR. 69.

[122] UN Doc. A/36/774 (1981) (89 voted in favor; abstentions by Australia, Belgium, Burma, Canada, France, Germany, F.R., Ireland, Israel, Italy, Japan, Luxembourg, Netherlands, New Zealand, Spain, Turkey, United Kingdom, and the United States).

[123] Id.; see G.A. Res. 36/106, UN Doc. A/Res./36/106 (1982) (report adopted as resolution of General Assembly).

[124] See generally, e.g., Watson, Legal Theory, Efficacy and Validity in the Development of Human Rights Norms in International Law, 1979 U. ILL. L.F. 609.

[125] The International Bank for Reconstruction and Development.

[126] The International Finance Corporation.

[127] International Centre for Settlement of Investment Disputes.

[128] UN Conference on Trade and Development.

[129] General Agreement on Tariffs and Trade.

[130] UN Commission on International Trade Labor.

[131] New International Economic Order.

[132] See Oxman, The Third United Nations Conference on the Law of the Sea: The 1976 New York Sessions, 71 AM. J. INT’L L. 247, 247 (1977); Sohn, US Policy Toward Settlement of Law of the Sea Disputes, 17 VA. J. INT’L L. 9 (1976).

[133] See Third Conference on the Law of the Sea (150th Plen. Mtg.), UN Doc./A/CONF.62/SR.150, at 2-7 (prov. Ed. 1981).

[134] For discussions of the Law of the Sea negotiations, see Symposium on the Law of the Sea Negotiations, 1 INT’L PROP. INVEST. J. (forthcoming) 1982).

[135] See Report of the Secretary-General on the Work of the Organization, 34 UN GAOR, Supp. (No. 1) at 4, UN Doc. A/34/1 (1979).

[136] For a list of treaties, see M. BASSIOUNI, INTERNATIONAL CRIMINAL LAW, A DRAFT INTERNATIONAL CRIMINAL CODE 71 (1980).

[137] Id.

[138] Conference on Security and Cooperation in Europe, Final Act, August 1, 1975, 14 I.L.M. 1292 (1976).

[139] Id., Follow-up to the Conference, arts. 2-3, 14 I.L.M. at 1325.

[140] McDougal & Chen, supra note 2.

[141] Rusk, supra note 3.

[142] Oliver, supra note 4.

[143] Murphy, supra note 5.

[144] Schechter, supra note 6.

[145] Nanda, supra note 6.

[146] Falk, supra note 7.

[147] Sohn, supra note 8.

[148] Taubenfeld & Taubenfeld, supra note 9.

[149] Bassiouni & Derby, supra note 10.

[150] Id. at 547; see M. BASSIOUNI, supra note 136.

 

 

 

 

 

 

 

The Draft Code of Offences Against the Peace and Security of Mankind

By Benjamin B. Ferencz

published: July 1981

source: The American Journal of International Law, Vol. 75, No. 3, July 1981

 

At its session that ended in December 1980, the United Nations considered a subject that had been allowed to lie dormant for over a quarter of a century. It was first taken up in 1946, after President Truman called for the reaffirmation of “the principles of the Nürnberg Charter in the context of a general codification of offences against the peace and security of mankind.” [1] The General Assembly responded promptly by passing three resolutions in rapid succession on December 11, 1946, which created a Committee for the Progressive Development of International Law and its Codification, affirmed the Nuremberg principles, and declared that genocide was an international crime. [2] The International Law Commission (ILC) was charged with preparing the desired Code of Offences after its establishment in 1947. Yet, 34 years after the General Assembly’s call for action, the refrain was still being heard: “The time is not yet ripe.” The question likely to face the United Nations when it reconvenes in 1981 will be: “If not now, then when?”

 

In 1949, when it began its work, the ILC also had on its agenda the problems of defining the crime of aggression and considering an international criminal jurisdiction to cope with international crimes. A first Draft Code of Offences was submitted by Rapporteur Jean Spiropoulos in 1950. [3] By that time, hostilities had erupted in Korea and the major powers were busy accusing each other of aggression and related crimes. The initial enthusiasm for an international code and court became a casualty of war.

 

Ad hoc committees appointed to consider the problem of an international criminal court bogged down in disagreement. [4] Other special committees were unable to agree upon a definition of aggression. [5] By 1954, the third Draft Code of Offences was submitted to a divided Assembly by the ILC. It proposed that responsible individuals be punished for the international crimes described in the Code. It listed 13 categories of prohibited acts, such as various forms of aggression, and confirmed that heads of state would not be immune and that superior orders would be no excuse. [6] But without a definition of aggression the code was incomplete, and without a code there was no need for a court. Thus, the definition, the code, and the court were all linked together, and conveniently placed in the deep freeze by the Cold War. They would lie there undisturbed until the war in Southeast Asia began to wind town and the warming breezes of détente began to thaw the international atmosphere. At the end of 1974, it was possible for the nations to agree upon a definition of aggression by consensus. [7]

 

The Legal Counsel of the UN lost no time in reminding the delegates that the Draft Code of Offences was a piece of unfinished business that required attention. [8] Soon the ILC added its own reminder. [9] By the end of 1977, a few states had requested that the item again be placed on the UN agenda. [10] When the question came before the Sixth (Legal) Committee in 1978, Ambassador Rossides of Cyprus, a strong proponent of an international criminal code and court, was the first of 18 delegates to take the floor. [11] In his view, deterring international crimes was a better path to world security than a futile arms race. [12] A young delegate from Mongolia, J. Enkhsaikhan, expressing the views of the Soviet Bloc, asserted that the code would obligate states and individuals to honor the emerging new norms of international law. [13] Gunter Goerner, of the German Democratic Republic, noted that the Nuremberg principles deserved to be codified to assure that such offenses would also be punished in the future. [14] Romania’s representative, recalling the pioneering work done by V.V. Pella, called the proposed code “the basic structure of international criminal law.” [15] Others were much less enthusiastic.

 

The representative of Holland, in what appeared to be a major reversal of its position of the 1950’s, pointed to the futility of creating an international legal order that would exist only on paper. [16] Robert Rosenstack of the United States, sharing the skepticism, noted that in dealing with state responsibility, the ILC was already considering certain international criminal or delicts. In an effort to deflect further action, he also warned that states unwilling to accept any enforcement mechanism had no need for a code. [17] Egypt served notice the no code could restrain the struggles for self-determination or national liberation, [18] while Nicaragua insisted that all terrorism would have to be outlawed, regardless of motive. [19] Many states argued that new nations admired to the United Nations since 1954 should have more time to study the record. It was finally agreed that the views of governments should be solicited and the subject taken up again at the end of 1980. [20]

 

By the time the Sixth Committee reconvened in October 1980, replies regarding the Code of Offences had been received from 19 Governments and from UNESCO. [21] The clearest opposition again came from the Netherlands, the United States, the United Kingdom, and Canada. The gist of their argument was that there was no likelihood that consensus could be reached on such a difficult problem and that it was therefore a waste of everyone’s time to discuss it. [22] It was also argued that a consolidate code would add nothing to the existing conventions and declarations and might even detract by offering competing or modified texts. Underlying the negative argument was the suspicion and distrust that enveloped the international scene. A Chinese delegate wondered whether those who supported the code were merely “passing fish eyes off as pearls.” [23] The American representative argued that the 1974 consensus definition of aggression was too imprecise to serve as the basis for a criminal indictment. [24] He ignored the fact that the United States had relied on a much less precise 1933 Soviet definition to convict the German leaders at Nuremberg. [25] The 1980 preliminary debate gave fair warning of the difficulties to be encountered should states try to codify the limits of permissible and impermissible international behavior.

 

From the statements made by the 61 delegates who took the floor, it soon became obvious that the overwhelming majority of states was in favor of some kind of a code of offences. [26] Only Italy, the Federal Republic of Germany, and Japan joined the four Western states that had submitted have to be revised to take account of the progress made since that time. Among the newly created norms most frequently mentioned for inclusion in a revised code were the proved Geneva Conventions on the rules of war, [27] the conventions declaring racial discrimination and apartheid to be crimes against humanity, [28] the conventions prohibiting the illegal seizure of aircraft, [29] the resolutions denouncing the use of mercenaries, [30] the Convention for the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents, [31] and the resolutions dealing with the taking of hostages and other forms of terrorism. [32]

 

Many states wanted new items added to the list of prohibited acts. The Soviet Union wanted the code to deal with violations of treaties on nuclear weapons. [33] Poland advocated the prohibition of biological weapons. [34] Egypt and Afghanistan would have the code enforce international instruments on disarmament. [35] Hungary would include pollution of the environment, [36] and others wanted economic crimes to be covered. [37] The Palestine Liberation Organization and its supporters maintained that racism and Zionism should be specifically listed as international crimes. [38] India called for the code to “specify the mechanisms necessary for trial.” [39] Sweden was more specific and called for an international court to enforce the code. [40] Most of the delegates were not really prepared to deal with the substantive problems in depth, and the focus thus shifted to the procedural problem of what the next step should be.

 

The Soviet bloc wished to keep the subject in the Sixth Committee. [41] The Western states would have liked to bury the item completely, [42] but when it became obvious that interment would not be acceptable, they argued for the next best thing: referral back to the International Law Commission where it had rested peacefully since 1954. [43] Quentin Baxter of New Zealand, a member of the ILC, noted that the Law Commission’s agenda would not allow consideration of the draft code before 1982. [44] Finally, the compromise suggested by Mexico’s Gonzaléz Galvéz prevailed: [45] since so few Governments had submitted written views, opinions would again be solicited, including a comment on whether the subject should be sent back to the ILC. Replies were to be made by June 30, 1981 to allow for preparation by the Secretariat of an analytical paper and reconsideration of the question at the end of the year. A resolution to the effect was adopted by consensus and without discussion. [46] There the matter now stands.

 

It would be unreasonable to expect 154 sovereign states in vastly different stages of economic, social, and political development to make an easy or quick transition from the law of force to the force of law. Professors McDougal, Henkin, and Schacter and other scholars have pointed out that codification, in addition to contributing to clarification and certainty in the law, is in its infancy; just because it did not spring to life full grown is hardly cause to abandon the babe. The international community can ill afford to discard deliberation, consultation, and compromise merely because some of the participants may be insincere or the burden may be time-consuming or onerous. A code describing which actions are lawful and which unlawful can, in time, contribute toward the maintenance of world peace. When powerful states become so powerful that they dare not use their power, they may recognize that it is far better to settle their differences legally rather than lethally. It is time to be reminded of the words of the first President of the American Society of International Law, Elihu Root, who, never having lost his faith, at the age 80 wrote in this Journal:

 

What is called for now and what we mean when we speak of codification of international law is the making of law . . . .

[. . . . ]

. . . . It will require patience and good temper, and learning, and distinguished ability and leadership . . . . There is, however, ground for hope that the changes of conditions may have changed the attitude of many nations upon many questions, so that progress may be made now where progress never could be made before. [47]

 

[1] 15 DEP’T STATE BULL. 954 (1946).

[2] UNGA Res. 94 (I) (Dec. 11, 1946) created a committee with one representative each from Argentine, Australia, Brazil, China, Colombia, Egypt, France, India, the Netherlands, Panama, Poland, Sweden, the USSR, the UK, the US, Venezuela, and Yugoslavia. It was charged with studying “methods by which the General Assembly should encourage the progressive development of international law and its eventual codification.” GA Res. 95 (I) affirmed the Nuremberg principles and directed the committee to give importance to formulating those principles. GA Res. 96 (I) defined and condemned genocide and instructed the Economic and Social Council to draft a convention to outlaw the offense. The 94 (I) committee recommended the creation of an International Law Commission (UN Doc A/331 (1947)), which was established by GA Res. 174 (II) (Nov. 21, 1947).

[3] UN Doc. A/CN.4/25 (1950), reprinted in [1950] 2 Y.B. INT’L L. COMM’N 253, 277. Nine international crimes were listed in the draft: aggressive war; invasion by armed groups; fomenting external civil strife; fomenting external organized terrorism; illegal weapons trafficking; violating arms limitation treaties; illegal annexation; hostile acts directed against national, ethnic, racial and religious groups; and violation of laws and customs of war.

[4] See B. FERENCZ, AN INTERNATIONAL CRIMINAL COURT, A STEP TOWARD WORLD PEACE, 2 vols. (1980).

[5] See B. FERENCZ, DEFINING INTERNATIONAL AGGRESSION, THE SEARCH FOR WORLD PEACE, 2 vols. (1975).

[6] Report of the International Law Commission on its 6th Session, 9 GAOR, Supp. (No. 9), UN Doc. A/2693 (1954), reprinted in [1954] 2 Y.B. INT’L L. COMM’N 140.

[7] GA Res. 3314 (XXIX) (Dec. 14, 1974).

[8] UN Doc. A/AC/134/SR.110 (Mar. 14, 1974)

[9] Report of the ILC on its 29th Session, 9 GAOR, Supp. (No. 10) 316-17, UN Doc. A/32/10 (1977), reprinted in [1977] 2 Y.B. INT’L L. COMM’N 1.

[10] UN Doc. A/32/247 and A/32/470 (1977). The countries were Barbados, Fiji, Mexico, Nigeria, Panama, the Philippines, and the Syrian Arab Republic.

[11] UN Doc. A/C.6/33/SR.61 (1978).

[12] UN Doc. A/C.6/33/SR.64, at 6 (1978).

[13] UN Doc. A/C.6/33/SR.62, at 2 (1978).

[14] UN Doc. A/C.6/33/SR.63, at 4 (1978).

[15] UN Doc. A/C.6/33/SR.62, at 3. Pella’s work is cited therein as UN Doc. A/CN.4/39 (1950).

[16] UN Doc. A/C.6/33/SR.64, at 4 (1978).

[17] Id. at 4-6.

[18] UN Doc. A/C.6/33/SR.65, at 2 (1978).

[19] UN Doc. A/C.6/33/SR.63, at 8 (1978).

[20] GA Res. 33/97 (Dec, 1978). The vote on the resolution was 116 to 0 with 23 abstentions. A French amendment (UN Doc. A/C.6/33/SR.67, at 5), which referred to the link between the draft code and both definition of aggression and an international criminal court, was rejected by a vote of 41-25-32.

[21] UN Doc. A/35/210 (June 11, 1980), and Add.1 (Sept. 5, 1980), Add.2 (Sept 30, 1980), and Add.2.Corr.1 (Oct. 1, 1980). The countries were Botswana, the Byelrussian SSR, Chile, Czechoslovakia, Finland, Guatemala, Hungary, the Netherlands, Senegal, Sweden, the USSR, Yugoslavia, the German Democratic Republic, Mongolia, Norway, the UK, the US, Canada, an the Ukrainian SSR.

[22] See, e.g., reply of the United States, UN Doc. A/35/210/Add.1. at 11 (1980).

[23] Sixth Committee debate, Oct. 7, 1980. The quoted phrase was not reproduced in the summary record but is based on the author’s notes.

[24] UN Doc. A/C.6/35/SR.12, at 9 (Oct. 9 (Oct. 7, 1980); see also UN Doc. A/C.6/33/SR.64, at 6 (1978).

[25] See R. JACKSON, THE CASE AGAINST THE NAZI WAR CRIMINALS 79 (1946).

[26] The summary records of the 1980 debate appear in UN Docs. A/C.6/35/SR.10 through SR.15.

[27] See 47 AJIL Supp. 119-77 (1953).

[28] GA Res. 2022 (XX) (Dec. 5, 1965); GA Res. 2262 (XXII) (Nov. 3, 1967).

[29] See 10 ILM 133 (1971).

[30] GA Res. 2548 (XXIV) (Dec. 11, 1969); GA Res. 2708 (XXVI) (Dec. 14, 1971).

[31] GA Res. 3166 (XXVIII) (Dec. 14, 1973), 28 UST 1975, TIAS No. 8532.

[32] See GA Res. 34/145 and 34/146 (Dec. 17, 1979).

[33] UN Doc. A/C.6/35/SR.13, at 4 (Oct. 7, 1980).

[34] UN Doc. A/C.6/35/SR.13, at 5 (Oct. 8, 1980).

[35] UN Doc. A/C.6/35/SR.11, at 8-9 (Oct. 6, 1980) (Egypt); UN Doc. A/C.6/35/SR.13, at 10 (Oct. 7, 1980) (Afghanistan).

[36] UN Doc. A/C.6/35/SR.12, at 6 (Oct. 7, 1980).

[37] E.g., Nigeria suggested that multinational corporations be subject to punishment. UN Doc. UN A/C.6/35/SR.15, at 8 (Oct. 8, 1980).

[38] UN Doc. A/C.6/35/SR.13, at 6. The PLO observer argued that armed struggle for self-determination was legitimate, which implied that any means could be used to attain the goal. Israel’s Ambassador Rosenne replied that “[c]riminal acts of terrorism should not be shielded from due punishment simply because their authors claimed to be acting in the name of some noble cause.” UN Doc. A/C.6/35/SR.14, at 9.

[39] UN Doc. A/C.6/35/SR.15, at 2.

[40] Id. at 3.

[41] See, e.g., statement of USSR representative, UN Doc. A/C.6/35/SR.13, at 5.

[42] See, e.g., statement of the US representative, UN Doc. A/C.6/35/SR.12, at 9, calling for deferral of consideration of the draft code.

[43] See, e.g., statement of the Italian representative, UN Doc. A/C.6/35/SR.13, at 3.

[44] UN Doc. A/C.6/35/SR.11, at 6.

[45] UN Doc. A/C.6/35/SR.12, at 7.

[46] See Report of the Sixth Committee, UN Doc. A/35/615 (1980); GA Res. 35/49 (Dec. 4, 1980).

[47] Root, The Codification of International Law, 19 AJIL 675, 681-82 (1925).

 

 

 

 

 

 

 

 

The Coming of International Law and Peace

 

By Benjamin B. Ferencz

published: November 1980

source: Whole Earth Papers, No. 14, November 1980, Global Education Associates

 

Introduction

The most fundamental of all human rights is the right of all human beings to live in peace and dignity without the constant fear and threat of imminent extinction. Yet, as we approach the twenty-first century, the world continues to face acts of aggression, genocide, apartheid, terrorism and other crimes against humanity. It is a bleak historical record but in the race between civilization and disaster, the eager and discerning eye may still find room for hope.

 

The history of humankind has been a chronicle of bloodshed and violence among peoples with competing needs, ideologies and aspirations. The contemporary scene merely confirms the historical pattern. The recent invasion of Afghanistan by Soviet military forces was condemned by many states as an act of aggression – the gravest of all international crimes. A Security Council resolution calling for withdrawal of foreign troops was blocked by a Soviet veto. The admonition of a hundred nations was rejected by the USSR.

 

In Iran, fifty American citizens have been held hostage despite months of effort by the international community. A non-enforceable order by the International Court at the Hague, calling for the immediate release of the captives, has been ignored. An investigative commission appointed by the United Nations was not even allowed to see the prisoners.

 

In Bogota, the ambassadors from many States were held hostage by other militant groups. The Archbishop of San Salvador was the victim of political murder while saying Mass. Judges and other officials are gunned down regularly in Italy and Spain. Terrorists find easy asylum in friendly foreign States. In under-developed lands and areas of conflict millions of innocent people face starvation while limited planetary resources are squandered on armaments that cannot ensure the peace. Surely something is dangerously awry in the international legal order.

 

In the face of the calamitous historical record one might be tempted to conclude that the ingrained practices of the past are inexorable and unalterable. But I am not ready to believe that humankind is destined to self-destruction. People can and must learn to settle their differences legally rather than lethally.

 

The many people who inhabit the earth are in varying stages of economic, social and political development. The infinite variety of their problems and needs must inevitably give rise to international ferment and conflict. It is vital for humankind that such conflicts be settled peacefully. The creation of an effective peace keeping machinery is thus of consummate importance. Global ethics must supplant national ethics. If society could agree upon a code of establishing minimum standards of international behavior and upon a court whose judgments would be enforced, it would be as significant to maintaining international peace as legal codification, adjudication and enforcement are to protecting the tranquility of every independent national State. But there can be no peace without justice, no justice without law, and no meaningful law without a court to decide what is just and lawful under any given circumstance.

 

There is no State in the world that does not have a system of domestic criminal law to help maintain the tranquility of its national society. Those who violate the established code of conduct are subject to sanctions in the name of the community whose peace has been disturbed. In contemporary international society no such system exists. Sovereign States are bound only by such restraints as they may willingly accept. They can and do arrogate to themselves the authority to act in any way they see fit to protect their own national interests. The General Assembly of the United Nations is a political and consultative body with no enforcement powers. The International Court of Justice can sit in judgment only on such disputes as States may voluntarily submit to it. There is no international court with jurisdiction to deal with international crimes or international criminals.

 

In a world torn by upheaval and ferment there is clearly need for a new system to help maintain international law and order. New norms of international behavior are being born. There is a growing recognition that all human beings, regardless of race, color, creed, or location, should be entitled to certain fundamental and minimum standards of life.

 

Thus, the destruction, waste or withholding of resources needed to sustain human existence may, one day, be prohibited as a criminal act. So too, endangering the environment, or violating disarmament agreements, or refusing to settle disputes by arbitration, adjudication or other peaceful means, should also be outlawed as crimes for which states and individuals may be held to account. Consideration of new norms has already begun, and in time, there will have to be plans for the establishment of new mechanisms for interpreting and enforcing the new international legal standards.

 

Acts that cause death and suffering on an international scale must be prohibited as international crimes against world order. Progress has already been made toward the establishment of a more effective juridical system. However, much work remains to be done. New institutions capable of resolving obdurate problems should not be expected to spring to life full-grown. The effort to define international crimes is less than a century old – hardly a blink in the eye of time. The fact that great difficulties still lie ahead is no reason for inaction. Quite the contrary – the sooner the problems are faced the sooner they will be resolved. It is my thesis that it is possible to replace the law of force by the force of law.

 

The Evolution of International Criminal Law

Since humans first took to the sea in ships certain acts have been condemned as international crimes against humankind. The pirate was subject to punishment whenever he was apprehended. Those engaged in the slave trade often faced a similar fate. The supremacy of the principle of law was imbedded in the very conception of the United States, and the young nation would soon inspire new concepts in the old world. When the thirteen colonies declared their independence in 1776, they agreed to be bound in a Federation with a single Supreme Court that would adjudicate disputes between the States.

 

The Hague conferences of 1899 and 1907 looked to compulsory jurisdiction of arbitration tribunals to replace the armaments race among opposing Powers, but their efforts failed, and the principle remaining alternative was to continue to settle their differences by armed combat. The need for an international tribunal was recognized, but sovereign States, steeped in the tradition of war, were not ready to entrust their vital interests to the decision of any impartial third body. The price for their folly was paid by inordinate suffering and by the lives of ten million soldiers and ten million civilians killed in the first World War.

 

The end of the “war to make the world safe for democracy” brought forth a renewed public outcry for an improved world order. Victors and victims demanded that those who had caused the war and violated humanitarian codes of warfare should be tried as criminals. A Permanent Court of Justice was planned to settle future disputes among States. The hopes for a better world were to rest on the twin pillars of a League of Nations and the rule of law.

 

In fact, the planned trial of the Kaiser for having initiated wars of aggression was never carried out – despite the clear obligations of Articles 228, 229 and 230 of the Versailles Treaty. War crimes trials, held in 1921 in the Criminal Chamber of the Reich Court at Leipzig, charging German commanders with atrocities, turned out to be a farce. In the US Senate an isolationist minority prevented the United States from becoming a member of the League. The new International Court that was finally created lacked the compulsory jurisdiction to settle the disputes that might lead to war. The edifice for a new world order was built on pillars made of sand.

 

US Secretary of State Elihu Root, and many other distinguished experts recommended, in 1920, that a High Court of International Justice be created “to try crimes against international public order and the universal law of nations.” The proposal was brushed aside by diplomats trained to focus primarily on the immediate interests of their own country.

 

The Kellogg-Briand Pact of 1928 was ratified by almost all nations. It purported to outlaw war as a means of settling disputes, but it left each State free to decide for itself when it could legally resort to self-defense of its own vital interests. Despite the world-wide economic depression of the late 1920’s, there was little recognition that new international perceptions were required.

 

The 1934 assassination of King Alexander of Yugoslavia by Croatian nationalists brought forth a world-wide demand that terrorism be punishable by an international court. When the self-styled “civilized States” assembled for that purpose, the desire for unanimity meant that the most conservative views would ultimately prevail. It was easier to adhere to the past than to embark on new experiments. By 1937 passions had cooled, and India was the only State to ratify the Convention for the Suppression of Terrorism.

 

Hitler’s defiance of treaty obligations, Italy’s aggression against Ethiopia, Germany’s invasion of its neighbors and the Soviet invasion of Finland brought little more than verbal denunciation by States too frightened to organize in any effective way to preserve the peace. The inability to act collectively in imposing economic or military sanctions led to the disintegration of the League that had been created to maintain the peace. Nations should have learned from the first world war that military alliances could not prevent combat and that without an enforcement mechanism, rules of warfare could not prevent atrocities. Refusal to suppress terrorism could only encourage terrorism and willingness to block aggression could only stimulate further aggression. Having failed to learn the lessons of the past, nations would soon begin to list world wars by Roman numerals.

 

World War II brought fifty-seven “independent States” into armed conflict. The enormity of the losses and the misery endured between 1939 and 1945 by countless millions can never be calculated. At least fifteen million combatants were killed. “Total War” became a new concept in which all humanitarian considerations were subordinated to the drive for victory. Nations that sought power and glory ended in ruins. Six million Jews were either worked to death or sent helplessly to gas chambers for extermination and cremation, in factories erected for the sole purpose of consuming human beings. Nazi opponents of all nationalities and religions were tortured and imprisoned. Three million Soviet prisoners died in captivity. By the time the war was over, man had learned to immolate whole cities with atomic bombs that could destroy all living things and damage the genes of future generations.

 

Once more victorious nations assembled to plan for a new international organization of States. Once more there were demands that those responsible for aggression and atrocities be placed before an international criminal court. Under American stimulus the four Allied powers agreed to create an International Military Tribunal for the trial of Axis war criminals. It was never intended that the Nuremberg court should serve merely as a mask of justice to hide the face of vengeance. Nor was it conceived as a legal instrument to enshrine the status quo in a changing world. The Nuremberg Charter, drawing upon historical precedents, was to mark a step forward in the codification and development of international law. Legal precepts that had slowly been evolving were to be reconfirmed, and a new era of humanity was to be encouraged.

 

The Nuremberg judgments made it clear that the massive abuse by a State of its own citizens was the legitimate concern of all humankind. The concept of “crimes against humanity” became a living legal reality because sovereign States had become perpetrators of outrageous assaults against human beings, including their own nationals. Those who were persecuted because of their ethnic origin, religion or political persuasion were promised the protection of the community of States by punishment of the offenders, regardless of their rank or station. The Nuremberg trials were also to confirm that launching a war of aggression was punishable by the international community, that superior orders would be no excuse for murder and cruelty, and that even the Head of State would be answerable to all of humankind for major acts of inhumanity that offended the human conscience. The war crimes trial at Tokyo followed the Nuremberg precedent.

 

The Nuremberg principles were affirmed by the General Assembly of the new United Nations in resolution 95 (1) of 11 Dec. 1946, and people were encouraged to believe that a universal rule of law was on the horizon. The UN Charter called for an International Court of Justice but, unfortunately, States were still unwilling to invest it with the necessary binding authority to resolve disputes that might lead nations to war. Further, no criminal jurisdiction against individuals was provided for. Jurists were beginning to recognize that certain acts of international immorality should be treated as international crimes, but it was only a beginning. American Ambassador Bernard Baruch proposed that any violation of an agreement to control atomic energy be punished as an international crime. The world is still paying for its failure to accept that sage advice.

 

The General assembly, in Resolution 260 (III) of 9 Dec. 1948, confirmed that genocide was a crime under international law, but nations were unwilling to create any international court to deal with the offense. Traditions that had endured for thousands of years could not be erased quickly, and it would take time to gain acceptance for new values and concepts, before new institutions for the maintenance of world peace could win widespread acceptance.

 

New Lights on the Horizon

At the end of 1948, a renewed determination to protect those who were oppressed inspired the UN Universal declaration of Human rights.

The European convention on Human Rights, signed in 1950, contained the dramatic innovation of a European Court of Human Rights where individuals could hold even their own governments to account before an international tribunal. It demonstrated that sovereign States could voluntarily agree to surrender a portion of their sovereignty in order that certain fundamental rights might be protected in a court of law. It would serve as a model for the creation of a similar court in South America in 1979.

 

An International Law Commission of independent experts was appointed by the General assembly to draw upon a statute listing acts that should be treated as offenses against the peace and security of humankind. In their 1950 report (General Assembly Off. Records; Fifth Sess. Supp. 12A/1316), they recognized that a code would have to go hand in hand with a court capable of enforcing it. But the outbreak of hostilities in Korea brought the super-powers into

confrontation, and plans and hopes for the development of an international law of peace were pout into the deep-freeze for the duration of the cold war.

A distinguished lawyer and diplomat, Ricardo Alfara of Panama, expressed the views of many legal experts when he said:

 

“If the rule of law is to govern the community of States and protect it against violations of the international public order, it can only be satisfactorily established by the promulgation of an international penal code and by the permanent functioning of an international criminal jurisdiction.”

 

The vast majority of the International Law Commission agreed that an international judicial organ was both possible and desirable, but many powerful States, including the Soviet Union, the United Kingdom and the United States, were still not prepared to surrender any part of their sovereignty to any impartial agency.

 

While the idea of an international peace code and an international criminal court remained on ice, the UN began to recognize new international crimes. The General Assembly condemned racial discrimination, apartheid, and violations of “economic and political rights of the indigenous population” in South Africa, as “crimes against humanity.” Other violations of human rights were also beginning to be characterized as criminal acts. When aerial piracy threatened the safety of civil aviation it was denounced as an international crime. Although enforcement machinery was still lacking, acts of politically-motivated terrorism again evoked demands for a punitive international response. The Vietnam War and the atrocities it evoked brought calls for retribution and challenged whether any nation was competent to judge the legality of its own acts. It was only when that war was winding down that the warming breezes of détente began to thaw the ideas for an international court that had been frozen for nearly two decades.

 

Formulation of a code of offenses against peace had been stymied by the absence of any agreed definition of what acts would constitute the crime of aggression. Until the code was ready no court was required, and thus there was a convenient excuse for international inaction. In 1973, a definition of aggression was finally adopted by consensus of the General assembly. Some States insisted that the definition could not restrain the use of force by those seeking self-determination. Although it contained such loopholes, the presence of such a definition eliminated the stated obstacle to further work on an international criminal code and an international criminal court.

 

On the 25th anniversary of the UN, the Secretary-General, decrying acts of aerial hijacking, called for “an international tribunal defending the interests of all peoples and nations.” Those who sought to justify the use of force pointed to the misery and frustration that gave rise to acts of violence. In their view, every conceivable means was legitimate to overthrow what they perceived to be a form of terrorism by the oppressive State.

 

The absence of any clear agreement by the international community setting forth what acts would not be permissible, regardless of the nobility of the goal, and the failure to create any independent agency to determine whether there had been a violation of the agreed standard of conduct, could only lead to additional acts of violence. The victims would describe the deeds as criminal terrorism, and the perpetrators would hail their own actions as justified by the struggle for freedom, self-determination, national liberation or some other apparently laudable objective. One person’s terrorism was another person’s heroism, and without a code and a court, there was no way of determining which was which.

 

Many statesmen were beginning to recognize that if there was to be a peaceful international community the conduct of all groups, be they countries, militants or corporations, would have to conform to moral standards that were acceptable to the commonwealth of humankind.

 

A group of twenty “eminent persons” began to prepare a code of conduct for multi-national corporations, and its work formed a basis for a UN Commission on Transnational Corporations that, according to ECOSOC Res. 1913 (LVII) of 5 December, 1974, was to meet annually and report to the Economic and Social Council of the UN. These, activities, admittedly still fraught with controversy, evidenced the beginning of a new sense of corporate morality that was to be imposed via a code of conduct established by the international community.

 

In 1973, in Resolution 3068 (XXVIII), ninety-one States declared apartheid to be an international crime “irrespective of the motive involved.” Thus, for certain offenses the loopholes were to be closed, but not for all international crimes.

 

A Convention on the Prevention and Punishment of Crimes against International Protected Persons, including Diplomatic Agents, Resolution 3166 (XXVIII), was adopted by consensus at the end of 1973. The draft that had been prepared by the International Law Commission stipulated that offenders were to be extradited or tried by the arresting State “without exception whatsoever.” Furthermore, the outcome of such trials was to be reported to the Secretary-General for public dissemination.

 

Most states would have accepted the ILC draft, but at the last moment a new clause was added, exempting from its restrictions, “peoples struggling against colonialism, alien domination, foreign occupation, racial discrimination and apartheid in the exercise of their legitimate rights to self-determination and independence.” In order to reach consensus, the exculpatory provisions were adopted. Some groups were unwilling to see that if the means employed to attain a just goal failed to respect human life, all of humankind would live in jeopardy. Diplomats, having agreed to undercut the Convention to Protect Diplomats, should not have been surprised to find themselves among the victims.

 

The Conventions that gave the appearance of controlling international lawlessness, such as the Friendly Relations Declaration, (Res. 2625 (XXV), 24 October, 1970), the Hijacking Conventions of Tokyo in 1963 and Montreal in 1971, the Convention to Protect Diplomats of 1973 and the 1974 definition of aggression, all contained opaque clauses that allowed nations to interpret the consensus agreements in ways that would best suit their own particular goals.

 

The Convention Against the Taking of Hostages, (Res. 34/146), that was adopted by consensus in December 1979 contained a general condemnation of the crime but left the same old loopholes, exempting those who seek self-determination by every available means. A Convention to Prevent International Terrorism, (Res. 34/145), is still in the drafting stage while nations and groups argue about their different perceptions of permissible and impermissible international behavior.

 

It might have been anticipated that although terrorism would be condemned in principle, the failure to agree in substance and the unwillingness to create any enforcement mechanism would mean that the crime would not be deterred. The humanitarian right of asylum from persecution was being distorted to grant asylum from prosecution to those who had disregarded all humanitarian considerations.

 

Failure to act effectively against terrorism produces more terrorism. Inability to stop aggression stimulates new aggression. As long as sovereign States are not prepared to take the steps logically required to produce an international anarchy can be expected to continue. Yet there are many positive signs that the old order is changing.

 

The lights of progress flicker and grow dim from time to time, but as one studies the historical evolution of ideas, there can be little doubt that the general trend illuminates a brighter future. The very fact that the subjects are being debated is itself an encouraging sign. It proves that unbridled sovereignty is being replaced by a determination to find solutions to problems that are now recognized to be the legitimate concern of the entire family of nations.

 

A Brighter Future

In only the past quarter of a century the world has witnessed the dissolution of a colonial system that carried within it the seeds of its own destruction. This major upheaval of international society brought many new States into being, eliminated the automatic majorities formerly commended by the western world and fragmented the structure of the United Nations. Within the newly developing nations, rival religious, ethnic, political or religious factions fought to obtain power or control. They demanded a more equitable share of the bounty enjoyed by the developed world. Their political allegiances became the target of competing social systems – one stressing the civil and political rights of individual freedom, and the other focusing on economic stability and the security of the State.

 

Both superpowers, the Soviet Union and the United States, sought a world order based on their own models. It is not surprising that in the search for accommodation, there have been pitfalls and setbacks. International society is still an undeveloped community, and it is moving slowly along its difficult and winding road. Nevertheless in the struggle between socialism and capitalism we must now allow humanitarianism to become the victim.

 

As we scan the horizon, in the fields of economics, human rights and law, significant progress is clearly visible. The worst excesses of laissez-faire economics have gradually been reduced. Many States now tax a portion of private and corporate wealth according to ability to pay for the common welfare. The dispute is not whether there should be State controls but the extent of those controls.

 

A multitude of international agencies have been created to cope with the economic needs of the underdeveloped regions. The efforts to deal with the world’s monetary system, development loans, transfer of technology, the conduct of multi-national corporations, the elimination of trade barriers, and the creation of norms of economic behavior, all reflect the growing movement toward cooperation among States.

 

International economic problems are far from being resolved, but they are increasingly being dealt with on a world-wide basis. The distribution of natural and national resources is no longer a matter of purely domestic concern. It is increasingly being recognized that no nation can be an economic entity unto itself and that it must act in concert with other countries if it is to enhance the interests of its own people. Nations are beginning to think about a Charter of Economic Rights and Duties and a New International Economic Order.

 

Reform of the UN system and charter in order to improve the functioning of international society is already under consideration. The special committee on the charter of the United Nations and on strengthening the role of the Organization has had a series of meetings since being established in 1975, and has made a number of proposals for strengthening the UN system.

 

The rising cost of armaments, estimated at over a billion dollars a day, is directly related to the economic problems of the world. Admittedly, the cost of defense is consuming the very resources needed to diminish the privation that gives rise to the threats that jeopardize the social order. Yet agreements have been reached in areas that could never have been imagined even a few years ago. United Nations Peace-Keeping Forces have played an important peace-keeping role in Egypt, Lebanon and other parts of the world as reported by the Secretary-general in his report of Sept. 11, 1979 (A/34/1). Treaties have banned the testing of nuclear weapons in outer-space and on the ocean floor. Non-proliferation treaties are in force. A new treaty seeks to govern the activities of States on the moon and other celestial bodies. Despite the current difficulties with Salt II, the efforts to limit strategic arms have made some progress even thought they are far from adequate. It will take time but people are slowly coming to realize that unless we destroy all weapons of mass destruction the weapons will destroy us all.

 

Growing awareness of the link between economic and human rights can be seen in other dramatic developments of recent years. It was only in 1967 that Arvid Pardo of Malta gave expression to the inspiring dream that the resources of the ocean should be used as “the common heritage of humankind” so that its immense wealth could benefit those most in need. It now appears that there is growing support for a Common Heritage Fund, for a Sea-Bed Authority and for an advanced dispute-settlement system through judicial-type procedures. It is expected that a Law of the Sea Treaty will be adopted by most of the nations in the world in the not-too distant future. If such substantial progress can be recorded regarding governance of four-fifths of the surface of the planet can the remaining one-fifth be far behind?

 

States are learning that the voluntary surrender of part of their sovereignty is not only in their own interest but is also an essential prerequisite for a peaceful life in the 21st century. New values of caring and sharing will have to be learned as part of the process of adapting national needs to international needs. Today, too often, slogans replace reason and politics displace principle. Too often innocent persons are subjected to cruelties and deprivation because they do not share the color, religion or political conviction of those in power. Universal tolerance and compassion must be learned, and is being learned through such new institutions as the courts of human rights, the European Parliament, the Helsinki accords, and all of the agencies of the United Nations that deal problems of world health, conditions of labor, refugees, children, the rights of women, and the myriad other problems that affect the lives of every human being.

None of these new programs is complete. People are still persecuted and millions still cry for their fair share of humanity. But the significant change in recent years is the widespread recognition that evil and intolerable conditions should be charged. Moral obligations widely acclaimed have a way of eventually attracting sufficient public support to make flouting them a perilous adventure for any government.

 

The Road Ahead

Legal agreements and law provide the framework in which international society balances its inconsistent and conflicting interests. In an interdependent world there are limits to the extent that any group can determine its own destiny. A legal system that allows the parties to interpret the law as they see fit is unworthy of respect because it is no system at all. Until all people are secure in their rights no people will be secure.

 

The Nuremberg Tribunals held forth the promise that all people would, in future, be accountable to the law, and that aggression and crimes against humanity would not go unpunished. Many acts were condemned as international crimes but no permanent international court was ever created to punish the guilty.

Efforts to extend the compulsory jurisdiction of the International Court at the Hague have been intensified but that court has no authority over individuals or their crimes. The creation of an international criminal court was debated in meticulous detail at the United Nations over twenty years ago, but the “time was not yet ripe.” It’s getting riper every day.

 

The United Nations has on its agenda for the end of 1980 the long-delayed Code of Offenses against the Peace and Security of Mankind. The fundamental rights and duties of States will have to be reconsidered. The parties will have to think about providing compulsory and binding authority to an international criminal court as well as more effective procedures for international law enforcement.

 

National security of States depends not on weapons that are suicidal but upon the peaceful, just and binding settlement of conflicts. It is not a matter of idealism but of self-interest and survival. As nations resume the debate about a code for peace and a court to enforce it they will, hopefully, begin to understand each other better. Even if, as is to be expected in these formative years, the resolutions seeking to define international crimes against world order are faulty or ignored, the process of debate and drafting will be a learning experience. Learning is the beginning of wisdom, and wisdom, not force, is the road to enduring peace.

 

Conclusion

No one can say with certainty whether civilization will win its race with disaster. Without law and order in international affairs there will be chaos. Despair is not a viable alternative to hope, and, at the risk of being branded an optimist, I have noted the movement, however hesitant, toward universal human standards that are slowly beginning to supplant the selfish sovereignty that has governed this planet for centuries. The next two decades will see changes that are today unforeseeable. New mechanisms will be created to cope with international crimes that now disrupt international society and its inhabitants. It may be anticipated that the technology that brought men to the moon and created the awesome capability of thermonuclear annihilation will, some day, be applied to the cause of peace. Those who cherish life on earth must encourage governments and decision-makers to act in accordance with humanitarian rather than political considerations. Those who yearn for the welfare of all human beings must combine their efforts in a vast multinational network of like-minded individuals and organizations to replace the existing values of violence and greed with new rules for a more just and tranquil world community, where law and order is the practice rather than only a distant dream.

 

 

 

 

 

 

 

The United Nations Consensus Definition Of Aggression: Sieve Or Substance

 

By Benjamin B. Ferencz

published: October 1975

publisher: The International Journal of Law and Economics

 

Introduction

A profound, yet almost imperceptible, change slowly is taking place among the nations of earth. A burgeoning awareness exists that the vital resources of this planet are not unlimited. The existing disparities in the human condition in various parts of the world, which have been forged in the international conscience through improved communications, have led to persistent demands that the widening economic and social gaps be narrowed. Nevertheless, despite the proliferating capacity to annihilate all living things, expenditures for armaments continue to increase, as fear drives nations to waste the assets that are needed to enhance the quality of life. In the face of the hazards created by such conflicting interests, the competing sovereign States are beginning to recognize that a more rational world order is imperative for human tranquility, if not survival.

 

This is not to suggest that a major transformation of the international system is about to take place. New States still are being born, and the spirit of nationalism and self-interest still prevails. Yet there is something stirring on the distant horizon and the speed of its approach is difficult to assess. Within the last decade alone, there have been global developments that would have been unthinkable even a quarter-of-a-century ago. Today it is not uncommon for diplomats and statesmen to spend much of their time attending world conferences to consider transcontinental controls over such matters as the pollution of the environment, the use of outer space, the exploitation of the seabed for all mankind, the limitation of nuclear and strategic arms, the uniformity of monetary standards, world health services, the distribution and pricing of oil, food, raw materials, and even the charting of economic rights and duties which in the past were considered part of the untouchable internal affairs of independent sovereign States.

 

The growing awareness of the interdependence of all peoples and the trend toward dialogue and attempted understanding are manifest. In many areas of deep-rooted contention, agreements denoting progress may still be far away; however, despite repeated setbacks, the forward thrust of a process of accommodation is clearly visible and unmistakable. The consensus definition of aggression reached by the United Nations General Assembly at the end of 1974 [2] reflects the fears and doubts of our time, but it is a tributary of the stream which is gradually moving States toward a more secure and peaceful international society.

Before considering whether the definition is just a sieve or whether it has substantive significance, it may be useful to cast a brief glance backward at its sources and its history.

 

The Origins of the Definition

At the end of the last century the Czar of Russia, recognizing that he could not cope with the financial burden of an arms race against France and Germany, convened a Peace Conference of 26 States in the Hague. A Convention for the Pacific Settlement of International Disputes was drawn up, containing a formal plan both for the mediation of disputes and for the creation of a Permanent Court of Arbitration. The hope was created in some minds that war would no longer be the approved and lawful method whereby sovereigns ended their disputes. The small print in all the plans made it clear, however, that the provisions that disputes be settled by arbitration would be neither compulsory nor enforceable since none of the sovereign States was really prepared to surrender its independence to any third party or group. What emerged from the 1899 and 1907 Conferences was not a plan to prevent war but some rules on how the States could go about killing their respective nationals in a more gentlemanly manner. The cost of their folly was soon to be paid. Fifteen million people lost their lives in World War I.

 

Woodrow Wilson led the call for a new world order. A Peace Conference and a League of Nations would prove that the enormous losses of 1914-1918 had not been in vain – at least that was the dream! In fact, however, the Treaty of Versailles and the Covenant of the League were more a defensive alliance of the victorious States than an effective plan to avoid the recurrence of new international conflicts. The existing democracies were determined to band together to “make the world safe for democracy.” A proposal for an international military force to maintain the peace was given scant consideration and the idea of a permanent High Tribunal, which might even bring Heads of State to trial for such novel offenses as initiating wars or committing crimes against humanity, was strongly opposed by the United Nations and others. The League’s stated plans to bring armaments under international control and to apply effective sanctions against an aggressor failed completely. Those who believed they had power were not willing to surrender it.

 

With America, shackled by isolationist leaders in the Senate, refusing to become a member of the League, the smaller States turned to treaties of mutual assistance in the hope that they might prove to be a more effective deterrent to war. It soon became obvious that if several States were to join together to repel aggression, it would be necessary to have some understanding about how the aggressor was to be identified.

 

The Council of the League and various committees wrestled with the precise criteria that could help determine which of the conflicting parties was the aggressor. Economic and industrial mobilization, propaganda, troop movements, large-scale attacks, the crossing of frontiers, failure to accept a cease-fire, or refusal to submit a dispute to a judicial body for binding determination, were all considered as possible indicators of aggression, which would then justify retaliation by the victim and its supporters by means of economic, financial and military sanctions. The detailed studies and draft treaties of non-aggression might have had some chance if the sovereign powers were really willing to accept the obligations which they entailed, but alas, in the 1920’s this was clearly not the case.

 

Great Britain was not prepared to commit the resources of its empire to preserve European boundaries. The United States Senate regarded foreign compulsory arbitration of disputes as an anathema. The ineffective substitute that unfurled was as the General Treaty for the Renunciation of War – more commonly known by the name of the United States and French Foreign Ministers – as the Kellogg-Briand Pact, signed in Paris in 1928. [3] To the acclaim of all self-styled “civilized states” war was officially outlawed as an instrument of national policy, and the parties pledged to resolve all disputes by pacific means. What could be simpler, clearer or easier?

 

The Pact of Paris contained one big loophole which doomed it to be ineffective, but made its acceptance palatable to even the great Powers. Every state was left free to decide for itself whenever its vital interests were threatened, and then it would be legitimate to resort to war as part of what was conceived to be an inherent right of self-defense. Colonial empires and the territory covered by the self-serving Monroe Doctrine were all considered to be preserved. The Pact was in effect another plan to guarantee the status quo. The only thing it could really assure was that in the future no war of aggression would be waged – except in self-defense.

 

In 1933 Mr. Maxim Litvinoff of the Soviet Union argued that the Disarmament Conference in Geneva that it would not be reasonable to expect the Soviet Union, then the only communist State, to submit to the judgment of other States that were clearly hostile to the Soviet system, unless there was an agreement in advance setting forth “how the aggressor is to be determined and who is to determine the aggressor.” He submitted for consideration a specific definition which was given careful study by a Committee of 17 nations under the chairmanship of M. Nicolas Politis of Greece.

 

The Committee’s final report praised the Soviet initiative and adopted most of its terms. The essential fact needed to identify the aggressor objectively was to ascertain which party was the first to use armed force. A declaration of war, invasion, attack on territory, vessels or aircraft (even without a declaration of war) and supporting armed bands which invade another State, were other key indicators of aggression. No political, economic, military or other consideration could be used to justify aggression. The Litvinoff/Politis definition made no reference to the term “war,” which was itself ambiguous, but simply outlawed “resort to force.” The problem of sanctions was also left aside as a separate issue.

 

M. Paul-Boncour of France called the definition “the chief keystone of the edifice of mutual international security,” but not all members of the Committee shared his point of view. Germany, Hungary, Italy, Spain, the United Kingdom and the United States preferred an elastic definition which would allow all the circumstances to be taken into account. No final agreement could be reached. The Politis Report was buried amid the other forgotten papers of the futile Disarmament Conference of 1932-1934.

 

As the League of Nations began to crumble in the second half of the 1930’s, all attempts to define aggression and to set up an effective international system of security came to an end. States returned once more to the system of international anarchy called sovereign independence. World wars would come to be listed by Roman numerals, for not having learned the lessons of history and not being ready to take the steps necessary to identify and repel aggression; the nations of the world were doomed to relive the horrors of the past. To the 15 million lives lost in World War I there would now be added another 35 million lives to be lost in World War II.

 

Like Phoenix arising from the ashes, out of the second world-wide holocaust that arose once more the hope that a new bird of peace would be born “to maintain international peace and security and . . . to take effective collective measures for the prevention and removal of threats to the peace and the suppression of acts of aggression . . . .” The plan conceived at Dumbarton Oaks in 1944 was that the great Powers would, in the future as they had in the 1940’s, act in concert to suppress whatever aggression might arise. When they assembled in San Francisco to create the new Charter in 1945, many of the delegates hoped that the deficiencies of the League would be corrected. Some, like the Bolivian representative, spoke out for a definition of aggression as essential to a system of world security, together with a mechanism of international justice which would take into account the economic and social well-being of the great masses of the people. M. Paul-Boncour, who remembered well the lessons of the League, appealed for an international force which would enforce the decisions of the Security Council in suppressing aggression. Unfortunately, the title “United Nations” was a misnomer. It expressed only a hope and not a reality, as the war-time alliances dissolved into the cold-war rivalries of competing social systems.

 

The United States and the United Kingdom once more led the majority in opposition to any definition of aggression in the United Nations Charter. The conclusion was reached that the determination of whether there had been a threat to the peace, breach of the peace or act of aggression was best left to the discretion of the Security Council. The Council was composed primarily of those States which had the capacity, and therefore the temptation, to commit aggression; at the same time, each one was given the power to veto any decision determining that aggression had taken place. It was like asking the fox to guard the chicken coop.

 

If the United Nations Charter built its own weakness within its frame, perhaps the rule of law might be invoked to deter future aggressions. Justice Robert A. Jackson, on leave from the Supreme Court of the United States, was designated by the President of the United States to help establish procedures for the trial of the major German and Japanese war criminals. It was his conviction that the time had finally arrived in history when the law had to take a step forward, and that the ancient notion, derived from theories of divine right, that the heads of government were immune from prosecution, would have to yield to the common sense of a new day. He proposed what had become the existing common law of nations be reaffirmed by declaring that aggressive war was a crime, for which the heads of state could be held to personal account. He was able to persuade his British, French and Soviet colleagues to agree, but he did not succeed in convincing them that the Soviet definition, or any other definition of aggression, should be written into the Charter of the International Military Tribunal.

 

The International Tribunal and subsequent courts in Nuremberg and Tokyo, rejecting arguments that they were imposing ex post facto justice, noted that the defendants must have known from the plethora of treaties and international agreements and declarations that aggression was a criminal act. Even without a specific definition it was agreed that by any permissible standard the unprovoked assault and invasion of peaceful neighboring States was a Crime against Peace for which the responsible leaders would be held to culpable account. At Nuremberg the trials were seen as part of the great effort to make the peace secure. The United Nations was to take the political action to prevent war, if possible, and to take joint military action to assure that any aggressor would be defeated, while the international criminal court would apply the law to deter statesmen from committing the greatest of all offenses against mankind. The principles of the Nuremberg Charter and Judgment declaring aggressive law to be a crime ratified by the General Assembly of the United Nations. Would it, nevertheless, turn out to be only “victor’s justice?”

 

Law does not operate in a political vacuum. It reflects the standards of the society that it is to serve. None of the Allied powers that joined to establish new legal principles at Nuremberg was prepared to be bound the rules which it purported to lay down for all the world. In the following years every one of them used armed force to obtain political ends, as invading armies marched into the countries of Eastern Europe, the Middle East, the Far East, and elsewhere. The United Nations was paralyzed by the power of veto. No new international courts were established to cope with charges of aggression, war crimes, terrorism, genocide, apartheid and other crimes against humanity. It would take more time and more effort, and perhaps more suffering, before it would become possible to achieve the aspirations of the Nuremberg trails that the force of law would replace the law of force.

 

While many of the nations of the world were busy maneuvering for political power, several member States continued their efforts to move toward a more peaceful world order. It was a confrontation between the “realists” who believed that only military power was persuasive, and the “idealists” who continued, despite all the adversities, to place their trust in more pacific methods.

 

The United Nations Moves to Define Aggression [4]

As the Fifth Session of the General Assembly in 1950, the Soviet Union, for reasons best known to itself, once more proposed that aggression be defined. A slightly revised draft of its 1933 definition was submitted. The subject was shunted to the International Law Commission which was then busy considering a Code of Offenses Against the Peace and Security of mankind, as well as the establishment of an International Criminal Court. The views off various governments were solicited, and the general feeling prevailed that the concept of aggression was a complicated one which was not susceptible to definition. The Assembly then turned the problem over to a Special Committee of 15 States which, after due deliberation, was unable to reach any agreement. The Assembly then enlarged the Committee to 19 Members, some of whom considered a definition of aggression to be “useless, dangerous and impossible.” Further action on the proposed Code of Offenses Against the Peace and Security, and the related International Criminal Court, was linked to agreement being reached on the definition of aggression. After a few years with almost no progress, a third Special Committee was appointed and expanded to 21 members. Ten years after the first Special Committee had been designated to consider a definition of aggression the debate still centered on the question of whether the time was appropriate for the Assembly to act. With fighting going on all over the globe – including in India, Pakistan, Cyprus, the Congo, Cambodia, Vietnam and the Middle East – it was clear that it was easier to commit aggression that to define it.

 

In 1967, again on the initiative of the Soviet Union, the Assembly established a new Special Committee composed of 35 Members, geographically distributed and representing the principal legal systems of the world.

 

Each year its mandate to strive for a definition of aggression was renewed as the Committee slowly moved closer toward an accommodation of sharply divergent views. After 7 years on intensive debate, which moved back and forth from New York to Geneva in annual five-week sessions, the Committee was finally able to report to the Sixth (Legal) Committee of the United Nations at the end of 1974 that it had reached a consensus definition of the meaning of aggression. It represented the culmination of almost half a century of international effort and was indeed an historic achievement. It was made possible not merely because of the determined efforts of such dedicated public servants as its last Chairman, Prof. Bengt HGA Broms of Finland, Joseph Sanders of Guyana, the last Rapporteur, George Lamptey of Ghana, who spoke for many non-aligned States, but also because of the new spirit of détente which moved the effective Robert Rosenstock of the United States and D.N. Kolesnick of the Soviet union into an atmosphere of improved harmony and cooperation.

The consensus definition of aggression was adopted by the General Assembly on December 14, 1974, without putting it to a vote. The 138 Member States were by no means agreed upon its meaning. If it had been put to a vote, China and a few others would have abstained. A few States noted some objections, and some special interpretations were noted for the record. The entire definition was a carefully balanced entity, containing negotiated compromises and deftly obscured clauses which were deemed necessary in a process of reaching a consensus. The full text, consisting of a Preamble and eight substantive Articles is attached, together with the Sixth Committee’s report, as an appendix.

 

The Preamble of 10 paragraphs restates, in somewhat altered wording, some of the relevant principles derived from the UN Charter. Some delegates felt that the definition might serve to clarify and thereby possibly even to expand the Charter terms. Others were convinced that no matter what was in the definition, the Charter itself remained the unalterable basic document for interpreting the validity of the actions by States. Some thought the definition has binding authority while others thought it was advisory only.

 

Principles of international law that had been accepted in the ambiguous “Friendly Relations” Declaration, which had won the consensus support of the Assembly in 1970, were also reaffirmed, with occasional variations in language and nuance designed to strengthen a particular political interest of one State or the other. These were frequently coupled with references to such imprecise clauses as “in contravention of the Charter,” or that events had to be judged “in the light of all the circumstances.” The Preamble set the stage for some of the disagreements which were to become more apparent in the substantive provisions that followed.

 

The general outline plan of the substantive definition was fairly simple. It would start with a declaration setting forth briefly the generic nature of aggression. This would be followed by some specific illustrations of the more flagrant and easily identifiable forms of aggression. A subsequent article would confirm that only the Security Council could determine whether aggression had actually occurred, and that the Council would retain widespread discretion. Some consequences of aggression would be listed, and finally the circumstances would be described in which the use of force might be lawful. One might wonder why it should have taken 50 years to prepare such a seemingly uncomplicated document. The answer could be found in the debates of the Delegates, as every word of every draft submitted by various combinations of States over a period of many years was taken apart, analyzed and challenged.

 

The opening article, which sought to capture the broad meaning of aggression in one declaratory sentence, heralded some of the forthcoming areas of basic disagreement. Ecuador and others insisted that the prohibition of force being employed against “territorial integrity” also included, by implication, “territorial waters and air space” – and no limits to either were indicated. The Soviet Union deleted, by its own interpretation, the word “sovereignty” which it found redundant and objectionable. Many states pointed to phrases which they considered so ambiguous and imprecise as to be almost meaningless: Thus, the use of force, to be aggressive, had to be “Inconsistent with the Charter;’ condemnation extended only to the use of armed force “as set forth in this definition;” Groups of States were only covered “where appropriate.” Very many states complained that by its terms the definition referred only to the use of armed force, whereas there were other forms of aggression, such as economic exploitation or political coercion, which could be equally destructive of a nation and its institutions, and which should merit equal proscription. Failure to accept agreed procedures for peaceful settlement of disputes also disappeared from the definition. These shortcomings, all having some degree of validity, were submerged in the desire to reach a consensus without further indefinite delay.

 

Article 2 was a key provision, for by its terms it compromised what had been perhaps the most difficult stumbling block over the years. The Soviets, going back to their 1933 draft, had always maintained that the most effective and objective deterrent against aggression was to condemn as the aggressor that state which had struck the first blow. The argument in opposition, led by the United States and the United Kingdom, was that it was often difficult to tell who had been the first to use armed forces and that the motives, purposes, or intents of the combatants should also be taken into account. Their reasoning became more persuasive in the atomic age when it could hardly be maintained convincingly that in order to avoid being labeled the aggressor, a State would have to wait passively and be destroyed. The problem was to find some formulation which would reconcile the view that priority of the use of force was decisive and the opposing view that the intent of the action would determine its legality.

 

The compromise which emerged, after years of heated debate, was that both points would be taken into account. The technique for arriving at that compromise was to employ language that enabled the parties on both sides to interpret that Article to suit their own prior conception.

 

Thus the first use of armed force, in order to be significant in this context, had also to be “in contravention of the Charter.” Many saw this as a loophole in that States might argue that their use of force was not “in contravention.” France said only the Security Council could decide that question. Even the use of force in contravention of the Charter would only be “prima facie evidence of an act of aggression.” Many States held that “prima facie” meant that it was aggression until and unless that conclusion was rebutted. Others could not understand how the application of force in contravention of the Charter could fail to be aggression. States with the tradition of the common law argued, however, prima facie case only gave rise to a suspicion of guilt and that there could be no determination that aggression had occurred until and unless there was a specific prior finding to that effect by the Security Council.

 

According to Article 2, the Council could, “in accordance with the Charter” – whatever that meant – take “other relevant circumstances” into account in refusing to reach any determination or in deciding that no aggression had taken place. Among the “other relevant circumstances,” the purposes and intentions of the parties, which many States had argued were not capable of objective verification, also could be considered. A final “de minimis” clause, excluding acts of consequences “not of sufficient gravity,” also provided a way out if the Security council decided, for political or other reasons, that it did not wish to act. Among the five permanent Members of the Security Council, there were at least three different views regarding the meaning of several of the clauses contained in article 2.

 

Article 3, listing certain acts that would qualify as aggression, also contained ambiguities. A declaration of war, having gone out of style, was no longer considered relevant. Only acts and not words would be considered and even the seven specific categories listed would not be decisive, but would only qualify the deeds for consideration as possible aggression. “Invasion and attack” by armed forces against “the territory of another State” being the classical acts of aggression, of course headed the list. “Military occupation, however temporary’ and “annexation” were thrown in for good measure to support some contemporary political objectives. The “use of weapons . . . against the territory of another State” was also listed. The condemnation of “bombardment,” which would seem to have been adequately encompassed within the much broader prohibition against “any weapons,” remained as a carry-over from the days of the Graf Zeppelin. The “blockade of the ports or coast” of another State was another listed indicator of aggression, but what precisely constituted a “blockade,” and to what extent the principle of blockade applied to land-locked States having no access to the sea, was deliberately left vague.

 

Whether the prohibition of attacks on “land, sea or air forces” also covered attacks on maritime vessels fishing in foreign waters was not clear from the definition. Coastal States wanted to be sure that if they took armed action within what they considered to be their territorial waters to protect themselves against foreign predators, that they would not thereby subject themselves to massive counterattacks as aggressors. The question was left open by again using ambiguous language in an explanatory clause which required lawful action to be “not inconsistent with the Charter.”

 

Whether indirect acts of aggression should be included in the definition was a source of major contention. Many States correctly noted that support for armed bands and subversion were among the most frequently used forms for overthrowing a foreign government and therefore any definition which ignored that reality would be unworthy of support. Others felt that it would take too long to agree upon a definition which sought to go too far, and therefore the focus should be restricted to the direct use of armed force. Some felt that assistance to liberation movements should not be discouraged or prohibited. To obtain consensus a number of indirect acts of aggression were added to the proscribed list. Overstaying permission to stay on foreign soil, and allowing one’s territory to be used for aggression against another State were included in the forbidden sphere. The main difficult arose in trying to define exactly how far a State could legitimately go in assisting armed bands acting against another State. The compromise which emerged after years of wrangling was to condemn the sending of armed bands which carry out acts “of such gravity as to amount to” the other listed acts of aggression. Then came the punch line: “or its substantial involvement therein.” The uncertainty and flexibility of the last cause made the listing acceptable to all sides – provided it was coupled with other concessions and safeguards which followed later.

 

Article 4 contained the catch-all sentence giving the Security Council open-ended discretion to decide that acts other than those listed could also constitute aggression. Only China expressed doubts about the wisdom of giving the Council, rather than the Assembly as a whole, such great authority. The foxes, of course, did not even consider allowing the chickens to decide for themselves when defensive action was necessary and justified; and the chickens, in coops of different political colors, didn’t dare make a sound.

 

Article 5 was an interesting amalgam of three unrelated ideas. The opening declaration that “No consideration of whatever nature . . . may serve as justification for aggression” had its origins in the 1933 draft. It may be noted that its phrasing does not say no considerations will justify the use of “armed force”; but rather that it will not justify “aggression,” which, as we have seen in the preceding Articles, is a conclusion that only the Security Council may reach. It was not surprising therefore that some States, when indicating their willingness to accept the sentence, described it as a rather meaningless truism. An explanatory note in the Committee’s Report tried to give the sentence substance as a further prohibition against unlawful intervention.

 

One of the more disturbing paragraphs in the definition of aggression was the reference in Article 5 to the criminal nature of aggression. After some US prodding, the British insisted that only a war aggression was a crime, thereby raising the entire difficult question of when and whether a state of war existed. At least one prominent British jurist felt that only the belligerent itself could decide whether it was at war. It would follow, therefore, that if a State declared that it was not at war it could never be guilty of aggression. Article 5 also seemed to ignore the Nuremberg decisions that even a threat of aggression that causes capitulation without a fight is a Crime against Peace. The statement that “aggression gives rise to international responsibility,” with no mention made of “personal responsibility,” which had been one of the main objectives of the Nuremberg proceedings, seemed to be an attempt to set the clock back to the days when the King could do no wrong. The British, denying any retrogressive purpose, were merely trying to make sure that international law would not go any further in that direction than it had already gone. They were prepared to go along with the Soviet’s compromise proposal that the subject be left open for possible further clarification at a later date, and that face-saving thought was added as an explanatory note in the report.

 

The final affirmation in Article 5 that territorial acquisitions resulting from aggression would not be recognized, was a badly worded attempt to reaffirm the principle that no special advantage resulting from aggression would be lawful – a principle well established in law and generally ignored in practice.

 

We have seen that “self-defense” had been the most frequently used and abused excuse to justify the unilateral or collective application of armed force. Many smaller States insisted that Article 51 of the Charter, which preserved “the inherent right of individual or collective self-defense if an armed attack occurs,” meant just what it said, and that armed force could only be used as a temporary measure to repel armed force. Some of the large western States maintained that armed might could lawfully be applied to either repel an armed assault or any other form of indirect aggression that fell short of being an armed attack. The Soviet Union opposed any limit of proportionality in response to aggression. To avoid having the attempt to define aggression turn into a debate on the definition of self-defense the Committee members concluded, in article 6, that they would be well-advised to simply adopt a neutral text which had already been accepted in the “Friendly Relations” Declaration, and which, once more, left the subject completely open.

 

Article 7 was the best illustration of the confrontation of ideas which seemed to be irreconcilable, and the achievement of consensus by the insertion of abstract principles which could be interpreted differently by those with opposing views. The issue was whether the use of force for the purpose of achieving self-determination or liberation from foreign domination would be lawful, or whether such force or assistance to such forceful efforts would constitute the crime of aggression. No one challenged the general right to self-determination, freedom and independence, but who exactly had the right and what means could be used to achieve it was quite another matter. The right to “self-determination” was restricted to “peoples forcibly deprived” thereof. Whether that meant deprived by force of arms or some less violent form of coercion was unclear. The Soviets wanted the rights restricted to “dependent and colonial peoples,” apparently to keep the problem out of their own backyard. France and others worried about the territorial integrity of the States if violence against such a vague concept as “alien domination” were to be sanctioned. Restrictive clauses therefore were added to require that all action be consistent with the Charter and the “Friendly Relations” Declaration, which already contained a maze of ambiguities, all of which were incorporated thereby by reference.

 

Many western States concluded that the restrictive clauses made it clear that unrestrained violence, no matter what the purpose, had not been authorized by this definition. Those committed to liberation and self-determination insisted that Article 7 and related Articles, assured that any force could legitimately be applied, and any assistance could lawfully be rendered, to aid the overthrow of alien oppressors by “peoples under colonial and racist regimes or other forms of alien domination.” Despite the agreement on the formulation of the text, there was no agreement in fact about what means could lawfully be employed, what aid could be received, and against whom such aid and means could be employed if condemnation as an aggressor was to be avoided.

 

The concluding Article 8 stipulated that every part of the definition was interrelated and formed an essential ingredient of one interconnected and inseparable whole. This assured that the meaning of any one provision could properly be understood only in the light of the other clauses and phrases together with all of their hidden nuances.

 

Conclusion

For fifty years and more the nations of the world were unable to reach any agreement on the definition of aggression. The consensus, despite all its shortcomings, was an historic achievement, even though it cannot be said that the definition closed all the old loopholes and opened the door to a new social order among States. Some of the ambiguities, the inconsistencies, the conflicting interpretations, and a few of the omissions have been noted. With countries in different stages of social, political and economic evolution, the time had not yet come when they were prepared to surrender the traditional prerogatives of sovereign might. As in the past, those States which possessed wealth and power were more concerned with preserving it than sharing it. Those less fortunate were determined to seek an improved status by every possible means. These facts of life were mirrored in the definition of aggression reached in 1974.

 

The price which had been paid in the past for the unfettered right of each State to decide for itself when it may unleash its violence against its neighbors has hopefully not been erased from human memory. How long man can continue to adhere to anarchy in international affairs is an unanswered and often terrifying question. No definition by itself can cause aggression to cease and no code of law can be meaningfull unless the society in which it is supposed to operate is prepared to be bound by its restraints. The definition of aggression, therefore, must be appraised within the context of the world as it exists today and evaluated in terms of what it may mean for the world of tomorrow.

 

The primary significance of the definition comes not so much from its terms, which, we have seen, are vague and unenforceable, but from the fact that it symbolizes and encourages a determination and a direction for change which is persistent and irreversible. No matter how slow the progress, the unrelenting striving for a peaceful society in which aggression is controlled through collective action of the international community is universal and cannot be denied or halted. Those career diplomats charged with the responsibility for drafting a definition were bound by their official duties to consider above all else the interests of their own homeland, yet they sensed and were unable to disregard a more pervasive need. What some may scoff at as a “tokenism,” of only symbolic value, has a peculiar way of taking root and growing into an accepted norm of international behavior, if in fact it reflects an unyielding public demand for reform.

 

In international society, just as in national societies, consultation, codification, adjudication and enforcement are the essential prerequisites by which law and reason replace trial by combat. The old order is changing. We are witnessing the growth of new regional associations of States – in Europe, South America, Africa and Asia – and the development of new rules for mutual cooperation and the appearance of new multi-national courts to resolve disputes involving economic, social, political and other human rights. New subjects and techniques of transnational interaction are slowly being developed. The most effective way to deter change by violent means is to provide the procedures and institutions for change by peaceful means. A stated obstacle has now been removed from the United Nations declared goal of seeking a Code of Offenses against the Peace and Security of mankind and an International Court to deal with the disputes that may lead to the outbreak of international violence.

 

The consensus definition of aggression is only a tiny fragment in a much broader mosaic. It is a tool which may be used to help build a more peaceful society of States. States that recognize that they are interdependent and not independent, that cherish and nurture their cultural and religious heritages without seeking to impose them on anyone else, that have the right to organize their own political and economies systems in whatever manner seems to them to best serve the happiness of their peoples, must also recognizer that, in their own self-interest, they may have to surrender some portion of their sovereignty, their wealth and their power in order that the hopes and aspirations of all mankind may be fulfilled.

Seen purely as a legal instrument, the consensus definition of aggression may be little better than a sieve, but it does not follow that it therefore has no substance. Although it reflects the fears, the doubts and hesitations of our time, the definition is a small, cautious and faltering step in the direction of a better world.

 

[1] JD, Harvard; Member of the New York Bar; Former Executive Counsel, Nuremberg War Crime Trials.

[2] 29 UN GAOR, 6th Comm., UN Doc. A/9890

[3] The General Treaty for the Renunciation of War, Aug. 27, 1928, 46 Stat. 2343 (1929), TS No. 796, 94 LNTS 57.

[4] See generally reports of the Special Committee on the question of defining aggression, 23 UN GAOR, 6th Comm., UN Doc. A/7185/Rev.11 (1968); 24 UN GAOR, 6th Comm., UN Doc. A/7620 (1969); 25 UN GAOR, 6th Comm., UN Doc. A/8090 (1970); 26 UN GAOR, 6th Comm., UN Doc. A/8419 (1971); 27 UN GAOR, 6th Comm., UN Doc. A/8719 (1972); 28 UN GAOR, 6th Comm., UN Doc. A/9019 (1973); and 29 UN GAOR, 6th Comm., UN Doc. A/9619 (1974). See also summary records of the debates in the Special Committee which are UN documents beginning with the symbol A/AC. 134 and summary records of the debates in the Sixth Committee which are the UN documents beginning with the symbol A/C.61.

 

 

 

 

 

 

 

 

review: Rükerstattung Nach Den Gesetzen Der Alliierten Mäcthe

 

by Walter Schwartz (Munich: C.H. Beck. 1974) Pp. 394.

By Benjamin B. Ferencz

published: May 1975

source: From The American Journal of Comparative Law, Vol. 23, 1975

 

When Justice Robert H. Jackson, the US Prosecutor, stood before the International Military Tribunal at Nurnberg he described the Nazi crimes as “so calculated, so malignant and so devastating that civilization cannot tolerate their being ignored because it cannot survive their being repeated.” After nearly a quarter of a century of silence the Federal Republic of Germany now draws aside the curtain to reveal the historical record of the efforts to redress some of the injuries caused by Nazi persecution. Dr. Walter Schwartz, an Israeli lawyer and restitution specialist who was the inspiration for the publication project, analyses the legislation enacted by the occupying Allied Powers themselves for the restitution of identifiable property. He recounts the story of how American, British, French, Soviet and German juridical concepts were challenged to cope with unparalleled legal problems having moral, political and economic ramifications. His perceptive study is comprehensive, scholarly and profound.

 

Those Jews and non-Jews alike who “for reasons of race, religion, nationality or political opposition to National Socialism” were viewed as enemies of the Reich had been systematically dispossessed of their homes, their businesses, and eventually all of their assets, as part of a brutal program of persecution and annihilation. Restitution was one of the declared objectives of the war. When Germany surrendered unconditionally the occupation forces assumed the obligation of establishing a new order of law. Monetary compensation to the victims seemed economically impossible and the first impulse was to return to the rightful owners whatever remained intact of the property which had been wrongfully taken from them.

 

Attempts to enact occupations laws for Germany as a whole foundered under the weight of emerging cold-war rivalries. The French were loathe to encourage anything which might tend to unify their defeated enemy. The Soviets saw no need to reestablish private property rights. Different laws were to be enacted for each of the different zones of occupation.

 

The prime mover in the restitution field was the United States. As an occupying power exercising legislative authority it could reach beyond the traditional boundaries of concern only for its own nationals, and it had the benefit of the views of distinguished jurists to whom it had given refuge from Nazi persecution. The United States called upon German officials to draft what was hoped would be a law of the German States in the United States Zone. Nine drafts were submitted, and although Dr. Schwartz has high praise for their contents and their authors, all were in turn found unacceptable, so that the United States finally enacted its own Military Government Law No. 59 for the Restitution of Identifiable Property. The United Kingdom was to follow with a similar law for the British Zone. The French, turning to their own experience with restoring property to French nationals in occupied France, enacted a substantially different law in the Zone, and eventually an amalgam of the three was ordered for the western sectors of occupied Berlin. The Soviets countenanced a restricted restitution ordinance in the State of Thuringia under their control, but it was of limited impact and duration.

 

The restitution procedures adopted for the western zones and sectors of Berlin were all basically similar. Property was taken under Military Government control, those with claims were required to file detailed petitions by a fixed deadline, special agencies were created to mediate the claims, and if settlement failed the action was referred to chambers of the German judicial system, with access to the German appellate courts, and finally to a Court of Restitution Appeals composed initially of allied judges and later changed to a mixed court as German sovereignty was restored.

 

The substantive content of the restitution laws was by no means as clear. The military decrees provided only limited guidance to judges who would confront problems lacking both historical and judicial precedent. Nazi duress, cloaked with the sanction of law, had property for sale in order to gain funds for emigration, while others had transferred title out of fear, direct threats or outright seizure. The buyers maintained that they had paid a fair market price, had substantially improved of altered the property or had acquired a valid deed from an innocent third party. On whom should the burden of proof rest, and how could it be met? If the transaction was to be declared void and each party restored to the status quo ante, what would happen to the purchase price which was not actually received by the persecuted seller because Nazi law required that it be deposited into a blocked account? What if the property had been damaged of destroyed or disappeared? One of the most vexatious problems related to who would bear the burden of the currency reform which revalued the old Reich Mark at less than one-tenth of the new Deutsche Mark. There are only a few of the complex questions dealt with as Dr. Schwartz analyzes over 4500 decisions of the restitution courts to extract his portrait of the new precepts which emerged as the restitution program was carried out. The author does not refrain from expressing his own views as to the wisdom or folly of the action taken in the various jurisdictions.

 

The book is embellished with a brief sketch of post-war restitution efforts in the countries which had been under Nazi occupation or domination. In the Western States of France, Italy, Holland, Norway, Denmark and Greece, local laws revoked the discriminatory Nazi decrees and scant consideration was given to the profiteers, who were viewed as collaborators. Romania, Hungary and Bulgaria, as allies of the Germans, had enacted their own discriminatory laws, which were repealed after 1945 and title to property which had been seized by the State was retransferred on the record to the original owner. Real restitution was poorly implemented and in anti-semitic areas like Poland public pressure impeded the return of property to Jewish survivors. With the coming into power of communist regimes in Eastern Europe and East Germany, all private property was nationalized and became property of the State, as the victims were twice dispossessed. How the German Democratic Republic of Eastern Europe of Eastern Germany turned its back on the surviving Nazi victims outside its borders is a story yet to be told.

 

Dr. Schwartz makes a noble attempt to sum up the statistical picture in charts based on US figures which were good, British figures which were inadequate, and French figures which were secret. His conclusion that about 100,000 persons received the return of real estate, businesses, securities and other assets valued at between 3 and 3½ billion DM, out of more than double that amount which had been taken, can only be seen as a courageous approximation. The last of a series of “Reports on Germany,” by the US High Commissioner, John J. McCloy, contained an excellent and graphic summary of restitution in the US Zone, which may have escaped Dr. Schwartz’s attention.

 

The author recognizes that the law was not punitive, although there were some hardships. He conveys his sympathy for the German judges faced with the problems beyond the traditional scope of German legal concepts and he cannot conceal his disdain for some of the Allied decisions. He acknowledges that the completion of the program in about 5 years time, with some 95% of the cases settled without going to court, was a substantial achievement.

 

Any publication sponsored by a government agency carries the suspicion that it is motivated by self-serving purposes. Dr. Schwartz has tired to approach his subject with objectivity. There can be no doubt that there wee some German officials, like Otto Kustler to whom the book is dedicated, who out of profound moral conviction sought to return Germany to a path of integrity and law, by whether the restitution program was, as Dr. Schwartz says, “a manifestation of the human conscience” (at p. 384), or whether it was justice imposed over general German opposition, may be subject to dispute.

 

Despite a clear Table of Contents the omission of an index to this scholarly study is most regrettable. Other scholars may have to turn to the well-indexed Decisions of the Court of Restitution Appeals published in English and German by the Allied High Commission. No study of the Military Government restitution laws would be complete without including the major work done by the charitable successor organizations appointed to recover the heirless and unclaimed Jewish property of individuals and congregations. Dr. Schwartz has deliberately omitted any such reference since it is to appear in a later volume of the series. In dealing with property losses, Volume I discloses only the tip of the Weidergutmachung iceberg. Later volumes and other authors will describe how millions of Nazi victims were indemnified by the Federal Republic of Germany for their personal injuries, including loss of life, imprisonment in concentration camps, permanent damage to their health, deprivation of professional and other earnings; how the victims of medical experiments were paid, the basis for reparations payments to Israel and bilateral accords with other countries. It will be hard to match the standard set by Dr. Schwartz in the best book written to date on a subject about which there is still a great deal of sensitivity throughout the world.

* Member, Taylor, Ferencz and Simon, New York.

 

 

 

 

 

 

 

 

A Proposed Definition of Aggression: By Compromise and Consensus

By Benjamin B. Ferencz

published: July 1973

source:The International and Comparative Law Quarterly, July 1973

 

I. INTRODUCTION

There are times in the affairs of nations when preference for the stability of the traditional must yield to the imperatives of the present. The existing anarchy whereby States decide solely for themselves when resort to force is permissible has become much too hazardous to remain tolerable. In its quest “to maintain international peace and security” the United Nations has proclaimed as one of its primary purposes “the suppression of acts of aggression.” [1] The General Assembly has unanimously condemned aggression as “the gravest of all crimes against peace and security throughout the world.” [2] Yet, despite half-a-century of effort by legal scholars, [3] and the recent urging of 95 nations, [4] statesmen are still unable to agree on what aggression will be suggested here which seeks, within the limits of what now seems possible, to bridge the gap between the practices of the past and the requirements of the future.

 

The most intensive effort to particularize the lawful limits of the use of violence in international affairs has been made by the latest United Nations Special Committee on the Question of Defining Aggression. [5] The 35 States on the Committee have, after years of effort, divided themselves into three fairly distinct groups. The Soviet Union, as the sponsor of the latest attempt to reach a definition, has submitted its own draft, based in large part upon a definition adopted in 1933 when it signed non-aggression treaties with a dozen of its neighboring states. [6] A rather similar definition has been proposed by 13 Powers (Columbia, Cyprus, Ecuador, Ghana, Guyana, Haiti, Iran, Madagascar, Mexico, Spain, Uganda, Uruguay and Yugoslavia), and a third draft was belatedly submitted by six Powers (the US, the UK, Australia, Canada, Italy and Japan) [7] which until 1969 had been inclined, to use Lord Caradon of Britain’s phrase, to consider a definition of aggression as “undesirable, unacceptable and unnecessary.” By the eve of its hundredth meeting in March 1972, considerable progress towards reaching a consensus definition has been made. Nevertheless, substantial points of disagreement still remained and progress has slowed to a snail’s pace. [8]

 

It was generally accepted that aggression should be defined and there was no conflict regarding the format. All concurred that the definition should consist of a preamble, reasserting certain generally accepted principles, a brief formulation in general terms of what is meant by aggression, an enumeration of specific acts which are clearly aggressive, a reaffirmation of the authority of the Security Council to determine that other acts may also be aggressive, and an explanation of when the use of force would be lawful.

 

Although there were minor variations in proffered wording, the preamble presented no insurmountable obstacles. The Delegates seemed willing to have the preamble reaffirm principles of the Charter and rules of international law while recalling the exclusive authority of the Security Council and proclaiming the utility of the new exposition. A generic formulation of what was meant by the word “aggression” was also relatively uncomplicated, although the members quibbled over emphasis and application as they tried to capture the essence of the term in one compact declaratory sentence.

 

A declaration of war was no longer considered significant because it had almost become outmoded. Invasion, attack, bombardment and blockade were recognized to be classical acts of aggression. More subtle breakers of the peace, such as supporting subversion, terrorism or fomenting civil strife, although a common source of international controversy, could not easily be pressed into the aggression mould.

 

There were those, particularly in the 13-Power group, who argued that nothing short of an armed attack could lawfully evoke a legitimate response of self-defense. The six Powers maintained that aggression in more subtle guise would still give rise to the inherent right of States, or similar political entities, to use armed force against another was thereby the offender, the six Powers insisted that the purposes for which the action was taken would have to be weighed, and only if the deed was done in order to achieve an objective which was prohibited could it be considered an unlawful transgression. The Arab States were particularly eager to catalogue any military occupation or annexation by force as an act of continuing aggression, and the six Powers argued that extended military occupation in contravention of an authorization should also be among the proscribed acts. Agreement on these points, in either principle or formulation, did not prove possible.

 

The impasse was no less difficult when it came to considering the lawful use of force. Some felt that the right of self-determination was so crucial and compelling that every means to achieve it, including the use of violence, was legally justifiable. Others argued that only the Security Council would authorize force. There were those who maintained that the consequences of aggression must also be proclaimed in the definition so all would know that ill-gotten territorial gains would never be recognized, and those responsible for aggression would be held to account.

 

The best that the Special Committee could offer after 99 meetings was to list a number of alternatives dealing with several, although not all, of the points still in dispute. Through the five-year long maze of circumlocution, disputation and caveats, one could discern the major points of difference, and detect areas in which compromise might be possible. With a reasonable amount of optimism, determination and good will the difference did not appear to be irreconcilable.

Certain techniques have been generally employed in putting forth the present compromise proposal. Whatever had been unanimously accepted by the Special Committee has been included in as agreed. Whatever was still being disputed, in either form or substance, but which is already contained in international Declarations approved by the General Assembly, has been omitted from the substantive text of the definition. It was felt that there was little purpose in trying to add another layer of identical resolutions where the effort would cause undue delay or disruption. By way of accommodation the Declarations are reaffirmed in the preamble and their contents are thereby incorporated by reference. Wherever there were differences only of wording, but not of principle, an effort has been made to adopt neutral terminology. The precise wording of the Charter or other accepted international instruments has been favored. The few points, which still remained in dispute, have been dealt with in such manner as to try to give effect to the most important considerations of the parties on all sides. In each case the reason for any modification of the texts considered by the Special Committee is given altogether with an explanation of the alternative drafts.

 

No pretence is made that the proposed definition is either mechanically precise, free from ambiguity and uncertainty, or that it is anything resembling a final word on the subject. [9] The General Assembly must soon choose among alternative lines of action. The Special Committee, or a successor, will be authorized to continue to argue or bicker indefinitely until all parties are of one mind – an event which is not likely to occur – or the search for a definition will continue to mean one thing to some States and something else to others, depending upon their values or social systems. Faced with these sorry choices and recognizing that international agreement has been possible on many subjects of at least equal perplexity, it is hoped that the essence of the compromise suggested herein will prove acceptable by consensus at this time of relative détente, and will thereby mark at least some progress in the requisite clarification of the law of nations. If it serves merely to hasten the end of the present debate, or to focus attention on the various and variable factors which must be considered in reaching any conclusion regarding aggression, or to increase awareness that every definition is only a guide and must contain reference to general principles and concepts, then the effort may not have been completely futile.

 

II. THE PROPOSED COMPROMISE DEFINITION OF AGGRESSION

The General Assembly

Basing itself on the fact that one of the fundamental purposes of the United Nations is to maintain international peace and security, and, to that end, to take effective collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace,

Reaffirming the principles set forth in the Declaration on Principles of International Law Concerning Friendly Relations and Cooperation Among States in Accordance with the Charter of the United Nations, and the Declaration on the Strengthening of International Security,

Recalling that Article 39 of the Charter states that the Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression, and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security, Convinced that the adoption of a definition of aggression would have a restraining influence on a potential aggressor, would simplify the determination of acts of aggression and the implementation of measures to stop them, and would also facilitate the rendering of assistance to the victim of aggression and the protection of his lawful rights and interests, Declares that:

 

1. Aggression is the use of armed force by a state against the territorial integrity or political independence of another state, or in any other manner inconsistent with the Chart of the United Nations

2. Any of the following acts, regardless of a declaration of war, shall constitute an act of aggression:

(a) The invasion or attack by the armed forces of a state of the territory of another state.

(b) An attack by the armed forces of a state on the land, sea or air forces of another state.

(c) Bombardment by the armed forces of a state against the territory of another state or the use of any weapons by a state against the territory of another state.

(d) The blockade of the ports or coasts of a state by the armed forces of another state.

(e) The sending by a state of armed bands, irregulars, or mercenaries which invade the territory of another state in such force and circumstances as to amount to an armed attack as envisaged in Article 51 of the Charter.

3. The Security Council, acting pursuant to Chapter VII of the Charter, may determine that any of the foregoing, of any other breach of the peace, is an act of aggression. In determining the existence of an act of aggression the Security Council may take into account:

(a) Breaches of the peace committed by or against a state or a group of states of a political entity whose statehood has not been recognized by the United Nations.

(b) All of the circumstances of each particular case, giving due regard to which party was the first to commit an unlawful act and whether it was committed for a purpose which violates a declared principle of international law.

4. Nothing in this definition shall be construed as enlarging or diminishing in any way the scope of the provisions of the Charter concerning cases in which the use of force is lawful.

(a) No consideration of whatever nature, whether political, economic, military or otherwise, relating to the internal or foreign policy of a state may serve as a justification for aggression as herein defined. (b) The temporary use of force, in the exercise of individual or collective self-defense, until the Security Council can act to restore peace and security, shall not constitute aggression, if such force is reasonable, proportionate to the wrong and necessary to repel an aggressive act.

 

III. ANALYSIS OF THE COMPROMISE DEFINITION

The proposed definition is composed of a Preamble of four paragraphs plus four substantive provisions. The Preamble refers to the Charter purposes on which it relies, to relevant declarations of international law, to the authority of the Security Council, and to the usefulness of a definition. The four substantive provisions consist of enumeration of some specific acts which are to be considered as aggressive, a reaffirmation of the Security Council’s open-ended authority, and an indication of when the use of force is lawful. Let us analyze each of these provisions to see how the technique of compromise was applied.

 

A. The Preamble

In 1969 the Special Committee established a Working Group of the Whole. It succeeded in reaching general agreement on a preamble, [10] subject to drafting changes, and subject to the usual precautionary understanding that nothing was finally accepted until agreement was reached on everything. The text which is adopted here is based on the provisions which seemed to be generally acceptable and only such modifications have been made as seemed to be required in order to encourage complete concurrence.

First paragraph—Upholds the Fundamental Purposes of the Charter

Basing itself on the fact that one of the fundamental purposes of the United Nations is to maintain international peace and security, and, to that end, to take effective collective measures for the prevention and the removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace, . . .

 

The text suggested here is identical with both the USSR and the 13-Power proposal, [11] with the sole exception that neither of those drafts had included the phrase “to that end.” The six-Power draft contained the introductory clause “Conscious that a primary purpose of the United Nations . . .” but was in all other respects identical with the compromise text. The purposes to which reference is made are described in Chapter 1, Article 1, first clause of section 1 of the Charter, and are therefore correctly characterised as “primary,” suggested by the six Powers, and the term “fundamental” is so slight that they are generally regarded as synonymous. The Soviet and 13-Power introductory clause “to that end” which they omitted and which appeared only in the six-Power draft, has been inserted. The inclusion of the clause “to that end” also makes the first preambular paragraph follow the precise wording of the Charter.

Second Paragraph—Reaffirms the Principles of International Law

 

Reaffirming the principles set forth in the Declaration of Principles of International Law Concerning Friendly Relations and Cooperation Among States in Accordance with the Charter of the United Nations, and the Declaration on the Strengthening of International Security.

This is a new proposal not considered by the Special Committee and inserted here by way of compromise. It should be recalled that the “Friendly Relations” Declaration was adopted unanimously by the General Assembly on October 24, 1970, and represented the fruits of eight years of labour by a Special Committee on Principles of International Law. [12] The Declaration on the Strengthening of International Security was adopted on December 16, 1970. [13] By that time the Special Committee on Aggression had completed its 1970 deliberations dealing with the three alternatives drafts submitted in 1969. The Committee could hardly relate its deliberations to declarations on international law which had not yet been accepted. As a result, the Working Group continued to dispute many points which their colleagues on the other Committee had already resolved by consensus.

The declarations referred to the compromise preambular provision encompassed at least five points which were a source of controversy and on which no complete agreement could be reached by the Aggression Committee.

 

1. Military Occupation and Annexation. Both Declarations stated:

The territory of a State shall not be the object of military occupation resulting from the use of force in contravention of the provisions of the Chart. The territory of a State shall not be the object of acquisition by another State resulting from the threat or use of force.

2. Subversion. Both Declarations stated:

Every State has the duty to refrain from organizing or encouraging the organization of irregular forces or armed bands, including mercenaries, for incursion into the territory of another State. Every State has the duty to refrain from organizing, instigating, assisting or participating in acts of civil strife or terrorist acts in another State or acquiescing in organized activities within its territory directed towards the commission of such acts, when the acts referred to “involve a threat or use of force.”

3. The Right of Self-Determination. The Declaration on International Security referred to self-determination as an “inalienable right,” and the “Friendly Relations” Declaration was even more specific:

Every State has the duty to refrain from any forcible action which deprives peoples…of their right to self-determination and freedom and independence. In their actions against and resistance to, such forcible action in pursuit of the exercise of their right to self-determination, such peoples are entitled to receive such support in accordance with the purposes and principles of the Charter.

Every State has the duty to promote, through joint and separate action, realization of the principle of equal rights and self-determination of peoples….

4. Non-Recognition of Territorial Gain. Both Declarations stated: “No territorial acquisition resulting from the threat or use of force shall be recognized as legal.”

5. Responsibility. The “Friendly Relations” Declaration explicitly declared: “A was of aggression constitutes a crime against the peace for which there is responsibility under international law.”

In the light of the agreements already reached by the General Assembly on all of the points enumerated above, the continued debate and disagreement on the same subject by the Special Committee did not seem to be useful or necessary. The heart of the compromise is the suggestion that all such items be omitted from the substantive portion of the definition of aggression by being reaffirmed by reference to the Declarations in the preamble. Since the Declarations are universally accepted the inclusion in the preamble here should not give rise to serious objection. [14]

Third Paragraph—Recalls the Security Council’s Responsibility

Recalling that Article 39 of the Charter states that the Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security.

The 13-Power draft had an introductory clause reading: “Bearing in mind,” but both the Soviets and six Powers used the word “recalling” and that is therefore the term inserted here. The USSR and the 13-Power drafts had omitted the words “made recommendations, or.” This omission would seem to be logical since the power to decide includes the power to make recommendations; nevertheless, the text as contained in the six-Power draft has been adopted here because it is identical with the terms of the Charter.

Fourth Paragraph—Outlines the Usefulness of a Definition

Convinced that the adoption of a definition of aggression would have a retraining influence on a potential aggressor, would simplify the determination of acts of aggression and the implementation of measures to stop the, and would also facilitate the rendering of assistance to the victim of aggression, and the protection of his lawful rights and interests.

The text, accepted in principle by the Working Group of the Whole, is taken from the Soviet draft which had used the introduction “Considering also.” The 13 Powers had simply stated their view that the definition might facilitate the processes of the UN and encourage States to fulfill their obligations under the Charter. The differences do not appear to be significant and therefore the Working Group text has been adopted here.

The two clauses which were considered by the Special Committee have not been specifically included in the proposed consensus preamble. One is redundant and the other superseded. The six-Power draft contained a paragraph: “Reaffirming that all states shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered.” The 13 Powers had a similar phrase referring to “pacific methods” rather than “peaceful means” and the Soviet draft was silent on this point.

The omitted paragraph is contained verbatim in the Charter, the “Friendly Relations” Declaration, and the Declaration on International Security. It is included in the preamble by reference to the other Declarations. To spell it out again would add little since the point is already obvious.

There is also omitted from the preamble a provision, which had been suggested in 1969 by the Soviet Union and the 13 Powers, to the effect that armed aggression, being the most serious, should be defined first. This seemed to have been prompted by the concern that various indirect forms of aggression could not be easily defined, and by the desire to see at least some progress in time for the 25th anniversary of the United Nations in 1970. The idea seems to have been dropped and such a provision in the proposed consensus definition is superfluous.

 

B. The Substantive Definition

1. The General Formulation—Declares that [15]

“Aggression is the use of armed force by a state against the territorial integrity or political independence of another state, or in any manner inconsistent with the Charter of the United Nations.”

An Informal Negotiating Group, established during the 1972 sessions, agreed upon the above text with only two relatively minor additions subject to dispute.

The six Power wanted the phrase “however exerted” inserted after the reference to armed force. [16] The USSR found this unacceptable since it would require that mere breaches of the peace would have to be treated as acts of aggression, and this went beyond what the Charter required. [17] The 13 Powers, supported by Rumania, [18] wanted the word “sovereignty” appear after “territorial integrity,” but the Soviet delegation argued against including working which did not appear in the Charter, particularly since, in its view, “sovereignty” was adequately covered by the phrase “political independence.” [19] Both additions have been omitted in the compromise text since the arguments against inclusion seemed persuasive [20] and what remained was generally acceptable to all.

In several respects the terminology agreed upon by the Informal Negotiating Group varied from the text of the Charter and other international instruments. Despite Soviet arguments for strict adherence to the text of the Charter, [21] the Group referred to the political independence of “another” State, rather than “any” State. [22] No explanation for the change is reported. The Group favoured a reference to the “Charter” rather than the “purposes” of the UN, which was the term used in the Charter itself. Reference to the Charter generally is much broader since it encompasses not merely the purposes but also the procedures. [23]

 

In view of what appeared to be near agreement by the Informal Group, the use of the broader term seems justified in the compromise definition as an additional restraint against the unauthorised use of armed force, and as a further support for the United Nations.

Another request of the 13 powers has been omitted. They also wanted it to be made clear somehow that “territorial integrity” included “territorial waters and air space.” No objection was raised to the request and it was suggested that the explanation be tacked on at the end. It has not been added here since, in case of doubt, the travaux préparatoires will confirm that the Special Committee was prepared to follow the common understanding that “territory” includes land, water and air space. There is an ample body of international law dealing with territorial sea, subsoil and airspace problems and there can be little doubt that the term “territorial integrity” is not restricted to a surface land mass only. [24]

 

2. An Enumeration of Illustrative Acts of Aggression

“Any of the following acts, regardless of a declaration of war, shall constitute an act of aggression.”

At least since the time of the Kellogg-Briand Pact, making resort to force illegal, a declaration of war was regarded as a prime example of an aggressive act. This was reflected in the initial Soviet and 13-Power drafts. The six Powers, however, had recognised that in modern time wars are frequently, if not usually, commenced and conducted without any formal proclamation, and their draft was silent on this point. The form of its inclusion as shown by the above wording, accepted by the Negotiating Group, treats a declaration of war as irrelevant. Only the acts, and not the words, can constitute aggression.

The illustrations which follow are only examples of some of the more flagrant forms of aggression. There was general agreement that they were not exclusive.

(a) Territorial Invasion or Attack - “The invasion or attack by the armed forces of a state of the territory or another state.”

 

All of the Members agreed in principle that an act of invasion constituted aggression and the wording adopted is that proposed by the Negotiating Group. [25] The idea was contained in each of the three drafts with only slight modifications in wording. [26] The 1933 Soviet definition declared the aggressor to be the State which first committed “invasion by its armed forces with or without a declaration of war, of the territory of another state,” [27] and this thought was carried over to 1969. The 13 Powers preferred a reference to the “territories” of another State, from which the implication might be drawn that a plurality of attacks against more than one territory would be required. The six-Power draft referred to “territory under the jurisdiction of another state,” which would encompass an even broader area, and was perhaps intended to include political entities other than States. Since the latter point will be dealt with by way of compromise in paragraph 3 (a), it was felt that there was no need here to go beyond the text which seemed acceptable to the last Negotiating Group, particularly since the same point seemed to have been withdrawn when referring to bombardment.

 

(b) Attack on the Armed Forces of Another State – “An attack by the armed forces of a state on the land, sea or air forces of another state.”

This, like paragraph (2) (a) above, is the classical illustration of an act of aggression and the text was generally acceptable to the Negotiating Group. [28] It appeared, in slightly modified wording, in the 1933 Soviet treaties dealing with aggression. The 13 Powers had made no reference to an attack o land, sea or air forces, in contrast with an attack against the territory of another State. The six Powers, in an apparent efforts to rule out the possibility that an inadvertent or accidental incident might be viewed as aggression, referred to “carrying out deliberate attacks on the armed forces, ships or aircraft of another state.” In the course of the debate it was recognised that the Security Council would not be likely to conclude that an isolated and unintended mishap was an act of aggression and that the precaution evidenced by the six-Power draft was excessive. Then the formulation adopted above was unanimously approved by the 1972 Informal Negotiating Group it was on the understanding that there should be a clause excluding its applicability to minor incidents. No such clause has been added here since the underlying purpose of avoiding a major response to an inconsequential incursion is adequately met by the requirement of proportionality which shall be further expounded in the compromise proposal set forth in paragraph 4 (b).

 

(c) Bombardment – “Bombardment by the armed forces of a state against the territory of another state or the use of any weapons by a state against the territory of another state.”

This text was generally accepted by the Negotiating Group, [29] but some members proposed that after the word “weapons” there be added: “including weapons of mass destruction.”

 

An earlier USSR proposal had referred to “bombardment of firing at the territory and population of another state,” and the 13 powers had relied on the simple “bombardment by its armed forces of territory under the jurisdiction of another state,” and the 13 Powers had relied on the simple “bombardment by the armed forces of a state against the territory of another state,” as stated above. [30]

 

The reference to the “use of weapons” is a compromise worked out during the negotiations. The USSR had originally proposed that “the use of nuclear, bacteriological or chemical weapons or any other weapons of mass destruction” be listed as an aggressive act. [31] The 13 Powers had a paragraph listing “the use of any weapons, particularly weapons of mass destruction.” [32] The six Powers made no specific reference to any type of weapons, and they argued that determines whether an act is aggressive. The reference to “weapons of mass destruction” has not been inserted in the proposed consensus definition since it is felt that the exclusion of “any weapons” encompasses “nuclear, bacteriological and chemical weapons,” as well as “weapons of mass destruction,” so that any further elaboration would be redundant.

 

(d) Blockade – “The blockade of the ports or coast of a state by the armed forces of another state.”

The formulation accepted here is the one proposed by the 13 Powers. The Soviet draft had referred to the “blockade of coasts of ports” whereas the six Powers had made no mention of blockade for inclusion among aggressive acts. Nevertheless, as a gesture of compromise, the US indicated its willingness to have it included and there was apparently no disagreement about the wording. [33]

 

(e) Indirect Aggression – “The sending by a State of armed bands, irregulars, or mercenaries which invade the territory of another State in such force and circumstances as to amount to an armed attack as envisaged in Article 51 of the Charter.”

There was no general agreement regarding how the indirect use of force might best be incorporated into a definition of aggression.

This paragraph seeks to deal, at least in part, with the problem which, for years, was a principal source of disagreement among members of the Special Committee.

 

The idea that there could be indirect forms of aggression had been recognised by the USSR in 1933. Their aggression treaties recognised that aggression could be committed by:

Provision of support for armed bands formed in the territory of another State, or refusal notwithstanding the request of the invaded State, to take in its own territory, all the measures in its power to deprive those bands of all assistance and protection. [34]

In its more recent proposal the Soviets described as an act of indirect aggression:

 

The use by a State of armed force by sending bands, mercenaries, terrorists or saboteurs to the territory of another State and engagement in other forms of subversive activity involving the use of armed forces with the aim of promoting an internal upheaval in another State or a reversal of policy in favor of the aggressor... (Emphasis added.) [35]

 

The six Powers had listed as aggressive acts:

Organizing, supporting or directing armed bands or irregular or volunteer forces that make incursions or infiltrate to another State…or subversive activities aimed at the violent overthrow of the Government of another State. [36]

The 13 Powers were prepared to recognise that a State could take reasonable steps to safeguard its existence against such unlawful acts, by they did not feel it would justify unrestricted recourse to individual or collective self-defence under Article 51 of the Charter which, by its terms, referred only to a provisional reaction to an armed attack.

 

During the last session of the Special Committee a compromise was being considered and two alternative proposals were on the table. [37] The first alternative, taking account of the 13-Power apprehensions, consisted of two parts. The first part was the proposed that indirect aggression could be of such magnitude and intensity as to be the equivalent of a full-scale military assault and that it should therefore give rise to exactly the same defensive possibilities as were provided by Article 51 in response to an armed attack. The second part would allow a State to take all “reasonable and adequate” steps to defend its institutions without resorting to unlimited self-defence.

 

It provided:

When a State is victim in its own territory of subversive and/or terrorist acts by armed bands, irregulars or mercenaries organized or supported by another State, it may take all reasonable and adequate steps to safeguard its existence and its institutions, without having recourse to the right of individual or collective self-defence against the other state.

 

The second alternative proposal was put forth by the six Powers. It was a compromise gesture and indicated a willingness to settle for a repetition in the definition of two paragraphs, taken verbatim from the “Friendly Relations” Declaration, referring to the duty of States to refrain from such acts of subversion as organizing bands for incursion into another State and participating in civil strife in another States through the use or threat of force. [38]

 

The Soviets objected to the six-Power proposal, once again on the grounds that by including those paragraphs in an enumeration of aggressive acts it might compel the Security Council to declare as aggressive something which might merely be a breach of the peace. The Negotiating Group sought to meet this point by suggesting a clause specifically authorising the Security Council to refrain from characterising an act as aggressive if it was, “in intent or extent,” too minimal to justify such action. [39]

 

What has been proposed in the consensus definition in paragraph 2 (e) above is simply to accept the principle, on which everyone agrees, that indirect aggression can amount to an armed attack under certain circumstances, and to include the other ideas in different ways. Subsequent paragraph 3 (a) reaffirms the general authority of the Security Council to determine other acts to be aggressive, including less violent breaches of the peace or aggression in any form. Subsequent paragraph 4 (b) gives expression to the 13-Power idea that “reasonable and adequate” steps may legally be taken by a State to safeguard its existence.

 

The restatement of the principles set forth in the “Friendly Relations” Declaration, as proposed by the six Powers, has been rendered unnecessary by the general reaffirmation in the preamble of the Declarations which spell out those principles.

The attempt to exclude minor incidents as formulated by the Negotiating Group has not been adopted since its reference to “intent and extent” would again invite objections previously and validly made to the use of such subjective terminology.

3. Reaffirms the Open-Ended Discretion of the Security Council

“The Security Council, acting pursuant to Chapter VII of the Charter may determine that any of the foregoing, or any other breach of the peace, is an act of aggression.”

 

This is a reaffirmation of the open-ended authority of the Security Council—one of the few points on which everyone seemed to agree. The Soviet draft stated specifically that the definition was “without prejudice to the functions and powers of the Security Council,” and that other acts might also be determined by the Council to be aggressive. The 13 Powers reaffirmed that their enumeration of aggressive acts was “without prejudice to the powers and duties of the Security Council.” The six-Power proposal said the term aggression could be applied by the Security Council “when appropriate” and that aggression was “not necessarily limited to” the acts specified. [40]

 

The inclusion in the consensus definition of a reference to breaches of the peace was not considered by the Special Committee. It is a compromise clause based on the wording of the Charter. Chapter I, Article 1 refers to “the suppression of acts of aggression or other breaches of the peace,” and Article 39 refers to “any threat to the peace, breach of the peace or act of aggression,” indicating that these are different violations. An act of aggression would surely be a breach of the peace but not every breach must be an act of aggression, a point repeatedly made by the Soviet representatives. The proposed compromise wording seeks to satisfy the common demand that the Security Council be given a free hand to make such distinctions as seem to be appropriate.

Applicability to Political Entities Other Than States

 

(a) In determining the existence of an act of aggression the Security Council may take account: Breaches of the peace committed by or against a State or a group of States of a political entity whose statehood has not been recognized by the United Nations.

 

This is a compromise proposal. The reference to “political entities whose statehood has not been recognized” is an accommodation to the six Powers. Their draft had proposed that the perpetrators or victims of aggression could include political entities delimited by international boundaries or internationally agreed lines of demarcation. The others insisted, at first, that only “States” could commit aggression or exercise self-defence against it. In the course of the debate it appeared that the six-Power draft was intended to encompass such divided former States as Germany, Korea, Vietnam and others, which had not been recognised as States by the United Nations. After much discussion there seemed to be a general readiness to accept the idea that such political entities should be covered by the definition.

 

The Informal Negotiating Group proposed the inclusion of an explanation in the definition that the term “State” is used without prejudice to questions of recognition or to whether a State is a member of the united Nations, and includes the concept of a “group of States.” [41] The compromise text above by referring to both “political entities” and to “a group of States seeks to accommodate the six Powers in a way which was beginning to appear increasingly acceptable to the others.

 

Relevance of Priority and Intent

[In determining the existence of an act of aggression the Security Council may take into account:]

(b) All of the circumstances of each particular, giving due regard to which party was the first to commit an unlawful act and whether it was committed for a purpose which violates a declared principle of international law.

This too is a compromise formulation seeking to reconcile conflicting proposals put forth by the Soviet Union on the one side and the six Powers on the other.

The most striking characteristic of the Soviet definition of aggression, going back as far as their 1933 treaties, was that the State which was the first to commit the unlawful international act would thereby automatically be identified as the aggressor. The 13-Power draft did not contain such a decisive formulation and the six Powers rejected the idea completely. In their initial view it was necessary to ascertain whether prohibited means had been employed “in order to” achieve certain unlawful purposes. The incriminating objectives listed were, to:

 

(1) Diminish the territory or alter the boundaries of another State,

(2) Alter internationally agreed lines of demarcation,

(3) Disrupt or interfere with the conduct of the affairs of another State,

(4) Secure changes in the government of another State or

(5) Inflict harm or obtain concessions of any sort. [42]

 

After a debate which covered the span of about four years, some softening in the lines began to appear. The six Powers moved from a position which seemed to the others to be saying that the victim had to burden of proving the aggressive intent of the transgressor, to an acknowledgement that the burden would be on the Security Council to ascertain the aggressive intent, and finally to a concession that only “due regard” had to be given to both the question of which State had been the first to commit the aggressive act and the question whether it was committed for one of the five enumerated unlawful purposes. [43]

The Soviets in turn indicated some recognition that, in the atomic age, the mechanical application of the principle of priority would make their position untenable, for it would seem to be calling upon States to wait to be destroyed before they could legally respond to an attack. They objected however that the recital of the prohibited purposes that would accord greater emphasis to motives that to the objective criteria of who had acted first. [44] The USSR was, however, prepared to consider a proposal by Czechoslovakia which would create a presumption that the one who had acted first was the aggressor, and then due regard could be given to the purposes, on condition, however, that the Security Council still retained discretion to decide on the basis of all the circumstance. [45]

 

The heart of these ideas have been incorporated into the proposed consensus definition. The authority of the Security Council to take all the circumstances into account has been reiterated. “Due regard” is to be given to (a) which side had acted first, and (b) the purposes of the action, while both remain on an equal footing. In order to satisfy the Soviet objection that undue emphasis should not be place on the five prohibited purposes, they are not specifically listed. On the other hand, the reference to declared principles of international law in effect incorporates the same prohibited purposes without specifically cataloging them. Each of the purposes listed in the six-Power draft is declared to be a violation of international law by the “Friendly Relations” Declaration. [46]

Something has also been taken away from the Soviet proposal. In place of a rebuttable presumption that the State which offends first is the aggressor, only “due regard” to that fact is required by the proposed consensus definition. The distinction should not prove fatal to acceptance, particularly in view of the reconfirmed absolute discretion of the Security Council, a point repeatedly stressed by the Soviet representatives, and which serves as a form of “insurance” to all those with the power of veto on the Council.

 

Preserves the Inviolability of the Charter Regarding the Lawful Use of Force

“Nothing in this definition shall be construed as enlarging or diminishing in any way the scope of the provisions of the Charter concerning cases in which the use of force is lawful.”

 

This sentence was offered as a compromise suggestion on the part of the six Powers, and the text was taken verbatim from the “Friendly Relations” Declaration. [47] The Soviet draft had contained a similar provision stating that “Nothing in the foregoing shall prevent the use of armed force in accordance with the Charter. . . .”

 

At the close of the 1972 session, three alternatives were being considered. The first, which has been adopted here, contained the sentence in paragraph 4 above, together with the sentence in paragraph 4 (a) hereafter. The others are considered only for comparison and explanation.

Alternative 2 was a hodge-podge of elements taken from the original six-Power and 13-Power drafts.” [48]

 

Not to be outdone, the USSR put forward a third variant by reintroducing the provisions of its 1971 proposals, reaffirming that “acts undertaken in accordance with the Charter to maintain or restore peace, or in the exercise of the inherent right of individual or collective self-defence do not constitute aggression,” and they linked this with a reaffirmation that “only the Security Council has the right to use force” and another sentence allowing “enforcement actions under regional arrangements consistent with the purposes and principles of the Charter in accordance with Article 53.” [49]

 

The language adopted by in the proposed consensus definition has been favoured for several reasons. The identical text has been universally accepted in the “Friendly Relations” Declaration. It has been proposed by the six Powers, and accepted as a basis of agreement by the USSE subject to adding a clause that only the Security Council has the right to use force on behalf on the UN, a point which the Soviets argued was implicit in the Charter anyway. It does not spell out points on which there is still disagreement by it does create the framework for the further elaboration which follows in the next two paragraphs.

 

Considerations Not Justifying Aggression

(a) No consideration of whatever nature, whether political, economic, military or otherwise, relating to the internal or foreign policy of a state many serve as a justification for aggression as here defined.

This provision did not appear in any of the original three drafts. It emerged as a compromise. Its origins go back to the 1933 Soviet Treaty definition which provided that “No political, military, economic or other consideration may serve as an excuse or justification for…[aggression].” When the Nuremberg trials were being prepared and the Charter of the International Military Tribunal was being drafted in 1945 it was the American delegation which in fact put forth the identical proposal as part of its suggested definition of aggression. [50] In 1951, the International Law Commission had considered including in a definition of aggression the state “No political, economic, military, or other consideration may serve as an excuse or justification for an act of aggression.” [51] In 1972 the Rumanian Government joined in submitting practically the same working to the Informal Negotiating Group. [52] It is consistent with the principles of international law codified in the “Friendly Relations” Declaration. Since there seems to be broad agreement about the content as well as the wording of this provision and as it serves a useful in clarifying and restricting the lawful use of force it has been adopted for the consensus definition.

Permissible Self-Defence and Proportionality

(b) The temporary use of force in the exercise of individual or collective self-defence, until the Security Council can act to restore peace and security, shall not constitute aggression, if such force is reasonable, proportionate to the wrong and necessary to repel an aggressive act.

 

This is a compromise proposal which was not considered by the Special Committee although it contains several points which were the subject of considerable controversy. No one challenged the right of a State to defend itself against an armed attack. The major dispute revolved around the question of whether the self-help remedy of self-defence could be employed if the aggressive act defended against was of lesser magnitude or intensity than that which might legitimately by considered an armed attack. The six Powers were concerned about the more common contemporary forms of indirect aggression, such as infiltration, terrorism and subversion, which might be just as damaging to the institutions of a government as a direct armed assault. They did not feel that it would be reasonable for them to have their hands tied while they waited for United Nations action which might be very slow in coming or might not come at all.

 

The smaller nations were concerned that a relatively insignificant act of indirect aggression might be used as the major counter-assault and then justified on the grounds of legitimate national or legitimate national or collective self-defence. In an attempt to reconcile these two conflicting points of view, several restraints have been written in to the proposed consensus definition. Self-defence must be temporary, reasonable, proportionate and necessary.

 

Even the defence against an armed attack, as provided in Article 51, would allow a State to defend itself only until such times as the Security Council has taken the measures necessary to maintain international peace and security. The requirement that the force be “reasonably proportionate to the wrong and necessary to repel the aggressive act,” provides the assurance sought by the smaller States that no nation could use every breach of the peace, even if less than an armed attack, as a pretext to use excessive force in retaliation. At the same time, no State would be required to be paralyzed in the face of various forms of subversion and indirect aggression prohibited by international law. The requirements of reasonableness and proportionality are consistent with established concepts of law as well as with humanitarian aspirations. Since the Security Council is required to take all the circumstances into account it is unavoidable that the reasonableness of the action will have to be considered in the light of the entire picture.

 

Soviet representatives have objected to the concept of proportionality as placing an unreasonable burden on the victim for the benefit of the aggressor. [53] They have failed to grasp that no mechanical application of the principle is intended and that such force may be applied as is reasonably required to repel the aggressive act. If excessive force is used, the offending State may itself be determined to be the aggressor.

 

The 13-Power draft made specific reference to the requirement that self-defence measures be reasonably proportionate. Twenty of the 35 members and the Special Committee agreed to stand by those principles. [54] Many of the other States have also indicated a willingness to accept that idea of proportionality in the definition. [55] It should prove to be acceptable by consensus.

 

C. Points Not Specifically Included in the Definition

1. Illustrations of Aggressive Acts

The Special Committee considered a number of illustrations of aggressive acts which do not appear in the suggested consensus definition.

(a) Military Occupation or Annexation. The Soviet draft listed “military occupation or annexation of the territory of another state or part thereof” as an aggressive act. These illustrations did not appear in the 1933 Soviet treaty definition. They may have been adopted from some of the 13 Powers, whose proposal listed as aggressive “any military occupation, however temporary, …” or any forcible annexation of the territory of another State or part thereof” [56] resulting from such invasion or attack,” or “any annexation by the use of force.” [57] The six-Power draft made no reference to annexation or military occupation.

 

The reference to “military occupation, however temporary,” has been omitted from the proposed consensus definition, because it is difficult to envision an invasion by armed forces without at least some temporary military occupation. The term “invasion” connotes a hostile entrance or trespass and since the invasion itself is already listed as an aggressive act the addition of “temporary military occupation,” which is in effect the invasion complained about, seems to add nothing but a redundant “overkill” to the definition.

“Annexation” has not been specified as an aggressive act for similar and additional reasons. “Annexation by the use of force” cannot take place without invasion or attack by a State against the territory of another State. Since the antecedent at of invasion is already condemned in paragraph 2 (a) as the most serious crime of aggression the inclusion of the concomitant act of occupation, or the subsequent act of annexation, as separate and distinct additional offences does not seem to be essential. The “Friendly Relations” Declaration, which has been reaffirmed in the Preamble, provides specifically that “the territory of a State shall not be the object of military occupation resulting from the use of force.” These acts are declared to be unlawful law, and the Security Council has discretion under paragraph 3 (b) to determine that it is aggression if all that circumstance of the case so warrant.

(b) Extended Military Occupation. Another proposed enumeration of an aggressive act which relates to occupation and which has not been included in this compromise definition is one put forward by the six Powers. They would have listed as aggressive the use of armed forces in another State “in violation of the fundamental conditions of permission for their presence, or maintaining them there beyond the termination of permission for their permissions,” provided it was done in order to achieve a prohibited purpose. [58] The Soviets and other seemed inclined to go along with this six-Power proposal once it was explained, but there was bickering about the language. [59]

(c) Subversion. Acts of subversion can, under certain circumstances, constitute aggression. The proposed definition provides in paragraph 2 (e) that if armed bands invade another State in such force as to constitute an armed attack, it is aggression. The preamble reaffirms the principles of international law which prohibit the threat or use of force to assist the civil strife or terrorist acts in any other State. The six Powers, who were the ones most concerned about the inclusion of acts of subversion in the definition, were finally prepared to settle for a repetition of the two relevant provisions from the “Friendly Relations” Declaration. [60] That has in effect, been accomplished by the preambular reaffirmation. In addition, paragraph 4 (b) of the proposed consensus definition provides ample authority for reasonable defensive measures to be employed against any form of aggressive act.

 

2. The Use of Force in the Exercise of the Right of Self-Determination

There has been omitted from the definition any reference to the right of self-determination was the subject of intensive debate by the Special Committee with various proposals considered. The 13 Powers had proposed a paragraph stating: “None of the preceding paragraphs may be interpreted as limiting the scope of the Charter’s provisions concerning the right of peoples to self-determination, sovereignty and territorial integrity.” [61] The Syrian representative had proposed that there be added: “or as preventing the use of armed force by dependent peoples in order to exercise their inherent right of self-determination.” [62] Another alternative would simply have added a reference to the binding effect of the Charter and the elaboration contained in the “Friendly Relations” Declaration. [63] The Rumanian delegate proposed a wording even more detailed. [64] The Soviet Union indicated unhappiness with the proposed text for failing to emphasise that it applied to dependent and colonial peoples, nevertheless they indicated a willingness to go along if everything else was settled. [65]

 

Specific reference to self-determination has been omitted from the proposed consensus definition, because there is no consensus agreement on the wording, or on whether or not it should be included. In fact, the point is already covered elsewhere. Paragraph 4, by reaffirming the Charter provisions concerning the lawful use of force, also includes the provisions dealing with the rights of self-determination. [66] The reaffirmation in the Preamble of the “Friendly Relations” Declaration and the Declaration on Strengthening International Security again incorporates by reference all of the agreements which the United Nations have been able to reach thus far in elaboration of the right, nor does it seem possible to do so at this time.

 

3. Legal Consequences of Aggression

Another subject which was debated by the Special Committee but which has not been specifically included in this proposed consensus definition relates to some of the legal consequences of aggression.

 

(a) Non-recognition of Territorial Gains. The USSR draft had proposed that: “No territorial gains or special advantages resulting from aggression shall be recognized.” The 13 Powers had coupled this with a sentence prohibited any military occupation. Other minor wording changes were also being considered by the six Powers felt that the subject of territorial gains did not belong in a definition of aggression. Since there was no agreement in either principle or wording and since the point is already specifically and clearly contained in the Declarations of International Law approvingly referred to in the Preamble, it was not deemed essential that it be reiterated in the body of the definition.

 

(b) Responsibility of Individuals and States. The final legal consequence of aggression which was the subject of some deliberation by the Special Committee, but which was omitted from the proposed consensus definition, relates to the question of responsibility for aggression. At its last session three alternatives were being considered.

 

One said that: “Aggression as defined herein, constitutes a crime against international peace, giving rise to responsibility under international law.”

Another proposal was that: “A war of aggression constitutes a crime against the peace for which there is responsibility under international law.”

The third suggestion was simply that: “In the general formulation of aggression a phrase be inserted after the word aggression describing it as ‘a crime against peace.’” [67]

 

The six-Power draft was silent on the subject.

The inclusion of a reference to the criminal nature of aggression does not appear to be indispensable. The planning, preparing, initiating or waging of a war of aggression is a crime against peace, as first articulated and codified in the Charter of the International Military Tribunal, and subsequently universally recognised. The principles of the Nuremberg Charter were formulated by the International Law Commission and unanimously approved by the General Assembly. [68] The absence of any reference to it in a definition of aggression does not detract from the definition and the alternative texts considered by the Special Committee do not add anything to what is already part of accepted international law. In the absence of any agreement in the Special Committee, the omission of what is not requisite would seem to be the most constructive solution to the problem.

 

IV. CONCLUSION

The most fateful challenge to lawyers and scholars in our time, according to Professors McDougal and Feliciano, [69] embraces the dual tasks of inventing the structures of authority to move the people of the world from the balance of terror toward a more complete world order of human dignity, and to have such structures accepted and put into practice. [70] Despite the paralysis caused by the fear of change or adhesion to power, the evolutionary thrust toward a more rational social order is irresistible. The dispersion among a growing number of nations of the means of mutual annihilation has already compelled collaboration in areas beyond the dreams of yesterday. The sea, the skies, and the air we breathe are only a few of the arenas in which the need for collective cooperation is being increasingly recognised and implemented.

 

It is a dangerous anachronism that States, restricted only by the limits of their power, sill exercise unbridled discretion to determine for themselves when they may take up arms against their neighbours. What is advocated here is that the law try to take one small step forward toward restraining the perpetuation of this international anarchy.

 

No one pretends that by defining aggression a peaceful world will thereby be assured. Belligerency is not a virus which can be eradicated by a verbal formula. Many competent scholars have, over the past 50 years, defined aggression in terms quite different from those proposed here. No formulation, no matter how detailed or precise, can hope to eliminate disagreements about interpretation or application. It can only serve as a guide in helping to indicate some of the relevant factors which must be taken into account in determining the circumstances under which the application of violence is tolerable in international society.

 

The text suggested here is a compromise in many ways. It is a mixture of legal positivism, natural law and sociological jurisprudence. It recognises the need for some identifiable standards and yet acknowledges by its terms that law must be interpreted to meet the needs and expectations of the society in which it is to be applied. Most important of all, it is a definition which seems, to the author, to come closest to including what might now be acceptable to a committee which has already debated the subject much too long. The test is not whether the proposed definition is perfect, but whether it is useful in setting forth a compromise which may prove acceptable today.

 

Partisan self-interest often binds of blinds those charged with speaking for a particular government.

 

The peoples of the world, who are the victims of aggression, must have at least some objective criteria by which to begin to measure the validity of actions which may affect the destiny of us all.

 

The movement toward a rational world order will be a long and tedious journey. A few of the other steps along the way will include a Code of Offences against the Peace and Security of Mankind, and an International Criminal Court to deal with such major international crimes as aggression, genocide, apartheid and other crimes against humanity. We are told, alas, that the United Nations will take no further step in that direction until aggression is defined. The absence of the definition it now a bar to further progress in related areas. [71]

 

There are those who will ask what is the use of a code which is unenforceable and why should time and effort and money be wasted in pursuit of a utopian dream which has eluded man since Cain slew his brother Abel. In a world filled with fear, man must choose to live with either despair or hope.

 

 

 

 

 

 

 

 

 

Defining Aggression: Where it Stands and Where it's Going

By Benjamin B. Ferencz

published: June 1972

source: The American Journal of International Law, Vol. 66, No. 3 (Jul., 1972), pp. 491-508.

 

I. INTRODUCTION

As the United Nations Special Committee on the Question of Defining Aggression opened its sixth annual session and 100th meeting in Geneva [1] on April 25, 1973 it seemed that a definition by consensus was at least within its sight if not within its grasp. There were days when it appeared that a document capable of universal endorsement was about to be born, only to find the hope of success aborted as instructions were received from some distant governments which failed to sense the urgency and opportunity of the moment. “For the first time the Committee was on the eve of accepting a mutually acceptable definition,” said the Soviet delegate, Dimitri Kolesnik. “We were close to agreement,” said Mr. Rodney K. Batstone of the United Kingdom, while France’s M. Charles Chaumont called it an “extremely positive meeting”; the American representative, Steven C. Nelson, noted the “very substantial progress” which had been made. Yet, as the Committee closed its five-week session at the end of May 1973, the term “aggression,” whose precise meaning had eluded scholars for over hald a century, remained undefined.

 

Nonetheless, although full advantage had not been taken of the favorable political climate there could be no doubt that a great deal had been achieved. Much of the rancor which existed at earlier sessions had disappeared. In place of the three previous drafts which had been hotly debated by different blocs of states, now only one unified document was on the table. Several of the old objections had been submerged as new formulations arose. Despite last-minute diplomatic retreats and protecting of prior positions, the movement toward compromise was unmistakable as the few remaining areas of significant differences were isolated and exposed.

 

After years of debate by the Special Committee, whose thirty-five members had been chosen to reflect the principal legal systems and geographic areas of the world, agreement was reached on a wide range of problems. The doubts about the usefulness of a definition were now silenced, if not removed. All concurred that a definition by consensus rather than majority vote was desirable. There was agreement on the format of the definition—it would consist of a preamble, a general description of the nature of aggression, a non-exhaustive listing of certain clearly aggressive acts, a reference to cases where the use of force was lawful, and an indication of the legal consequences of aggression. There was considerable harmony regarding the principles and the wording of almost all of the preamble and most of the substantive provisions. No one disputed that the Security Council alone should have authority and discretion to determine what constituted an act of aggression. There was consensus that any listing of aggressive acts must include invasion, bombardment, blockade, or attack on the land, sea or air forces of another state, and that a declaration of war was no longer relevant. Minor incidents were not to be characterized as aggression. All agreed that both the identity of the first state to use armed force as well as the intent of the parties would have to be considered. For the first time it was recognized that indirect forms of aggression should be included in a listing of aggressive acts. The matter of the proportionality of the response to various forms of aggression, which had previously been a subject of dispute, was no longer raised. This simplified the way to the general agreement on how to deal with the problem of self-defense.

 

The areas of disagreement were also clear. Reservations were expressed with regard to a few words in the preamble. There were slight differences in the proposed wording of the general definition of aggression. No understanding was reached regarding the relative weight to be accorded to the fact that one party had struck the first blow or that another had lawful intentions. There were doubts about the utility of listing attacks on the marine and air fleets of another state among the aggressive acts. How to deal with armed forces overstaying their authorized presence in another state or there engaging in unlawful activities also created problems, as did the prohibition against a state placing its territory at the disposal of another state for the commission of offenses against a third state. The nature and extent of the permissible support which could lawfully be given to armed bands which attack another state also remained unresolved. There was strong disagreement about the relationship between the right of self-determination and the lawful use of armed force, and minor differences in describing the legal consequences of aggression.

 

The single draft which finally emerged was the product of a Working Group which consolidated the efforts of four Contact Groups assigned to seek consensus on various parts of the definition. Their informal meetings, in which Committee members participated, produced a text consisting of nine preambular paragraphs followed by seven substantive articles. The relatively few comments appended to its report indicated how far the Committee really had gone toward universal accord.

 

II. THE UNITED DEFINITION SUBMITTED BY THE WORKING GROUP

1. Basing itself on the fact that one of the fundamental purposes of the United Nations is to maintain international peace and security and to take effective collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace,

2. Recalling that Article 39 of the Charter states that the Security Council shall determine the existence of any threat to the peace, breach or act of aggressing and shall make recommendations or decide what measures shall be taken in accordance with Articles 41 and 42 to maintain or restore international peace and security,

3. Recalling also the duty of states under the Charter of the United Nations to settle their international disputes by peaceful means in order not to endanger international peace, security and justice,

4. Bearing in mind that nothing in this definition shall be interpreted as in any way extending or diminishing the provisions of the United Nations Charter with respect to rights and duties of the organs of the United Nations,

5. Considering also that since aggression is the most serious and dangerous form of the illegal use of force, being fraught, in the conditions created by the existence of all type of weapons of mass destruction with the possible threat of a world conflict with all its catastrophic consequences, aggression should be defined at the present stage,

6. Reaffirming the duty of states not to use armed force to deprive peoples of their righit to self-determination and freedom and independence,

7. Reaffirming also that the territory of a state shall not be violated by being the object, even temporarily, of military occupation or of other measures of force taken by another state in contravention of the Charter,

8. Convinced that the adoption of a definition of aggression would have a restraining influence on a potential aggressor, would simplify the determination of acts of aggression and the implementation of measures to stop them and would also facilitate the protection of the lawful rights and interests of the victim and the rendering of assistance to the victim,

9. Believing that, although the question whether an act of aggression has been committed must be considered in the light of all the circumstances in each particular case, it is, nevertheless, appropriate to formulate basic principles as guidance for such determination

(Declares that:)

 

Article I

Aggression is the use of armed force (however exerted) by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations, as set out in this definition.

Explanatory Note: In this definition the term “State”

(a) is used without prejudice to questions of recognition or to whether a State is a member of the United Nations, and

(b) includes the concept of a “group of States.”

Article 2

The first use of armed force in contravention of the Charter shall constitute prima facie evidence of an act of aggression provided, however, that the Security Council may in conformity with the Charter conclude that a determination to that effect would not be justified in the light of other relevant circumstances, including, as evidence, the purposes of the States involved.

Article 3

Any of the following acts, regardless of a declaration of war, shall constitute an act of aggression:

(a) The invasion or attack by the armed forces of a State of a territory of another State, or any military occupation, however temporary, resulting from such an invasion or attack, or any annexation by the use of force of the territory of another State or part thereof;

(b) Bombardment by the armed forces of a State against the territory of another State or the use of any weapons by a State against the territory of another State;

(c) The blockade of the ports or coasts of a State by the armed forces of another State;

(d) An attack by the armed forces of one State on the land, sea or air forces, marine and air fleets of another State;

(e) The use of armed forces of one State which are within the territory of another State with the agreement of the receiving State, in contravention of the conditions provided for in the agreement or any extension of their presence in such territory beyond the termination of the agreement;

(f) The action of a State placing its territory at the disposal of another State when the latter uses this territory for perpetrating an act of aggression against a third State with the acquiescence and agreement of the former;

(g) The sending by or on behalf of a State of armed bands, groups, irregulars or mercenaries, which carry out invasion or attack involving acts or armed force against another State of such gravity as to amount to the acts listed above, or its open and active participation therein.

Article 4

The acts enumerated above are neither exhaustive nor do they prevent the Security Council from refraining from the determination of an act of aggression if the act concerned is too minimal to justify such action.

Conversely, the Security Council may determine other acts as constituting aggression under provisions of the Charter.

Article 5

None of the preceding paragraphs may be interpreted as limiting the scope of the Charter’s provisions concerning the right of peoples to self-determination or as preventing peoples under military occupation or any form of foreign domination fro musing force and seeking or receiving support and assistance in order to exercise their inherent right to self-determination in accordance with the principles of the Charter and in conformity with the Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States.

Article 6

Aggression constitutes ( ) against international peace giving rise to responsibility under international law.

No territorial acquisition or special advantage resulting from aggression is lawful, not shall it be recognized as such.

* * * * *

The following wording was considered, but it was not decided where it should be inserted:

“No consideration of whatever nature, whether political, economic, military or otherwise, may serve as a justification for aggression.”

(This internet archive is incomplete. Update is in progress. – Ed.)

* Member, New York Bar; J.D., Harvard.

[1] U.N. Doc. A/AC.134/SR.100 (1973)

 

 

 

 

 

 

 

 

Compensating Victims of the Crimes of War

 

By Benjamin B. Ferencz

published: April 1972

source: The Virginia Journal of International Law, Volume 12, Number 3, April 1972

 

We are reminded by a distinguished former judge of the High Court of Calcutta, that it is a timeless axiom of justice without which social life is unthinkable, that a wrong done to an individual must be redressed by the offender himself or by someone else against whom the sanction of the community may be directed. [1]

 

There can be no doubt that wrongs on a massive scale have been committed in Southeast Asia and that as a general rule large numbers of innocent persons have been the victims. As a result of the exigencies created by modern warfare, the United Nations has recently been exploring the measure of compensation which should be paid to victims of “war crimes” and “crimes against humanity.” [2] At present some human rights conventions include provisions which call for compensation for such lesser violations as unlawful arrest and detention [3] or miscarriage of justice. [4] Under ordinary principles of tort law those who engage in illegal or wrongful conduct must compensate the injured parties. Yet, as far as the victims of war crimes of crimes against humanity are concerned, “the timeless axiom of justice” that the individuals who have been wronged are entitled to an appropriate form and measure of redress has been largely ignored.

 

Present practice permits considerable public attention to be attracted to all charges of violent crime and to the drama involved in the trial and punishment of the accused. But the needs of the victim are frequently ignored. Experience has shown that criminal sanctions, particularly if deemed inadequate, offer little solace and no assistance to the survivors. If justice is to be done a more constructive alternative must be found. The payment of pecuniary damages by the offender is possible but not practicable. If the offender acted as the apparent agent of his government and with no malice of his own, it ought to be the duty of the State to redress the injury inflicted. It is suggested, therefore, that an organized program to compensate those who have been the victims of war crimes or crimes against humanity is worthy of serious consideration.

 

I. THE INADEQUACY OF PENAL SANCTIONS

Ever since the Nuremberg trials it has been widely accepted as a principle of international law that the individual committing crimes against peace, war crimes, or crimes against humanity should be held criminally responsible, even if he acted under superior orders or was a Head of State. The crime against peace, which was an innovative codification of principles embodied in the Kellogg-Briand Pact and other international agreements, was defined as that

Preparation, initiation, or waging of a war of aggression, of a war in violation of international treaties, agreements or assurances. . . .

 

War crimes are generally held to be violations of the laws or customs of war. Such violations shall include but not be limited to murder, ill-treatment or deportation to slave labor or for any other purpose of civilian population of or in occupied territory, murder or ill-treatment of prisoners of war or persons on the seas, killing of hostages, plunder or public or private property, wanton destruction of cities, towns or villages, or devastation not justified by military necessity. [5]

 

There was nothing novel about the prohibition of certain enumerated acts which had been declared unlawful in Red Cross and Hague Conventions and which had been proscribed by the national law of most civilized states.

 

Although the underlying concept was old, the title of “crimes against humanity” was something new, for “Laws of Humanity” and “dictates of the public conscience” had long been the subject of international consideration. Acts which ordinarily would have been considered war crimes acquired a new characterization if they were inhumane acts committed against a civilian population for political, racial or religious reasons and if they constituted large and systematic actions which were cloaked with official authority. By their dimension and brutality the collective conscience of mankind was shocked and such acts became international offenses which were now codified under a new caption. [6] Thus, the Nuremberg proceedings set down the three categories and the broad headings under which an individual might be prosecuted—at least in legal theory—for offenses committed in Southeast Asia.

 

Viewed realistically, these penal principles so firmly enunciated at Nuremberg and ratified in the halls of the United Nations have had very limited application since. It has become almost the anticipated allegation made by combatants that only their opponents are guilty of aggression and crimes against humanity. Not surprisingly, no one has been charged in a court of law with the commission of such offenses since 1945.

 

It is the unfortunate, if not absurd, truth that for nearly half a century nations have been unable to agree on what they mean by aggression, [7] and even if it could be defined, no court exists to try “the gravest of all crimes throughout the world.” [8] It is the latest consensus view of the Special United Nations Committee to Define Aggression that only the Security Council should have authority to decide who is the aggressor. In a political arena with veto powers a judicial determination is, under present circumstances, hardly to be expected. It appears most unlikely in the foreseeable future that States will voluntarily accept the jurisdiction of any international court over problems affecting major national interests. [9] Moreover, the United States Supreme Court, as presently constituted, will not even listen to arguments that the United States is embarked on a war of aggression, since the conduct of foreign affairs is viewed as a non-justiciable Presidential or Congressional prerogative. [10]

 

As far as war crimes are concerned, the situation is a little, but not much, better. In 1955, the Supreme Court held that those who had left the military service could not be charged with crimes committee while in uniform. [11] Under the Geneva Conventions of 1949 our government was legally obliged to enact legislation to bring to trial all persons who had committed “grave breaches” of the Convention, including willful killing or inhuman treatment of prisoners of war and civilians and the wanton destruction of property not justified by military necessity. Yet for over 17 years no step was taken to close the ex-serviceman’s escape-hatch to immunity. [12]

 

In the face of such publicly disclosed tragedies as the My Lai massacre, a certain number of trials by courts-martial against those soldiers or officers directly responsible for shooting helpless and innocent civilians was un avoidable. The military accusing one of its own of dereliction is surely a painful process. When the offense may have been stimulated by the Army’s own failure to stress adequately humanitarian considerations, it is particularly embarrassing.

 

Where the crimes are committed during a counter-insurgency action in which non-combatants and the enemy are often indistinguishable, the dilemmas facing the combat soldier evoke the sympathy not only of large segments of the public but also of the Commander in Chief. A comprehensive program of war crimes trials by an impartial court or by victors over vanquished is obviously is obviously not on the horizon.

 

The mere fact that some war crimes trials were conducted by the United States against American soldiers during a period of “war” is a rare phenomenon in a world which periodically seethes with armed conflict. However, the manner in which the trials were conducted, as well as their outcome, demonstrates that the military may not be relied upon to accuse and try itself. [13] Only a dozen men were ever charged with responsibility for the My Lai massacre, and all save one, Lt. William Calley, were found to have done no wrong.

 

Surely no one will pretend that no other war crimes have been committed in Southeast Asia. Yet apparently no further criminal trials are contemplated. We have forgotten what was learned at Leipzig after World War I when the Germans in trying their own war criminals produced only six convictions out of 896 accused. [14] We have forgotten that after World War II we espoused the theory that the principles of international penal law apply to foe and friend alike. In the final analysis, we are reminded of the last words of Justice Robert H. Jackson as he closed the Nuremberg prosecution in the name of the United States:

If you were to say of these men that they are not guilty, it would be as true to say there has been no war, there are no slain, there has been no crime. [15]

 

The military conviction of a single officer in a single case can only dramatize how ineffective has been the attempt to impart a feeling of vindication or justice through the conduct of military trials. In the absence of any effective criminal sanctions it is all the more important that a meaningful civil remedy be sought. Let us examine the rights of the victims as we consider the obligations of the perpetrators of the crimes.

 

II. CIVIL RESPONSIBILITY FOR COMPENSATION

A. Responsibility of the Individual Offender

Where a soldier has been convicted by a military court of having committed war crimes and that conviction is no longer subject to review, he will have been found guilty beyond a reasonable doubt of having deliberately committed the wrongful acts. The conviction will have established that his deeds were not acts of legitimate military necessity but were in fact illegal and contrary to the established rules of war. Under ordinary principles of civil law he should be obliged to make compensation for property losses, personal injuries and loss of life.

 

The case would be the same if a superior officer were found to have failed negligently to exercise sufficient control over his troops to have prevented the occurrence of the offense, [16] or to have been negligent in the indoctrination and training of troops which were placed in a position where the commission of crimes reasonable could have been foreseen. It is the business and function of commanding officers to maintain a level of discipline and control over their armed forces adequate to restrain the power, the propensity, and the opportunity to commit unlawful acts. If the superior’s neglect gave rise to the injury, there would be no substantial distinction between his negligence and the deliberate commission of the wrongful act in imposing civil liability for damages.

 

The matter would be more difficult where there was no prior conviction by a military court, for in those cases the plaintiff would have to prove in the civil action that the defendant was personally responsible for the commission of the illegal act of the omission on individual soldier committing illegal acts under battlefield conditions has proved overwhelming when attempted by the Army itself. For the victim to obtain such evidence would almost certainly prove impossible. The unfortunate victims are often too terrorized, too uninformed or too powerless to even consider requesting the reparations to which they would be both legally and mortally entitled.

 

Even if the facts of unlawful or negligent conduct could be established, the plaintiff would still face a host of problems. He would have to obtain jurisdiction over the defendant, [17] set forth specifically the alleged wrongful conduct, prove the extent of damages, [18] and be able to collect on whatever judgment might be issued. There would surely be a public outcry against holding a solider financially responsible for action taken in the belief, however badly mistaken, that he was serving his country. This public sentiment would be reinforced by the feeling that he had already paid his debt if there had been a conviction and sentence. It could be anticipated that in most cases of war crimes the offender would be financially unable to satisfy the judgments rendered against him to compensate the victims. [19] Most often, the injured party would be left between the difficult predicament either of not being able to prove his case or of not being able to collect his award.

 

An action for $400 million brought against Lt. Calley, Secretary of Defense Laird, and Secretary of the Army Resor on behalf of the Unified Buddhist Congregation of Vietnam, purporting to represent the My Lai massacre survivors, was promptly dismissed by the United States District Court in Georgia. The decision was based on the plaintiff’s lack of capacity to sue, failure to state a complaint and expiration of the two-year statute of limitations. [20] If justice is not to be defeated by the denial of real redress to the wronged individual who has a justified claim, an alternate basis of liability must be sought.

 

B. Responsibility of the State for Acts of Its Officers

The responsibility of States for damages caused to aliens has been the subject of intensive study by the International Law Commission [21] and was dealt with extensively in a Draft Convention prepared at Harvard University under the direction of Professors Sohn and Baxter. [22] There is a long tradition in the US of insisting, as a matter of law as well as equity, that a State is responsible for the acts of its officer done within the apparent scope of their authority. [23]

The theories under which the State is held responsible have varied. [24] In some cases the officer is viewed as the agent of his government, and liability attaches under ordinary principles of agency law. In other cases liability is based on the State’s negligence in either failing to prevent the offense or in a denial of justice by failing to find, try, and adequately punish the parties directly culpable. The dereliction is viewed as an omission for which the State is itself responsible. Therefore, the State would be deemed to have transgressed a provision of international law as the State’s duties, and the government’s negligence in not punishing the criminal has denied the offended party the opportunity of subjecting the wrongdoer to a civil suit.

 

The Geneva Conventions of 1949 require the US to enact any legislation necessary to provide effective penal sanctions against persons committing any grave breaches of the Convention, and to bring such persons, regardless of their nationality, before its own courts or to hand them over to trial by another High Contracting Party. It has been pointed out by Alfred P. Rubin that we have failed to live up to this international penal obligation. [25] If we also fail to live up to our civil obligations to indemnify the victim, we should not be surprised if our government is viewed as having condoned the offense or as having exercised actual or tacit complicity in the crimes.

 

The Hague Convention IV of 1907 provided that a belligerent who violated the regulations would be liable to make compensation. Article 3 prescribed responsibility “for all acts committed by persons forming part of its armed forces.” [26] The US has regularly confirmed the principles of State liability and demanded compensation from foreign governments for wrongs committed by their officers against US nationals. [27] The US has also paid compensation when the wrongdoer was an officer of the US. A particularly apposite case involved a 2nd lieutenant Gulley, and American officer who in 1919 was on guard at the Mexican Border. He shot at a raft in the Rio Grande intending only to frighten the occupants whom he believed to be engaged in illegal activities. One of the shots killed a Mexican girl. The action of the Lieutenant was an error of judgment for which he was convicted by courts martial and discharged. He was restored to duty by the President of the US. The Mexican-American Claims Commission required the US to pay compensation to the parents of the slain girl. [28] If the US had to pay for the unintentional killing by Lt. Gulley, should it not also be responsible for the intentional killing by Lt. Calley?

 

Many years ago M. Henry Frimageot, the distinguished French member of the Permanent Court of International Justice, enunciated the general rule that a Government is responsible for errors in judgment of its officials purporting to act within the scope of their duties. [29] No one has claimed that Lt. Calley, or his like, as callous as may have been their deeds, were acting with a malice of their own. American servicemen, who may have committed war crimes, whether recklessly, carelessly, or in direct contravention of their orders, were nevertheless purporting to act within the scope of their duties as soldiers. It is the legal and moral obligation of the government in whose name and on whose behalf the deeds were committed to see to it that the victims of the crimes receive just compensation for the injuries unlawfully inflicted upon them.

 

III. A SUGGESTED PROGRAM OF CONSTRUCTIVE ACTION

The extent of US involvement in “war crimes” or “crimes against humanity” is a hotly debated subject, often influenced by the participants’ emotional reaction to the war itself. Although it is certain that war crimes have also been committed by the other combatants, it is only the US which has sought to restrain such illegal deeds by the trial and public condemnation of at least a few of the offenders. The US Government should, therefore, continues to assert its moral leadership by not making its adherence to international law and precedent dependent or conditional on the similar action by any other State.

 

A. Defining the Perimeter of Criminal or Civil Liability

There has been considerable debate and disagreement about what actions in Southeast Asia might be considered sufficiently criminal to give rise to an obligation to indemnify the civilian victims. The range of possible offenses covers a wide spectrum. At one end there are such clear war crime as the deliberate killing of helpless civilians at My Lai and similar atrocities. Here both the criminal and the civil and liabilities are beyond dispute. At the other extreme, however, are such difficult questions as the legality of the war itself, and whether the intervention in North Vietnam, Laos and Cambodia were aggressive acts constituting “crimes against peace,” or whether they were lawful acts of legitimate self-defense and retaliation. In the absence of all of the records on all sides it is not likely that these questions will be authoritatively resolved in the near future. It is more productive therefore to deal with the areas where some agreement may be possible.

 

The problems which have evoked the most heated public debate among qualified observers have related to the legality of “free-fire zones”, “search and destroy” operations, destruction of undefended areas by artillery or bombing, the use of chemical defoliants, the resettlement of villages, and the detention of civilians as well as the methods of interrogating prisoners. [30] The UN has long been concerned with increasing respect for human rights during periods of armed conflict. [31] The International Committee of the Red Cross has convened an inter-governmental conference to improve the rules of warfare in an attempt to make them more reflective of the needs of our times. [32] But since States continue to be concerned primarily with protecting their own legal and political positions it is not likely that there will be any early clarification which will end the debate about the legality of various actions in Vietnam.

 

The Bar Association of the City of New York, assisted by a panel of very distinguished American jurists, recently proposed that a commission, including leaders of the Bar, the Congress, the public and the armed forces, be appointed to investigate and report on the observance of the laws of war in Indochina. [33] Particular attention would be paid to the type of problems indicated above. If our government would agree to the establishment of such a commission it could also have as one of its responsibilities the obligation to set forth those areas in which the United States would be willing to assume financial responsibility for war-related damages. This could be done without necessarily acknowledging any criminal responsibility for violating any of the present laws of war. The commission could define the parameters within which the US would be prepared to make compensation on either legal or humanitarian grounds.

 

B. Legislation for Individual Compensation

Once the principles of liability have been accepted, it will be necessary to draw up the precise statute or rules and regulations which will govern the payment of compensation. These would set forth the classes of persons which would be eligible for payment, the categories of damage for which compensation would be paid—personal, property or economic losses, the elements of proof required—after taking into account what may reasonably be demanded. The measure of compensation for the different types of loss, and the procedure for disposing of the claims as well as for the review of decisions reached.

 

What can be done to help is not as difficult as it may seem. History has never recorded crimes of the magnitude committed by the Hitler regime of Nazi Germany. [34] Yet after World War II, an enormous program was instituted for providing restitution and indemnification to surviving victims of that holocaust. [35] In addition to the return of hundreds of thousands of properties and businesses, [36] the Federal Republic of Germany provided individual compensation to over three million victims of persecution. Over $10 billion have been paid in indemnities for loss of life, loss of profession, false imprisonment, permanent damage to health and various economic deprivations. [37] ruin, the payment of compensation to millions of victims of that war was accompanied without any noticeable hardship to the average German citizen. The wise German leaders, such as Chancellor Konrad Adenauer, considered restitution to Nazi victims to be an essential moral prerequisite for Germany’s readmission to the family of civilized nations. The US assisted, encouraged and applauded the German action. Is it not time for the US to begin to follow its example?

 

C. The Administrative Machinery to Settle the Claims

Where claims are asserted against the Government itself it would be preferable to have the adjudication done by some impartial body. A neutral international court, such as the International Court of Justice, would be the ideal body to supervise the disposition of the claims. To comply with the Statute of the Court [38] the case for the claimant could, as is customary I international law, be presented by his own government acting on his behalf. It would enhance the image of international law if the US would accept the jurisdiction of the under-utilized [39] World Court in the matter.

 

If the US should be reluctant to surrender its sovereignty to the Court in connection with war claims, perhaps it might consider allowing the International Committee of the Red Cross to deal with such claims on humanitarian grounds. This is what was done by the Federal Republic of Germany in connection with the claims of Nazi medical experiments who resided in countries with which Germany had no diplomatic relations and which were, therefore, denied compensation under the general German indemnification laws. [40] The German action was largely in response to American public pressure. [41]

 

Resort can always be had to Mixed Claims Commissions, which have frequently been employed to settle claims of foreign nationals. Presumably these would be composed of all, or at least some, of the States parties to the conflict and claims could be adjudicated by nationals of all participants or neutral States. Such Commissions and arbitral tribunals have worked effectively in the past without any major problems. [42] There is also the precedent of the Philippine War Damage Commission, concerned primarily with rehabilitation, [43] and of the existing Foreign Claims Settlement Commission of the US, which adjudicates claims of American nationals for various types of war losses. [44] Probably the easiest way to handle the claims would be accomplished through bilateral agreements with the other States involved. The US would pay a fixed sum of money which the receiving State would then distribute among its nationals pursuant to agreed criteria and possibly under the supervision or control of the US. [45] Payment would be either by a lump sum or in installments. A wide variety of precedents and patterns are available. The administrative machinery to do the job can readily be created. All that is needed is the will to act.

 

D. Reparations to Supplement Individual Indemnification

Compensation on the basis of individual claims may be replaced or preferably supplemented by other forms of reparation. In many cases it may be impossible to identify the individual victims of conduct which the US is prepared to indemnify. [46] Where whole areas have been defoliated or destroyed, where the ecology of a region has been seriously disrupted, or where all the inhabitants of villages have been dislocated by flight or relocation, it may be possible to provide funds to help rebuild or replace what was destroyed. The construction of hospitals, homes, schools, orphanages, or the provision of food, supplies, or technical assistance may all be suitable forms of reparation. The local government can undertake the reconstruction or distribution subject to sufficient controls to assure that the objectives of the rehabilitation are achieved. President Nixon recently indicated that the US would be prepared to consider substantial grants to the countries in Southeast Asia as part of a reconstruction program. [47] His proposal was consistent not only with the traditional post-war reconstruction practice of the US but also with our apparent legal obligations. Whatever else, it tended to re-emphasize the feasibility of the concept of compensating the victims or armed conflicts as proposed in this article.

 

IV. CONCLUSION

Professor Hyde once wrote: Control breeds responsibility. A State must be deemed to be internationally responsible for the consequences of internationally illegal conduct within any area over which it in fact asserts control in time of peace of war. [48]

The US should acknowledge its responsibility for wrongful conduct of its officers and start to plan and prepare the measures which will be required to compensate the victims of war crimes in Southeast Asia. Voluntary committees of American have already begun to take humanitarian action to aid the war-injured Vietnamese children and others. [49] Where our government cannot accept legal responsibility it should act on the basis of humanitarian commitment. The American government has an opportunity and an obligation which will help bind up the wounds both here and abroad. It should begin to act now.

* The editorial assistance of Martin F. Conniff, a student at the University of Virginia School of Law, is gratefully acknowledged.

 

[1] Roy, Is The Law of Responsibility of States for Injuries to Aliens a Part of Universal International Law?, 55 AM.J.INT’L L. 863 (1961).

[2] G.A. Res. 2712, 25 U.N. GAOR Supp. 28, at 79, U.N. Doc. A/8233 (1970).

[3] International Covenant on Civil and Political Rights, art. 9, 21 U.N. GAOR Supp. 16, at 58, U.N. Doc. A/6546 (1966); European Convention on Human Rights and Fundamental Freedoms, art. 5, Council of Europe 3-4 (1971).

[4] American Convention on Human Rights, art. 10.

[5] Control Council Law No. 10, art. II, para 1(b), which set forth the principles under which the Nuremberg Military Tribunals were conducted.

[6] See Ferencz, War Crimes, Law and the Vietnam War, 17 AM.U.L.REV. 403 (1968); U.S. Dep’t of State, Pub, No. 3080, CONFERENCE ON MILITARY TRIALS 395 (1945). See also Dautricourt, La Definition du Crime Contra l’Humanite, [1947] REVUE DE DROIT PENAL. Professor Frank C. Newman of acts committed against a civilian population are crimes against humanity (unpublished paper submitted to a panel of the American Society of International Law, June 1971). He concludes that the United States may be committing crimes against humanity in Indochina.

[7] Report of the Special Committee on the Question of Defining Aggression, 26 U.N. GAOR Supp. 19, at 21, U.N. Doc. A/8419 (1971).

[8] See G.A. Res. 380, 5 U.N. GAOR Supp. 20, at 13, U.N. Doc. A/1775 (1950).

[9] See TOWARD A FEASIBLE INTERNATIONAL CRIMINAL COURT chap. 26 (J. Stone & R. K. Woetzel eds. 1970); Falk, Realistic Horizons for International Adjudication, 11 VA. J. INT’L. L. 314 (1971).

[10] Orlando v. Laird, 40 U.S.L.W. 3158 (U.S. Oct. 12, 1971); United States v. Mitchell, 246 F. Supp. 874 (D.C. Conn. 1965); see also Brief for the Constitutional Lawyers’ Committee on Undeclared War, reprinted in 17 Vietnam, 57 CALIF. L. REV. 1055 (1969).

[11] Toth v. Quarles, 350 U.S. 11 (1955).

[12] Rubin, Legal Aspects of the My Lai Incident, 49 ORE.L.REV. 260 (1970). With respect to the protection of civilian persons, see Geneva Conventions, Aug. 12, 1949, art. 147, [1956]. T.I.A.S. No. 3364.

[13] See Taylor, The Course of Military Justice, N.Y. Times, Feb. 2, 1972, at 37, col. 1.

[14] S. GLUECK, WAR CRIMINALS , THEIR PROSECUTION AND PUNISHMENT 311 (1944).

[15] NAZI CONSPIRACY AND AGGRESSION 44 (Supp. A, 1947) (emphasis added).

[16] See In re Yamashita, 327 U.S. 1 (1946); compare the case against Capt. Ernest L. Medina, the company commander of the convicted Lt. William Calley, which seemed to require actual knowledge that war crimes were being committed. Medina was acquitted. See N.Y. Times, Sept 26, 1971, §E, at 6; see also T. TAYLOR, NUREMBERG AND VIETNAM: AN AMERICAN TRAGEDY (1970).

[17] The federal district courts should have jurisdiction to deal with violations of treaties to which the US is a party, including treaties establishing the rules of war. 28 USC § 1350 (1970) provides: The District Courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States. The presence of the defendant in the armed forces should not serve as an insurmountable barrier any more than it would if the defendant could also be held accountable in the jurisdiction of his domicile. The domicile of the plaintiff could also serve as the forum if he could obtain jurisdiction over the defendant by personal service. There would seem to be persuasive reason why the plaintiff could not assign his claim to someone domiciled elsewhere.

[18] Damages would generally be determined by the financial loss sustained by those dependant upon the victim and by the victim himself if he survived. It would not be unreasonable in the case of war crimes to demand and to expect punitive damages as well for their additional deterrent effect. A few States have denied punitive damages in the case of torts which are also crimes and some have held that a conviction and fine in a criminal prosecution could be shown in mitigation of damages, but the great weight of authority would allow punitive damages where the defendant was guilty of willful disregard of the rights of others.

[19] In the case of some convicted German war criminals who were enormously wealthy industrialists, such as Alfred Krupp, or multimillionaire concerns such as I.G. Farben, AEG, Telefunken, and others, it was possible to obtain compensation for survivors of concentration camps. This was done, however, by way of negotiated settlements since the German courts refused, for purely procedural reasons, to deal with the substance of the claims. See Ferencz, West Germany: Supreme Court Bars Claims of Forced Laborers Against German Industrial Concerns, 15 AM. J. COMP. L. 561 (1967).

[20] Civil Action No. 1473 (M.D.Ga. 1971). The case was dismissed on July 8, 1971.

[21] See Amador, (First) Report on State Responsibility, [1957] 2 Y.B. INT’L L. COMM’N 173, U.N. Doc. A/CN. 4/96 (1956).

[22] HARVARD LAW SCHOOL, CONVENTION ON INJURY TO ALIENS (1960); see also Harvard Draft on the Responsibility of States for Damages Caused on Their Territories to Persons and Property of Foreigners, 23 AM. J. INT’L. L. 131 (Special Number 1929).

[23] As early as 1873, U.S. Secretary of State Fish defined a rule of the law of nations to the effect that a government which refuses to repair the damage committed (to aliens) by its citizens or subjects, to punish the guilty parties or to give them up for that purpose may be regarded as virtually a participant in the injury and as responsible therefore. J. B. MOORE, 6 INTERNATIONAL LAW DIGEST 655 (1906). In 1885 Secretary of State Bayard declared that the mere fact that an act might be committed without orders from superiors in command was not dispositive of the question of liability. He acknowledged that the US was responsible even if the soldiers’ acts were forbidden, provided they were not motivated by private malice. J.B. MOORE, 6 INTERNATIONAL LAW DIGEST 758 (1906).

[24] Professor Richard B. Lillich has edited the PROCEDURAL ASPECTS OF INTERNATIONAL LAW SERIES which deals with various aspects of international claims; see e.g., R. LILLICH & G. CHRISTENSON, INTERNATIONAL CLAIMS: POSTWAR BRITISH PRACTICE (1967).

[25] See note 12 supra; see also Brierly, The Theory of Implied State Complicity in International Crimes, 9 BRIT. Y.B. INT’L. L. 42 (1928).

[26] Hague Convention IV of 1907, art. 3, 36 Stat. 2277 (1909-11), T.S. No. 539.

[27] A mixed claims commission set up under the Treaty of Berlin between the US and Germany, 3 U.S.T. 2596 (1921), dealt with claims arising out of the sinking of the British liner Lusitania which was torpedoed by a German submarine with the loss of 128 American lives while the obligation to pay to the US for the death, personal injury and property losses of the American nationals. It set forth an elaborate formula for determining the extent of compensation, taking into account such factors as the amount which the decedent, has he not been killed, would probably have contributed to the claimant, plus an amount for the loss of personal services, for pain and suffering and other elements similar to those usually applied in assessing damages in an ordinary negligence action. Lusitania Cases (US v. Germany), Mixed Claims Commission 1923; Cons. Ed. Of Decisions 17 (1925). Our government also demanded and received compensation for injuries to American nationals by foreign soldiers from Canada, Honduras, Spain, Poland, Mexico, Venezuela, Israel, and many other countries.

[28] Garcia and Garza v. US, General Claims Commission (1926), reprinted in 21 AM. J. INT’L. L. 581 (1927). The Associated Press reported on Aug 1. 1971 that the US was paying $17 million to Vietnamese civilians for personal injury or property losses sustained when a US ammunition dump was accidentally exploded. The Congressional Resolution No. 617 authorizing $25 million for World War II damage claims to inhabitants of US Trust Territories. CONG. Q., July 25, 1971, at 1371.

[29] Quoted in H. BRIGGS, THE LAW OF NATIONS 584 (1942). Many States provide benefits to the victims of ordinary crimes and federal legislation has been introduced to compensate those who have been victims of domestic murders, rapes, and robberies. See NY Times, Dec. 12, 1971, at 95, col. 5; Lamborn, Remedies for the Victims of Crime, 43 S. CAL. L. REV. 22 (1970). Why should the US Government’s obligation be less if the crime is committed by a soldier acting for the US?

[30] See Sheehan, NY Times, Mar. 28, 1971, (Book Review), at 1, col. 1. In this piece Neil Sheehan reviews 33 books on the subject as submitted by Professor Mark Sachanoff.

[31] U.N. Doc. A/8052 (1970); U.N. Doc A/8313 (1971).

[32] See CARNEGIE ENDOWMENT, REPORT ON CONTEMPORARY PROBLEMS OF THE LAW OF ARMED CONFLICTS (1971); Hewitt, Recent Developments: Respect for Human Rights in Armed Conflicts, 4 N.Y.U.J. INT’L. L. & P. 41 (1971).

[33] 27 Record of the Association of the Bar of the City of New York (Jan. 1972)

[34] See NAZI CONSPIRACY AND AGGRESSION (1946); TRIALS OF WAR CRIMINALS BEFORE THE NUREMBERG MILITARY TRIBUNALS (1949).

[35] See Bundes Entschadigongsgetz (Blessin-Ehrig-Wilden 1960); Bundes Ruckerstattongsgegetz (Blessin-Wilden 1958); Bundes Entschadigongs-schlussgesetz (Blessin-Gleisster 1967).

[36] Restitution was effected pursuant to restitution laws of the three Western occupying powers. See U.S. Mil. Gov’t Law No. 59 (Nov. 20, 1947); Mil. Gov’t Law 59 of the U.K. of (May 12, 1949); Ordinance No. 120 of the French Commander (Nov. 10, 1947). See Ferencz, Restitution to Nazi Victims—A Milestone in Morality, TWO GENERATIONS IN PERSPECTIVE (H. Schneiderman ed. 1957).

[37] Official Statistics of the Federal Republic of Germany, Ministry of Finance; see also U.N. Doc. E.CN. 4/1010, at 23-26 (1969), for information concerning the criteria for determining compensation to the victims of war and crimes against humanity as set forth by many States.

[38] See I.C.J. STAT. Art. 34, which provides that only States may be parties in cases before the Court.

[39] See U.N. Doc. A/8405 (1971); see generally 11 VA. J. INT’L L. 291-371 (1971).

[40] Decision of the Cabinet of the Federal Republic of Germany, July 16, 1951. See Bundes Entschadigongsschlussgesetz (Blessin-Giesler 1967), at 216, 306, 308, 839.

[41] See Cousins, Report on the Ladies, SAT.REV., July 22, 1961, at 28.

[42] See Agreement Signed at Berlin, Aug. 10, 1922, 3 U.S. TREATIES 2601; see also the work of the Mexican Claims Commission, reported in J. MOORE, 2 ARBITRATION 1249-86 (1898), and the decisions of the Court of Restitution Appeals.

[43] See Schein, War Damage Compensation Through Rehabilitation—The Philippine War Damage Commission, 16 LAW & CONTEMP. PROB. 519 (1951).

[44] See War Claims Act of 1948, 50 U.S.C. App. § 2017; Decisions of the Foreign Claims Settlement commission (U.S. Gov’t Printing Office).

[45] In the agreement between the State of Israel and the Federal Republic of Germany of Sept. 10, 1952, Israel undertook to compensate some of its own nationals for damage to their health caused by Nazi persecution. Germany paid reparation in the form of goods shipped over a ten-year period. 162 U.N.T.S. 206 (1953).

[46] Apparently no effort was made following the My Lai massacre to identify the victims who appeared in photographs to have been treated no better than cord wood. The US military should consider issuing regulations requiring that every effort be made to ascertain the next of kin of any civilians killed in areas controlled by the US. It would indicate humanitarian concern and an interest in possibly helping the survivors.

[47] N.Y. Times, Jan. 26, 1972, at 10, col. 1. President Nixon’s position was reiterated by Secretary of State Rogers, N.Y. Times, Feb. 7, 1972, at 12, col. 3.

[48] C. HYDE, 2 INTERNATIONAL LAW 922 (1945).

[49] See the work of the Committee of Responsibility of War Injured Children, Washington, D.C.; see also an article in the International Herald Tribune, June 23, 1971, reporting on 200 scientists at a dozen American universities doing research to help “the victims of US aggression in Vietnam .”