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

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.)

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

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