Paradoxes of a Sharp Legal Mind: An Introduction to "Aggression and World Order: A Critique of United Nations Theories of Aggression"
General Editor’s Preface
The principle of aggression is at the core of the modern international legal order. The United Nations Charter and the Nuremberg principles have enshrined its peremptory and criminal properties. In this moment when many sober observers view geopolitical upheaval on the horizon, the persistent instability of that core is placed in relief. The inability of international institutions to give effect to the prohibition of armed force and the absence of machinery to ensure the prosecution of parties for aggressive conflict are symptomatic of this state. The uncertain legal position of aggression remains intertwined with the roots of persistent global problems.
The following reprint of Professor Julius Stone's work is prompted by perennial questions of security and order relating to this core principle. Many years after its original publication, there is much to support Stone's underlying skepticism toward the principle as expressed in his two part thesis that i) defining aggression is not vital to human survival and thus not ethically imperative and ii) focus on promoting security actions via the broader concept of breach of the peace would better assist human survival.
However, as Professor Benjamin Ferencz has underscored in his new introduction, important gains have been made in recent years, especially respecting international criminal law. Stone’s work focused on the norm of the prohibition of aggression and its place within the nascent United Nations system. He gave less attention to the consequences of the Nuremberg principles for international criminal law. Gains in that latter area have created opportunities to realize a framework that can enforce the prohibition of aggression by codifying the means to adjudge and punish those responsible for its commission. Aiding our historical understanding of Stone’s text, Ferencz has imparted in the present introduction his matchless legal perspective beginning prior to his tenure in Nuremberg as a Chief Prosecutor and an Executive Counsel to General Telford Taylor.
If Stone and Ferencz were able to discuss today the basic questions in Aggression and World Order, they would likely still disagree on central positions, just as they had – to the profit of their readers – over the course of decades of discourse on the subject in scholarly texts and journals. In any discussion, the like-mindedness of the two humanitarians would doubtless come through. The Foundations of the Laws of War series is clearly deeply enriched by Ferencz’s contribution to the vexing topic set out in Stone’s authoritative and provocative treatment.
November 20, 2005
Paradoxes of a Sharp Legal Mind: Professor Julius Stone and International Aggression
BENJAMIN B. FERENCZ
Julius Stone was one of the most respected international legal scholars of the past century. Stone, the Challis Professor of Jurisprudence and International Law at the University of Sydney from 1942 to 1972 and then professor at the University of New South Wales from 1972 through 1985, did not hesitate to probe the most contentious jurisprudential problems.1 His 1958 book, Aggression and World Order: A Critique of United Nations Theories of Aggression,2 explored the United Nations' quest for a definition to identify nations that resorted to the illegal use of armed force. He agreed that aggression was the gravest international crime, yet he was unable to avoid the painful conclusion that the search for a binding definition that would curb aggressive behavior of nations might be a frustrating and futile endeavor. Sovereign states, he observed, are concerned with protecting their own national interests rather than enforcing the rule of law. After almost half of a century since his book was written, it is worth reexamining his thesis to see if it still has merit and what can be done realistically to move toward the humanitarian goals which Stone so fervently shared with peace-loving people everywhere.
Let us recall that after some fifty million men, women and children were killed in World War II, political leaders of the victorious powers held forth the promise that a new structure of international society would be created to preserve the peace. Those who had launched the war and directed the mass murder of millions of innocent civilians were warned that they would be held to account for the purposes of justice and legal precedent alike. The framework of international society’s new structure would be the United Nations, built from the rubble of its failed predecessor, the League of Nations, another edifice framed in the aftermath of a catastrophic war.
The Preamble of the United Nations Charter, signed June 26, 1945, begins by expressing the determination “to save succeeding generations from the scourge of war.” Paragraph 1 of Article 1 of the Charter declares the UN’s purpose to include the exercise of “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.” Responsibility for preserving the peace is entrusted to the Security Council, composed of fifteen members including five permanent members drawn from the victorious Allied Powers. Chapter VII of the Charter empowers the Council with the discretion to determine whether an act of aggression by a state has occurred and to take whatever measures necessary to restore international peace and security.3 The Charter, however, fails to specify which acts constitute the illegal aggression that triggers a collective defense.4
In addition to that framework, the matter of dispensing justice after the vast breach of the peace and establishing precedents for the prevention and punishment of future aggressors still remained for international society’s new structure. On August 8, 1945, the four Allied Powers occupying Germany signed the London Agreement in order to create an International Military Tribunal to try German leaders deemed responsible for the war and its atrocities.5 The trial was to take place at Nuremberg. The IMT’s jurisdiction was limited to Crimes Against Peace, War Crimes, and Crimes Against Humanity. Crimes Against Peace were defined as “planning, preparation, initiation or waging of a war of aggression, or a war in violation of international treaties, agreements or assurances, or participation in a common plan or conspiracy for the accomplishment of any of the foregoing.”6 After a fair trial that was open to the public, and a thorough analysis of the arguments made by the defendants' chosen lawyers,7 the eminent IMT judges concluded that those who had planned and directed attacks against their peaceful neighbors must have known that they were violating existing international law.
The genesis of modern international criminal law occurred in the interim between the two wars. At the conclusion of the Great War, the Allied Powers convened a special commission of international law experts to address criminal responsibility. Robert Lansing, the U.S. Secretary of State, chaired the Commission on the Responsibility of the Authors of War and Enforcement of Penalties for Violations of the Laws and Customs of War, which issued a Report naming over 850 suspected war criminals and enumerating 32 activities constituting war crimes.8 Leading up to the Treaty of Versailles, the report asserted that “all persons belonging to enemy countries . . . who have been guilty of offenses against the laws and customs of war or the laws of humanity, are liable to criminal prosecution.”9
The Treaty of Versailles, 1919, served two basic purposes. It included the Covenant of the League of Nations,10 the institution designed to establish a pacific world order, and it established the terms of the peace as dictated by the victorious Allies.11 The long term prospects of the League were not helped by the U.S. Senate’s failure to ratify the Treaty and unwillingness to ever join. The Treaty also formed an untenable peace.12
In addition to its Report, Lansing’s Commission also drafted the “Penalties” section of the Treaty, which included Kaiser Wilhelm II’s public arraignment for “a supreme offence against international morality and the sanctity of treaties.”13 In the event, the Kaiser avoided a trial by fleeing to Holland, where the Dutch state refused requests for his extradition. Although the Treaty of Versailles also called for military tribunals administered by the Allied Powers,14 German war prisoners were ultimately returned, ostensibly to face a special court established in 1921 in Leipzig. The Criminal Senate of the Imperial Court of Justice held just twelve trials, none of which concerned significant figures. The process was highly unpopular in Germany and clearly did not foster any sort of national contrition.15 In spite of its practical inconsequence for prosecutions, the Treaty of Versaille’s precedents for criminal responsibility comprised a step toward the prohibition of force.
In the aftermath of Versailles, France initiated bilateral negotiations with the United States to rehabilitate relations between the former allies eroded in large part because of the United States’ unwillingness to forgive France’s war debt, which, itself, was linked to German reparations due to the Treaty. These negotiations resulted in a turning point for the proscription of armed force. The multilateral Kellogg-Briand Pact of 1928, signed outside the League of Nations framework by Germany, France, the U.S. and over sixty other countries, outlawed the use of force for the settlement of international disputes.16 While signatories failed to adhere to its terms, the Kellogg-Briand Pact is nonetheless a critical precedent for international criminal law.
The Pact and the Treaty of Versailles were cited along with many other treaties by the Nuremberg Tribunal and prosecutors to justify the aggression charge as being consistent with existing international law as well as the principles of fair trial.17 In his June 6, 1945 report to President Truman, Justice Robert Jackson, on leave from the United States Supreme Court in order to act as Chief Counsel for the United States, decried “the sterile legalisms developed in the age of imperialism to make wars respectable.”18 Augmenting the gravity of the available legal precedents, he called for common sense and a firmer enforcement of the laws of international conduct, “so as to make war less attractive to those who have governments and the destinies of people in their power.” The IMT judges recognized that the law is not static but must change to meet the needs of a changing world. Aggressive war, that had previously been a national right, was legally condemned as an international crime. International law had taken a significant step forward.
In December 1946, the first General Assembly of the United Nations unanimously affirmed the validity of the IMT trial and judgments,19 which were followed by subsequent Nuremberg proceedings and war crimes trials in Tokyo. In 1947, the Assembly appointed committees to draft a Code of Offences against the Peace and Security of Mankind – a code expressly to be based on the Nuremberg principles – and prepare for the establishment of a permanent International Criminal Jurisdiction to try those who violated the anticipated new criminal code.20 Idealistic UN aspirations in support of the rule of law soon confronted political reality. Nations and groups with different national, political, religious and ethical backgrounds had different perceptions of what was right and just. Additionally, as the price for joining the collective UN effort, the permanent members on the Security Council had reserved to themselves an unfair veto power: Any one of the five could block any enforcement action.
The argument was heard that there was no need for an International Criminal Court unless there was an agreed Code of Crimes for the Court to enforce. There could be no Code without including the crime of aggressive war that the Nuremberg Judgment had labeled as “the supreme international crime.”21 It was said that until aggression was more specifically defined, it could not be included in a precise criminal statute. Indeed, the General Assembly determined that a formulation of a criminal statute itself must be suspended until a definition was reached.22 Defining aggression was the key effort needed to unlock action on the Code and the Criminal Court, the arches of the gateway to the order conceived at Nuremberg. This definition project survived the years immediately following the Nuremberg Tribunal in spite of pronounced difficulties.
In addition to directing the International Law Commission in 1950 to “formulate the principles of international law recognized in the Charter of the Nuremberg Tribunal and in the judgment of the Tribunal,”23 the General Assembly also appointed successive Special Committees in 1952 (15 members) and 1954 (19 members), to cope with the same problem.24 Surely, so many lawyers working for so many years would have been able to agree upon an acceptable definition if the powerful states had been ready to restrain their aggressive behaviors. In truth, powerful states were simply not ready or willing to entrust their national security or vital interests to the judgment of any impartial international body.
Preparing Aggression: Skepticism and a Call for Justice
Through the decade after the Charter of the Nuremberg Tribunal, the crime of aggression remained undefined and illegal wars continued to be waged with impunity in many parts of the world. Professor Stone, in preparation for his Hague Lectures to be given in the summer of 1956, began the study ultimately published as Aggression and World Order in 1954. The “politico-legal analysis”25 proffered in those Hague Lectures did not, in the event, address the particular issue of aggression. However, beginning in the fall of 1956 while a visitor to the Harvard Law School, Stone used North American speaking invitations as an opportunity to apply his analysis to the particular matter of aggression in international law. Contemplating the “meagre results”26 – indeed, failure – of the UN's apparatus to confront aggression in the dire circumstances in 1957 of both the Suez Crisis and the Hungarian Uprising, Stone was reinforced in his melancholy conclusion that hope was gradually fading for finding an acceptable definition of aggression precise enough yet flexible enough to cope with the demands that precipitated international violence.27 He struggled with the tension between immediate security needs and long range aspirations. His Lithuanian Jewish parentage and his sympathies for the beleaguered young state of Israel probably increased his sensitivity to the urgent need for a more humane and peaceful world and the complexities inherent in prohibitions of the use of force. In the final analysis, he still aspired for the UN “to arrest breaches of the peace before these spread into a holocaust for mankind.”28
Unable to find a legally, philosophically or politically acceptable formulation for aggression, Professor Stone concluded that the most that could be done was to buy time so that moderation, understanding and tolerance might overcome or soften positions and perceptions that had hardened beyond the reach of reason. Although Stone had no illusions about the ability to define aggression as a step toward world order, paradoxically, he made plain that we must not desist from trying to attain an “ambitious theory of justice” that would place effective limits on the use of force by states.29
Upon publication in 1958, Stone’s book was widely reviewed in English language law journals by prominent scholars and international lawyers.30 Sir Gerald Fitzmaurice, Chief Legal Adviser to the U.K. Foreign Office and thereby longstanding opponent to any attempt to define aggression, praised Stone’s eloquence and erudition and generally agreed with his conclusions. Clyde Eagleton, scholar and U.S. Department of State expert, struck a sympathetic chord with Stone’s thesis by inquiring in the pages of the American Journal of International Law what use there would be of a definition of aggression until the community of nations was so organized that it could apply and maintain law. Dissonant views were conveyed as well. Covey Oliver of the University of Pennsylvania, critical of Stone’s analytical dissection of UN Charter prohibitions, noted that realpoliik and force might not be the most effective means to attain justice. Professor Louis Sohn of Harvard Law School argued for a definition and an improved UN as important steps toward a more peaceful world.31
Aggression focused on the concept as a peremptory norm proscribing certain conduct by states. Stone devoted less attention to the international crime of aggression applicable to individuals.32 Throughout his career, Stone espoused this relative weighting of the two roles of the concept. But the events of the intervening decades have demonstrated that the ascent of a criminal law structure able to incorporate the crime of aggression has been clearly the main channel of progress for the matters of international justice and the regulation of force considered so intensively in Aggression and revisited periodically in Stone’s later work on the topic.
Stalemate, Then Consensus at the United Nations
In the face of the ideological differences among major powers and their allies, the UN delegates were stymied. Little progress was visible in defining aggression or preparing either Code or Court. While revolving committees dithered, outstanding legal scholars filled the breach, seeking to clarify the necessary components of an acceptable system to restrict the use of force in international affairs. Professors McDougal and Feliciano of Yale University Law School, for instance, produced a remarkable book in 1961. Law and Minimum World Public Order: The Legal Regulation of International Coercion contained a profound and exhaustive analysis which recognized that a humane world order could not be achieved without bringing national violence and coercion under effective international controls. To achieve those goals it was necessary to invent and put in place new structures of authority which leaders and peoples could be persuaded to accept.33
In contrast to the prescriptive scholarship represented by McDougal and Feliciano, Professor Stone, a dozen years after publication of Aggression and World Order, used the introduction to the collection of essays Toward a Feasible International Criminal Court to reaffirm his earlier observations. Stone asserted that “the capacity of States for denouncing international lawlessness is one thing: their willingness to submit their own conduct or that of their agents to third party judgment on this account, is another.”34 Despite this skepticism, Stone did feel that even a minimalist approach, in which only a few states would agree to be bound by a court with limited jurisdiction, would be well worthwhile. Until there was an agreed definition of aggression, however, there was no hope that delegates would move forward toward creating any International Criminal Court.
On December 14, 1974, in the midst of Soviet-American détente, the General Assembly adopted Resolution 3314, a consensus definition of aggression painstakingly reached by UN Special Committees after almost 30 years of effort. The 138 Member States were by no means agreed on the interpretation of every clause in this definition.35 Notably, the resolution was not put to a vote. The consensus was the product of compromise achieved by including phrases of such dexterous ambiguity that adversaries could interpret them to suit their own political agendas. The eight articles of the definition began with a general clause based on UN Charter language prohibiting the use of armed force. That was followed by specific illustrations of outlawed behavior, such as invasion or attack. Exculpating clauses were added to placate states that were primarily concerned with protecting the right to self-determination or freedom from alien domination. Adding the vague phrase “in accordance with the principles of the Charter” made the enabling clauses tolerable. The clear articulation that the Security Council had the final word in what would be held to be aggression made the compromise wording acceptable to the permanent members, who wielded veto power.
Nations seemed to have forgotten, or had wished to forget, that the definition was originally intended to form a vital part of a new international criminal code and judicial system. As Professor Stone had foreseen, powerful sovereign states were not willing to yield their prerogatives to use military might when, in their sole judgment, it was necessary to defend or advance their national interests. Robert Rosenstock, the adroit United States delegate who promoted the adoption of the consensus definition, argued nonetheless that it only provided a guide for the Security Council and had no binding legal significance.36 No doubt, the compromise definition of aggression was actually more sieve than substance. It reflected the fears and hesitations that still prevailed in the world. But its very existence, however feeble, and the prolonged debates in its genesis showed an increasing awareness that human survival might depend upon man’s capacity to limit the unbridled use of international force.37 The 1974 consensus definition finally set the keystone – albeit a porous one – for a construction of the missing Code of Crimes and the International Criminal Court.
The Hopeful Skeptic
Professor Stone’s 1977 book, Conflict through Consensus: United Nations Approaches to Aggression, revisited the subject matter and findings of Aggression and World Order. In defense of his prediction that it was futile to expect a workable definition, Stone meticulously punched holes in practically every substantive paragraph of Resolution 3314. He pointed to discrepancies and inadequacies as well as omissions and ambiguities. He floated the cynical conclusion that the consensus was acceptable only because states wished to use its vague formulations to support their own political objectives. He acknowledged that a definition might be useful for trials of individuals for crimes against peace but not for facilitating instant voluntary international cooperation to halt a military crisis. Such an effective definition, he wrote, would be “rather unattainable, and may not even be worth searching for.”38 While denouncing the consensus, he still – begrudgingly and paradoxically – paid tribute to its existence as a visible reaffirmation of the indomitable hope, shared by most of mankind, that there must be legal limits to the use of armed force.
Stone’s basic paradox of being pessimistic and hopeful at the same time appears throughout his writings. He referred to “the noble aspiration of a more peaceful and just world” yet pointed to the “socio-political reality” which led him to believe that its pursuit was a hopeless endeavor.39 No one expected the definition to include world social reform yet Stone found obstacles that were not even on the table. To demonstrate the futility of a definition he argued that it might require a redistribution of planetary resources, a conclusion he presumably might welcome. He denied any prospective correlation between the definition of aggression and the creation and purpose of an International Criminal Court. He wrote that the existence of the consensus definition of 1974 had “made the creation of such a jurisdiction more improbable than ever” and concluded that it would be “a miracle” if such a court would be accepted.40
A year before his death in 1985 at the age of 78, Stone published Visions of World Order: Between State Power and Human Justice. He dedicated the little book to his grandchildren “in the hope that their world grows safer and more peaceful than now appears.” He remained plagued by his realistic perceptions and his pessimism. The prospect of attaining a peaceful world order was still described as a vague hope “devoutly to be desired.”41 Stone’s awareness of the nuclear arms race and the refusal of states to be bound by a common rule of law did not allow his mind to go with his heart’s desire. He noted progress made in many fields of international organization but highlighted the extension and proliferation of barriers to world peace rather than emerging signs of advancement in, by his own reckoning, significant areas ranging from the judicial settlement of international disputes to improvements in legal enforcement and fortified human rights protections.42 In the end he called for the brotherhood of man and counseled: “We should not despair before this task.”43
Where Do We Go From Here?
A half-century after Stone published his initial comprehensive analysis of problems of aggression and world order, the dilemmas he so carefully dissected then remain with us still. However, there has been significant progress in reaching certain goals he doubted, but hoped, could be achieved. An International Criminal Court was approved, by the overwhelming vote of one-hundred twenty in favor and seven against, in a frenetic five-week conference in Rome in 1998. The Rome Statute entered into force on July 1, 2002 as a result of the deposit of the sixtieth instrument of ratification on April 11, 2002. Currently, one-hundred, thirty-nine states have signed the Rome Statute, with one-hundred having ratified it to become a State Party. The Court has started to prepare for its work in the Hague. Its jurisdiction is strictly limited, subordinated to national criminal jurisdictions.44 Only crimes of a magnitude to concern the international community as a whole can come within its reach. The new criminal tribunal can deal only with charges of Genocide, Crimes Against Humanity and major War Crimes – all of which were carefully defined. The problem of defining aggression remained unresolved. Stone had recognized that even a minimalist court for a limited number of states would be well worthwhile. His conviction that it would never happen, since aggression could never be defined, has proven to be too pessimistic.
Stone, however, was nearly prophetic. Aggression, the most divisive issue for the Rome Conference Delegates, was sidestepped in a last minute maneuver. The Statute’s enumeration of crimes postpones the matter of defining aggression well into the future. Article 5 of the Statute provides that the Court has jurisdiction with respect to four crimes: “(a) The crime of genocide; (b) Crimes against humanity; (c) War crimes; (d) The crime of aggression.” While Articles 6, 7, and 8 proceed to define the first three crimes listed in Article 5, the second paragraph of Article 5 renders dormant the Court’s jurisdiction over the last crime:
The Court shall exercise jurisdiction over the crime of aggression once a provision is adopted in accordance with articles 121 and 123 defining the crime and setting out the conditions under which the Court shall exercise jurisdiction with respect to this crime. Such a provision shall be consistent with the relevant provisions of the Charter of the United Nations.
Article 123 provides that seven years after the entry into force of the Statute, the UN Secretary-General shall convene a Review Conference to consider amendments. Article 121 requires a two-thirds majority of States Parties for the adoption of an amendment at a Review Conference or at any meeting of the Assembly of States Parties after that seven year period. However, an amendment will not enter into force until one year after seven-eighths of the States Parties have deposited instruments of ratification.
Thus, an aggression amendment cannot be adopted before June, 2009 and even then would still need ratification by a hyper-majority of the States Parties and await a year before actually according the Court jurisdiction over the crime. There is no way of knowing when, or if, the pre-conditions might be met. Until then, no one can be prosecuted by the Court for what the Nuremberg Judgment labeled “the supreme international crime.” The Assembly of States Parties has appointed special Working Groups to try to resolve the impasse. Professor Stone’s prediction that it would be a frustrating endeavor has, so far, been true. Whether it will also be futile remains to be seen. Should he prove to be right and the perpetrators of aggression remain immune, it will not bode well for humankind.
Professor Stone, even in his last years, did not hesitate to challenge the views of other legal titans with whom he disagreed in whole or in part. He argued that profound thinkers like Myres McDougal of Yale Law School, Richard Falk of Princeton University, and Wilfred Jenks, Director General of the International Labor Organization, all went too far in their world views.45 He tried to bring them down to earth by maintaining that they were espousing ethical programs for evolutionary action rather than describing a sociology of existing international law. Stone’s understanding of the nature of man and the structure of power did not allow him to take a more optimistic view. While he remained aware of the global dimensions of major problems and the increasing dangers of physical destruction, he warned against exaggerated expectations and utopian visions.46 Stone’s writings should be appreciated for their important insights despite a realism which sometimes verges on disabling pessimism.47
Professor Shabtai Rosenne, who represented Israel at the United Nations for many years, is one of the world’s leading scholars on both international courts and the law of treaties.48 As Israel’s delegate to the UN’s Sixth (Legal) Committee during the preparation of General Assembly Resolution 3314, he roundly criticized the resultant consensus definition of 1974. Like Professor Stone, throughout his highly distinguished career he has expressed a longstanding skepticism about defining aggression and also the efforts to create an International Criminal Court. Yet he has described the establishment of the ICC as one of the two major legal creations that “will shine on the record of the twentieth century...”49 Like Stone was, he is adept at finding faults, but, unlike Stone, he has perceived that most of the defects were in the process of being repaired. As a statutory matter, the need to expressly define the crime for the Court is clear; as a jurisprudential matter, there is no real need for a new definition of aggression. The definition of the Nuremberg Charter proved adequate for the Nuremberg Tribunal. It was also affirmed by the General Assembly, as well as, after years of study, by the expert International Law Commission. Taken together with existing precedents and coupled with the guidelines contained in the consensus definition, competent judges of the ICC have ample illustrations to enable sound judgments of guilt or innocence to be formed. Although Stone would argue the contrary, the term aggression is no more vague than “due process” or “fair trial,” which has never obtained a specific definition.50 The insistence upon another definition is not motivated by respect for the rule of law but, as Stone feared, by the aim of powerful states to evade it.
Hope is the engine that drives human endeavor. Without the expectation that a more humane and peaceful world is attainable, humankind will lack the enormous energy and creativity needed to save man from himself. The dreams of today can become the reality of tomorrow.
The last century has witnessed political and economic transformations that were previously inconceivable. New international courts to deal with crimes committed in Yugoslavia, Rwanda, and Cambodia, as well as Human Rights courts, now abound. By the universal condemnation of aggression, we can begin to transform human thinking away from a glorified war-ethic to a peace-ethic vital for human survival. It is not sufficient to convict major criminals for crimes against humanity and war crimes. It is far more important that those who plan and perpetrate aggressive wars be shown to be contemptible criminals and not heroes. We must eradicate the power of rhetoric to rationalize the killing of vast numbers of innocent human beings simply because they do not share the race, religion or ideology of their executioners. The murder of innocent men, women and children is a crime and an abomination no matter how sincere the motives or the sacrifices of the executioners. Increased recognition of the crime of aggression, in turn, should improve the recognition by states of their inviolable duty to prevent its commission in the first place.
The communications revolution offers unimaginable new opportunities to influence even the most deeply held convictions. The murderous absurdity in the nuclear age of trying to resolve ideological differences by massive military might must one day yield to human reason if humankind is to survive. McDougal outlined the necessary process, advocating the creation of acceptable new legal structures to control unacceptable coercive actions. Sohn wrote of global peace through a World Law. Stone, despite his despair, pointed to the essential ingredients of how to get from here to there: time, moderation, understanding and tolerance. Such changes cannot come quickly or easily or without blemish and opposition. Courage and perseverance hold the key to further progress.
A retrograde power jeopardizes the hard won progress made through the twentieth century. The United States government has opposed the International Criminal Court for reasons that are misguided and not persuasive. Washington has turned its back on allies such as England, France, Canada, Australia and others who support the Court, as well as the recommendations of the American Bar Association and the American Society of International Law.51 The National Security Strategy of the United States, as published in 2002, envisages preemptive military strikes without Security Council approval in defiance of the Nuremberg precedents as well as the UN Charter.52 Aggression cannot be disguised as humanitarian intervention or self-defense.
As this recent exploitation of the leeway in the existing legal apparatus demonstrates, the structure is insufficient for our times. The laws must be improved, not discarded. The International Criminal Court, with or without a revised definition of aggression, is like an infant that must be fostered to maturity. A working framework to adjudge international aggression is what Stone seemed to hope for but never clearly articulated or felt would be accomplished. Through scholarship, Stone and his peers advanced the goal of the establishment of a world order that upholds the rule of law so that all may live in peace and human dignity. It is up to the public and advocates, in the light of such work, to persuade decision makers who do not yet discern that law is better than war.
1 See Leonie Star, Julius Stone: An Intellectual Life (1992).
2 Julius Stone, Aggression and World Order: A Critique of United Nations Theories of Aggression (1958) [hereinafter Aggression]. Originally published in London by Stevens & Sons, Ltd., in Berkeley by the University of California Press, and in Sydney by Maitland Publications Pty. Ltd. This reprint edition published in Clark, NJ by The Lawbook Exchange, Ltd., 2006.
3 Hans Kelsen, Sanctions in International Law under the Charter of the United Nations, 31 Iowa L. Rev. 499, 519 (1946):
It may be argued that the enforcement measures determined in Articles 39, 41, 42, and 45, are not “sanctions” since they are not established as reaction against a violation of obligations under the Charter . . . The enforcement actions are purely political measures to be used by the Security Council at its discretion for the purpose to maintain or restore international peace. This interpretation may be confirmed by the fact that according to Art. 39, the first Article of Chapter VII, the Security Council, after having determined the existence of a threat to the peace, breach of the peace, or act of aggression, may not only resort to enforcement action but may “make recommendations.”(footnote omitted) It has the choice between two different measures of which only the former could have the character of a sanction.
4 Jochen A. Frowein & Nico Krisch, Article 39, in The Charter of the United Nations: A Commentary 717, 722 (Bruno Simma et al. eds., 2nd ed. 2002).
5 London Agreement of 8 August 1945, in Trial of the Major War Criminals before the International Military Tribunal, Nuremberg, 14 November 1945 1 October 1946 8-9 (Nuremberg, 1949) [hereinafter Trials of the Major War Criminals]. France, the United Kingdom, the United States and the Soviet Union formed the Agreement.
6 See id., at 11-12, Charter of the International Military Tribunal, Part II. Jurisdiction and General Principles.
7 But see B.V.A. Röling, The Tokyo Trial and Beyond 34 (Antonio Cassese ed. 1993). Röling, a judge in the Tokyo Proceedings, perceived a gradual creeping of “Anglo-Saxon features” into the court presided over by predominantly English speaking judges. He attributed it to the Tokyo Charter’s “vague provision for ‘a fair trial.’” Röling viewed Tokyo’s development as consanguine with the observed occurrence that “the German lawyers [defending the accused at Nuremberg] often did not know how to behave in a procedure which was foreign to them.”
8 Paul Bowers, Research Paper 01/39, The International Criminal Court Bill [HL], Bill 70 of 2000-2001 15 (International Affairs & Defence Section, House of Commons Library, U.K. 2001).
9 Report of the Commission on the Responsibility of the Authors of War and Enforcement of Penalties for Violations of the Laws and Customs of War, 14 Am. J. of Int’l L. 95, 117 (1920).
10 Treaty of Versailles articles 1-26 (Part I.), June 28, 1919, [hereinafter Treaty of Versailles] in The Treaties of Peace 1919-1923, Vol. 1 121 (Carnegie Endowment for International Peace ed. 1924).
11 Id. at articles 27 – 440 (Part II. through Part XV.).
12 See John Maynard Keynes, The Economic Consequences of the Peace (1919). But see Margaret MacMillan, Paris 1919: Six Months That Changed the World (2002).
13 Treaty of Versailles, supra note 10, art. 227.
14 Id. at art. 228.
15 See Claud Mullins, The Leipzig Trials: An Account of the War Criminals’ Trials and a Study of German Mentality (1921).
16 Kellogg-Briand Pact, opened for signature Aug. 27, 1928, 46 Stat. 2343. Article 1 provided that the signatories “condemn recourse to war for the solution of international controversies, and renounce it, as an instrument of national policy in their relations with one another.” The United States and others still consider this treaty to be in force.
17 Trials of the Major War Criminals, supra note 5, at 216. “Violations of International Treaties . . . of principal importance” discussed in the Judgment included, in addition to the Kellogg-Briand Pact and the Versailles Treaty, the Hague Conventions of 1899 and 1907, and various bilateral agreements between Germany and other states in the form of Treaties of Mutual Guarantee, Arbitration, and Non-Aggression. See also Susan Lamb, Nullum crimen, nulla poena sine lege in International Criminal Law, in The Rome Statute of the International Criminal Court: A Commentary 736 (Antonio Cassese, Paola Gaeta, and John R.W.D. Jones eds. 2002). Lamb argued that nullum crimen, and its tandem concept, nulla poena sine lege emerged as norms of customary international law only after the Nuremberg proceedings and, at that time, neither concept could have been argued to have been more than a moral maxim and thus not a bar to the application of the crime of aggression.
18 Benjamin B. Ferencz, Defining International Aggression, The Search for World Peace: A Documentary History and Analysis, Vol. 1 171 (1975).
19 G.A. Res. 95 (I), pt. 2, at 1144 (1946).
20 G.A. Res. 177 (II), (Nov. 21, 1947).
21 Trials of the Major War Criminals, supra note 5, at 186, Judgment. See also Stone in Aggression 149-150:
It is a . . . vast understatement of the real obstacles to suggest, as some have done, that progress in the adoption of the draft Code of Offences against the Peace and Security of Mankind depends on an adequate definition of aggression.(footnote omitted) The difficulties appear to be of a different and far more formidable order; they may lie rather in the inaptness of the concept of “aggression”, however defined, (footnote omitted) to perform, in our actual world, the functions designed for it by those who have advocated and promoted the proposed international code.(footnote omitted)
22 G.A. Res. 897, U.N. GAOR, 9th Sess. (Dec.4, 1954).
23 G.A. Res. 177 (II), (Nov. 21, 1947).
24 G.A. Res. 688, U.N. GAOR, 7th Sess. (Dec. 20, 1952); G.A. Res. 895, U.N. GAOR, 9th Sess. (Dec. 4, 1954). The 1952 and 1954 Special Committees were followed by two more in 1959 (21 members) and 1967 (35 members). The final Special Committee culminated in the 1974 definition that became General Assembly Resolution 3314.
25 Aggression, supra note 2, at vii.
26 Aggression, supra note 2, at 26: “Such a mood may well be both wise and responsible as we observe the Twelfth General Assembly’s discussion in 1957 of the meagre results of its latest Special Committee on the Definition of Aggression.”
27 Id. at 182.
28 Id. at 183.
29 See id.
30 The following are among the reviews of Aggression in English speaking law journals: Sir Gerald Fitzmaurice, Comment: Inter Arma Silent Definitiones, 3 Sydney L. Rev. 71 (1958); Clyde Eagleton, Book Review, 52 Am. J. Int’l L. 364 (1958); Covey Oliver, Book Review, 108 U. Pa. L. Rev. 229 (1959); Louis Sohn, The Definition of Aggression, 45 Va. L. Rev. 697 (1959); Book Review, 72 Harv. L. Rev. 1403 (1959); Creighton Burns, Book Review, 1 Melb. U. L. Rev. 574 (1958); John Collier, Book Review, 1960 Cambridge L.J. 246 (1960); P.J. Fitzgerald, Book Review, 76 Law Q. Rev. 165 (1960); W.W. Kulski, Book Review 58 Colum. L. Rev. 1108 (1958); J. Roland Pennock, Book Review, 68 Yale L.J. 387 (1958).
31 Ironically, Sohn became the Bemis Professor at Harvard in 1961, assuming permanently the post that Stone had occupied in a Visiting capacity during 1956 while preparing Aggression.
32 Aggression, supra note 2, at 134 – 150.
33 Myres McDougal & Florentine Feliciano, Law and Minimum World Public Order: The Legal Regulation of International Coercion 122, 260 (1961).
34 Toward a Feasible International Criminal Court xi (Julius Stone & Robert K. Woetzel eds. 1970).
35 See Benjamin B. Ferencz, The United Nations Consensus Definition of Aggression: Sieve or Substance?, 10 J. Int’l L. & Econ. 701 (1975).
36 1974 U.N.Y.B. 841. In addition to the U.S. delegate, several others, including representatives of Israel, Italy, and the United Kingdom called into question the legal status of the definition, positing “that it would have the same recommendatory status as any other Assembly resolution” thereby providing the “general guidelines” for the Security Council to identify aggression under Article 39.
37 See Benjamin B. Ferencz, A Proposed Definition of Aggression: By Compromise and Consensus, 22 Int’l & Comp. L. Q. 417 (1973).
38 Julius Stone, Conflict through Consensus: United Nations Approaches to Aggression 14-16 (1977).
39 Id. at 113.
40 Id. at 162.
41 Julius Stone, Visions of World Order: Between State Power and Human Justice xiv (1985).
42 Benjamin B. Ferencz, Book Review, 79 Am. J. Int’l L. 1084 (1985).
43 Stone, supra note 33, at 157.
44 Rome Statute of the International Criminal Court art. 1, Jul. 17, 1998, 2187 U.N.T.S. 90 (entered into force July 1, 2002).
45 See Stone, supra note 33, at 33. Stone gave extended discussions of the following works: Myres McDougal, International Law, Power and Policy: A Contemporary Conception, 82 Hague Recueil 133 (1953); Richard Falk, Statecraft in an Era of Word Order, Delay and Renewal, Arthur F. Yencken Memorial Lectures, Australia National University (1974); and C. Wilfred Jenks, Common Law of Mankind (1958).
46 Id. at 43, 67.
47 See Julius Stone, Hopes and Loopholes in the 1974 Definition of Aggression, 71 Am. J. Int’l L. 224 (1977).
48 See Shabtai Rosenne, The Law and Practice of the International Court (3d ed. 1997); Shabtai Rosenne, The Law of Treaties: A Guide to the Legislative History
of the Vienna Convention (1970); Shabtai Rosenne, Developments in the Law of Treaties, 1945-1986 (1989).
49 Shabtai Rosenne, Poor Drafting and Imperfect Organization: Flaws to Overcome in the Rome Statute, 41 Va. J. Int’l L. 164 (2000).
50 Aggression, supra note 2, 119-133. Stone devoted a chapter to the analogy of due process and the criteria of aggression. Stone gave significant attention to contemporary American jurisprudence regarding substantive and procedural due process, contrasting the typical “fact-value complex” at issue in a municipal court with the kind that would be involved in adjudicating aggression in an international forum. Stone, at p. 123, found that: the lack of an effective international legislature, and of collective enforcement of legal rights generally, make unavailable to an international applying organ the course charted by [U.S. Supreme Court Justice] Brandeis [in the Oklahoma Ice Case (285 U.S. 262 (1931))] of not retreading the path of legislative judgment, but merely testing its results by the limiting notions of what is arbitrary and unreasonable on any reading of the whole situation.
51 Letter from Robert E. Hirshon, President, American Bar Association, to The President of the United States of America (Apr. 11, 2002) (on file with the American Bar Association); Letter from Monroe Leigh, Partner, Steptoe & Johnson, to Henry Hyde, Chairman, House Committee on International Relations (Feb. 21, 2001), attaching memorandum entitled “Misconceptions About the Proposed International Criminal Court” by current and former presidents of the American Society of International Law, Oscar Schacter, Hamilton Fish Professor of International Law and Diplomacy Emeritus & Special Lecturer, Columbia University School of Law; William D. Rogers, Partner, Arnold & Porter; Monroe Leigh, Partner, Steptoe & Johnson; Louis B. Sohn, Distinguished Research Professor and Director, Research and Studies, George Washington University Law School; Peter D. Trooboff, Partner, Covington & Burling; Louis Henkin, University Professor Emeritus and Special Service Professor, Columbia University School of Law; Edith Brown Weiss, Georgetown University Law Center; Thomas M. Franck, Murray and Ida Becker Professor and Director, Center for International Studies, New York University School of Law; Arthur W. Rovine, Partner, Baker & McKenzie; Stephen M. Schwebel, former Judge, International Court of Justice (Feb. 13, 2001) (on file with Arthur W. Rovine, President, American Society of International Law).
52 The National Security Strategy of the United States of America (2002), http://www.whitehouse.gov/NSC.pdf.