Aggression Defined by Consensus

Benjamin B. Ferencz

The definition of aggression has played a vital role in world history. Haile Selassie was a man I admired. I never met him but I saw him on film and read his speeches. He was a small man with fiery eyes and was known as “The Lion of Judah.” I can never forget his appearance before the League of Nations in 1935. The Fascist Dictator, Benito Mussolini, invaded Abyssinia (now known as Ethiopia) and claimed it as a province of Italy. It was a clear case of outright aggression. Emperor Selassie addressed the Council of the League of Nations, reminding them that the Covenant pledged all members to maintain the peace by imposing comprehensive sanctions against the aggressor nation. Outlawing aggression by disabling the law-breaker seemed like a workable system—but there was a loophole. There was no definition of aggression. There was also no institution to enforce the obligation.

Under the League Covenant, each nation could decide for itself whether aggression had occurred. France and Great Britain controlled the oil that powered Mussolini’s tanks. If they had cut off the oil supply, as they were pledged to do, the tanks would have been stopped in their tracks. But the self-styled “Great Powers” feared that Italy might strengthen its alliance with Germany, where a re-armed Hitler was busy threatening the world. So the two trusted nations surreptitiously reneged on their pledges. It does happen that, from time to time, diplomats who pretend to be statesmen are guided by Machiavelli’s reference to “nefarious or villainous means.” The rule of law was by-passed for reasons of political expediency. Why risk national security for some far-off African colony? Selassie stood defiant as he put the Council of the League on notice: their failure to stand together to repel the clear case of aggression would be a harbinger of their own demise. It was 1935 when he warned, “One day, you will all be somebody’s Abyssinia.” For their betrayal, France and Great Britain got what they had hoped to avoid: their countries were smashed and the world was plunged into the most devastating war in human history.

Nations should have learned after the first World War that failure to prevent aggression could be bad for their health. Yet, despite the finding of international courts after World War II at Nuremberg, Tokyo, and elsewhere, the delegates who sat on the many UN committees that were supposed to define the crime of aggression did practically nothing. They were under instruction of their own Foreign Ministries to protect their own national interests. The sad truth is, that powerful states were not yet ready to entrust their security to any untested international body. Those who didn’t have the power could not bring about needed changes, while those who did have the power were not ready to give it up. It was the same old story that Thucydides had written about centuries ago. I refused to believe that countries that survived the ravages and barbarities of two world wars would continue, in the nuclear age, to insist upon military might as the main protector of their national destinies. As a former combat soldier and Harvard lawyer, I had an unshakable conviction that law is better than war.

I began to write articles and books designed to outline new legal foundations for the maintenance of world peace. The American Journal of International Law, the Columbia Law Journal, the International and Comparative Law Quarterly, and a host of other highly respected publications carried my pleas for change. I published several compromise proposals to try to help the UN committees carry out their mandates to agree on a definition of the crime of aggression. I distributed copies to all of the delegates and met with many of them with specific suggestions that seemed to be welcomed, particularly by the smaller States. I doubt if it did much good, but I don’t think it did any harm, either. The breakthrough came as the cold war was beginning to thaw. Arguments became less rancorous, and the outlines of possible compromise proposals began to appear.

In 1974, I realized that the Special Committee on Aggression was finally on the verge if reaching agreement. I invited my wife to join me at the UN to witness the auspicious occasion. It was on a Good Friday, which was a good omen. As I anticipated, after the usual speeches of self-praise, the delegates agreed that a definition of aggression, that had been so thoroughly debated for so long, could be spelled out and accepted by consensus. I told my wife to look around at the empty visitor’s gallery. I pointed out that we were the only two persons in the large conference room who were not being paid to be there. When the delegates later assembled for the official photograph of those responsible for the historic achievement, the Chairman invited me to stand with the group. Since I had no official position whatsoever, I was honored to do so. But I had no illusions; the bottom line of the definition, after all those years, was that aggression is whatever the UN Security Council says it is. The five Permanent Members, those most capable of threatening the peace, would decide whether the use of force was criminal or not. The hawks insisted upon being the guardians of the chicken coop. Powerful nations would rather be free to commit aggression than to define it in any legally binding way.

On December 14, 1974, the General Assembly representing 138 States, routinely resolved to accept the consensus definition without a vote. In 1975, I published my two-volume work Defining International Aggression—The Search for World Peace. I had only intended to write an article for the Harvard Law Review, but when I discussed it with Professor Louis Sohn, he suggested that I make it a book. Oceana Publications said they would be glad to publish it, providing it was two volumes instead of one, making it more likely that libraries would buy the imposing product. I did as requested. My next two books were also two volumes each. Never judge the stature of a man by his height and never judge a scholar by the weight of his writings.

Since my books covered the definition of aggression in meticulous detail, I will only summarize some highlights here. The heart of the difficulty lay in the unwillingness of the international community to create any effective legal mechanism for the mandatory settlement of irreconcilable disputes. To gain acceptance by consensus, it was necessary to adopt language that was so exquisitely ambiguous that all sides could interpret it to their own advantage. In the final analysis, it was left to the Security Council to decide when aggression by a State had taken place. Many lawyers worked long and hard to achieve such an uninspiring conclusion. The UN definition was little more than a sieve. Yet, it reflected the irrepressible human desire for peace protected by a rule of law.

The main accomplishment of the 1974 consensus definition of aggression is that it removed the barrier that had been used as the excuse to halt work on the draft Code of Crimes and the creation of an International Criminal Court that had been mandated by the General Assembly in 1946. The UN General Counsel, Eric Suy of the Netherlands, with whom I had co-authored a publication on the ICC, lost no time in reminding the delegates that they could now proceed to deal with the issues that had been allowed to lie dormant for decades. By that time, most of those present had forgotten the objective of their labors. The U.S. representative argued that they were simply composing a non-binding declaration that the Security Council might want to look at sometime. They ignored the fact that they were laying the foundation for an international criminal code that was expected to be comprehensive and precise. Despite the shortcomings, with the cold-war over, the way was cleared for nations to resume work on the next steps—preparing a new criminal code and creating a new international criminal court.