United Nations and the Definition of Aggression

CHAPTER 2

Following the end of World War II, and as a result of the devastation and destruction caused by the war, the search for peace and stability became the main objective of the international community. The first step in that direction was the establishment of the United Nations as an international body seeking to ensure stability and peace in the world. Since its establishment in 1945, the United Nations has focused on the protection of international peace and security. This was regarded as the most important objective of the newly founded organisation. The first purpose of the UN, as stated in Article 1 of its charter is " to maintain international peace and security, to take effective collective measures for the prevention and removal of threats to the peace, suppression of acts of aggression or other breaches of peace, and to bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of the peace". Since then the UN has undertaken this massive responsibility with varying levels of success over the years. Chapter VII of the UN Charter was set out to deal with this issue and gave the Security Council, through the council's resolutions, the main and key role to suppress aggression. Chapter VII allows the Security Council to "determine the existence of any threat to peace, breach of the peace, or act of aggression" and the authority through resolutions adopted by its members to take military and nonmilitary action to "restore international peace and security. ( [1] )" However the Security Council efforts to deter aggression might be undermined by the major five powers who preserve for themselves the right to veto any resolutions that may conflict with their interests specially when it comes to the use of force and matters relating to the sovereignty of other States. Despite the fact that the Security Council may determine under Chapter VII, when it considers that an act of aggression has transpired. It has never chosen to do so. The main rationale for this lack of action seems to be that it would imply that the council would be 'taking side' in the disputes and thus would unable to assist in reestablishing peace by diplomatic means, that committing itself to acting by force against one party. In addition, the notion of aggression entails grave consequences and has been so stigmatized that the Council has deemed it prudent to typically, describe events as either a "threat to peace "or" breach of the peace." Since the parameters of "threat to peace "and" breach of peace" are quite vague, such giving the Security Council leeway in using them, the notion of aggression has been narrowed by law. This was done through the UN General Assembly resolution 3314 which was through the accepted, by consensus, which has attached as an annex a definition of aggression( [2] ). This chapter will shed light on the United Nations attempt to define aggression before the adoption of resolution 3314 in 1974 and then it will deal with resolution 3314 through analyzing its thrust, reviewing strengths and weaknesses of its articles, as well as its role in determining the state and individual's responsibility for war crimes.

I. Definition of Aggression in United Nations Resolution 3314 (XXIX), 1974.

The establishment of the United Nations in 1945 was the a great step on the road to reject war in international relations. That was clear in the charter of the United Nations where it states in Article 2, paragraph 4 that: All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations. ( [3] ) This frank commitment by U.N members introduced an absolute and unconditional prohibition both to the use and the threat to use force in international disputes. Although the Charter of the United Nations does not clarify in detail the notion of aggression, this matter was unclear as a threat to peace and a breach of the peace( [4] ). According to the U.N Charter too, the Security Council –one of the main body of United Nations- has responsibility to deal with aggression as indicated by Article 39 of the Charter which read 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".( [5] ) Article 39 of the Charter left "aggression" undefined, and put on the same level threat to peace, breach of the peace, or act of aggression'( [6] ). It does not give a definition for threat to peace either. During the discussion concerning the draft of the U.N Charter in San Francisco Conference, some countries proposed to include definitions of aggression. There was a Bolivian proposal to define aggression similar to the Soviet proposal submitted to the Disarmament Conference in 1933( [7] ). However, the specialized committee in San Francisco rejected any idea to define aggression arguing that it would not be able to envisage or encompass developments in warfare, besides which it might lead to the 'premature application of enforcement measures' through 'automatic Council action'. ( [8] ) In its first committee on November 6, 1950, the Soviet Union revived, under the item 'Duties of States in the Event of the Outbreak of Hostilities', the substance of its draft definition of 1933. This, with related matters, was submitted in due course to the International Law Commission for its views.( [9] ) On November 17, 1950, in its resolution 378/B (V), the General Assembly condemned the intervention of a state in the internal affairs of another state for the purpose of changing its legally established government by the threat or use of force', and declared that 'any aggression, whether committed openly, or by fermenting civil strife in the interest of a foreign power, or otherwise, is the gravest of all crimes against peace and security throughout the world…'.( [10] ). In the same resolution (378), the General Assembly ordered the International Law Commission to present some solutions to the problem of the definition of aggression. The Commission reached the conclusion that 'a juridical definition of aggression would be an artificial device, which could never be adequate enough to include all possible cases of aggression, especially since aggression methods are constantly developing'. ( [11] ) As a result, the Commission decided to introduce among the crimes defined in the draft code of offences against the peace and security of mankind –which was under preparation by the Commission- all acts and threats of aggression, without defining what aggression is. ( [12] ) On November 13, 1951, the General Assembly, having placed the Report of the International Law Commission's Third Session on its agenda, referred to its Sixth Committee the question of defining aggression. ( [13] ) The Committee examined the issue of defining aggression at its 278th to 295th meetings held from 5 January to 22 January 1952. ( [14] ) At the end of these meetings, the Committee took a position opposed on the whole to that of International Law Commission, based on the view that it would be advantageous to provide "directive" for international bodies which "may be called on to determine the aggressor"( [15] ). General Assembly resolution 599 (VI) of 31 January 1952 (Question of defining aggression) Report of the Secretary-General on the question of defining aggression. Resolution said that it was: 'possible and desirable, with a view to ensuing international peace and security and for the development of international criminal law, to define aggression by reference to the elements which constitute it'. ( [16] ) As resolution 599 emphasized the desirability of a definition, the resolution also ordered to establish a series of Special Committees to work on the definition of aggression. After seven sessions, the fourth Special Committee of the General Assembly submitted a Report of a proposed definition of aggression to the General Assembly. According to this Report, the Sixth Committee of the General Assembly found that the proposed resolution is acceptable and commended the General Assembly to adopt it. But, the United States of America and many other states saw that the definition was inappropriate because it gave the Security Council the plenipotentiary to determine whether aggression has taken place( [17] ). On December 20, 1952, General Assembly –according to its resolution 688 (VII)- established a special Committee composed of fifteen members, to work on the subject of the definition of aggression. After a great deal of work, the Committee came to the conclusion that it will not submit the draft of the proposed definition to a vote procedure. Instead, it will demonstrate the proposals to the members of United Nations.( [18] ) In December 4, 1954, the General Assembly, in its resolution 895 (IX), decided to establish a Special Committee composed of nineteen members, charged with studying the definition of aggression and requested the Committee 'to submit to the General Assembly at its eleventh session a detailed report followed by a draft definition of aggression'. ( [19] ) Another time, the Committee admitted that there were considerable difference of opinion and therefore could only refer the question to the General Assembly XI Session. ( [20] ) At the same session, the International Law Commission adopted the revised draft Code of Offences against Peace and Security of Mankind, with Commentaries. ( [21] ) In relation to aggression, the Code stated that( [22] ): "The following acts are offences against peace and security of mankind: (1) Any act of aggression, including the employment by the authorities of a state armed force against another State, for any purpose other than national or collective self-defence or in pursuance of a decision or recommendation of a competent organ of the United Nations. (2) Any threat by the authorities of a state to resort to an act of aggression against another State". During the works of United Nations eleventh session, the Special Committee held a meeting from 8 October to 9 November 1956. The Committee did not adopt a definition but decided to transmit its report to the General Assembly, summarizing the views expressed on the various aspects of the matter, together with draft definitions previously submitted to it. ( [23] ) On 29 November 1957, the General Assembly, at its twelfth session, discussed the Special Committee's report which was concluded in its resolution 1181 (XII) deciding to invite the views of 22 states admitted to United Nations since 14 December 1955, and again comments from other Member States of United Nations. It also decided to establish a new Committee, after seeking the opinion of governments about it. The committee was composed of the Member States which had served on the General Committee of the Assembly at its most recent regular session. The main remit of the New Committee was to study the replies 'for the purpose of determining when its shall be appropriate for the General Assembly to consider again the question of defining aggression'( [24] ). In the light of this position of the United Nations, and the consideration that the draft Code submitted by the Special Committee still raised problems relating to the question of defining aggression. The General Assembly in its resolution 1186 (XII) of 11 December 1957, postponed consideration of the draft Code, and decided to rediscuss the question of defining aggression( [25] ). The General Assembly also decided to forward the draft Code to the member governments in the United Nations to give their comments and to deliver their replies to the General Assembly. Since then, the draft Code did not appear on the General Assembly Agenda( [26] ). The Special Committee of the General Assembly which held its meetings from 14 to 24 April 1959, decided that the governments replies relating to the draft code didn’t comprise any change of attitude and agreed to defer any discussion related to the question of defining aggression until 1962. The Special Committee held meetings in 1962, 1965, and 1967, but was unable to determine any specific time suitable for the General Assembly to resume its discussion about the question of defining aggression( [27] ). In 1967, the Special Committee works came to an end when General Assembly decided to rediscuss the question of aggression . ( [28] ) In December 18, 1967, the General Assembly adopted resolution 2330 (XXII), in which it decided to establish a new Special Committee on the Question of Defining Aggression.( [29] ) The Committee included thirty-five Member States, "to consider all aspects of the question so that an adequate definition of aggression may be prepared".( [30] ) After Seven sessions held between 1968- 1974, the Special Committee adopted a draft definition of aggression and recommended it to the General Assembly to adopt it. ( [31] )

II. The Resolution 3314

On 14 December 1974, the United Nations General Assembly adopted the Resolution 3314 (XXIX), which provides a definition of aggression, based largely on a method enumerating certain acts, which together or by themselves would amount to aggression( [32] ). Aggression, as Article (1) read, is defined as "the use of armed force 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( [33] )." It’s noted here that the definition is limited to the use of armed force. The word "threat", which was always coupled with the word "force" in many positions in the UN Charter( [34] ) was deleted in formulating the General Assembly definition which implied that aggression could only exist when using actual armed force( [35] ). The resolution only applies to states( [36] ), and therefore does not resolve the legal lacuna raised by possible acts of aggression performed by or against non-State entities such as national liberation movements/ people fighting for their right to self-determination. For instance, the definition would not cover….Kurds in Iraq, Turkey and Iran( [37] ). However, some scholars have advocated for a broader interpretation of article 1. For instance, Hertz who saw that the provision under Article 1 (a) means to say that acts of aggression applies also to "people", as state refers not only to members of the UN, or other non-recognized States. This note is given to understand that aggression can apply to any aggressor including the military groups which have no state entity ( [38] ). Article 2 of the Resolution read that: "The first use of armed force by a state in contravention of the Charter shall constitute prima facie evidence of an act of aggression although the Security Council may, in conformity with the Charter, conclude that a determination that an act of aggression has been committed would not be justified in the light of other relevant circumstances, including the fact that the acts concerned or their consequences are not of sufficient gravity"( [39] ). This Article has some ambiguities and gaps because it could imply that a first use of armed force is permissible, although Article 51 of UN Charter and many writers support the idea that "preemptive self-defence" is not permissible according to the UN Charter( [40] ). Another observation is related to the term "relevant circumstances" which is considered so open-ended as to give the Security Council no guidance whatsoever. Arguably it may be "relevant" that the use of armed force was undertaken for such pure motives as "humanitarian intervention" or in response to economic coercion ( [41] ). The third observation is about the phrase "the acts concerned or their consequences are not of sufficient gravity" amounts to a de minimis clause designed to prevent minor incidents from being treated as acts of aggression. The regrettable inclusion is that there can be first uses of armed force in violation of the UN Charter that will not be treated seriously. An inclusion like this helps to enhance Charter restrictions on the unilateral use of force by states ( [42] ). The definition –as indicated by Politi- uses two approaches at the same time: a deductive approach as manifestation in Article 1 which presented a general formula, and an inductive approach in which it enumerated acts which constitute aggression in a non exhaustive manner as presented by Article 3( [43] ). Article 3 of the Resolution specified the acts which considered acts of aggression: (a) The invasion or attack by the armed forces of a state of the territory of another state, or any military occupation, however temporary, resulting from such 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 a state on the land, sea or air forces, or 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 in allowing its territory, which it has placed at the disposal of another state, to be used by that other state for perpetrating an act of aggression against a third state; (g) The sending by or on behalf of a State of armed bands, groups, irregulars or mercenaries, which carry out acts of armed force against another State of such gravity as to amount to the acts listed above, or its substantial involvement therein( [44] ). According to Murphy, Article 3 (a) repeats and injunction in the preamble of the definition, and invasion or attack have long been regarded as a benchmark of aggression. However, where one state's territory ends and another begins is often a mater of hot despute, and a state utilizing force across a disputed frontier may argue that it is merely acting within its own territory and hence has not committed a prima facie act of aggression( [45] ). The provision under Article 3 (g) is particularly interesting. It identifies a list of typical aggression acts, which can be qualified as "indirect aggression"( [46] ). Article 4 of the Resolution read that: "The acts enumerated above are not exhaustive and the Security Council may determine that other acts constitute aggression under the provisions of the Charter"( [47] ). According to this Article the list mentioned in Article 3 is not exhaustive. General Assembly Resolutions are not binding upon the Security Council. However, it influenced the Council's practice, and it has been referred to in the drafting of Security Council Resolutions ( [48] ). In fact, Resolution 3314 makes this plain when it recommends to the Security Council that " take account of that Definition as guidance in determination, in accordance with the Charter, the existence of an act of aggression"( [49] ). According to this preamble and Article 4, although the Security Council can use resolution 3314 as a point of departure, the Council is not obliged to make use of this Resolution ( [50] ). In general, the definition of aggression contained in the Resolution shall not prejudice the functions of organs of United Nations as they are provided for by the Charter. This being the situation, it is useless to raise the problem (which in any case would have to have a negative answer) of whether the Assembly has the power to bind the Council on this matter ( [51] ). Article 5 of 3314 Resolution read that: "1. No consideration of whatever nature, whether political, economic, military or otherwise, may serve as a justification for aggression. 2. A war of aggression is a crime against international peace. Aggression gives rise to international responsibility. 3. No territorial acquisition or special advantage resulting from aggression shall be recognized as lawful" ( [52] ). This Article clearly provides responsibility for States for their aggression or acts of aggression ( [53] ). Aggression gives rise to international responsibility ( [54] ). In Article 2 of the same resolution, the responsibility of determining the occurrence of aggression has been entrusted to the UN Security Council ( [55] ). Despite the fact that the final report of the Special Committee responsible for the definition provided that the phrase "international responsibility" are used without prejudice to the scope of this term, it has been argued that the resolution provides evidence of the fact that individual criminal responsibility attaches only to certain types of inter-state uses of armed force( [56] ). It condemned the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State and, after listing several illustrations of prohibited actions, concluded that whether the crime of aggression had been committed had to be considered “in the light of all the circumstances of each particular case( [57] ). Article 6 of the Definition of Aggression stated that: "Nothing in this Definition shall be construed as in any way enlarging or diminishing the scope of the Charter, including its provisions concerning cases in which the use of force is lawful"( [58] ). This Article reaffirms the use of lawful force or self-defense. From the deliberations of the Sixth Committee at the twenty-fifth through twenty-ninth sessions of the General Assembly and of the Special Committee on the Question of Defining Aggression at its 1970-1974 sessions, it is clear that the language of Article 6 of the Definition constitutes a clear implicit reference to Article 51( [59] ). As for Article 7 of the resolution it read that "Nothing in this Definition, and in particular article 3, could in any way prejudice the right to self-determination, freedom and independence, as derived from the Charter, of peoples forcibly deprived of that right and referred to in the Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States in accordance with the Charter of the United Nations, particularly peoples under colonial and racist regimes or other forms of alien domination: nor the right of these peoples to struggle to that end and to seek and receive support, in accordance with the principles of the Charter and in conformity with the above-mentioned Declaration"( [60] ). This Article provides that nothing in the definition could be used to the prejudice of the right of self determination, especially as it concerns people under colonial domination. However, if what would normally be regarded as aggression under the resolution is committed in the name of "self determination", freedom and independence, this Article removes the slur of criminality( [61] ). Using this definition to indicate to the individual criminal responsibility has been problematic matter, from where this definition distinguishes between State responsibility and the crimes committed by individuals: article 5, paragraph 2, which reflects paragraph 1 of the Friendly Relations Declaration (General Assembly resolution 2625 (XXV) of 24 October 1970, annex), accords individual responsibility only regarding a “war of aggression". As the International Law Commission (ILC) noted in its commentary on its 1994 draft Statute for an international criminal court, resolution 3314 (XXIX) “deals with aggression by States, not with the crimes of individuals, and is designed as a guide for the Security Council, not as a definition for judicial use. But, given the provisions of Article 2, paragraph 4, of the Charter of the United Nations, that resolution offers some guidance"( [62] ). The last Article of the Resolution (Article 8) read that "In their interpretation and application the above provisions are interrelated and each provision should be construed in the context of the other provisions"(