CYIL Vol. 5, 2014

THE DEFINITION OF AGGRESSION AND THE USE OF FORCE of aggression and a decision of individual members to apply economic sanctions was not dependent upon prior decision of the Council or the Assembly. In case of any such aggression or in case of any threat or danger of such aggression the Council should only advise upon the means by which this obligation should be fulfilled. Aggression of one state against another state was discussed for the first time in connection with the Draft Treaty of Mutual Assistance of 1923. This draft, declaring that “an aggressive war is an international crime”, was approved by the Assembly but contained no definition of aggression and did not enter into force. The Permanent Advisory Commission of the LN in its report on the definition of aggression of 1923 came to the conclusion that “it would seem impossible to decide, even in theory what constitutes a case of aggression.” 4 The Special Committee of the Temporary Mixed Commission of the LN noted that “no simple definition of aggression can be drawn up, and no simple test of when an act of aggression has actually taken place can be devised. Therefore it is clearly necessary to leave the Council (of the League) complete discretion in the matter…” 5 Obligations imposed by Art. 10 of the Covenant was one of the factors for which the U.S. refused to ratify the Covenant. Canada then in the first Assembly of the LN in Dec. 1920 suggested the deletion of this Art.10. This attempt failed because in 1923 Persia voted against this proposal and unanimity was required. 6 Also the 1924 Protocol for the Pacific Settlement of Disputes pronounced in the Preamble that “a war of aggression” constitutes “an international crime”. The Protocol was signed, but not ratified. The Geneva Protocol of 1924 even noted that any state which failed to comply with the obligations according to the Protocol or the Covenant to employ procedures of peaceful settlement was “an aggressor”. 7 It seems that at the time the term “aggression” was not always understood in the sense of “war” or “aggressive war”. In his report of Dec.1, 1926 to the Committee of the Council of the LN L.de Brouchére noted: “We find in history many instances of violence and aggression which have not led to war, either because the matter was settled... before a state of war was established”. 8 The report in this way distinguished “aggression” and “war”. Under the Briand-Kellogg Pact “a war of aggression” was illegal but without indication that aggression was already a crime resulting from international customary law, reflecting resolutions of the LN and some unratified international treaties. The main proponent of a definition of aggression at that time was the Soviet Union. On February 1933 the Soviet Union submitted to the Disarmament Conference its draft of a detailed definition of aggression. On the basis of this proposal a special report 4 See in YILC 1951, Vol.3, p. 6; Report L.N.O.J., Spec. Suppl. No. 16, 1923, p. 144; see also Brownlie, I., supra note 1, pp. 352-358.

5 Ibid ., p. 61, L.N.O.J, Special. Suppl. No. 16, 1923, Annex 4, p. 183. 6 Lauterpacht, H., International Law: A Tretise, London, 1952, p. 355. 7 Brownlie, I., supra note 1, p. 353.

8 Doc. League of Nations, A.14.1927. V, p. 68, quoted in Henkinn, L., Pugh R., Schachter O., Smith, H. – International Law , St. Paul 1986, p. 681; see also Report of the Secretary-General of the United Nations on the Question of Defining Aggression UN Doc. AR211, 3 Oct 1952, p. 52.

71