CYIL Vol. 5, 2014

THE DEFINITION OF AGGRESSION AND THE USE OF FORCE US position was that “a definition of aggression cannot be so comprehensive as to include all cases of aggression and cannot take into account the various circumstances which might enter into determination of aggression in a particular case”. The US president continued: “Any definition of aggression is a trap for the innocent and invitation to the guilty. The United States position prevailed at San Francisco and the Charter adopted a system where the Security Council, would determine on the basis of the facts of a particular case whether aggression has taken place.” 22 The Act of Chapultepec of 8 March 1945 considered that “every attack” of a State against the integrity or the inviolability of the territory, or against the sovereignty or political independence of an American State, shall be considered as an act of aggression. The UN Charter does not specify “acts of aggression”. It speaks only of the “suppression of acts of aggression” and of “an act of aggression”. In 1950 the Soviet Union submitted a proposal of a definition of aggression to the United Nations, which was referred subsequently to the International Law Commission (ILC). Mr. Spiropoulos was appointed as a rapporteur. 23 The UN Special Committee on the Question of Defining Aggression was dealing with three major draft definitions of aggression. The first one was the proposal of the Soviet Union, which stressed the powers of the UNSC under Art. 39 and specified acts of armed aggression, if committed first. It was without prejudice to the functions and powers of the UNSC. 24 Also the Thirteen-Power draft of small and middle Powers recalled Art. 39 and enumerated certain acts, which when committed first, constituted acts of aggression. 25 The Six-Power draft definition was proposed by Australia, Canada, Italy, Japan, the United Kingdom and the United States. 26 This proposal also recalled Art. 39, and confirmed that the term “aggression” is a term to be applied “when appropriate” by the UNSC, exercising its primary responsibility for maintenance of international peace and Security under Art. 24 and Art. 39. This proposal maintained that “whether an act of aggression has been committed must be considered in the light of all circumstances of each particular case, but a generally accepted definition of aggression may nevertheless provide guidance for such consideration.” 27 The Six-Power draft also contained the element of “aggressive intent”. But animus aggressionis is not easy to prove. The burden of proofs in such a case ought to be placed on the victim and proof of aggressive intent might even be impossible to establish. The USSR draft resolutions defined the aggressor as the one who was the “first” to commit such action”. This position was criticized as dangerous in a nuclear age, when the victim of an attack can be destroyed at the first strike. To wait with response so as not to be the 22 Whiteman, M. M., Digest of International Law, 1965, p. 740; quotation see also in Henkin, L., Pugh, Schachter, O., Smith, H., supra note 8, p. 683. 23 YILC 1951, 2, p. 68. 24 Report of the Special Committee on the Question of Aggression, GAOR, Twenty Seventh Session, Supplement No. 19 (A87,19), p. 8. 25 Ibid ., p. 10. 26 Ibid ., p 11. 27 Ibid ., p. 11. For analyses of all three proposals see e.g. Schwebel, S. M., supra note 1, pp. 537-8, 554, 561.

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