CYIL Vol. 5, 2014

JOSEF MRÁZEK CYIL 5 ȍ2014Ȏ “first” to attack might give the enemy a great tactical advantage. It was even argued that the Soviet definition with the first use might even be a “trap for the innocent”. 28 Looking at the travaux préparatiores of the UN Charter, it seems to be clear that the notion of “aggression” was rather uncertain and difficult to define. Some delegates in San Francisco equated the terms “aggression” with “armed attack”. 29 The main item linked to “aggression” was always the right to self-defense. In 1956, e.g., Q. Wright wrote: “An act of aggression is the use or threat to use force across an internationally recognized frontier, for which a government, de facto or de jure , is responsible because of acts or negligence, unless justified by a necessity for individual or collective self- defence by the authority of the United Nations to restore international peace and security, or by consent of the State within whose territory armed force is being used. “ 30 In some original draft versions of Art. 51 a notion of self-defense was considered as a response to aggression or repression of it. Finally the drafters of the UN Charter decided to link the exercise of self-defense under Art. 51 directly to “armed attacks”. 3.2 The Nuremberg Principles The Nuremberg Charter in Art. VI defined crimes against peace as “planning, preparation, or waging of a war of aggression, or a war in violation of international treaties, agreements, assurances, or participation in a common plan or conspiracy for the accomplishment of any of the foregoing”. A particular definition of “aggression war” was adopted neither in the Nuremberg Charter nor in the subsequent Judgment. The US representative tried to have such a definition included in the Nuremberg Charter, but his effort were rebuffed. 31 The Tribunal maintained that the solemn renunciation in the Briand-Kelogg Pact as an instrument of national policy involved the conclusion that resorting to such a war was illegal and a crime against peace. The crime of aggression is the only one of three crimes charged in the Nuremberg and Tokyo Trials which is not currently being prosecuted by any existing international criminal courts. In the Judgement of the IMT in Nuremberg it was stated: “The first acts of aggression referred to in Indictment are the seizure of Austria and Czechoslovakia and the first war of aggression charged in the Indictment is the war against Poland…” There are the chapters “Preparation for Aggression”, “The Planning of Aggression”, “The Aggression Against Poland”, “The Aggression against Yugoslavia and Greece” or “The Aggressive War Against the Union of Soviet Socialist Republics”, “War Against the United States”. 32 During the Nuremberg Trial the main American prosecutor, Robert H. Jackson, e.g. proclaimed: “To initiate a war of aggression therefore, is not 28 US Treaties and Other International Acts Series No. 153, p. 12, quoted in Stone, J., supra note 1, Appendix p. 214. 29 See e.g. UNCIO, Vol. 6, p. 721. 30 Wright, Q., The Prevention of Aggression, AJIL 1956, No. 2, pp. 514, 526. 31 Henkin, L., Pugh, Schachter, O., Smith, H., International Law, supra note 8, p. 672. 32 See Judgement of the International Military Tribunal for the Trial of German Major War Criminals Nuremberg 30 September and 1October 1946, London , His Majesty Stationery Office, lmd. 6964, pp. 13, 14, 22, 33 bhm.

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