CYIL Vol. 5, 2014

JOSEF MRÁZEK CYIL 5 ȍ2014Ȏ aggression. 53 This report also contained a suggestion that “unilateral action to deprive a State of the economic resources derived from the fair practice of international trade, or to endanger its basic economy, was an act of aggression”. 54 Some members of the ILC in 1951 expressed doubts about the “threat of aggression” as a crime against peace. They wondered how individual persons could be punished for “a threat of aggression”. Several members of the ILC suggested, however, including the “threat of aggression” as a separate crime. At its third session in 1951 the ILC by votes decided that such a threat did not constitute aggression. 55 The concept of economic aggression was criticised by others as “liable to extend the concept of aggression almost indefinitely.” According to A. Cassese customary international law ,,appears to consider the planning or organizing or preparing or participating in the first use of armed force by a state against the territorial integrity and political independence of another state in contravention of the UN Charter, provided the acts of aggression concerned have large-scale and serious consequences, to be an international crime.” 56 This means that “large-scale and serious consequences” are the main criterion for qualification as acts of aggression to become “international crime”. In this way he distinguished a broad conception of all acts of aggression and the narrower concept of some of them as a crime or crimes of aggression. Besides, in Cassese’s view to commit a crime of aggression requires “criminal intent” ( dolus ). In his view it must be therefore clear that the perpetrator “intended to participate in aggression and was aware of the scope, significance, and consequences of his action (recklessness)”. Mere “engaging in an armed conflict in violation of international treaties prescribing resort to armed violence, or participating in a conspiracy to wage aggressive war (that is, planning aggressive war without the planning being followed by action or at least an attempt, are not international crimes, although they may constitute international wrongful acts…“ 57 We may remember that discussion on animus aggressionis may be traced as early as in the LN. In 1927 the report of the Secretary General of the LN contained the following observation: “…from the legal point of view, the existence of a state of war between two States depends upon their intention and not upon the nature of their acts. 58 In a commentary prepared by the Special Committee of the Temporary Mixed Commission of the LN from 1923 factors were mentioned on which government can base the attitude of the possible aggressor as political: his propaganda, the attitude of his press and population, his policy on the international market, etc. 59 53 UNDoc. A/2211, 3 Oct. 1952, p. 681; Henkin, L., Pugh, R., Schachter, O., Smith H., supra note 8, p. 688. 54 Ibid ., p. 689 55 Doc. A ICN. 4 ISR. 109, para. 106. 56 Cassese, A., supra note 50, p. 747; see also Cassese, A., International Criminal Law , Oxford 2003, p. 114. 57 Ibid ., p. 747 and 115. 58 Doc. A. 14. 1927, V. 14, p. 83, quoted in Brownlie, I., supra note 1, p. 38 59 L.N.O.J., Sp. Supp. No.16 (Records of the Fourth Assembly, Third Committee, Ann.) p. 203; see Appendix in Stone, J., supra note 1, p. 210.

82