The UN General Assembly ‘Consensus Definition’ of Aggression (1974)

4.2.3.1 The Definition in perspective

In the decades that followed the establishment of the United Nations, and while the various efforts of the International Law Commission to define aggression (and to draft the legal framework for an international criminal court) were ongoing, international claims of ‘aggression’ were manifold.423 _{As Bassiouni and Ferencz put}

it, ‘[it] was easier to commit aggression than to define it.’424

422 _{Arthur Watts (The International Law Commission Vol III) (supra) 1739. See further comments by Lyal Sunga}

(Emerging system) (supra) 13 – 14. On the deletions and ‘slimming down’ of the 1996 draft Code (compared to the much broader and more detailed 1991 draft Code) Sunga concluded as follows: ‘A more restrictive and precise international criminal code would promote greater objectivity, fairness and predictability in implementation, which in turn, could enhance prospects for the emergence of an effective system of international criminal law. On the other hand, an overly narrow or restrictive material coverage could put international criminal law into a normative straitjacket, thereby reducing its flexibility and responsiveness to new challenges arising from crime in the perennially turbulent international panorama.’ Sunga (supra) 14 – 15. See also comments by Yoram Dinstein (War Aggression and Self-Defence) (supra) 124 – 125.

423 _{For instance: The invasion of Hungary by the Red Army of the Soviet Union, various military interventions in}

Latin America, and perhaps the most notorious conflict of the post-Second World War era – the conflict in Vietnam. For an ‘insider’s perspective’ on many of these conflicts (especially the Vietnam conflict), see Henry Kissinger (Diplomacy) (supra). See further Stephen Ambrose (Rise to Globalism) (supra) 224 – 253 for a discussion of the foreign policy of US Pres Nixon and the impact of détente.

Bassiouni and Ferencz submitted that the compromises that were reached in the UN Special Committee that dealt with the question of a definition for aggression, was in part made possible by the ‘spirit of détente’ that was prevalent in international politics at the end of the Vietnam war in the early 1970’s.425 The ‘spirit of détente’ did not, of course, replace the divisions that characterised Cold War international relations,426 _{but merely made it possible to reach certain key}

agreements at the UN. A close scrutiny of the text of the ‘Consensus Definition of Aggression’ reveals the political divisions of the time. Nevertheless, after much debate the Sixth (Legal Affairs) Committee of the General Assembly was able to accept (in substance) the proposed text of the Special Committee. The slightly amended text was adopted by the General Assembly as Resolution 3314 (XXIX) on 14 December 1974. This Resolution is not legally binding, but is nevertheless quite a significant text with interpretative value.427

The substantive provisions of the UN General Assembly ‘Consensus Definition of Aggression’428 _{provides as follows:}

‘Article 1

Aggression is 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. Explanatory note: In this Definition the term “State”:

425 _{Bassiouni and Ferencz in Cherif Bassiouni (International Criminal Law Vol I) (supra) 327.}

426 _{For a critical assessment of the geopolitical realities of the era of détente after the Vietnam conflict, see}

Henry Kissinger (Diplomacy) (supra) 733 – 761.

427 _{See Cherif Bassiouni International Criminal Law Conventions and their Penal Provisions (1997) Transnational}

Publishers, New York, 227.

428 _{UN Res No 3314 (XXIX). Definition of Aggression (1974) GA Res of 14 Dec 1974,}

http://www.un.org/documents/ga/res/29/ares29.htm, reprinted in Christine Van den Wyngaert (International Criminal Law) (supra) 357 – 358; (1974), 13 ILM 710.

(a) Is used without prejudice to questions of recognition or to whether a State is a member of the United Nations;

(b) Includes the concept of a “group of States” where appropriate.

Article 2

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.

Article 3

Any of the following acts, regardless of a declaration of war, shall, subject to an in accordance with the provisions of article 2, qualify as an act 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 or armed force against another State of such gravity as to amount to the acts listed above, or its substantial involvement therein.

Article 4

The acts enumerated above are not exhaustive and the Security Council may determine that other acts constitute aggression under the provisions of the Charter.

Article 5

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 is or shall be recognized as lawful.

Article 6

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.

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.

Article 8

In their interpretation and application the above provisions are interrelated and each provision should be construed in the context of the other provisions.

While the political context in which the consensus Definition of Aggression of 1974 was agreed on was clearly one of hope in a time of reduced international tension (the period of détente), the Definition itself was the subject of some strong criticism from legal scholars and commentators. Rhetoric about the virtues of this new Definition sprung forth to underline an achievement that was perhaps more of a testament to the politics of détente than clear legal drafting. Julius Stone, one of the Definition’s strongest critics, put the central critique as follows: ‘[That] remarkable text rather appears to have codified into itself (and in some respects extended) all the main “juridical loopholes and pre-texts to unleash aggression” available under preexisting international law, as modified by the UN Charter.’429

Generally speaking, the Definition is quite useful as an indication of the international community’s understanding of the notion of aggression, but less so from a purely legal (and certainly international criminal law) perspective.430 It is perhaps appropriate to describe the value of the Definition as a guide for the Security Council more than a legal definition for judicial interpretation.431

There seems to be many compromises in the text that were the result of attempts to cover the deep-seated political and doctrinal divisions within the international community. Even more than that, the Definition also reflects the structural aspects of the UN-dominated collective security system that is central to the problem of finding an acceptable (and workable) definition of aggression. To an important extent the Definition exposed the inherent weaknesses caused by the powerful role of the Security Council in matters that affect the aggression-debate.

Article 1 of the Definition lists the basic protected interests of the generic notion of aggression. Although, as Bassiouni and Ferencz have pointed out, Article 1 has Article 2(4) of the UN Charter as its foundation, there are some important differences in content and structure between the two texts.432 While both the UN Charter and some of the Nuremberg judgments include ‘threat of force’ as part of the notion of aggression, the Definition does not include it as such.433 _An

430 _{See Justin Hogan-Doran & Bibi T van Ginkel ‘Aggression as a crime under international law and the}

prosecution of individuals by the proposed International Criminal Court’ NILR (1996) 321 – 351, 336.

431 _{Caroline Fournet (International Crimes) (supra) 160.}

432 _{Bassiouni and Ferencz in Cherif Bassiouni (International Criminal Law Vol I) (supra) 329.}

433 _{See reference to The Ministries Case, Military Tribunal IV, Case 11, The United States of America against}

Weizsaeker et al, Vol XII, XIII, Trials of War Criminals, Nuremberg Military Tribunals, Bassiouni and Ferencz in

Cherif Bassiouni (International Criminal Law Vol I) (supra) 329. Defendants Wilhelm Keppler and Hans Heinrich Lammers were convicted on charges of crimes against peace, but the convictions of the other defendants - Ernst von Weizsaeker and Ernst Wörmann - were overturned on appeal. See further Gerhard Werle (Principles of International Criminal Law) (supra) 391.

interesting addition to the notion of aggression is the reference to ‘sovereignty’ in Article 1 of the Definition. Bassiouni and Ferencz found this to undermine at least some aspects of the prohibition of the use of force-dispensation:

‘The … reference to “sovereignty” in the definition seems to strengthen a concept that runs counter to the notion of the interdependence of states and the need for nations to yield some of their prerogatives if there is to be any effective control over the use of armed force.’434

The Definition was, on balance, not a very successful attempt to define aggression form an international criminal law perspective. However, it did help the Security Council on a number of occasions to make findings that certain state conduct amounted to ‘aggression’.435 In this respect one can say that the Definition helped to concretise the notion of aggression that is not defined as such in the UN Charter.

4.2.3.2 Some observations on the usefulness of the Definition from an international criminal law perspective: Elements of criminal liability

The notion of individual criminal responsibility is one of the key principles of modern international criminal law. In essence this entails that individuals are criminally liable for unlawful conduct (actus reus), provided that a mental element (mens rea) can in some way be ‘directed to or linked with the commission of the crime’.436

434 _{Bassiouni and Ferencz in Cherif Bassiouni (International Criminal Law Vol I) (supra) 329.}

435 _{For instance, the SC employed the 1974 Def in its finding that South Africa has committed ‘acts of}

aggression’ against Angola in the 1970’s war. See SC Res 387 (1976) 31 March 1976. See further Hogan-Doran and Van Ginkel (supra) 334.

(a) Actus reus

The language and structure of the 1974 Definition reflects the two basic approaches to aggression that were advanced during the debates preceding the adoption of the consensus Definition. While Article 1 contains a more general approach to aggression (based on the language of Article 2(4) of the UN Charter), Article 3 (read with Article 2) contains a non-exhaustive list of acts that would typically constitute aggression (such as military invasion and occupation of territory). The fact that the Definition contains elements of both the general definition and enumerative approaches is yet another indication of not only the political but also doctrinal compromises that were made to reach a Consensus Definition.437

(b) Mens rea

The 1974 Definition of Aggression, which focuses on state-liability and not individual criminal liability, naturally does not provide for the element of mens

rea. However, this means that the Definition cannot really serve as a basis for

individual criminal liability for the crime of aggression. In this regard the Definition does not move beyond the UN Charter dispensation where it is left to the Security Council to determine whether acts of aggression occurred.438 _{There is therefore no}

specific mention of what would constitute the subjective mental element(s) necessary to prove criminal liability for aggression.439 It is submitted that the absence of specific provisions on mens rea in the 1974 Definition is a serious lacuna

437 _{Hogan-Doran and Van Ginkel (supra) 335.} 438 _{See Stone (Hopes and Loopholes) (supra) 228.} 439 _{See Hogan-Doran and Van Ginkel (supra) 336 – 337.}

from a criminal law perspective. This is not to say that the drafters of the text did not intend it to be so, given the state-centred nature of the Definition, but it should be clear that the Definition as it stands cannot serve as the basis for individual criminal liability.

Yoram Dinstein pointed out that, given the seriousness of aggression as an international crime, a special kind of subjective element (sometimes referred to as

animus aggressionis) developed around the concept of crimes against peace.440 The

need for actus reus to be accompanied by mens rea was also confirmed by the Nuremberg Tribunal and subsequent trials of senior Nazis by the various Control Council-proceedings.441 _{Kriangsak Kittichaisaree stated that the mens rea-element}

of aggression involves intent plus knowledge. In this regard, he quoted the following passage from the High Command case442, where the US Military Tribunal held that individuals accused of the crime of aggression must have

‘actual knowledge that an aggressive war is being intended and that if launched it will be an aggressive war. It requires in addition that the possessor of such knowledge, after he acquires it shall be in a position to shape or influence the policy that brings about its initiation or its continuance after its initiation, either by furthering, or by hindering or preventing it. If he then does the former, he becomes criminally responsible; if he does the latter to the extent of his ability, then his action shows the lack of criminal intent with respect to such policy…’443

Dinstein summarised the mens rea-requirement as follows:

440 _{Yoram Dinstein (War Aggression and Self-Defence) (supra) 136.}

441 _{See references and discussion by Yoram Dinstein (War Aggression and Self-Defence) (supra) 137.}

442 _{Wilhelm von Leeb and Others, US Military Tribunal at Nuremberg, 28 Oct 1948, as quoted in Kittichaisaree}

(International Criminal Law) (supra) 221.

‘The intent to undertake war of aggression may be formed by only one or few individuals at the helm of a State. Others at the policy-making level need not be personally guided by the same intent. The acid test is whether, in assisting the preparations for war, they actually know of the aggressive schemes. If they know that aggression is planned, this may suffice to establish the requisite mens rea. The obverse side of the coin is that when a person (who actively participates in honing the military machinery) does not possess personal knowledge as to aggressive plans, he cannot be convicted of crimes against peace.’444

The 1974 Definition brings us closer to an understanding of what acts would constitute aggression under international law. However, the important subjective element is still lacking and certainly open for debate.

4.3 Concluding remarks: Attempts to define aggression in the light of the