5.3 Definition of 'Aggression'

5.3.1 Supreme Court Justice Robert H. Jackson (Chief US Prosecutor) at Nuremberg

“ A basic provision of the Charter is that to plan, prepare, initiate, or wage a war of aggression, or a war in violation of international treaties, agreements, and assurances, or to conspire or participate in a common plan to do so, is a crime. It is perhaps a weakness in this Charter that it fails itself to define a war of aggression. Abstractly, the subject is full of difficulty and all kinds of troublesome hypothetical cases can be conjured up. It is a subject which, if the defence should be permitted to go afield beyond the very narrow charge in the Indictment, would prolong the trial and involve the Tribunal in insoluble political issues. But so far as the question can property be involved in this case, the issue is one of no novelty and is one on which legal opinion has well crystallised.

One of the most authoritative sources of International Law on this subject is the Convention for the Definition of Aggression signed at London on 3rd July, 1933, by Romania, Estonia, Latvia, Poland, Turkey, the Soviet Union, Persia and Afghanistan. The subject has also been considered by international committees and by commentators whose views are entitled to the greatest respect. It had been little discussed prior to the First World War but has received much attention as International Law has evolved its outlawry of aggressive war. In the light of these materials of International Law, and so far as relevant to the evidence [Page 82] in this case, I suggest that an "aggressor " is generally held to be that state which is the first to commit any of the following actions:

(1) Declaration of war upon another State;

(2) Invasion by its armed forces, with or without a declaration of war, of the territory of another State;

(3) Attack by its land, naval, or air forces, with or without a declaration of war, on the territory, vessels or aircraft of another State; and

(4) Provision of support to armed bands formed in the territory of another State, or refusal, notwithstanding the request of the invaded State, to take in its own territory, all the measures in its power to deprive those bands of all assistance or protection.

And I further suggest that it is the general view that no political, military, economic or other considerations shall serve as an excuse or justification for such actions but exercise of the right of legitimate self-defence - that is to say, resistance to an act of aggression, or action to assist a State which has been subjected to aggression, shall not constitute a war of aggression. It is upon such an understanding of the law that our evidence of a conspiracy to provoke and wage an aggressive war is prepared and presented. By this test each of the series of wars begun by these Nazi leaders was unambiguously aggressive.

It is important to the duration and scope of this trial that we bear in mind the difference between our charge that this war was one of aggression and a position that Germany had no grievances. We are not inquiring into the conditions which contributed to causing this war. They are for history to unravel. It is no part of our task to vindicate the European status quo as of 1933, or as of any other date. ... Our position is that whatever grievances a nation may have, however objectionable it finds the status quo, aggressive warfare is not a legal means for settling those grievances or for altering those conditions. It may be that the Germany of the 1920's and 1930's faced desperate problems, problems that would have warranted the boldest measures short of war. All other methods - persuasion, propaganda, economic competition, diplomacy-were open to an aggrieved country, but aggressive warfare was outlawed. These defendants did make aggressive war, a war in violation of treaties. They did attack and invade their neighbours in order to effectuate a foreign policy which they knew could not be accomplished by measures short of war. And that is as far as we accuse or propose to inquire. “

The Trial of German Major War Criminals Sitting at Nuremberg, Germany

(Blue Transcripts) - Vol.1 Session 2 (21 Nov 1945) pp81-82 HMSO 1946

5.3.2 General Assembly Resolution 3314 (XXII) (1974)

Recognising, almost immediately after the codification and subsequent adoption of the Nuremberg Principles by the General Assembly in 1950, the need for and importance of, a clear statement on the definition of term “Aggression” in international law, the ILC, under the auspices of the Sixth Committee, set about work on the task. However, it took until 1967 for the General Assembly to resolve to overcome the distinct lack of progress on the issue by the establishment a ‘Special Committee’ to work exclusively on the issue of the formulation of just such a definition (see GA Res. 2330 of the XXII Assembly).

This Special Committee in turn, however, took until 1974 to report, but that Report did then lead at long last to the promulgation of the infamous General Assembly Resolution 3314 on the definition of the crime of “Aggression”. The reader should now refer to the text of the Annex to that Resolution as set out in Background Document RLM 003. For present purposes it is sufficient to set out merely the pertinent provisions of Article 3 of the Annex on the definition of aggression.

“Article 3

Any of the following acts, regardless of a declaration of war, shall, subject to and 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 on 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;

....

(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; “

It is naturally submitted by the present Claimant that the various acts complained of before the Defendants, in the courts below, as set out in the ‘Statements of Particulars’ accompanying the various informations laid before them, comprised in an act (or acts) of ‘international aggression’, as defined in relation to each and every one of the three subparagraphs to Article 3, as set out above.

As to the importance of the adoption of a Resolution, such as this, by a body of the character of the General Assembly of the United Nations, exercising as it does a ‘quasi-universal jurisdiction’, as evidence of the communis opinio juris of the global community of nations, and thus as a source of customary international law, see below at Para. 5.4.3 and the observations of the International Court of Justice in the matter of Nicaragua -v- the United States (1996).

5.3.3 The “Travaux Prepatories” of the Assembly of States Parties to the ICC.

On 9 September 2002 the Assembly of States Parties to the ICC Statute adopted a resolution proposed by the Preparatory Commission for the International Criminal Court in which it stated that it was desirous of continuing and completing the work on the ‘crime of aggression’ and to that end established a Special Working Group on the crime of aggression. Paragraph 2 of the discussion paper which was attached to the Preparatory Commission’s Draft Resolution suggested that for the purposes of future amendment of Rome Statute “act of aggression” be defined as an act referred to in United Nations General Assembly Resolution 3314 (XXIX) of 14 December 1974 (as above).

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