Peace as a Human Right

06 March 2009

The Prohibition of Aggression in International Law 06 March 2009 By Alfred DE ZAYAS

The human cost of armed conflict is such that international law qualifies aggression as the gravest crime possible, genuinely more serious than the war crimes that inevitably ensue during armed conflict.

The United Nations was founded “to save succeeding generations from the scourge of war” (Preamble), and Article 1, paragraph 1, of the Charter establishes its mandate “to maintain international peace and security, and to that end: to take effective collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression …” Article 2, paragraph 3, imposes an obligation to negotiate: “All members shall settle their international disputes by peaceful means”; and Article 2, paragraph 4, engages States to “refrain in their international relations from the threat or use of force”.

This prohibition of force has been repeated in countless resolutions of the Security Council and of the General Assembly, most importantly in GA Resolution 2625 (XXV) of 24 October 1970, Resolution on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations, which solemnly proclaims:

Every State has the duty to refrain in its international relations from the threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the purposes of the United Nations. Such a threat or use of force constitutes a violation of international law and the Charter of the United Nations and shall never be employed as a means of settling international issues. A war of aggression constitutes a crime against the peace, for which there is responsibility under international law. In accordance with the purposes and principles of the United Nations, States have the duty to refrain from propaganda for wars of aggression.
This obligation is also stipulated in Article 20 of the International Covenant on Civil and Political Rights:

“Any propaganda for war shall be prohibited by law.”

Thus, aggression is not only an internationally wrongful act giving rise to State responsibility and the obligation to make reparation, it is also an international crime giving rise to personal criminal liability.

Prior to the First World War, aggression had not yet been declared to be an international crime and war was still perceived as a legitimate means of achieving political objectives.

The catastrophe of the First World War (“the war to end all wars”), leaving ten million deaths in its wake, led to the creation of the League of Nations (predecessor of the United Nations), and many countries sought to devise ways to ban war as an exercise of State sovereignty.

On 27 August 1928 at Paris, the Kellogg-Briand Pact was signed, spearheaded by the US Secretary of State Frank Kellogg, the French Minister of Foreign Affairs Aristide Briand and the German Minister of Foreign Affairs Gustav Stresemann.

By virtue of Article I, the forty-five States parties “condemn recourse to war for the solution of international controversies, and renounce it, as an instrument of national policy”; in Article II, they “agree that the settlement or solution of all disputes or conflicts of whatever nature or of whatever origin they may be … shall never be sought except by pacific means”.

As a corollary to the Pact, a subsequent American Secretary of State, Henry Stimson, enunciated the doctrine of non-recognition of international territorial changes effected by force. This doctrine was a response to Japan's unilateral seizure of Manchuria in September 1931 and was subsequently reflected in several international declarations, including a League of Nations resolution of 11 March 1932, the Inter-American Pact of Rio de Janeiro of 10 October 1933 and the Budapest Articles of Interpretation (10 September 1934) to the Kellogg-Briand Pact.

Alas, this first international movement to ban war did not prevent the outbreak of the Second World War, which would take 50 million lives, five times as many as the first conflagration. Hitler was the principal, but not the only, aggressor. The Soviet Union, for instance, attacked Poland in September 1939, together with Germany, pursuant to a secret treaty signed by Foreign Ministers Ribbentrop and Molotov in which they divided Poland among themselves.

In October 1939, the Soviet Union assaulted the three Baltic States—Estonia, Latvia and Lithuania—and occupied and annexed them; in November 1939, it attacked Finland, robbed it of 18,000 square miles of territory and forced 450,000 Finns to resettle elsewhere. For the latter aggression, the Soviet Union was formally expelled from the League of Nations in December 1939.

Following German capitulation in May 1945, the Allies adopted the London Agreement of 8 August 1945, which contained the Charter of the Nuremberg Tribunal. Article 6(a) of this Charter provided for a new category of crime in international law—crimes against peace: “

namely, planning, preparation, initiation or waging of a war of aggression, or a war in violation of international treaties, agreements or assurances, or participation in a Common Plan or Conspiracy for the accomplishment of any of the foregoing
”. (...)

[The complete paper, which was originally submitted for publication in the now-defunct The Geneva Post Quarterly, can be downloaded as PDF file here.]

Alfred DE ZAYAS, J.D. (Harvard), Dr. Phil (Göttingen), is President of PEN International Centre Suisse Romand, and a Professor at the Geneva School of Diplomacy. He may be contacted at: AlfreddeZayas.com.

This article is published under Creative Commons by permission from the author.