Defining Aggression: Where it Stands and Where it's Going

 By Benjamin B. Ferencz* 

It is seemingly easier to evoke aggression than to dispel it, and easier to commit aggression than to define it.   What has been universally condemned as "the gravest of all crimes against peace and security throughout the world" [i] has yet to be consensually particularized. On the eve of its hundredth meeting, the U.N. Special Committee on the Question of Defining Aggression, the fourth United Nations body to deal with the topic since 1952, adjourned without having carried out its instructions. It did conclude by irresolute acclamation that progress had been made and that it should continue its work in 1973. [ii]  Despite the semblance of unanimity, both points were not free from doubt. [iii]  Defining aggression has perplexed legal scholars for nearly half a century. Those who are dedicated to the rule of law and to a rational system of conflict management may wish to consider some of the current disputations as well as the expectations and requirements of the days or years to come.

THE SEARCH FOR A DEFINTION 

The most comprehensive study of the origins of a search for a definition of aggression is contained in the scholarly book by Professor Julius Stone, Aggression and World Order. [iv]  McDougal and Feliciano have brilliantly illuminated the historical record in an incisive, logical and intellectual analysis which scrutinizes the elements to be considered by different decision-makers in determining the limits of permissible and impermissible coercion. [v]   These works will set the scene for what has been happening on this subject at the United Nations these past two and twenty years. 

A brief sketch of the record discloses that as early as 1917, in a Decree on Peace adopted at an All-Russian Congress, it was stated that aggressive war was a crime against mankind. [vi]  The League of Nations sponsored a number of treaties in which aggression was specifically prohibited. [vii] When the Kellogg-Briand Pact was signed in 1928 all wars were outlawed, at least in legal theory.  La Patrie, however, came before La Paix, and no one was yet ready to adopt any system to enforce the peaceful declarations. On the contrary, the British, the French, and U. S. Secretary of State Kellogg, made it very dear that the United States would decide for itself what constituted legitimate self-defense. [viii]   In 1933 the Soviet Union signed conventions with a dozen neighboring states in which aggression was dearly defined. [ix]  This progress on paper did not deter the annexation of some of the signatory states shortly thereafter, or the eruption of hostilities in various parts of the world. 

After the holocaust of World War II the newly created United Nations declared its primary purpose to be: 

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 or other breaches of the peace . . [x]

Article 39 called upon the Security Council to "determine the existence of any threat to the peace, breach of the peace, or act of aggression . . ."  The terminology suggested that these three different designations, of apparently ascending gravity, had different connotations which might lead to different consequences. The distinctions, if any, were not explained and aggression was deliberately left undefined. [xi]

By a coincidence of history, on the very same day that the Charter was being signed at San Francisco, Associate Justice Robert H. Jackson, who had been assigned by the President to help prepare the trial of Nazi war criminals, presented a proposal to his Allied colleagues in London suggesting that launching of a war of aggression should be charged as a criminal act and that the crime of aggression should be specifically defined. [xii]  Professor André Gros of France doubted that the four persons there assembled could validly create ex post facto law by imposing personal criminal responsibility where none had previously existed.  Justice Jackson was willing to establish a new precedent in relying on international treaties as well as "the common sense of mankind that a war of deliberate and unprovoked attack deserves universal condemnation." [xiii]  He was also willing to accept the Soviet definition of aggression. The British proposed that, instead of defining aggression, reference be made to treaties which outlawed aggression. [xiv] General Nikitchenko, Vice President of the U.S.S.R.'s Supreme Court, took a more expedient, if curiously non-judicial approach. He said:

A definition of aggression would really be up to the United Nations…The fact that the Nazi leaders are criminals has already been established. The task of the Tribunal is only to determine the measure of guilt . . . and mete out the necessary punishment! [xv]

Despite these rather extreme positions and the fact that the legal backgrounds of the participants ranged from the common law to systems derived from the Romans and the rule of Byzantium, within a period of six weeks the Charter for the International Military Tribunal, encompassing a host of legal complexities, was signed on behalf of the four Allied Powers. The conclusion was a compromise. Aggression was declared to be a crime, but it was nowhere defined. [xvi]

Justice Jackson sought to close the gap in his opening statement for the United States. He defined aggression in the same terms employed in the Soviet treaties of 1933. [xvii]  He declared that an aggressor was

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 or air forces, with or without a declaration of war, on the territory, vessels or aircraft of another State; and

4.         Provision of support for 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 and protection.

He made it plain that, when it came to prosecuting war criminals, the United States shared the view of the Soviet Union that war could not be justified by any political, economic, or other consideration. Although the right of "legitimate self-defense" was permissible, this was intended to mean only resistance to one of the four acts of aggression as above defined, or assisting a state which had been subjected to such aggression.

The common view of aggression which existed between the Soviet Union and the United States at the time of the Nürnberg trials was soon submerged in the broader antagonisms of the cold war.  When the Security Council became paralyzed by the veto power, the General Assembly tried to assume the responsibilities for maintaining peace by its "Uniting for Peace Resolution." [xviii]  The Assembly received power to make recommendations regarding an act of aggression, and thereby became involved in the problem of trying to clarify exactly what was meant by that elusive term. 

For over a decade the General Assembly has sought to reach some common understanding on what it is that constitutes the most serious of all crimes. [xix]   In 1950 the Soviet Union submitted a draft resolution containing a list of acts to be considered aggressive.  The question was referred to the International Law Commission, which reported back that no enumeration could be comprehensive and therefore it was undesirable to try to catalogue illustrative cases.  Each conflict would have to be considered on its merits. Although the Commission felt that aggression could not be specifically defined, it was nevertheless listed as a crime in its draft Code of Offenses against the Peace and Security of Mankind. The Commission was satisfied with a general formulation that aggression would include, but not necessarily be limited to:

The employment by authorities of a State of armed force against another State for any purpose other than national or collective self-defence or in pursuance of a decision or recommendation by a competent organ of the United Nations. [xx]

The Assembly, however, concluded that more than a general description was needed.  It was stated that it was "possible and desirable…to define aggression" and that "it would be of definite advantage if directions were formulated for the future guidance of such international bodies as may be called upon to define the aggressor."  The Assembly appointed the first of what was to be a number of Special Committees to submit a draft definition. The first such committee, representing 15 states, met in 1952 and 1953.  A second committee, of 19, was appointed in 1954. For years it debated various forms of aggression and related problems. Some members thought it a dangerous exercise which might actually encourage what it sought to deter.  By 1957 the Assembly saw fit to set up a third Special Committee "for the purpose of determining when it shall be appropriate for the General Assembly to consider again the question of defining aggression."  In perfunctory meetings held in 1959, 1962, 1965 and 1967 the Special Committee concluded that the time was not yet appropriate for further action. [xxi]

The Soviet Union at the end of 1967 again took the initiative. It proposed that the Assembly consider "the need to expedite the drafting of a definition of aggression."  In appointing its fourth Special Committee the Assembly directed it "to consider all aspects of the question so that an adequate definition of aggression may be prepared." [xxii]  The new Committee, expanded to 35 members, appointed to take into consideration the principle of equitable geographical representation and the need to represent the principal legal systems of the world, began its first session in 1968. [xxiii]  This committee has held five lengthy sessions in New York and Geneva in as many years. [xxiv]  It adjourned before its hundredth meeting on March 3, 1972. [xxv]  On the occasion of its "centennial" it is appropriate to review some of its achievements and the problems still before it.

THE WORK OF THE LATEST SPECIAL COMMITTEE 

When it began its work in 1968 the latest Special Committee on the Question of Defining Aggression was confronted with four proposals put forward by various combinations of states.  In a month of debate it considered whether the definition had any value at all; whether it should be a general definition, an enumerative one or a combination of the two; what it should contain; and its relationship to other U.N. instruments. There was

agreement on practically nothing. [xxvi]  The Soviet motion that the work be continued met with a mixed reception. [xxvii]  

The next year the drafts had been narrowed down to three distinct proposals. [xxviii]  The first was the previous draft of the U.S.S.R.  The second was a draft put forward by thirteen Powers (Colombia, Cyprus, Ecuador, Ghana, Guyana, Haiti, Iran, Madagascar, Mexico, Spain, Uganda. Uruguay and Yugoslavia).  The third draft was one put forward, for the first time, by a combination of six Powers (the U.S., the U.K., Australia, Canada, Italy and Japan) most of which had abstained from voting on the continuation of the work of the Committee, and whose skepticism about the usefulness of the entire exercise had been only thinly disguised.  At the conclusion of the Committee's session there had been crystallization of the major points of disagreement as well as some progress on questions of principle, and it was agreed, without objection, that the work should continue. [xxix]  

In the summer of 1970 the Special Committee reconvened in Geneva. A comparative table prepared by the diligent Secretariat staff set forth in visual detail the differences and similarities of the three proposals being discussed. [xxx]  The Soviet draft and the thirteen Power draft bad a great deal in common.  The six-Power draft by contrast made reference to several elements not previously considered in a definition of aggression, such as the intent of the parties and the rights and responsibilities of entities which had not been recognized as states. A Special Working Group was created, composed of the U.S.S.R., five delegates from the sponsors of the thirteen-Power draft, and two from the six-Power group. It held ten meetings and was able to reach agreement on three relatively minor points. [xxxi]  This time it was unanimously agreed that progress had been made and that the work should be resumed. [xxxii]  

The fourth session of the Special Committee opened in New York in February, 1971.  The Working Group held a dozen meetings but all they could produce was a number of alternative texts on about half a dozen of the principal points of disagreement. [xxxiii]  The United States did, however, submit new proposals which seemed to be moving toward an accommodation on the questions of the weight to be given to aggressive intent and to the fact that one party had been the first to use armed force.  Brackets were used to denote different suggestions, but the text which was finally presented to the full Committee was practically unintelligible. [xxxiv]  Some members of the Working Group began to question the purpose of a definition of aggression, [xxxv] although this was outside their terms of reference. Despite the meager results, the recommendation was again unanimously carried that the Committee should keep working. [xxxvi]  

In 1972 the Special Committee began its fifth year of deliberations. The first few days were lost in procedural problems.  The size of the Working Group was expanded from 8 to 13, and they in turn created an informal negotiating group composed of all 35 members.  After 14 closed meetings the informal group submitted its report.  Only some elements of the definition had been discussed. They listed a number of alternatives, added a few brackets, subtracted a few brackets and concluded nothing. [xxxvii]  Five separate proposals by various delegations largely restated previous positions. [xxxviii]  In what appeared to be an exasperated attempt to protect their position, 20 non-aligned states proposed to stand by the principles of the original thirteen-Power draft. [xxxix]  The Special Committee had no time to consider the Report of its Working Group, which had no time to consider the report of the negotiating group. All alternatives were simply noted in the draft report which contained the usual resolution that progress had been made and that the work should continue. [xl]

Whatever progress had been made was not of such magnitude as to be readily apparent to the naked eye and some of the delegates began to question whether it was really productive to continue the effort. [xli]  It may be useful to consider some of the specific points of disagreement.

MAJOR POINTS IN DISPUTE

A. The Preamble 

During the 1972 meetings the preamble was not even discussed. It had been debated at length in the earlier session and it appeared that all of the parties were rather close to a consensus view.  With proper diplomatic caution no one would concede that anything was accepted until the entire package was sealed, but we may assume that, given a minimum of good will, a preamble essentially similar to the following could shortly emerge:

The General Assembly,

Basing itself on the fact that one of the fundamental purposes [xlii] of the United Nations is to maintain international peace and security and [xliii] to take effective collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace;

Recalling also that Article 39 of the Charter states [xliv] that the Security Council shall determine the existence of any threat to the peace, breach of the peace or act of aggression, and shall make recommendations or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security; [xlv]

Reaffirming further that every State shall settle its international disputes with other States by peaceful means [xlvi] in such manner that international peace and security, and Justice, are not endangered; [xlvii]

Convinced that the adoption of a definition of aggression will serve to discourage possible aggressors, will provide guidance for the determination of acts of aggression by the Security Council which must take all the circumstances into consideration, will facilitate the implementation of measures to stop aggressors and will encourage States to fulfill their obligations under the Charter, [xlviii]

Declares that [xlix]

B. The General Formula 

There was general agreement that the definition of aggression should include at least the following text: 

Aggression is the use of armed force by a State against the territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations.

It will be recognized that much of this language is taken verbatim from Article 2, Sec. 4, of the Charter where Members are enjoined from using threats or force against the protected objects.  Earlier drafts had referred, as in Article 2, to actions inconsistent with the purposes of the United Nations.  The six Powers dropped their earlier request that armed force "in any way affecting” the territorial integrity, etc., be prohibited. The six Powers continued to insist, however, that armed force "however exerted” be mentioned, [l] while the Soviet representative argued that this was not acceptable since it would extend the concept of aggression to actions which might only be breaches of the peace. [li]  The thirteen Powers wanted the word "sovereignty" to appear after "territorial integrity," but again the Soviet view was that such an inclusion was redundant and broke the description contained in Article 2. [lii]  The thirteen Powers were prepared to remove from the general definition their previous request that "territorial waters and air space" also be specifically protected, but only if it was described later as being included in the concept of "territorial integrity." [liii]  The final score for 1972: Two of the items previously bracketed were eliminated, one was shifted elsewhere and the word "Charter" replaced the word "purposes."  Only two brackets were left to go: "however exerted" after "armed force," and "sovereignty" after "integrity. " [liv]

C. The Enumeration of Specific Aggressive Acts 

1. Application of the Definition 

(a)    The Definition and the Power of the Security Council: 

One of the most important points, and one which commanded unanimous acceptance, was that the power of the Security Council under Article 39 to determine whether aggression had been committed in any specific case was not to be altered by any definition of aggression. [lv]  If this single point had been kept clearly in mind it should have been recognized, by those states capable of using the veto power, that they continued to maintain considerable control about final decisions on aggression. This "insurance" should have encouraged greater flexibility in accepting compromise proposals. 

(b)   The Political Entities to Which the Definition Should Apply: 

All drafts other than the six-Power proposal dealt with aggression by "states" only.  After much debate it appeared that the six Powers were trying to cover clearly defined territories whose statehood was disputed.  By the end of 1971 a compromise was being approached and in 1972 the six Powers proposed that the problem be resolved by a simple explanation that the term "state" includes a "group of states" and was used without prejudice to questions of recognition or whether a state is a Member of the United Nations. [lvi]  

2. Acts Proposed for Inclusion in the Definition of Aggression 

(a) Direct Aggression:

There was general agreement that there would have to be an open-ended definition and that the Security Council could decide that other acts also constituted aggression.  This was an added guarantee that the Committee was not creating Chamberlain's "trap for the innocent and signpost for the guilty."  All agreed that certain acts were definitely aggressive, whether or not there was a declaration of war. This included invasion, bombardment or attack on the armed forces, ships or aircraft of another state, and blockade, which was apparently accepted in 1972 [lvii] as a concession by the United States.  Other acts were more controversial.

The thirteen Powers sought to prohibit "the use of any weapons, and particularly weapons of mass destruction." The Americans argued that it was not the weapon which determined the legality of the act. The Soviets wished to retain the prohibition against "any weapons" and therefore the additional reference to weapons of mass destruction would have been redundant. In a move toward compromise the U.S.S.R. indicated that it would be prepared to ban all atomic weapons except in self-defense." [lviii]

The six Powers had included as an act of aggression the use of armed force, or retaining armed forces in another state in violation of the conditions under which their presence had been permitted.  In 1972 the American representative noted his willingness to drop this point as well. [lix]  The Arab states kept insisting that occupation and annexation were acts of continuing aggression, but by 1972 there seemed to be a greater recognition that this problem was more appropriately dealt with when considering the legal consequences of aggression rather than in an enumeration of aggressive acts.

(b) Indirect Aggression:

The problem of defining indirect aggression, which had been touched upon in Point 4 of the 1933 Soviet definition, caused the greatest dissension.  Everyone realized that the indirect use of force might have consequences which were just as destructive of the institutions of the victim as a frontal assault.  The problem of dealing with this contemporary form of conflict was complicated by the difficult and often subtle distinctions between civil strife, terrorism, revolution, liberation, internal and external subversion and efforts to overthrow oppressive or colonial regimes. We have seen that a breach of the peace is not necessarily an act of aggression.

Two alternatives were on the table. [lx]  The Soviets and the thirteen Powers seemed prepared to recognize that, if subversion reached a certain magnitude, it would be tantamount to an armed attack.  Lesser forms of intervention, however, would Justify only a more limited defensive response.  The six Powers seemed inclined to a second alternative which reiterated the principles of non-intervention that had been accepted by the Assembly in the Declaration of Principles of International Law concerning Friendly Relations." [lxi]  The Soviets cautioned that they could not agree that all illegal acts of interference amounted to acts of aggression. [lxii]

3. Aggressive Intent

When the six-Power draft first appeared it described aggression as the use of force "in order to" accomplish certain prohibited purposes, such as to diminish the territory or alter the borders or change the government or inflict harm of any sort. [lxiii]  The sponsors were accused of injecting vague subjective concepts which would destroy all possibility of any objective determination of aggression, since the victim would be required to prove the state of mind of the offender and this was a burden of proof which could not be met. [lxiv]  This interjection of animus aggressionis and the idea that both intent and motive were essential elements of the offense aroused the suspicion that the six-Power proposal was designed to torpedo the whole undertaking. [lxv]  Gradually the sponsors conceded that benevolent intent could not excuse or justify an armed attack, and conceded further that only "due regard" had to be given to the question of intent. [lxvi]  This concession, however, was coupled with the question of priority.

 4. The Principle of Priority

The essential characteristic of the Soviet definition of aggression going back as far as 1933 was that the state which was the first to commit the prohibited act was to be branded as the aggressor. What may have seemed acceptable in the days when nations dispatched formal declarations of war and sent armies marching across borders to the tune of martial music appeared extremely anachronistic in the thermonuclear age.  No nation could reasonably be expected to stand idly by and wait to be destroyed.  The Soviets eventually conceded that the principle of priority was not to be applied mechanically. They then went a step further and suggested that the state which acted first would merely be presumed to be the aggressor but the presumption would be rebuttable. [lxvii]   The principle of priority became linked with the question of aggressive intent as all parties moved toward a compromise, which had been suggested by Ambassador Chaumont of France years before, that the Security Council simply take both priority and intent into account. [lxviii]

5. Legitimate Use of Force

(a) Self-Defense:

Self-defense is the justification usually advanced by states accused of aggression.  This concept, which is often referred to as an "inherent right," may have its origins in the metaphysical natural-law postulates of the 18^th century or earlier periods.  Whether it can serve a useful function in terms of more contemporary analytical-sociological jurisprudence may depend upon what we expect it to do in terms of maintaining peace.  Article 51 of the Charter refers to "the inherent right of individual or collective self defense" which may be employed "if an armed attack occurs" and "until the Security Council has taken the measures necessary to maintain international peace and security."  The three drafts before the Special Committee contained three different views of how the self-defense issue should be handled.

The Soviet draft said nothing about self-defense.  In their view it did not belong in a definition of aggression.  The six Powers reasserted the right to use force if it was done "in the exercise of the inherent right of individual or collective self-defense" or pursuant to decisions of competent U.N. organs.  The thirteen Powers' view would allow self defense only to repel an armed attack.

By the end of the 1972 session various combinations were being considered. The first was a compromise effort which sought to join a general reaffirmation of the Charter provisions on self-defense with a declaration that no consideration of whatever nature relating to the internal or foreign policy of a state could justify aggression. [lxix]  This was almost identical to a similar declaration attached to the Soviet definition in 1933, repeated by Justice Jackson in his proposal for the Nürnberg trials in 1945, [lxx] and suggested by the International Law Commission in 1951. [lxxi]  The Soviets agreed to accept this, but thought that a sentence should restate that only the Security Council itself could authorize the use of force.  As a variant, the U.S.S.R. was also prepared to include reference to Article 53 of the Charter which allowed regional agencies to act under certain circumstances. [lxxii]  

The heart of the difficulty about self-defense seemed to lie in setting forth what type of response would be permissible under what circumstances.  No one denied that a state could defend itself against an armed attack, but when it came to the more subtle and now more frequent forms of interference with the affairs of governments there was considerable difficulty in reaching a common understanding.  The smaller nations seemed to feel that if the risk of war was to be limited, the right of states to defend their own cause would have to be narrowly interpreted. [lxxiii]

The road to acceptable compromise was occasionally seen by some delegates and then allowed to fade away.  Acceptable compromise seemed to lie in application of the concept of proportionality. The thirteen-Power draft contained a provision requiring states acting in self-defense to use only such measures as were reasonably proportionate to the armed attack against it.  The British and the Americans hinted that if self-defense could be employed against indirect aggression, which was of lesser magnitude than an armed attack, it might be possible to agree that only such force could legitimately be used as was required effectively to repel the unlawful action. [lxxiv]  The Soviet Representative felt that proportionality could not be applied, for it would require the victim to measure his response to equal that of his attacker, and this would benefit the wrongdoer. [lxxv]  This mechanical view, however, failed to recognize the humanitarian considerations underlying the concept that force must be related to the evil it seeks to suppress, and once the objective of ending the aggression has been achieved the continuing or excessive use of force may convert the state which was the victim of aggression into the one which has become the aggressor.

(b) Self Determination:

The thirteen-Power draft as well as the U.S.S.R. draft contained a provision which asserted in essence that if armed force was used by dependent peoples to exercise a right (which the Soviets called inherent) to self-determination, or (as added by the thirteen) to sovereignty and territorial integrity, then it would not be aggression.  The six Powers felt such a provision to be out of place in a definition of aggression.  Two alternatives were finally being considered.  The one simply made reference to provisions of the Charter and the other added to it a reference to the "Friendly Relations" Declaration, neither of which was being challenged by anyone present. [lxxvi]

6. Legal Consequences of Aggression

(a) Non-Recognition of Territorial Gains:

Both the Soviet draft and the thirteen-Power draft, strongly supported by representatives of the Arab states, contained provisions that territorial acquisitions resulting from the use of force would not be recognized.  Various formulations of this idea were put forward [lxxvii] and the subtle distinctions in wording seemed to add little to the principles which had already been generally accepted in the "Declaration on Friendly Relations" and the Declaration on the Strengthening of International Security. [lxxviii]

(b) Personal or State Responsibility:

The Soviet draft provided that armed aggression entailed political and material responsibility of states and criminal responsibility of persons guilty of the crime against peace.  The thirteen-Power draft simply provided that armed aggression constituted a crime against international peace giving rise to international responsibility.  The six Power draft said nothing. In fact none of the parties could now disagree with principles which had been confirmed long ago by the General Assembly and which had been recognized law since the Judgment at Nürnberg. [lxxix]

 7. What It All Adds Up To

When we review the entire picture we see that there is already a considerable area of agreement about the definition of aggression.  It is generally recognized that a consensus definition is desirable.  The format of the definition is clear.  There is agreement that the definition should be composed of a general formulation plus an illustrative enumeration of prohibited and permitted acts.  It is agreed that there should be a preamble and there is no serious dispute about its general content.  All parties concur that the Security Council alone shall have authority to determine what constitutes an act of aggression and there is a compromise offered that political entities other than recognized states can be the perpetrators or victims of aggression.  A further compromise seems imminent joining the principles of priority and intent by allowing the Council to take all circumstances into account, including who acted first and the intention of the parties. The text of the general formulation has been agreed upon with only two relatively minor items remaining in brackets.  There is general concurrence on a number of acts which should be enumerated as direct aggression.  It is recognized that indirect aggression of a certain magnitude is equivalent to direct aggression.  No one challenges the right of self-defense against an armed attack or the right to use force in pursuance of United Nations declarations, and there is substantial agreement about the legal consequences of aggression.

Several of the agreed principles still lack a commonly accepted formulation.  Some members still seek to add a few particular items as illustrations of prohibited actions, and there is still uncertainty about how far a state can go in responding to indirect forms of aggression short of armed attack.  Argumentation still continues about the wisdom of including a few principles which have already been recognized by the United Nations in other declarations.

In the face of unanimous agreements which Members of the United Nations have reached on many more difficult matters, ranging from the Charter itself to the 1970 "Declaration on Friendly Relations" and the Declaration on the Strengthening of International Security, it would have to be concluded that the differences which separate those trying to formulate a definition of aggression do not appear to be irreconcilable.  What, then, is needed in order to bring these time-consuming and tedious efforts to a successful conclusion?

WHERE DO WE GO FROM HERE?

A. The Way

1. Procedure 

If one views the practices of the Special Committee objectively it is hard to avoid the conclusion that there is room for substantial procedural improvement.  The Special Committee has met at 5 sessions of about 5 weeks each for each of 5 years.  The number of delegates who have been present at all 5 sessions is 5.  There may be something cabalistic or mystical about the magic 5, but if one notes that there are about 80 persons listed as representatives, alternates or advisers at each session, it will be obvious that, except for the chosen five, [lxxx] the others are in various degrees joining a discussion which has already been in progress.  The temptation for the conscientious delegate to start at or near his point of beginning is often irresistible.  The impact on the deliberations is obvious.  A relative newcomer must, to a greater degree than otherwise, refer back to his government for instructions.  His flexibility under such circumstances is diminished if not crippled, and it becomes nearly impossible, even with modem communications, for him to reach any new conclusion in the time remaining for the Committee to complete its session.  It would be highly desirable, therefore, if the 35 states represented on the Special Committee could send the same persons who had participated in the past to continue the discussions, and if such persons could be given sufficient authority to reach decisions which may require some modification of what they departed with when they left home. 

At the close of its last session the Chairman, Ambassador Xenon Rossides of Cyprus, who has been one of the most ardent champions of defining aggression, suggested a new procedure which might prove more productive.  It was agreed that informal consultations should be carried on between the interested parties before the next session of the General Assembly. [lxxxi]   Unfortunately there was no understanding about who would be responsible for arranging such discussions or where they might be held.  It would seem that either the U.S.S.R., as the initiator of the search for a definition, or the Chairman, as the author of the idea, or one of the six Powers, which seem to have set themselves somewhat apart from the rest, would be equally well suited to take the initiative.  Yet there is no indication when or if anyone will act.  It would be a constructive move if some Foundation could break the impasse by extending invitations to a select group of those who have demonstrated the greatest interest in arriving at a definition.  A week or two of informal discussions at some quiet retreat might produce more than years of formal speeches.  If the divergent views of some of the leading participants could be informally reconciled it might well be possible at the next official gathering for a final consensus to be reached. 

2. Substance 

We have seen that there is very considerable agreement in principle on the part of almost all of the participants.  Alternative proposals are already drafted and compromise possibilities are not difficult to discern.  The most obdurate issue of substance which has not yet been resolved relates to the nature of the permissible response to certain forms of illegal coercion which fall short of armed attack.  The Special Committee has not been able to agree that an illegal interference which is not of such magnitude as to be characterized as an armed attack can legally justify a state deciding for itself that it may use military force as a defensive measure.  The hesitation about equating indirect aggression with direct armed attack stems from a legitimate concern about the consequences which may follow.  The desire to restrict the use of armed force explains the reluctance to expand the perimeter of acts which may, by being categorized as acts of aggression, legitimize the responsive use of armed force in the form of justified collective or individual self-defense. 

On closer reflection, however, one may conclude that the differences between the permissible responses to direct and indirect aggression are not as great as first appears.  In both cases there exists a requirement of proportionality which, if recognized, can become the bridge to span the gap which now separates the two sides.  Article 51 of the Charter allows the temporary use of self-defense to repel an armed attack.  It also allows the Security Council to take such measures as are "necessary" to maintain peace.  As long as the permissible response must be limited to that degree of coercion reasonably necessary to interdict the prohibited conduct, there would seem to be no valid reason for making legal distinctions between different types or quanta of aggressive behavior.  "Legitimate defense," said the de Brouckère Report of 1926, "implies the adoption of measures proportionate to the seriousness of the attack and justified by the imminence of the danger." [lxxxii]  A minor incursion cannot justify an atomic retaliation any more than a police officer would be justified in shooting a delinquent or beating an unarmed felon. 

It was recently nointed out by Derek Bowett that self-defense is similar to reprisals in that they are both forms of the same generic remedy of self-help.  They have a number of points in common, one of which is that the "use of force must be limited to the necessities of the case and proportionate to the wrong done by the target state." [lxxxiii]  Falk has outlined a framework of criteria which might be relevant in determining the reasonableness of retaliatory military action.  It requires that the use of force be proportional to the provocation and calculated to avoid its repetition. [lxxxiv]  

When all is said and done, the test of whether coercion, or response thereto, is tolerable to the community of nations will depend, as McDougal and Feliciano have said, upon "the most comprehensive and fundamental test of all law, reasonableness in a particular context." [lxxxv]  Nothing more is realistic and nothing more is possible or needed.  The idea of proportionality is no more abstract than the concepts of "military necessity,” “due process,” "real and present danger" or "justice” - all of which have played a very useful legal role. 

If various forms of the indirect use of force can be categorized as aggression and at the same time the legal use of force in response to aggression is restricted to only such force as is reasonably necessary to repel the illegal acts a compromise will have been reached.  It would mean the acceptance of the six-Powers' insistence that aggression in all forms is indivisible yet acknowledge the thirteen-Powers' demand that the use of force must be limited The U.S.S.R.’s opposition to proportionality, being based on the erroneous conception that a paralyzing tit-for-tat response is thereby mandatory would have to be modified in the light of an explanation that no mechanical interpretation is intended and that as much force can legitimately be used as is reasonably required to achieve the legitimate defensive goal.  It would still remain within the power of the Security Council to condemn the excessive use of force as aggressive (a point on which the Soviets have laid great stress), and this would serve as restraint against possible abuse. 

Proportionality is a concept which supports the humanitarian aspirations of all people, it is related to doctrines long accepted by the six Powers, is already referred to in the thirteen-Power draft which has been declared acceptable in principle by 20 of the 35 Committee members. [lxxxvi]  It should be recognized as the key to the compromise allowing the definition of aggression to be accepted by consensus.

B. The Will

No understanding is possible unless there is the will to reach agreement.  Many outstanding scholars have challenged the utility of trying to define aggression and it is not surprising if the objective is viewed with only limited enthusiasm.  The formulation of an accepted definition of aggression will surely not cause all wars of aggression to cease.  As long as any legal code is not enforceable there must be skepticism about its usefulness.  In the last article on this subject printed in this JOURNAL a few years ago the poignant question was raised by Professor Hazard: "Why Try Again to Define Aggression?" [lxxxvii]  The question deserves to be reconsidered.

Ambassador Rossides reminded his colleagues that it was the resolution of the General Assembly that a definition of aggression should be achieved as soon as possible. [lxxxviii]  A note verbale which he received from the Secretary General on opening the session caused him to conclude that “It is the will of the United Nations as a whole that there should be an early definition of aggression.  The feeling of urgency is becoming stronger by the passage of years.” [lxxxix]

Few would doubt that reaching a consensus definition of aggression after so many years would mark a significant advance in the development of international law.  The interdependence of nations, large and small, is increasingly being recognized.  The safety of the skies, the seas and the human environment are all matters receiving the urgent and co-operative attention of nations everywhere.  The safety of man on earth, his human rights, his health, his economic needs and his well-being all demand freedom from armed conflict.  In carrying out its basic responsibility of preventing the scourge of war, the Security Council is charged with responsibility for determining what constitutes an act of aggression and for the suppression of such acts.  An authoritative definition would aid the Council in discharging its difficult task.  It would also make it more difficult to use the pretext of self-defense to justify an illegal assault. [xc]

In every conflagration each of the protagonists insists that it is the other which is die aggressor, and world public opinion flounders in a sea of conflicting legal theories and becomes powerless to exercise the weight of its moral pressure against the wrongdoer.  A better understanding of the permissible limits of forci