AGGRESSION.
The preamble to the Protocol asserts that a war of aggression is an
international crime. I have discussed above[1] the agreement of the
parties to the Protocol not to resort to war except in defence against
aggression or in aid of defence against aggression or perhaps in
execution of a judicial decision or arbitral award. This is the
general covenant of Article 2 of the Protocol. It is this resort to
war, contrary to the terms of the Protocol, which is the chief breach
of the Protocol against which its chief Sanctions are ordered.
By Article 10 of the Protocol[2] every State which resorts to war in
violation of the undertakings either in the Covenant or in the
Protocol, is an aggressor.
It will be necessary to consider only the provisions of the Protocol
forbidding a resort to war, for it would be impossible to have a resort
to war contrary to the Covenant which would not also be a resort to war
contrary to the Protocol. The provisions of the Protocol go farther
than those of the Covenant in this regard.
It is true that there are in the Covenant certain engagements by
Members of the League not to resort to war. These are found in
Articles 12, 13 and 15; but it is unnecessary to consider them in
detail, for any resort to war contrary to the provisions of those
Articles of the Covenant would clearly also be contrary to the general
engagements of Article 2 of the Protocol.
The Report to the Assembly[3] seems to infer that a violation of the
obligation of Article 10 of the Covenant on the part of all Members of
the League to respect the territorial integrity and political
independence of other Members might be a resort to war not included in
the language of the Protocol; but I think that {55} any such forcible
violation would be within the terms of the Protocol also.
It is against the aggressor that the Sanctions of the Protocol are set
up and accordingly the provisions of the Protocol defining an aggressor
and the procedure for determining what State is an aggressor are of the
utmost consequence.
The definitions of an aggressor under the Protocol are complex in their
language though not in their fundamental idea, which is that aggression
is a resort to war instead of to arbitration.[4] The language of the
definitions is obscured by certain presumptions (Article 10) and by the
procedure laid down for the determination of an aggressor.
The general definition of an aggressor in the first paragraph of
Article 10 of the Protocol I have mentioned above. It is well,
however, to quote it in full:
"Every State which resorts to war in violation of the undertakings
contained in the Covenant or in the present Protocol is an
aggressor. Violation of the rules laid down for a demilitarized
zone shall be held equivalent to resort to war."
This is the general definition of principle. It relates back in its
meaning to Article 2 of the Protocol, the general engagement not to
resort to war. Beyond that, it makes the violation of the rules for an
agreed demilitarized zone the equivalent of a resort to war, the two
are assimilated.
The first question that arises regarding this general definition is
whether the words "resort to war" mean necessarily an actual and
technical state of war only, or whether they include all acts of
violence and force, even if such acts did not in a particular case
result in an actual state of war, because, for example, not resisted.
The view of the Report to the Assembly[5] in this matter is that such
acts of violence are included in the expression. I am {56} inclined to
agree with this view, though as a mere matter of language an argument
to the contrary is possible.
Suppose, however, that there is an actual state of war; how is it to be
determined which one of the two[6] belligerents is the aggressor?
The Protocol attempts to meet this difficulty by laying down two
different methods of determining the aggressor. One is by creating
certain presumptions, which I shall discuss later; the other is for the
case in which none of the presumptions is applicable.
In this case, that is to say, in the absence of the presumptions, it is
for the Council to determine the aggressor and, in order to come to
such a determination, the Council must act unanimously under the
general rule of Article 5 of the Covenant.
I have no doubt of this conclusion, which is the conclusion of the
Report to the Assembly. It is true that the language of Article 10 of
the Protocol is not as clear as it might be, since the duty and power
of the Council to determine the aggressor are not directly stated, but
rather to be inferred from the language.
What Article 10 of the Protocol says as to this in its last paragraph
but two[7] is that, apart from the cases when there is a presumption,
"if the Council does not at once succeed in determining the
aggressor, it shall be bound to enjoin upon the belligerents an
armistice, and shall fix the terms, acting, if need be, by a
two-thirds majority and shall supervise its execution."
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So that in those cases where the presumptions hereafter considered do
not arise, it is the duty of the Council to determine the aggressor; it
must act unanimously in coming to such a determination; as the Report
to the Assembly says,
"Where there is no presumption, the Council has to declare the
fact of aggression; a decision is necessary and must be taken
unanimously";
and, if the Council is not unanimous, it _must_ enjoin an armistice
upon the belligerents.
Before coming to the procedure before the Council, I now enumerate
those cases in which, because of the existence of certain facts, a
State is "presumed" to be an aggressor; any such presumption can be
upset only by the _unanimous_ decision of the Council to the contrary.
These cases are as follows:
1. If hostilities have broken out and a State has refused to
submit the dispute to the procedure for pacific settlement
contemplated by the Protocol.
2. If hostilities have broken out and a State has refused to
comply with a decision, award, etc.
3. If hostilities have broken out and a State has disregarded a
determination that the matter in dispute is a domestic matter
_and_ has not submitted the question for discussion by the
Council or Assembly under Article 11 of the Covenant.
4. If hostilities have broken out and a State has violated the
provisional measures against mobilization, etc., contemplated
by Article 7 of the Protocol (and which will be mentioned
later).
Certainly the theory of the first three of the four instances above
mentioned is the theory stated by Herriot in his speech before the
Assembly that the State that refuses arbitration is an aggressor.[8]
In other words, law is substituted for force.
Now it is to be observed that in each of the four foregoing {58} cases
_hostilities must have broken out_ and in each one of them at least one
additional fact must have occurred.
In other words, given certain facts, there is a presumption as to the
aggressor; but who is to say, how it is to be determined, whether or
not at any particular moment these facts exist? It is not sufficient
to say that the facts will be open and notorious, for they might not
be. Indeed, if we look critically at each one of what I may call the
required facts, we find that doubt might arise.
Take the primary fact, which is always required for any presumption to
arise; this fact is that hostilities shall have broken out. One's
first impression might be that this could never be a matter of doubt;
but this is not so. Take the case of Corfu, for example. Italian
officers had been murdered in Greece by somebody; various individuals
had been killed at Corfu by a bombardment of the Italian fleet. Had or
had not hostilities broken out within the meaning of Article 10 of the
Protocol? Surely the point is at least debatable.
Take the next required fact, that a State has refused to submit a
dispute to the procedure for pacific settlement. It is very easy to
suppose cases where there would be a difference of view as to this. A
State might claim, for example, that the matter was a domestic question
which it did not have to submit to the procedure for pacific
settlement. There might be a difference of opinion as to whether or
not the matter had been actually decided by the tribunal. It is not at
all uncommon in municipal law for parties to disagree as to whether a
particular question is or is not _res judicata_; there have been many
litigations over this very point; and there have been international
arbitrations in which it was raised.[9]
Similarly, difference of opinion might exist as to whether or not a
State had disregarded a determination that the matter in dispute was
domestic or as to whether or not a State had {59} submitted a question
for discussion under Article 11 of the Covenant. Such differences of
opinion could easily arise because of the non-formulation in precise
terms of just what the dispute was. Parties do not always agree as to
what it is they are differing about and they may in fact be at the same
time differing as to more than one question. As to whether or not a
State had violated the provisional measures against mobilization
contemplated by Article 7 of the Protocol, that document itself
recognizes that such a question would require investigation, and in
such case and in such case only the Protocol gives the Council the
power to determine the question of fact, acting by a two-thirds
majority.
So we come back to the situation that a presumption as to the aggressor
can exist only if certain facts exist; and that the existence of one or
more of these facts may very likely be in doubt or dispute and that,
with one exception, there is no procedure for determining such
questions of fact so as to be able to say with certainty that the
presumption _does_ exist.
What is the answer to this difficulty? If we look at the matter
technically, we must conclude that none of the presumptions created by
Article 10 of the Protocol can ever arise unless the facts[10] were
admitted by the two[11] disputants. Such an admission would mean, in
other words, that one of the parties openly admitted that it was an
aggressor.
If the facts were in dispute or, in other words, if the existence of
the presumption was in dispute, the Council could not determine the
aggressor on the basis of a presumption requiring the unanimous vote of
the Council to upset it; but would be required to determine the
aggressor under the general provision which was first mentioned, under
which no presumption exists and when the Council is required by
affirmative unanimous vote to determine the aggressor.
Here again, however, there would unquestionably be disputed facts; that
is to say, unless one of the parties said that it was the aggressor, it
would require an elaborate investigation to {60} determine under the
language of Article 10 of the Protocol whether a State _had_ resorted
to war in violation of its undertaking, or _had_ violated the rules
laid down for a demilitarized zone. It is utterly impossible to
suppose that the Council could ever immediately determine the aggressor
under such circumstances by unanimous vote; and such determination
_must_ be immediate. The language of the text is: "at once"; and in
the French: "dans le plus bref délai."
Let us look at the matter concretely and take up the question of
procedure, supposing an actual case before the Council. There is a
crisis; hostilities have or are supposed to have broken out; there are
two States which either are or are thought to be at war; the Council
meets. Not only under the realities of the situation, but under the
express language of the Protocol, the Council must act instantly; the
peace of the world is at stake.
Now, under those circumstances, there could be only two situations.
One would be when some Great Power, either by open and announced
defiance or by its refusal even to meet with the Council, proclaimed
itself an aggressor. In that case of course neither the language of
Article 10 nor any other language would make any difference. The other
situation would be that the two States were there before the Council,
each claiming that the other was in the wrong, each disputing the
allegations of fact made by the other's representative. In such case
clearly no presumption could arise and in such case the Council could
not ever immediately determine the aggressor by unanimous vote. The
mere fact that it would require time to examine into the truth of the
respective allegations would prevent this. So the Council, by the
compelling facts of the situation and indeed in accordance with the
strictest construction of the Protocol, would be constrained to declare
and would declare an armistice.
Any dispute as to what State was guilty of aggression prior to that
time would be put over for subsequent adjustment; the armistice would
be laid down and would be obeyed. Of course, in theory, it could be
violated and the violator of the armistice {61} would become the
aggressor; but a State that was going to refuse or violate the
armistice, knowing the procedure, would doubtless not go to the Council
at all.
So, to my mind, the vital part of the procedure laid down by Article 10
for determining an aggressor is found in the provision giving the
Council the power immediately to declare an armistice; and, under the
procedure, this, in my judgment, is the only power that the Council
would ever exercise, except in the case suggested, in which a State
itself denounced itself as an aggressor.
I am aware that the framers of the Protocol are not in accord with
these views. In their opinion, the presumptions of Article 10
establish "an automatic procedure which would not necessarily be based
on a decision of the Council." They say that where a presumption has
arisen and is not unanimously rejected by the Council, "the facts
themselves decide who is an aggressor" and otherwise that "the Council
has to declare the fact of aggression."
I can only say that their conclusions, while perhaps admissible as a
mere matter of language and nothing but language, take no account of
the inevitable certainty that there will always be at least two views
of what the facts are; to put it from a legalistic viewpoint, tribunals
do not deal with facts; they deal with what lawyers call facts, but
which are merely conclusions based on such evidence as is available.
This sort of a "fact" is arrived at only after a hearing or a trial of
some kind; and to suppose that the Council could ever conduct such a
hearing, and at the same time come to a unanimous and immediate
conclusion is to suppose a contradiction in terms.[12]
So while from the language of Article 10 of the Protocol difficulty may
arise in determining an aggressor under its provisions (for there might
in any case be a disputed or doubtful question of fact; and the Council
under the provisions of the Covenant would in general have to act
unanimously) the Protocol provides a solution of any such difficulty by
saying that if the Council does not immediately determine the
aggressor, it _must_ {62} (the language is mandatory) proceed to enjoin
an armistice, to fix its terms and to supervise its execution, acting
for these purposes by two-thirds majority. Then the Protocol provides
that any belligerent which refuses the armistice or violates it shall
be the aggressor.
These provisions regarding an armistice seem to me to meet any possible
objection that might be raised to the absence of a more complete and
detailed system of determining in fact and in law what State is an
aggressor.
No matter what the presumptions were or even what procedure was laid
down, it is clear that, after hostilities in any given case had
actually commenced, there would be enormous difficulty for any tribunal
whatever in laying down conclusively which State was the aggressor.
After all, the vital thing is to prevent war; and the opening of
hostilities, to be immediately followed by an armistice, would not be
very much of a war. So I regard these provisions as to an armistice as
the most ingenious [Transcriber's note: ingenuous?] and, except its
statements of principle, the most important of all the provisions of
Article 10 of the Protocol.
The power given to the Council to formulate an armistice would be the
power exercised if hostilities broke out rather than the power of
adjudging the aggressor; unless the aggression was openly admitted,
which would mean that one of the parties to the Protocol really defied
the others; and, in that case, of course, it would defy the terms of an
armistice as well as any other terms. But in any other case a new
consideration would immediately arise. The Council would formulate an
armistice and in the absence of an open defiance by one State, or
possibly by a group of States, of all the others, the armistice would
introduce a new situation, a situation in which hostilities were _not_
going on; and human experience shows that, given an armistice, the
recommencement of hostilities on the old grounds is a real
impossibility.
In the view that I take, the Sanctions of the Protocol become less
important in the light of its provisions as to the determination of an
aggressor, for it is only against an aggressor that the {63} main
Sanctions of the Protocol can be brought into play; and these
provisions for determining the aggressor really mean that an aggressor
is a State or a combination of States which has finally and
deliberately determined to begin war and to carry it on regardless of
its most solemn engagements to the contrary. In other words, there
could be no war as between the parties to the Protocol without a
wilful, wanton and wicked disregard of its provisions.
[1] p. 50, _et seq._
[2] First paragraph.
[3] Annex C, p. 156 at p. 186.
[4] I use the word here in its largest sense.
[5] Annex C, p. 156 at p. 187.
[6] Of course there may be more than two.
[7] The reason why I have used in regard to Article 10 of the Protocol
this uncouth language, "its last paragraph but two," is that in the
English text of Article 10 there is a textual error which is extremely
confusing. Article 10 really consists of five paragraphs, and the
second of these five paragraphs has two sub-heads or sub-paragraphs
numbered 1 and 2. The third paragraph of Article 10, in referring to
these two sub-heads of the second paragraph calls them "paragraphs 1
and 2." In other words, the first words of what is here referred to as
the third paragraph of Article 10 (the paragraph which I call "the last
paragraph but two") read as follows: "Apart from the cases dealt with
in paragraphs 1 and 2 of the present Article." They should read
something like this: "Apart from the cases dealt with in sub-heads 1
and 2 of the second paragraph of the present article." Compare the
French text which is perfectly clear: "Hors les hypothèses visées aux
numeros 1 et 2 du présent article." See the English and French Texts
of Article 10 in full, _infra_, pp. 144, 145.
[8] September 5, 1924.
[9] _e. g._, the Pious Fund case reported in the Hague Arbitration
Cases, p. 1, and the Interest Case between Russia and Turkey, _op.
cit._, p. 260. These two cases are also in Stowell and Munro's
International Cases, Vol. I, p. 58, _et seq._
[10] I mean the facts from which the presumption as to the aggressor
would arise.
[11] I assume only two, for convenience.
[12] In the Dogger Bank case, the Commission of Inquiry sat for more
than two months. Hague Court Reports, Scott, p. 403.
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