EQUIPO NIZKOR |
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1951
Report of the International Law Commission to the General Assembly covering the work of its third session, 16 May-27 July 1951
Table of Contents:II. QUESTION OF DEFINING AGGRESSION
III. DRAFT CODE OF OFFENSES AGAINST THE PEACE AND SECURITY OF MANKIND
[This table of contents is not part of the original document]
REPORT OF THE INTERNATIONAL LAW COMMISSION TO THE GENERAL ASSEMBLY
DOCUMENT A/1858
Report of the International Law Commission to the General Assembly on its Third Session, 16 May to 27 June 1951
Official Records of the General Assembly, Sixth Session, Supplement No. 9[...]
INTRODUCTION
Organization of the third session1. The International Law Commission, established n pursuance of General Assembly resolution 174 (II) of 21 November 1947 and in accordance with the Statute of the Commission annexed thereto, held its third session at Geneva, Switzerland, from 16 May to 27 July 1951.
2. The Commission consists of the following members :
Mr. Ricardo J. Alfaro
Mr. Gilberto Amado
Mr James Leslie Brierly
Mr. Roberto Córdova
Mr. J. P. A. Francois
Mr. Shuhsi Hsu
Mr. Manley O. Hudson
Faris Bey el-Khouri
Mr Vladimir M. Koretsky
Sir Benegal Narsing Rau
Mr. A. E. F. Sandström
Mr. Georges Scelle
Mr. Jean Spiropoulos
Mr. J. M. Yepes
Mr. Jaroslav Zourek
Panama
Brazil
United Kingdom of Great Britain and Northern Ireland
Mexico
Netherlands
China
United States of America
Syria
Union of Soviet Socialist Republics
India
Sweden
France
Greece
Colombia
Czechoslovakia3. With the exception of Messrs. Vladimir M. Koretsky and Jaroslav Zourek and Sir Benegal Narsing Rau, who were unable to attend, all the members of the Commission were present at the third session. Faris Bey el-Khouri attended meetings of the Commission as from 30 May, and Mr. Manley O. Hudson as from 31 May 1951.
4. The Commission elected, for a term of one year, the following officers:
Chairman:
First Vice-Chairman:
Second Vice-Chairman:
Rapporteur:
Mr. James Leslie Brierly;
Mr. Shushi Hsu;
Mr. J. M. Yepes;
Mr. Roberto Córdova.5. Mr. Ivan S. Kerno, Assistant Secretary-General for Legal Affairs, represented the Secretary-General. Mr. Yuen-li Liang, Director of the Division for the Development and Codification of International Law, acted as Secretary of the Commission.
Agenda
6. The Commission adopted an agenda for the third session consisting of the following items:(1) General Assembly resolution 484 (V) of 12 December 1950: review by the International Law Commission of its Statute with the object of recommending revisions thereof to the General Assembly.
(2) Preparation of a draft code of offences against the peace and security of mankind:
(a) Report by Mr. Spiropoulos;
(b) General Assembly resolution 488 (V) of 12 December 1950: formulation of the Nurnberg principles.
(3) General Assembly resolution 378 B (V) of 17 November 1950: duties of States in the event of the outbreak of hostilities.
(4) Law of treaties:
(a) Report by Mr. Brierly;
(b) General Assembly resolution 478 (V) of 16 November 1950: reservations to multilateral conventions.
(5) Arbitral procedure: report by Mr. Scelle.
(6) Regime of the high seas: report by Mr. Francois.
(7) Date and place of the fourth session.
(8) Economic and Social Council resolution 319 B III (XI) of 11 August 1950 requesting the International Law Commission to prepare the necessary draft international convention or conventions for the elimination of statelessness.
(9) Co-operation with other bodies.
(10) General Assembly resolution 494 (V) of 20 November 1950: development of a twenty-year programme for achieving peace through the United Nations.
(11) Other General Assembly resolutions relating to the report of the International Law Commission on its second session:
(a) General Assembly resolution 485 (V) of 12 December 1950: amendment to article 13 of the Statute of the International Law Commission;
(b) General Assembly resolution 486 (V) of 12 December 1950: extension of the term of office of the present members of the International Law Commission;
(c) General Assembly resolution 487 (V) of 12 December 1950: ways and means for making the evidence of customary international law more readily available;
(d) General Assembly resolution 489 (V) of 12 December 1950: international criminal jurisdiction.
7. In the course of its third session, the Commission held fifty-three meetings. It considered all the items in the foregoing agenda, with the exception of that of arbitral procedure (item 5). On this subject, the Commission had before it a "Second Report on Arbitration Procedure (A/CN.4/46), presented by Mr. Scelle, special rapporteur, who submitted therein a "Second Preliminary Draft on Arbitration Procedure". This report was held over for consideration at the next session.
Matters for the Consideration of the General Assembly
8. The Commission completed its study on the following items:(1) Reservations to multilateral conventions (item 4 (ft));
(2) Question of defining aggression (item 3); and
(3) Preparation of a draft code of offences against the peace and security of mankind (item 2).
The reports of the Commission on these three items are contained respectively in chapters II, III and IV of the present document and are submitted to the General Assembly for its consideration.
9. With regard to item 1 of the agenda, review by the International Law Commission of its Statute, the Commission concluded only the first phase of its work on the subject. Its report on this item, which may be found in chapter V of the present document, is submitted to the General Assembly for its consideration. The Commission will further pursue the review of its Statute at its next session, in the light of the action of the General Assembly upon the recommendation of the Commission as contained in the said chapter.
Matters for the Information of the General Assembly
10. On the basis of the reports of its respective special rapporteurs, the Commission undertook further consideration of the following items:
(1) Law of treaties (item 4 (a)); and
(2) Regime of the high seas (item 6).
The progress in the work done by the Commission on these items is related respectively in chapters VI and VII of the present document for the information of the General Assembly.
11. In addition to the aforementioned subjects, the Commission gave consideration to the other items of its agenda and took certain decisions m connexion therewith. These are contained in chapter VIII of the present document.
[...]
QUESTION OF DEFINING AGGRESSION |1|
35. The General Assembly, on 17 November 1950, adopted resolution 378 B (V) which reads as follows:"The General Assembly,
"Considering that the question raised by the proposal of the Union of Soviet Socialist Republics can better be examined in conjunction with matters under consideration by the International Law Commission, a subsidiary organ of the United Nations,
"Decides to refer the proposal of the Union of Soviet Socialist Republics and all the records of the First Committee dealing with this question to the International Law Commission, so that the latter may take them into consideration and formulate its conclusions as soon as possible."
36. The foregoing resolution was adopted in connexion with the agenda item "Duties of States in the event of the outbreak of hostilities". The proposal of the Union of Soviet Socialist Republics, |2| referred to in this resolution, was originally submitted to the First Committee of the General Assembly. It provided that the General Assembly "considering it necessary ... to define the concept of aggression as accurately as possible", declares, inter alia, that "in an international conflict that State shall be declared the attacker which first commits" one of the acts enumerated in the proposal.
37. In pursuance of the resolution of the General Assembly, the International Law Commission, at its 92nd to 96th, 108th, 109th, 127th to 129th, and 133rd meetings, considered the question raised by the aforementioned proposal of the USSR and, in that connexion, studied the records of the First Committee relating thereto.
38. The Commission first considered its terms of reference under the resolution in the light of the relevant discussions in the First Committee. Some members of the Commission were of the opinion that this resolution merely meant that the Commission should take the Soviet proposal and the discussions thereon in the First Committee into consideration when preparing the draft code of offences against the peace and security of mankind. The majority of the Commission, however, held the view that the Commission had been requested by the General Assembly to make an attempt to define aggression and to submit a report on the result of its efforts.
39. The Commission had before it a report entitled "The Possibility and Desirability of a Definition of Aggression", presented by Mr. Spiropoulos, special rapporteur on the draft code of offences against the peace and security of mankind (A/CN.4/44, chapter II). After a survey of previous attempts to define aggression, the special rapporteur stated that "whenever governments are called upon to decide on the existence or non-existence of 'aggression under international law', they base their judgment on criteria derived from the 'natural', so to speak, notion of aggression ... and not on legal constructions". Analysing this notion of aggression, he stated that it was composed of both objective and subjective elements, namely, the fact that a State had committed an act of violence and was the first to do so and the fact that his violence was committed with an aggressive intention (animus aggressionis). But what kind of violence, direct or indirect, or what degree of violence constituted aggression could not be determined a priori. It depended on the circumstances in the particulat case. He came to the conclusion that this "natural notion" of aggression is a "concept per se", which "is not susceptible of definition". "A 'legal' definition of aggression would be an artificial construction", which could never be comprehensive enough to comprise all imaginable cases of aggression, since the methods of aggression are in a constant process of evolution.
40. Two other members of the Commission, Mr. Amado and Mr. Alfaro, submitted memoranda on the question. Mr. Amado stated in his memorandum (A/CN.4/L.6 and Corr. 1) that a definition of aggression based on an enumeration of aggressive acts could not be satisfactory, as such an enumeration could not be complete and any omission would be dangerous. He suggested that the Commission might adopt a general and flexible formula laying down that:
"Any war not waged in exercise of the right of self-defence or in application of the provisions of Article 42 of the Charter of the United Nations [is] an aggressive war."
Such a formula could, in his opinion, be applied to any factual situation and might be used by the competent organs of the United Nations without restricting their necessary freedom of action.
41. Mr. Alfaro, in his memorandum (A/CN.4/L.8), also advocated an abstract definition of aggression. On the basis of an examination of previous attempts to define aggression he expressed the view that the failure to find a satisfactory formula was due to the fact that these definitions had been based on the idea of an enumeration of various acts constituting aggression. In his opinion, a satisfactory result could be achieved only if the enumerative method which had proved unsuccessful were abandoned in favour of an effort to establish an abstract definition. He presented, in conclusion, a formula for such a definition (quoted in paragraph 46 below).
42. On the other hand, Mr. Yepes submitted a proposal (A/CN.4/L.7) for the determination of the aggressor based on the enumerative method. This proposal, however, was subsequently superseded by another (A/CN.4/L.12) by the same author which defined aggression in general terms as follows:
"For the purposes of Article 39 of the United Nations Charter an act of aggression shall be understood to mean any direct or indirect use of violence (force) by a State or group of States against the territorial integrity or political independence of another State or group of States.
"Violence (force) exercised by irregular bands organized within the territory of a State or outside its territory wiht the active or passive complicity of that State shall be considered as aggression within the meaning of the preceding paragraph.
"The use of violence (force) in the exercise of the right of individual or collective self-defence recognized by Article 51 of the Charter or in the execution of a decision duly adopted by a competent organ of the United Nations shall not be held to constitute an act of aggression.
"No political, economic, military or other consideration may serve as an excuse or justification for an act of aggression."
43. Another proposal (A/CN.4/L.11 and Corr.l) was submitted by Mr. Hsu in which particular stress was laid on indirect aggression. This draft was worded as follows:
"Aggression, which is a crime under international law, is the hostile act of a State against another State, committed by (a) the employment of armed force other than in self-defence or the implementation of United Nations enforcement action; or (b) the arming of organized bands or of third States, hostile to the victim State, for offensive purposes;
or (c) the fomenting of civil strife in the victim State in the interest of some foreign State; or (d) any other illegal resort to force, openly or otherwise."
44. Finally, Mr. Córdova, with a view to including in the draft code of offences against the peace and security of mankind a provision which would make aggression and the threat of aggression offences under the code, submitted the following draft (A/CN.4/L.10):
"Aggression is the direct or indirect employment by the authorities of a State of armed force against another State for any purpose other than national or collective self-defence or execution of a decision by a competent organ of the United Nations.
"The threat of aggression should also be deemed to be a crime under this article."
45. The Commission considered the question whether it should follow the enumerative method or try to draft a definition of aggression in general terms. The sense of the Commission was that it was undesirable to define aggression by a detailed enumeration of aggressive acts, since no enumeration could be exhaustive. Furthermore, it was thought inadvisable unduly to limit the freedom of judgment of the competent organs of the United Nations by a rigid and necessarily incomplete list of acts constituting aggression. It was therefore decided that the only practical course was to aim at a general and abstract definition.
46. Undertaking to define aggression in general terms, the Commission took as a basis of discussion the text submitted by Mr. Alfaro in his memorandum (A/CN.4/L.8) as it was the broadest general definition before the Commission. Mr. Alfaro's draft read as follows:
"Aggression is the use of force by one State or group of States, or by any government or group of governments, against the territory and people of other States or governments, in any manner, by any methods, for any reasons and for any purposes, except individual or collective self-defence against armed attack or coercive action by the United Nations."
47. The Commission gave consideration to the question whether indirect aggression should be comprehended in the definition. It was felt that a definition of aggression should cover not only force used openly by one State against another, but also indirect forms of aggression such as the fomenting of civil strife by one State in another, the arming by a State of organized bands for offensive purposes directed against another State, and the sending of "volunteers" to engage in hostilities against another State. In this connexion account was taken of resolution 380 (V), adopted by the General Assembly on 17 November 1950, which states, inter alia, that the General Assembly
"Solemnly reaffirms that, whatever the weapons used, any aggression, whether committed openly, or by fomenting civil strife in the interest of a foreign Power, or otherwise, is the gravest of all crimes against peace and security throughout the world."
48. Opinion was divided on the question whether, in addition to the employment of force, the threat to use force should also constitute aggression. Some members of the Commission considered that threat of force amounted only to a threat of aggression, while others contended that it should be covered by the definition in view of the fact that threat of force had been used for aggressive purposes. The Commission finally decided to amend the definition proposed by Mr. Alfaro by including threat of force in the definition.
49. The Commission also adopted other drafting changes in the draft definition of Mr. Alfaro. This definition, as finally amended, read as follows:
"Aggression is the threat or use of force by a State or government against another State, in any manner, whatever the weapons employed and whether openly or otherwise, for any reason or for any purpose other than individual or collective self-defence or in pursuance of a decision or recommendation by a competent organ of the United Nations."
50. Some members of the Commission, however, considered this definition unsatisfactory on the ground that, in their opinion, it did not comprehend all conceivable acts of aggression and that it might prove to be dangerously restrictive of the necessary freedom of action of the organs of the United Nations, if they were called upon in the future to apply the definition to specific cases. Some other members maintained that it did not include one or another element which they deemed essential.
51. When submitted to the final vote, the definition was rejected by 7 votes to 3, with one abstention, the vote being taken by roll-call at the request of one member, as follows:
In favour: Messrs. Alfaro, Córdova and Francois
Against: Messrs. Amado, Brierly, Hsu, el-Khouri, Sandstrom, Spiropoulos and Yepes
Abstaining: Mr. Hudson
Absent: Mr. Scelle.52. Mr. Alfaro thereupon proposed that the Commission should not abandon its efforts to define aggression but should make further attempts on the basis of each of the texts submitted by other members. This proposal was rejected by a roll-call of 6 to 4, with one abstention, as follows:
In favour: Messrs. Alfaro, Córdova, Hsu and Yepes
Against: Messrs. Amado, Brierly, Francois, Hudson, el-Khouri and Sandstrom
Abstaining: Mr. Spiropoulos
Absent: Mr. Scelle.53. The matter was later reconsidered at the request of Mr. Scelle who in a memorandum (A/CN.4/L.19 and Corr.l) submitted a general definition of aggression and proposed that aggression should be explicity declared to be an offence against the peace and security of mankind. Mr. Scelle's definition read as follows:
"Aggression is an offence against the peace and security of mankind. This offence consists in any resort to force contrary to the provisions of the Charter of the United Nations, for the purpose of modifying the state of positive international law in force or resulting in the disturbance of public order."
This proposal was discussed in connexion with the preparation of the draft code of offences against the peace and security of mankind. Proposals were made by other members to a similar effect. The Commission decided to include among the offences defined in the draft code any act of aggression and any threat of aggression.
The following paragraphs were therefore inserted in article 2 of the draft code:
"The following acts are offences against the peace and security of mankind:
"(1) Any act of aggression, including the employment by the 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.
"(2) Any threat by the authoritirs of a State to resort to an act of aggression against another State."
DRAFT CODE OF OFFENCES AGAINST THE PEACE AND SECURITY OF MANKIND
Introduction
54. By resolution 177 (II) of 21 November 1947, the General Assembly decided:
"To entrust the formulation of the principles of international law recognized in the Charter of the Niirnberg Tribunal and in the judgment of the Tribunal to the International Law Commission, the members of which will, in accordance with resolution 174 (II), be elected at the next session of the General Assembly,"
and directed the Commission to
"(a) Formulate the principles of international law recognized in the Charter of the Niirnberg Tribunal and in the judgment of the Tribunal, and
"(b) Prepare a draft code of offences against the peace and security of mankind, indicating clearly the place to be accorded to the principles mentioned in sub-paragraph (a) above."
In 1950, the International Law Commission reported to the General Assembly its formulation under sub-paragraph (a) of resolution 177 (II). By resolution 488 (V) of 12 December 1950, the General Assembly invited the governments of Member States to express their observations on the formulation, and requested the Commission:
"In preparing the draft code of offences against the peace and security of mankind, to take account of the observations made on this formulation by delegations during the fifth session of the General Assembly and of any observations which may be made by governments."
55. The preparation of a draft code of offences against the peace and security of mankind was given preliminary consideration by the Commission at its first session, in 1949, when the Commission appointed Mr. Spiropoulos special rapporteur on the subject, and invited him to prepare a working paper for submission to the Commission at its second session. The Commission also decided that a questionnaire should be circulated to governments inquiring what offences, apart from those recognized in the Charter and judgment of the Niirnberg Tribunal, should be included in the draft code.
56. At its second session, in 1950, Mr. Spiropoulos presented his report (A/CN.4/25) to the Commission, which took it as a basis of discussion. The subject was considered by the Commission at its 54th to 62nd and 72nd meetings. The Commission also took into consideration the replies received from governments (A/CN.4/19, part II, A/CN.4/19/Add.l and Add.2) to its questionnaire. In the light of the deliberations of the Commission, a drafting committee, composed of Messrs. Alfaro, Hudson and Spiroupolus, prepared a provisional text (A/CN.4/R.6) which was referred by the Commission without discussion to Mr. Spiropoulos, who was requested to continue the work on the subject and to submit a new report to the Commission at its third session.
57. At the third session, in 1951. Mr. Spiropoulos submitted a second report (A/CN.4/44) containing a new draft of a code and also a digest of the observations on the Commission's formulation of the Nürnberg principles made by delegations during the fifth session of the General Assembly. The Commission also had before it the observations received from governments (A/CN.4/45 and Corr.l, A/CN.4/45/Add.l and Add.2) on this formulation. Taking into account the observations referred to above, the Commission considered the subject at its 89th to 92nd, 106th to 111th, 129th and 133rd meetings, and adopted a draft Code of Offences against the Peace and Security of Mankind as set forth herein below.
52. In submitting this draft code to the General Assembly, the Commission wishes to present the following observations as to some general questions which arose in the course of the preparation of the text:
(a) The Commission first considered the meaning of the term "offences against the peace and security of mankind", contained in resolution 177 (II). The view of the Commission was that the meaning of this term should be limited to offences which contain a political element and which endanger or disturb the maintenance of international peace and security. For these reasons, the draft code does not deal with questions concerning conflicts of legislation and jurisdiction in international criminal matters; nor does it include such matters as piracy, traffic in dangerous drugs, traffic in women and children, slavery, counterfeiting currency, damage to submarine cables, etc.
(b) The Commission thereafter discussed the meaning of the phrase "indicating clearly the place to be accorded to" the Nürnberg principles. The sense of the Commission was that this phrase should not be interpreted as meaning that the Nürnberg principles would have to be inserted, in their entirety in the draft code. The Commission felt that the phrase did not preclude it from suggesting modification or development of these principles for the purpose of their incorporation in the draft code. It was not thought necessary to indicate the exact extent to which the various Nürnberg principles had been incorporated in the draft code. Only a general reference to the corresponding Nürnberg principles was deemed practicable.
(c) The Commission decided to deal with the criminal responsibility of individuals only. It may be recalled in this connexion that the Nürnberg Tribunal stated in its judgment: "Crimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced."
(d) The Commission has not considered itself called upon to propose methods by which a code may be given binding force. It has therefore refrained from drafting an instrument for implementing the code. The offences set forth are characterized in article 1 as international crimes. Hence, the Commission has envisaged the possibility of an international tribunal for the trial and punishment of persons committing such offences. The Commission has taken note of the action of the General Assembly in setting up a special committee to prepare draft conventions and proposals relating to the establishment of an international criminal court. Pending the establishment of a competent international criminal court, a transitional measure might be adopted providing for the application of the code by national courts. Such a measure would doubtless be considered in drafting the instrument by which the code would be put into force.
Text of the draft Code
59. The draft Code of Offences against the Peace and Security of Mankind, as adopted by the Commission, reads as follows:
Article 1
Offences against the peace and security of mankind, as defined in this Code, are crimes under international law, for which the responsible individuals shall be punishable.
This article is based upon the principle of individual responsibility for crimes under international law. This principle is recognized by the Charter and judgment of the Nürnberg Tribunal, and in the Commission's formulation of the Nürnberg principles it is stated as follows: "Any person who commits an act which constitutes a crime under international law is responsible therefor and liable to punishment."
Article 2
The following acts are offences against the peace and security of mankind:
(2) Any act of aggression, including the employment by the 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.
In laying down that any act of aggression is an offence against the peace and security of mankind, this paragraph is in consonance with resolution 380 (V), adopted by the General Assembly on 17 November 1950, in which the General Assembly solemnly reaffirms that any aggression "is the gravest of all crimes against peace and security throughout the world".
The paragraph also incorporates, in substance, that part of article 6, paragraph (a), of the Charter of the Nürnberg Tribunal, which defines as "crimes against peace", inter alia, the "initiation or waging of a war of aggression".
While every act of aggression constitutes a crime under paragraph (1), no attempt is made to enumerate such acts exhaustively. It is expressly provided that the employment of armed force in the circumstances specified in the paragraph is an act of aggression. It is, however, possible that aggression can be committed also by other acts, including some of those referred to in other paragraphs of article 2.
Provisions against the use of force have been included in many international instruments, such as the Covenant of the League of Nations, the Treaty for the Renunciation ot'War of 27 August 1928, the Anti-War Treaty of Non-Aggression and Conciliation, signed at Rio de Janeiro, 10 October 1933, the Act of Chapultepec of 8 March 1945, the Pact of the Arab League of 22 March 1945, the Inter-American Treaty of Reciprocal Assistance of 2 September J 947, and the Charter of the Organization of American States, signed at Bogota, 30 April 1948.
The use of force is prohibited by Article 2, paragraph 4, of the Charter of the United Nations, which binds all Members to "refrain in their international relations from ... the 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". The same prohibition is contained in the draft Declaration on Rights and Duties of States, prepared by the International Law Commission, which, in article 9, provides that "every State has the duty to refrain from resorting to war as an instrument of national policy, and to refrain from ... the use of force against the territorial integrity or political independence of another State, or in any other manner inconsistent with international law and order".
The offence defined in this paragraph can be committed only by the authorities of a State. A criminal responsibility of private individuals under international law may, however, arise under the provisions of paragraph (12) of the present article.
(2) Any threat by the authorities of a State to resort to an act of aggression against another State.
This paragraph is based upon the consideration that not only acts of aggression but also the threat of aggression present a grave danger to the peace and security of mankind and should be regarded as an international crime.
Article 2, paragraph 4, of the Charter of the United Nations prescribes that all Members shall "refrain in their international relations from the threat ... 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". Similarly, the draft Declaration on Rights and Duties of States, prepared by the International Law Commission, provides, in article 9, that "every State has the duty ... to refrain from the threat ... of force against the territorial integrity or political independence of another State, or in any other manner inconsistent with international law and order".
The offence defined in this paragraph can be committed only by the authorities of a State. A criminal responsibility of private individuals under international law may, however, arise under the provisions of paragraph (12) of the present article.
(3) The preparation by the authorities of a State for the employment 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.
In prohibiting the preparation for the employment of armed force (except under certain specified conditions) this paragraph incorporates in substance that part of article 6, paragraph (a), of the Charter of the Nürnberg Tribunal which defines as "crimes against peace", inter alia, "planning" and "preparation" of "a war of aggression. .. ."As used in this paragraph the term "preparation" includes "planning". It is considered that "planning" is punishable only if it results in preparatory acts and thus becomes an element in the preparation for the employment of armed force.
The offence defined in this paragraph can be committed only by the authorities of a State. A criminal responsibility of private individuals under international law may, however, arise under the provisions of paragraph (12) of the present article.
(4) The incursion into the territory of a State from the territory of another State by armed bands acting for a political purpose.
The offence defined in this paragraph can be committed only by the members of the armed bands, and they are individually responsible. A criminal responsibility of the authorities of a State under international law may, however, arise under the provisions of paragraph (12) of the present article.
(5) The undertaking or encouragement by the authorities of a State of activities calculated to foment civil strife in another State, or the toleration by the authorities of a State of organized activities calculated to foment civil strife in another State.
In its resolution 380 (V) of 17 November 1950 the General Assembly declared that "fomenting civil strife in the interest of a foreign Power" was aggression.
The draft Declaration on Rights and Duties of States prepared by the International Law Commission provides, in article 4: "Every State has the duty to refrain from fomenting civil strife in the territory of another State, and to prevent the organization within its territory of activities calculated to foment such civil strife."
The offence defined in this paragraph can be committed only by the authorities of a State. A criminal responsibility of private individuals under international law may, however, arise under the provisions of paragraph (12) of the present article.
(6) The undertaking or encouragement by the authorities of a State of terrorist activities in another State, or the toleration by the authorities of a State of organized activities calculated to carry out terrorist acts in another State.
Article 1 of the Convention for the Prevention and Punishment of Terrorism of 16 November 1937 contained a prohibition of the encouragement by a State of terrorist activities directed against another State.
The offence defined in this paragraph can be committed only by the authorities of a State. A criminal responsibility of private individuals under international law may, however, arise under the provisions of paragraph (12) of the present article.
(7) Acts by the authorities of a State in violation of its obligations under a treaty which is designed to ensure international peace and security by means of restrictions or limitations on armaments, or on military training, or on fortifications, or of other restrictions of the same character.
It may be recalled that the League of Nations' Committee on Arbitration and Security considered the failure to observe conventional restrictions such as those mentioned in this paragraph as raising, under many circumstances, a presumption of aggression. (Memorandum on articles 10,11 and 16 of the Covenant, submitted by Mr. Rutgers. League of Nations document C.A.S. 10, 6 February 1928.)
The offence defined in this paragraph can be committed only by the authorities of a State. A criminal responsibility of private individuals under international law may, however, arise under the provisions of paragraph (12) of the present article.
(8) Acts by the authorities of a State resulting in the annexation, contrary to international law, of territory belonging to another State or of territory under an international regime.
Annexation of territory in violation of international law constitutes a distinct offence, because it presents a particularly lasting danger to the peace and security of mankind. The Covenant of the League of Nations, in article 10, provided that "the Members of the League undertake to respect and preserve as against external aggression the territorial integrity and existing political independence of all Members of the League". The Charter of the United Nations, in Article 2, paragraph 4, stipulates that "all Members shall refrain in their international relations from the threat or use of force against the territorial integrity of political independence of any State..." Illegal annexation may also be achieved without overt threat or use of force, or by one or more of the acts defined in the other paragraphs of the present article. For this reason the paragraph is not limited to annexation of territory achieved by the threat or use of force.
The term "territory under an international regime" envisages territories under the International Trusteeship System of the United Nations as well as those under any other form of international regime.
The offence defined in this paragraph can be committed only by the authorities of a State. A criminal responsibility of private individuals under international law may, however, arise under the provisions of paragraph (12) of the present article.
(9) Acts by the authorities of a State or by private individuals, committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group as such, including:
(i) Killing members of the group;
(ii) Causing serious bodily or mental harm to members of the group;
(iii) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;
(iv) Imposing measures intended to prevent births within the group;
(v) Forcibly transferring children of the group to another group.
The text of this paragraph follows the definition of the crime of genocide contained in article II of the Convention on the Prevention and Punishment of the Crime of Genocide.
The offence defined in this paragraph can be committed both by authorities of a State and by private individuals.
(10) Inhuman acts by the authorities of a State or by private individuals against any civilian population, such as murder, or extermination, or enslavement, or deportation, or persecutions on political, racial, religious or cultural grounds, when such acts are committed in execution of or in connexion with other offences defined in this article.
This paragraph corresponds substantially to article 6, paragraph (c), of the Charter of the Nürnberg Tribunal, which defines "crimes against humanity". It has, however, been deemed necessary to prohibit also inhuman acts on cultural grounds, since such acts are no less detrimental to the peace and security of mankind than those provided for in the said Charter. There is another variation from the Nürnberg provision. While, according to the Charter of the Nürnberg Tribunal, any of the inhuman acts constitutes a crime under international law only if it is committed in execution of or in connexion with any crime against peace or war crime as defined in that Charter, this paragraph characterizes as crimes under international law inhuman acts when these acts are committed m execution of or in connexion with other offences defined in the present article.
The offence defined in this paragraph can be committed both by authorities of a State and by private individuals.
(11) Acts in violation of the laws or customs of war.
This paragraph corresponds to article 6, paragraph (6), of the Charter of the Nürnberg Tribunal. Unlike the latter, it does not include an enumeration of acts which are in violation of the laws or customs of war, since no exhaustive enumeration has been deemed practicable.
The question was considered whether every violation of the laws or customs of war should be regarded as a crime under the code or whether only acts of a certain gravity should be characterized as such crimes. The first alternative was adopted.
This paragraph applies to all cases of declared war or of any other armed conflict which may arise between two or more States, even if the existence of a state of war is recognized by none of them.
The United Nations Educational, Scientific and Cultural Organization has urged that wanton destruction, during an armed conflict, of historical monuments, historical documents, works of art or any other cultural objects should be punishable under international law (letter of 17 March 1950 from the Director-General of UNESCO to the International Law Commission transmitting a "Report on the International Protection of Cultural Property, by Penal Measures, in the Event of Armed Conflict", document 5C/PRG/6 Annex I/UNESCO/MUS/Conf.1/20 (rev.), 8 March 1950). It is understood that such destruction comes within the purview of the present paragraph. Indeed, to some extent, it is forbidden by article 56 of the regulations annexed to the Fourth Hague Convention of 1907 respecting the laws and customs of war on land, and by article 5 of the Ninth Hague Convention of 1907 respecting bombardment by naval forces in time of war.
The offence defined in this paragraph can be committed both by authorities of a State and by private individuals.
(12) Acts which constitute:
(i) Conspiracy to commit any of the offences defined in the preceding paragraphs of this article; or
(ii) Direct incitement to commit any of the offences defined in the preceding paragraphs of this article; or
(iii) Attempts to commit any of the offences defined in the preceding paragraphs of this article; or
(iv) Complicity in the commission of any of the offences defined in the preceding paragraphs of this article.
The notion of conspiracy is found in article 6, paragrph (a), of the Charter of the Nürnberg Tribunal and the notion of complicity in the last paragraph of the same article. The notion of conspiracy in the said Charter is limited to the "planning, preparation, initiation or waging of a war of aggression, or a war in violation of international treaties, agreements or assurances", while the present paragraph provides for the application of the notion to all offences against the peace and security of mankind.
The notions of incitement and of attempt are found in the Convention on Genocide as well as in certain national enactments on war crimes.
In including "complicity in the commission of any of the offences defined in the preceding paragraphs" among the acts which are offences against the peace and security of mankind, it is not intended to stipulate that all those contributing, in the normal exercise of their duties, to the perpetration of offences against the peace and security of mankind could, on that ground alone, be considered as accomplices in such crimes. There can be no question of punishing as accomplices in such an offence all the members of the armed forces of a State or the workers in war industries.
Article 3
The fact that a person acted as Head of State or as responsible government official does not relieve him from responsibility for committing any of the offences defined in this Code.
This article incorporates, with modifications, article 7 of the Charter of the Nürnberg Tribunal, which article provides: "The official position of defendants, whether as Heads of State or responsible officials in government departments, shall not be considered as freeing them from responsibility or mitigating punishment."
Principle III of the Commission's formulation of the Nürnberg principles reads: "The fact that a person who committed an act which constitutes a crime under international law acted as Head of State or responsible government official does not relieve him from responsibility under international law."
The last phrase of article 7 of the Nürnberg Charter "or mitigating punishment" was not retained in the above-quoted principle as the question of mitigating punishment was deemed to be a matter for the competent court to decide.
Article 4
The fact that a person charged with an offence defined in this Code acted pursuant to order of his government or of a superior does not relieve him from responsibility, provided a moral choice was in fact possible to him.
Principle IV of the Commission's formulation of the Nürnberg principles, on the basis of the interpretation given by the Nürnberg Tribunal to article 8 of its Charter, states: "The fact that a person acted pursuant to order of his Government or of a superior does not relieve him from responsibility under international law, provided a moral choice was in fact possible to him."
The observations on principle IV, made in the General Assembly during its fifth session, have been carefully studied; no substantial modification, however, has been made in the drafting of this article, which is based on a clear enunciation by the Nürnberg Tribunal. The article lays down the principle that the accused is responsible only if, in the circumstances, it was possible for him to act contrary to superior orders.
Article 5
The penalty for any offence defined in this Code shall be determined by the tribunal exercising jurisdiction over the individual accused, taking into account the gravity of the offence.
This article provides for the punishment of the offences defined in the Code. Such a provision is considered desirable in view of the generally accepted principle nulla poena sine lege. However, as it is not deemed practicable to perscribe a definite penalty for each offences, it is left to the competent tribunal to determine the penalty, taking into consideration the gravity of the offence committed.
* * * [Source: A/CN.4/48 and Corr.1 & 2; Report of the International Law Commission on its Third Session, 16 May to 27 July 1951. Official Records of the General Assembly, Sixth Session, Supplement No.9 (A/1858). Extract from the Yearbook of the International Law Commission: 1951 , vol. II]
Documentation Note: For the online edition of this document, the parts of the original paper document that deal with crime of aggression have been extracted and reproduced in its entirety. The footnotes have been renumbered according to the order in which they appear in this online version.
Notes:1. Mr. Hudson voted against this chapter of the report on the ground that in resolution 378 B (V), the General Assembly did not request the Commission to formulate a definition of aggression. [Back]
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