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The Search for World Peace |
To
Gertrude
for her patience
If we our strength should all together join,
Viewing each other's welfare as our own,
If we should each exact full punishment
From evil doers for the wrongs they do,
The shameless violence of wicked men
Against the innocent would not prevail;
Guarded on every hand and forced to pay
The penalties which their misdeeds deserve,
They soon would cease to be, or few become.
Menander (3rd Cent. B.C.)
Cited by Grotius in The Law of
War and Peace (1648) Book I,
Chap. V. Sec. H, Kelsey Transl.
(1925).
Author's Preface It seems only fair to explain to the reader how I came to write this book. When I was still a student at the Harvard Law School, a third of a century ago, one of the more interesting ways of earning my keep involved some research on the efforts under the Treaty of Versailles to bring the German Kaiser and others to trial for crimes committed during World War I. The knowledge thus acquired eventually led to an assignment in World War II which brought me into several of the Nazi concentration camps as they were liberated. This in turn led to a post with the prosecution staff at the subsequent Nuernberg trials, where there was further opportunity to consider the human as well as the legal consequences of aggressive war.
Being deeply moved by those experiences I spent a good many years thereafter in trying to obtain restitution for the victims of Nazi persecution. What seemed to me even more important than the punishment of the criminals or the rescue and rehabilitation of the survivors was the need to prevent the recurrence of the events which had given rise to the unprecedented tragedies.
There was never any doubt in my mind that aggression was the greatest of all human crimes and that the cause of world peace would be served if those responsible, no matter how high their rank or station, might be held to culpable account. It had been the hope of many of us at Nuernberg that some day there would be created a permanent judicial-type machinery with international authority to cope with the disputes which give rise to offenses against the peace and other crimes against humanity. The failure of States to be able to agree on a definition of aggression was the excuse given to defer any further efforts in that direction. In fact the governments were too engrossed in advancing their own immediate cause by every means within their power to be hampered by the visions of idealistic dreamers.
It seemed worthwhile therefore to try to encourage a definition by writing on the subject and the problems. It is with considerable trepidation that I have dared to re-tread the early historical paths which have been so well hewn by such respected scholars as Professors Julius Stone, Myres McDougal and others. It was an unavoidable frame of reference for the developments after the Second World War.
During the past few years I was the only unpaid, nongovernmental observer regularly to attend the meetings of the Special Committee on the Question of Defining Aggression. If the collection of background materials and my observations will make it easier for the reader to understand how a consensus definition was reached and what it really means I will not consider my effort to have been completely in vain.
Benjamin B. Ferencz
New Rochelle, New York
December 1974
INTRODUCTION by
Louis B. Sohn
Bemis Professor of International Law,
Harvard Law SchoolAfter more than fifty years of international discussions, the General Assembly of the United Nations has finally approved a definition of aggression. The issue was first raised in the League of Nations in 1923 and was revived by the Soviet Union in 1950. Neither the International Law Commission nor the first three special committees appointed for the purpose by the General Assembly could agree on a definition. Finally, the fourth committee, established in 1967, after seven sessions reached a consensus on a definition of aggression in the strict sense of the term, abandoning the more complicated attempt to define also ideological and economic aggression.
The definition is not an ideal one and in the final debate many speakers expressed reservations about some of its provisions. Nevertheless, it was generally accepted that the consensus reached in the special committee was so fragile and so carefully balanced that it would have been dangerous to reopen in the Assembly the issues which were carefully papered over by the committee. The definition has a quadruple purpose: to serve as a guideline to the Security Council, to deter the taking by the aggressor of any of the proscribed acts, to help mobilize public opinion in case of aggression and to facilitate immediate assistance to the victim of aggression by other States.
The definition forms part of a consistent effort of the United Nations to develop a code of basic rules of international law, implementing the cryptic provisions of the Charter of the United Nations. Adopted unanimously or by consensus, these rules are binding on the world community as authoritative interpretations of the Charter. They don't have an independent force, but draw their binding power from the Charter itself, which is the cornerstone of the world constitutional law.
As the definition has been accepted explicitly or implicitly by all the Members of the United Nations including the permanent members of the Security Council, it should be considered as binding on the Council as well. Of course, the definition is not an exhaustive one and permits the Security Council to determine that acts not enumerated in the definition constitute aggression. It also allows the Council to determine that in view of the relevant circumstances of a particular case certain acts, though falling under the definition, do not constitute aggression. Nevertheless, in view of the overwhelming support behind the definition, it should be difficult for the Council to disregard it in a concrete situation clearly falling under the definition.
To understand the new definition, it is not enough to look at its text. The preparatory materials of the special committee and earlier struggles to arrive at a definition need to be considered by any careful interpreter and decision-maker. To make this possible, Mr. Benjamin B. Ferencz has prepared a collection of relevant materials. It provides a thorough documentary history of this intricate subject and should be of great assistance to all concerned. Mr. Ferencz has followed this topic for some thirty years and is well qualified to provide such a comprehensive guide to this complicated chapter of the international legislative process. This collection constitutes an important contribution to the history of international law. For once, those who contended that this job will never be finished have been found to be too pessimistic, and the story told in this book has reached a satisfactory ending. The end of one story is, of course, only the beginning of another, and we have to wait many years before we will know what impact this document has had on the development of international relations. Perhaps some day the author will prepare another book about the practical applications of the new definition.
Editorial Note: This document corresponds to the Author's Preface and the Introduction to "Defining International Aggression - The Search for World Peace", by Benjamin B. Ferencz.
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