The United States of America and the Crime of Aggression 2020055516, 2020055517, 9780367207342, 9781032005058, 9780429263149

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The United States of America and the Crime of Aggression

This book traces the position of the United States of America on aggression, beginning with the Declaration of Independence up to 2020, covering the four years of the Trump Administration. The decision of the Assembly of States Parties to the International Criminal Court to activate the Court’s jurisdiction over the crime of aggression in 2018 has added further value to a book concerning the position and practice of one of the most influential states, a global military power and Permanent Member of the UN Security Council. Organised along chronological lines, the work examines whether, or to what extent, the US position has evolved over time. The book explores how the definition of the crime can affect the US, notwithstanding its failure to ratify the Rome Statute. It also shows that the US practice and opinio iuris about the law applicable to the use of force might influence, as it has done in the past, the law itself. The work will be a valuable guide for students, academics and professionals with an interest in international criminal law. Giulia Pecorella is Senior Lecturer in Law at Middlesex University, UK.

The United States of America and the Crime of Aggression

Giulia Pecorella

First published 2021 by Routledge 2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN and by Routledge 605 Third Avenue, New York, NY 10158 Routledge is an imprint of the Taylor & Francis Group, an informa business © 2021 Giulia Pecorella The right of Giulia Pecorella to be identified as author of this work has been asserted by her in accordance with sections 77 and 78 of the Copyright, Designs and Patents Act 1988. All rights reserved. No part of this book may be reprinted or reproduced or utilised in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers. Trademark notice: Product or corporate names may be trademarks or registered trademarks, and are used only for identification and explanation without intent to infringe. British Library Cataloguing-in-Publication Data A catalogue record for this book is available from the British Library Library of Congress Cataloging-in-Publication Data Names: Pecorella, Giulia, author. Title: The United States of America and the crime of aggression / Giulia Pecorella. Description: Milton Park, Abingdon, Oxon ; New York, NY : Routledge, 2021. | Includes bibliographical references and index. | Contents: Introduction—Prelude to the criminalization of aggression : the bygone era (1776–1917)—The international delict of aggression (1918–1944)—The International crime of aggression (1945–1952)—An indefinable aggression (1952–2002)— A treaty-based crime of aggression (2003–2020)—Conclusion. Identifiers: LCCN 2020055516 (print) | LCCN 2020055517 (ebook) | ISBN 9780367207342 (hardback) | ISBN 9781032005058 (paperback) | ISBN 9780429263149 (ebook) Subjects: LCSH: Aggression (International law). | International and municipal law—United States. | United States—Foreign relations. Classification: LCC KZ7140 .P43 2021 (print) | LCC KZ7140 (ebook) | DDC 341.6/2—dc23 LC record available at https://lccn.loc.gov/2020055516 LC ebook record available at https://lccn.loc.gov/2020055517 ISBN: 978-0-367-20734-2 (hbk) ISBN: 978-1-032-00505-8 (pbk) ISBN: 978-0-429-26314-9 (ebk) Typeset in Galliard by Apex CoVantage, LLC

A Francesco

Contents

Preface Acknowledgements Introduction 1

Prelude to the criminalisation of aggression: the bygone era (1776–1917)

x xv 1

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1 Introduction 4 2 Declaration of Independence, neutrality doctrine and self-defence: a common natural-law ground 5 3 Time for international conferences 12 4 The search for justifications 20 5 The First World War 26 6 Conclusion 32 Bibliography 32 2

The international delict of aggression (1918–1944) 1 Introduction 35 2 The Paris Peace Conference 36 2.1 The US and the 1919 Commission on the Responsibility of the Authors of the War and on Enforcement of Penalties 36 2.2 The Covenant of the League of Nations 42 3 Conferences and multilateral agreements in the 1920s 44 4 The legal grounds for interpositions of a temporary character: US practice during the 1920s 47 5 The Pact of Paris 48

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Contents 6 Conferences and multilateral agreements in the 1930s 53 6.1 Aggression and the principle of non-intervention in the internal affairs of an American state 53 6.2 Disarmament and aggression 57 7 The Pact of Paris in the 1930s 59 8 Neutrality and self-defence 66 9 Aggression during the Second World War 73 9.1 A new international organisation for the maintenance of peace 73 9.2 The United Nations War Crimes Commission 74 10 Conclusion 80 Bibliography 81

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The international crime of aggression (1945–1952)

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1 Introduction 85 2 A new year’s change 86 3 Regional vs universal aggression 89 3.1 (a) Article 2(4) of the Charter of the United Nations 90 3.1 (b) Article 51 of the Charter of the United Nations 91 3.1 (c) Collective security under the Charter of the United Nations 93 3.2 Informal negotiations dealing with the treatment of war criminals 94 4 London 95 5 Nuremberg 104 6 Tokyo 117 7 Subsequent Nuremberg Trials 125 8 The Nuremberg principles blowing in the wind 129 9 Individual and collective defence in the second half of the 1940s 136 10 Conclusion 141 Bibliography 142 4

An indefinable aggression (1952–2002) 1 Introduction 146 2 US practice during the Cold War: interventions in Latin America 146 3 US practice during the Cold War: self-defence 151 4 US practice during the Cold War: aggression as an instrument of propaganda 161 5 Resolution 2625 (1970) 163

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6 Resolution 3314 (1974) 164 7 The US and the outer space 172 8 1990 Persian Gulf War 176 8.1 Iraq: the first Gulf War and the debate at the UN level 176 8.2 Iraq: the debate on the idea of an international tribunal 179 9 Towards the adoption of the ICC Statute 181 10 Conclusion 185 Bibliography 186 5

A treaty-based crime of aggression (2003–2020)

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1 Introduction 191 2 The Kampala Review Conference 192 2.1 The US position in Kampala 192 2.2 The rationale behind the US position: customary law and universal jurisdiction 197 2.3 The Kampala amendment 201 2.4 The ‘character’ factor in the threshold clause 207 2.4.1 Humanitarian intervention 208 2.4.2 Self-defence 220 2.4.2 (a) The notions of ‘armed attack’ and pre-emptive self-defence 222 2.4.2 (b) The 2003 Iraqi War 231 2.4.2 (c) (Self-)defences in Syria 243 2.4.2 (d) The US, the UN Charter and the notion of ‘attack’ in the cyberspace 248 2.4.2 (e) The US, the UN Charter and the notion of ‘attack’ in the outer space 252 3 The US and the crime of aggression after the Kampala Review Conference 256 4 Conclusion 260 Bibliography 261 Conclusion

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Index

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Preface By William A. Schabas

For the vast majority of countries, the recent debates about the criminalisation of aggression by the International Criminal Court have an entirely defensive significance. As their histories record, most of them have never even contemplated the use of armed force outside their own borders. Friendly relations with their neighbours are the means to ensure peace and security. More broadly, multilateral institutions such as the United Nations, the African Union, the Organization of American States and the European Union offer the protection they need and that tanks, airplanes and modern weapons cannot provide. Their objective is to minimise military expenditures so that revenues can be spent on health care, education, and other needs of their population. Such priorities are dictated by international human rights obligations, mainly in the area of economic, social and cultural rights. One of the great exceptions is the United States of America. Unlike most countries in the world, the US is primarily concerned not with being a victim of the crime of aggression but rather with being charged and prosecuted for it. It has more than 400 military bases, of different shapes and sizes, outside of its borders, on every continent of the world except Antarctica. Of 22 aircraft carriers in service around the world, 11 fly the Stars and Stripes. Washington’s annual military budget significantly exceeds $600 billion, more than the spending on ‘defence’ of the next seven countries taken together. Indeed, its military spending alone is more than the total annual budget of nearly half the countries in the world. The US is prepared to let its own people suffer from inadequate health care and substandard schools in order to retain its military hegemony. In 1949, the US changed the nomenclature of what had been known as the Department of War to the Department of Defense. But the US Government probably does not understand the word ‘defence’ in the same way as most other countries. Since 1949, it has bombed at least 25 different countries, some of them on more than one occasion. Others have been threatened, quite publicly in some cases. During the Vietnam war alone, the US dropped more bombs on that unfortunate country than it did in Europe and Asia during the course of the Second World War. Many, many innocent civilians have been killed or maimed by the indiscriminate use of airpower. During the first century of its existence, the US had no foreign military presence to speak of. In terms of armed conflict, the main event was the brutal ‘civil

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war’ that brought an end to slavery although the consequences of the ‘peculiar institution’ persist more than 150 years later. The civil war accounted for three quarters of a million deaths, more than 90 percent of them combatants. The US also fought with its neighbours to the north and the south. Only as the nineteenth century came to a close did it start to flex its muscles abroad, in efforts to dominate the Caribbean, South America and the Pacific Ocean. In the nineteenth century there was no sense that the use of force other than for defensive purposes was in any way prohibited by international law. That started to change with the First World War. As Dr Giulia Pecorella’s marvellous study explains, during the Paris Peace Conference international lawyers from the victorious countries debated whether the fallen Germany emperor, Kaiser Wilhelm II, could be held accountable not only for atrocities perpetrated during the war but also for actually starting it. The principal American delegates, Robert Lansing and James Brown Scott, rejected the idea that aggressive war was unlawful and, a fortiori, that an individual might be prosecuted for such an act. President Wilson eventually gave in to pressure from Britain and France and agreed to a trial, inserting an enigmatic reference to ‘a supreme offence against international morality and the sanctity of treaties’, language that was drafted by Robert Lansing, into the Treaty of Versailles. By the time the Second World War broke out, international law had taken a giant step forward. The American Secretary of State, Frank Kellogg, together with the French statesman Aristide Briand, deserves credit for the 1928 General Treaty for Renunciation of War as an Instrument of National Policy. Usually known as the Kellogg-Briand Pact, it earned the American the Nobel Peace Prize (Briand has won the Prize two years previously). At Nuremberg, the judges of the International Military Tribunal famously described aggression as ‘the supreme international crime differing only from other war crimes in that it contains within itself the accumulated evil of the whole’. Robert Jackson is often credited with the origin of this vision, although Francine Hirsch’s recent study suggests that the American prosecutor was himself inspired by writings of Aron Trainin, the great Soviet international lawyer. My father served in the American armed forces during the Second World War. He didn’t wait to be drafted, and he volunteered to go and fight soon after Pearl Harbour was attacked. Patriotism may have had something to do with his decision, although I have no doubt that he also was motivated by outrage at the persecution of Europe’s Jewish communities, from where his own parents, uncles and aunts had emigrated. Some of my great uncles barely escaped Nazi genocide. Dad arrived on a troop ship in Normandy late in 1944. He spoke fondly about the glorious welcome that the American soldiers received, developing a love for France and for the French who stayed with him throughout his life. But he also described walking the streets in Paris during the second week of August 1945, when the headlines reported on the destruction of Hiroshima and Nagasaki. He said the French were troubled, disturbed, perplexed that those whom they had hitherto cherished as liberators could also have destroyed two cities, full of civilians, with such an awesome and inhumane new weapon.

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The irony of American condemnation of aggressive war, and of war crimes, alongside the bombing of the Japanese cities, was not lost on Judge Pal. In his controversial dissent at the Tokyo Tribunal, he condemned as a crime the ‘policy of indiscriminate murder to shorten the war’. Pal said that future generations would judge the ‘dire decision’ to use the atomic bomb. ‘If any indiscriminate destruction of civilian life and property is still illegal in warfare, then, in the Pacific War, this decision to use the atom bomb is the only near approach to the directives of the German Emperor during the first World War and of the Nazi leaders during the Second World War’, he wrote. Giulia Pecorella’s book focuses on the crime of aggression. But it inevitably considers the broader issue of the attitude of the US to international justice in general and to the International Criminal Court in particular. After an indifferent beginning at the Paris Peace Conference in 1919, the US became a great enthusiast for international justice and has remained so. Robert Jackson insisted that the credibility of the International Military Tribunal depended upon the universality of the law it would apply. If the US claimed the right to judge Germany’s leaders for Crimes Against Peace and Crimes against Humanity, then it should be prepared to live by the same legal framework, he believed. Weeks after the Tribunal’s judgment was issued, President Truman promoted the drafting and adoption of a code of international crimes to be derived from the Nuremberg principles. That necessarily included ‘crimes against peace’. Since the 1940s, the US Government has resisted the idea that independent and impartial international judges rule have the authority to pronounce themselves on its conduct and on the acts of its military. It has continued to promote tribunals as long as they are used to judge others. When the International Criminal Court so much as begins to sniff around the acts of American leaders, soldiers and spies, as it has begun doing in Afghanistan, the reaction can be ferocious. Donald Trump seemed to ignore the International Criminal Court for the first few years of his term. At some point he woke up, however, and his typically illiterate Twitter denunciations soon gave way to more serious presidential ukases directed at the Court’s Prosecutor and her staff. The Rome Statute adopted on 17 July 1998 specified that the crime of aggression was one of the crimes within the jurisdiction of the Court. But it postponed the adoption of provisions that would enable the Court to actually exercise jurisdiction over the crime. Late that year or early in 1999 I travelled to San Francisco at the request of the Coalition for the International Criminal Court in order to participate in a television debate with a former legal adviser to the Department of State. I can still recall how he spoke with outrage about the possibility that three judges of the International Criminal Court could rule on whether the US had committed aggression. I had been condemning acts of aggression by the US since I was a teenager, in the 1960s, so this hadn’t struck me as such a preposterous idea. But it was at that moment that I really understood why the US was so uneasy about the International Criminal Court. It had managed to keep control of all of the previous efforts at international criminal justice. Clearly, in allowing the Prosecutor to initiate a charge of aggression even

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against the most powerful State on the planet, some tectonic shift in international law was taking place. The Democrats lost the presidential election in 2000, or rather it was stolen from them when the Supreme Court stopped the count. One of Bill Clinton’s last acts as President was to sign the Rome Statute, although he indicated that there was no intention to proceed with ratification. The incoming administration of George Bush Jr was even less enthusiastic about the Court. Once it became apparent that the Statute would enter into force, a State Department official named John Bolton masterminded a series of attacks on the Court, none of which were particularly effective and some of which amounted to an own goal. One of these was a decision to boycott the ongoing negotiations aimed at preparing amendments to the Rome Statute that would enable the Court to exercise jurisdiction over the crime of aggression. As a participant in the Rome Conference, the US had every right to contribute to the amendment deliberations. Instead, it opted to ignore them. The US eventually returned to the negotiations after Barack Obama was elected President. But by then agreement had been reached on the definition of aggression. With more than a whiff of arrogance, at the Kampala Conference I pleaded with other countries to allow some recalibration of the texts that had already been confirmed. It was too late to change the text of article 8bis. The US endeavoured to promote its concerns with a package of ‘understandings’ that might be included in the resolution adopting the amendments to the Statute. The core of its claims was that there would be cases when force would be used to prevent serious violations of human rights as well as international crimes. Such acts should not, the US argued, fall within the terms of a ‘manifest violation of the Charter of the United Nations’. This was not unrelated to the doctrine of the responsibility to protect, which had been recognised in a fundamental General Assembly resolution adopted on the sixtieth anniversary of the entry into force of the Charter. The only problem was that the General Assembly had then specified that any use of force for such a purpose should be done in accordance with the Charter. And that ruled out any unilateral intervention or initiatives from ‘coalitions of the willing’, which is a euphemism for close friends of the US. The American efforts failed rather miserably. The proposed ‘understanding’ was discussed during a dramatic informal meeting two days before the end of the Kampala Conference, presided over by Professor Claus Kreß of the German delegation. The Iranian delegation proposed a modest amendment by which the American text would conclude with a reference to the Charter. The words looked innocent enough, but they had the effect of standing the American proposal on its head. The US had wanted something that would authorise it to intervene without Security Council authorisation. But its diplomats, caught unprepared, meekly agreed to Iran’s amendment which was then promptly adopted by consensus. At conferences since Kampala, I have often heard academic commentators explain that the US has nothing to fear from the provisions of the Rome Statute, as tweaked by the ‘understandings’. To the extent that the US military might take unilateral action in the name of preventing the commission of genocide,

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Crimes against Humanity and war crimes, it is said that this would never amount to a crime of aggression as set out in article 8bis of the Statute. Seriously? Are the motives of the US to be trusted? Even with the change of administration, it is a country where 70 million people voted to re-elect Donald Trump. There is legitimate fear that the huge American arsenal will be employed for unlawful purposes albeit camouflaged in humanitarian language. The entire world needs to be protected against the threat of the use of force by the US. The best protection that can be offered, at present, is found in the provisions of the Charter of the United Nations. Any use of force without the authorisation of the Security Council, as was the case with the 2003 invasion of Iraq, can be nothing but a ‘manifest violation of the Charter’, according to the terms of article 8bis. There are cracks in everything, even in the attempts by the US to avoid the reach of the Court as well as the efforts of its allies and friends to emasculate the Rome Statute provisions on the crime of aggression. Article 15ter of the Rome Statute provides the mechanism by which any referral to the Court by the United Nations Security Council includes jurisdiction over the crime of aggression. It does not seem that the Security Council can cherry-pick the crimes that apply when it makes a referral under article 13(b). In other words, a Security Council referral applies to all four crimes within the subject-matter jurisdiction of the Court, including the crime of aggression. On a literal reading, article 15ter applies not only to future referrals but also to existing referrals to the extent that they have no specific temporal limitation. Thus, the Court may already be in a position to exercise jurisdiction over the crime of aggression if committed in Libya or in Darfur subsequent to the activation of the jurisdiction in July 2018. It can do so regardless of the nationality of the accused. The 2014 draft resolution to give the Court jurisdiction over Syria would also have had this effect had it been adopted. Concern about such a consequence could well prompt the US to veto any future referrals by the Security Council to the Court, under any circumstances. Other Permanent Members might also be so inclined. Neutralising the use of article 13(b) would probably do the Court more good than harm. Of course, this is still only a crack, to return to Leonard Cohen’s marvellous metaphor. One of the first signs of a crack came in 1946, when the International Military Tribunal identified aggression as the supreme international crime. The crack widened slightly when the amendments to the Rome Statute allowed the possibility of prosecution for aggression regardless of any position taken by the Security Council. In the second edition of this book, Giulia Pecorella may be able to write about how the crack has widened a bit more, letting through even more light.

Acknowledgements

Many people have been fundamental to the making of this book. I would like to express my deep gratitude to my PhD supervisor, and now colleague and good friend, Bill Schabas: by allowing me to do a PhD in Law at Middlesex University under his supervision, he literally changed my life. I am grateful to Bill and Anthony Cullen, my second supervisor, for all their valuable and constructive comments. My special thanks are extended to the (former and current) staff of the School of Law at Middlesex University, including Nadia Bernaz, a pillar I could rely on over time; Elvira Dominquez-Redondo, my main learning source in the years following my PhD; Cathal Doyle and Alice Donald, for their friendship and kind support; and Joshua Castellino, for welcoming me and making me feel at home ever since the beginning of my PhD. The experience at the Global Institute for the Prevention of Aggression, thanks to Don Ferencz, moreover, has given me an inspiring insight into a world I share ideals and values with. I would have never made through all these years without the intellectual exchange with and boosting of self-esteem coming from my peers, friends and bloggers of An International Law Blog: Daphne Demetriou, Veronique Caruana, Josepha Close, Stefano Marinelli, Elena Borsacchi, Daria Sartori and Elena Maculan. From each of them I have learnt far more than they can ever imagine. I take this opportunity to express my gratitude to my parents, Angela and Michele; thanks to their generosity, I had the privilege of spending many years studying. Together with my brother, Francesco, they are central pieces of a family whose love and support know no boundaries. My endless thankfulness goes to the love of my life, Francesco, for being there through all the stages of this book (and beyond), as well as to Manfredi; in less than two years he has taught me that time cannot be wasted and I can do research from everywhere, at any time. Finally, I would like to thank all the people who believed in me. Most of those people are, or in my mind will always be, in Florence.

Introduction

After decades of negotiations, on the occasion of the 2010 Kampala Review Conference, states parties to the Rome Statute (‘the Statute’, or ‘ICC Statute’, or ‘the Rome Statute’) establishing the International Criminal Court (‘ICC’ or ‘the Court’) adopted an amendment to the Statute, containing a definition of the crime of aggression. This was a sine qua non for the activation of the Court’s jurisdiction, which occurred in July 2018. The definition, together with the resolution of the Assembly of States Parties activating the jurisdiction of the Court, provide for significant safeguards in regard to nationals of non-party states. The United States of America, a Permanent Member of the UN Security Council (SC) and currently one of the most prominent military powers, is not a party to the Statute. This notwithstanding, a study focusing on their position on the crime of aggression is of fundamental interest. While the US contribution to the origins of the idea of criminalising aggression is undeniable, the US practice could be influenced by the very existence of the Kampala amendment. Also, the US practice might have some impact on international law and, through it, on the Kampala amendment. This finds confirmation in article 21 of the Statute, pursuant to which, besides the Statute itself, the Rules of Procedure and Evidence, and the Elements of Crimes, judges might use other ‘applicable treaties and the principles and rules of international law’. Hence, judges could look at other rules of international law should they need, for example, to interpret any ‘grey areas’ of this crime. This study traces back the US position on aggression from the Declaration of Independence (1776) to the Trump Administration (2020). In so doing, it mainly relies on primary sources of an official nature. Apart from statements of US Presidents and Secretaries of State, these includes statements at international conferences, treaties, diplomatic documents, interventions before international tribunals (either as respondent or prosecuting state), national legislations and case law.1 1 See ILC, ‘Draft conclusions on identification of customary international law, with commentaries’ (2018) UN Doc A/73/10, Conclusions 6 and 10. See also James L Brierly, The Law of Nations (5th ed, The Clarendon Press 1955) 60–63 (as quoted in Marjorie M Whiteman, Digest of International Law (US GPO 1963 vol I) 85–86).

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Introduction

The book develops though five chapters, each of which concerns a different era in the US approach towards aggression. The first chapter covers a long period which goes from the Declaration of Independence to the US entry into the First World War. This was a time when the US Administration did not consider the criminality of aggression at all. However, they did address issues such as selfdefence or neutrality, establishing important precedents in both fields. This was also a time when some of the legal arguments which are still peculiar to the US justifications for the use of force were conceived. Moreover, towards the end of the nineteenth century the US participated in the most important multilateral (either ‘universal’ or regional) conferences, where, again, they gave a substantial contribution to the development of a primordial jus ad bellum. Overall, the US legal arguments of the time were grounded in concepts deriving from natural law. The second chapter covers a period which goes from 1918 to 1944 relating to a time when the US kept opposing any international motions in favour of the individual criminal responsibility for aggression. However, the US did become a party to most of the relevant instruments dealing with the notions of war and aggression, some of which even came as a result of their own initiative. This was a period when the position of the Administration mainly shaped around positivist grounds. The third chapter focuses on a period (1945–1952) when the US pushed for an unprecedented development of international law by establishing the criminality of aggression. Attention is paid to the debates which led to the adoption of the 1945 London Charter. It will be pointed out that there was a time when the US considered possible to define aggression. In 1945, at the London Conference, and in his Opening Statement before the International Military Tribunal (IMT), the US Prosecutor, Robert Jackson, submitted a proposal which, with the sole act of ‘bombardment’ missing, was not substantially different from what later became article 3 of Resolution 3314. Also, the precedents set out by the IMT, the International Military Tribunal for the Far East (IMTFE) and the American Military Tribunals are considered. They all show that the US did not deem indispensable to define aggression in order to grant a fair trial to the defendants. Furthermore, the process which led to the adoption of important resolutions by the UN General Assembly (GA) is analysed as this could confirm that the legal precedents set out in the aftermath of the Second World War contributed to the crystallisation of an international custom. This period, in which the US Administration used concepts mainly rooted in natural law, came to an end by 1952. The fourth chapter pertains to a very long time (i.e. 1952–2002) when the US kept considering it impossible to define aggression. At the same time, the definition was deemed indispensable to keep discussing the establishment of an international criminal court. Once the UNGA adopted Resolution 3314(1974) by consensus, the US delegates indeed made it clear that this would not have any relevance for the purposes of individual criminal responsibility. The insertion of the crime of aggression among the crimes over which the ICC shall have jurisdiction, moreover, led the US to ‘unsign’ the Rome Statute and abandon the negotiations within the Preparatory Commission in 2002.

Introduction 3 Two exceptions in the US approach deserve consideration. First, in 1970 the US was a great supporter of the UNGA’s Resolution 2625, which considered a war of aggression as a Crime against Peace. Second, with the end of the Cold War and thanks to the new international atmosphere which followed, in 1990 the Bush Administration discussed the possibility to try Saddam Hussein for aggression. This means that at that time the US considered aggression as an international crime, which in turn could have been affected by the law of the UN Charter. The fifth chapter finally discusses the US position at the 2010 Kampala Conference and subsequent to it. While the US delegates in Kampala kept opposing the definition considering it as a treaty-based one, they submitted some Understandings which – although with significant changes – were eventually adopted by states parties. These were originally aimed at affecting the definition by providing for some exceptions with regard to the so-called grey areas of the jus ad bellum, namely unilateral humanitarian intervention and preventive self-defence as it has been applied by the US in the last decades. Since 2010 the US has consistently opposed the adoption of the amendment and then, its entry into force. Lately, under President Trump this behaviour has become part of a broader practice aimed at delegitimising the Court. It will be concluded that according to the US Administration, an international crime of aggression does in fact exist. Yet their legal position has changed over time. Also, the US argument that the only relevant precedents concerned ‘war(s) of aggression’ could be contradicted by having a look at the IMT judgment, as it also dealt with some ‘acts of aggression’. Plus, the US Prosecutor himself made an inconsistent use of different terms when it came to Crimes against Peace. The clearest evidence in this respect is the proposal of a definition of aggression which was advanced by Jackson in London. Furthermore, it will be shown that the Understandings adopted in Kampala cannot have the effect the US hoped for: they cannot bar a state which exercises universal jurisdiction, to do so in relation to former US leaders. The Kampala amendment might have indeed codified or contributed to the crystallisation of a correspondent customary crime of aggression. Moreover, they do not limit the Court’s jurisdiction by excluding the applicability of article 8bis in cases of unilateral humanitarian intervention or uses of force against terrorists within the context of the war on Al-Qaeda. This will be true every time the ‘manifest’ requirement will be met.

1

Prelude to the criminalisation of aggression The bygone era (1776–1917)

1 Introduction For a long time, international law did not prohibit states to use force in their international relations. In this respect, the First World War can be regarded as one of the main turning points in history. From that moment on, states started to regulate the use of force through a number of international instruments. However, both the nineteenth and the first decade of the twentieth century provided for some important precedents. This is even truer in relation to the United States of America (US). The US history has been interrelated with the jus ad bellum ever since the Declaration of Independence (1776). Although far from any idea of criminalisation of aggression, from the Declaration of Independence (1776) to the US entry into the First World War in 1917, the young state was fundamental to the first attempts to limit the use of force and proved to be generally aware of the necessity to justify those interventions not grounded on self-defence. This is not equal to say, however, that the US did not use its military force against other states. A study of its practice makes it clear that the US did resort to military force every time its national interests were jeopardised. An analysis of what is here called ‘the bygone era’ is then necessary to have a comprehensive idea of the US Administration’s attitude towards some fundamental issues related to the jus ad bellum, including the notions of self-defence or neutrality. This chapter is structured as follows. Section 2 focuses on the US Declaration of Independence and argues that it was rooted in natural law as did the doctrines of neutrality and self-defence. Section 3 deals with the US participation in the relevant conferences of the time and shows how the US contributed to the first attempts to limit the use of force by states. Section 4 analyses the US practice of late nineteenth century and demonstrates that since the Spanish-American war, the US has attempted to provide a legal justification for its interventions different from self-defence arguments. Again, concepts pertaining to natural law were essential to this purpose. Lastly, section 5 aims at proving how, with the US entry into the First World War, concepts such as peace, justice and humanity, which had for long justified the US impartial neutrality, were reinterpreted as to leave no choice but to abandon it; and the principles which gave birth to the US as an independent state were then functional to its global role of international police.

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2 Declaration of Independence, neutrality doctrine and self-defence: a common natural-law ground In a time when international law was still rudimentary, the newborn state recurred to natural law arguments to justify its behaviours in international relations. Three issues inherently related to the use of force had a natural-law common denominator: the justifications that lay behind the US Declaration of Independence, the formulation of the US doctrine of neutrality and the enunciation of the legal requirements for anticipatory self-defence. The long journey throughout the US legal arguments related to the use of force cannot but start from the document which marked the very beginning of the US as an independent state, namely the 1776 Declaration of Independence.1 This perfectly shows how the history of the US has always been intertwined with the need to justify the use of force. According to one of its main drafters, Thomas Jefferson, the Declaration ‘was intended to be an expression of the American mind’ and provided for a justification for the American colonies’ rebellion against the British mother country.2 The document embodied a theory originally forwarded by Benjamin Franklin according to which colonies were considered as separate and sovereign states within the British Empire. They owed their alliance not to the Parliament, but rather to the King, the only subject they were bound to through a Lockean social contract. The King having violated this pact, American colonies could consider themselves free from any obligation and thus rebel.3 Laws of nature gave men the right and duty to throw off a Government which had been enduring a ‘long train of abuses’ such as the keeping of standing armies in time of peace without the consent of their legislature; the excitement of domestic insurrection among the colonies; and the waging of war against them. Thus, American colonies had a compelling necessity to rebel and separate from their mother country. While most of the key philosophical notions contained in the Declaration must be read in connection to their historical context, it is interesting to note how necessity or consent are still central to current jus ad bellum. However, as it is always the case, time has modified their content and limits. Plus, international law has greatly evolved from the embryonic status of that time so as to contemplate a number of ‘new factors’, especially when it comes to consider the lawfulness of the use of force. This brought Acheson, former US Secretary of State, to comment on the situation in Rhodesia in 1968 as follows: ‘How fortunate were the American colonies to have no United Nations to confront in 1776!’4 According to Acheson, the UN Charter – in particular article 2(7) – had been interpreted in a way that

1 The Continental Congress, Declaration of Independence (Philadelphia 4 July 1776). 2 David A Schultz, The Encyclopedia of American Law (Library of Congress Cataloging-in Publication Data 2002) 116. 3 ibid 117. 4 Dean Acheson, ‘The Arrogance of International Lawyers’ (1967–1968) 2 International Lawyer 591, 595–596.

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certainly might have had a delegitimising effect on the rebellion of the American colonies. However, one might have objected that life, liberty and pursuit of happiness, notoriously the rationale behind the Lockean theory of social contract, had stretched over time to adapt to different cultural and historical contexts. For instance, in 1917, President Wilson, asking for authorisation to arm merchant vessels and use all necessary means in case of an act of aggression against the US, justified his request by mentioning not only the right to life, but also those rights of humanity without which there is no civilization . . . those great principles of compassion and of protection which mankind has sought to throw about human lives, the lives of non-combatants, the lives of men who are peacefully at work keeping the industrial processes of the world quick and vital, the lives of women and children and of those who supply the labor which ministers to their sustenance. We are speaking of no selfish material rights but of rights which our hearts support and whose foundation is that righteous passion for justice upon which all law, all structures alike of family, of state, and of mankind must rest, as upon the ultimate base of our existence and our liberty. I cannot imagine any man with American principles at his heart hesitating to defend these things.5 The laws of nature were also essential to the newborn state for the conceptualisation of a number of issues, including the doctrine of neutrality and the notion of self-defence. As for the former, from Washington’s proclamation of neutrality on 22 April 1793, to President Wilson’s address of 2 April 1917, neutrality in the sense of legal impartiality in foreign wars was the offcial policy of the US.6 This doctrine had its foundations in those Continental writers who held that the natural state of nations was peace and not war.7 De Vattel had developed the idea that neutrality included not only the right to abstain from war, but the duty to observe ‘a strict impartiality toward the belligerent powers’.8 According to President Washington, ‘[t]he duty of holding a neutral conduct may be inferred, without anything more, from the obligation which justice and humanity impose on every nation, in cases in which it is free to act, to maintain inviolate the relations of peace and amity towards other nations’.9 One might easily find significant similarities with de Vattel’s assertion that [n]ations who are really impressed with sentiments of humanity . . . will never seek to promote their own advantage at the expense and detriment

5 US President, Woodrow Wilson, Address to a Joint Session of Congress: “Request for Authority” on 26 February 1917 [emphasis added]. 6 Quincy Wright, ‘Repeal of the Neutrality Act’ (1942) 36 AJIL 8, 12. 7 Jesse S Reeves, ‘The Influence of the Law of Nature upon International Law in the United States’ (1909) 3 AJIL 547, 559. 8 ibid. 9 US President, George Washington, Farewell Address on 19 September 1796.

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of other nations: however intent they may be on their own happiness, they will ever be careful to combine it with that of others, and with justice and equity.10 Washington also asserted: Whatsoever of the citizens of the United States shall render himself liable to punishment or forfeiture under the law of nations, by committing, aiding, or abetting hostilities against any . . . Powers, or by carrying to any of them those articles which are deemed contraband by the modern usage of nations, will not receive the protection of the United States, against such punishment or forfeiture; and further, . . . I have given instructions to those officers, to whom it belongs, to cause prosecutions to be instituted against all persons, who shall, within the cognizance of the courts of the United States, violate the law of nations, with respect to the Powers at war, or any of them.11 Therefore, the violation of neutrality by a US citizen would have been punished, but no state responsibility would have arisen from that. The same year, on the occasion of the British diplomatic protests following the selling of arms by US nationals to the French Government during the Napoleonic war, however, US Secretary of State Thomas Jefferson had argued in favour of the inapplicability of the theory of impartiality to individuals.12 US citizens were free to entertain their commercial activities to whatever state they wanted, no matter their belligerent status. Furthermore, should the naval powers have formally notifed their willingness to prohibit supplies to France, the Congress needed to be called because such an act was to be considered an aggression, namely a justifable cause of war. Indeed, according to Jefferson: The idea seems to gain credit that the naval powers combining against France, will prohibit supplies, even of provisions, to that country. Should this be formally notified, I should suppose Congress would be called, because it is a justifiable cause of war, and as the Executive cannot decide the question of war on the affirmative side, neither ought to do so on the negative side, by preventing the competent body from deliberating on the question. But . . . I think it will furnish us another opportunity of setting another precious example to the world, by showing that nations may be brought to do justice by appeal to their interests as well as by appeal to arms. I should hope that Congress, instead of a denunciation of war, would instantly exclude from our ports all

10 Emmerich de Vattel, The Law of Nations or Principles of the Law of Nature Applied to the Conduct and Affairs of Nations and Sovereigns (GG and J Robinson 1797) book 4 ch 1, 430 [emphasis added]. 11 US President, George Washington, The Proclamation of Neutrality on 22 April 1793. 12 James W Garner, ‘Some Questions of International Law in the European War’ (1916) 10 AJIL 749, 751–752.

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As far as state responsibility was concerned, however, it should be underlined that direct participation of US nationals alongside of a third country’s people uprising against their own mother country could not be compared to the mere selling of articles of ‘contraband of war’. As Secretary of State, Jefferson had to deny a French envoy the possibility to use US ports to arm privateers. While article 24 of the 1778 US-France Treaty of Alliance prohibited the US to allow French enemies to use their ports for this purpose, the interpretation given to neutrality, as equal to strict impartiality, hindered Jefferson from authorising the arming of French privateers in US ports.14 The well-known precedent of Caroline is also helpful in determining this substantial difference according to the US Government. Indeed, the US Secretary of State, Daniel Webster, stated: the just interpretation of the modern law of nations is, that neutral States are bound to be strictly neutral; and that it is a manifest and gross impropriety for individuals to engage in the civil conflicts of other States, and thus to be at war while their Government is at peace. . . . The United States have thought, also, that the salutary doctrine of non-intervention by one nation within the affairs of others is liable to be essentially impaired if, while Government refrains from interference, interference is still allowed to its subjects, individually or in masses. . . . In the infancy of this Government, on the breaking out of the European wars, which had their origin in the French Revolution, Congress passed laws with severe penalties for preventing the citizens of the United States from taking part in those hostilities.15 Over time, the concept of neutrality as an impartial attitude on the US Government had been ‘reaffrmed by nearly all American writers, judges, Secretaries of State, and Presidents who have had occasion to pronounce opinions on the subject’.16 For instance, on 3 December 1854, President Pierce stated that during the Crimean War, US nationals had ‘sold powder and arms to all buyers regardless of the destination of those articles’; and in 1870 President Grant claimed that during the war between Germany and France, American citizens might 13 US Secretary of State, Thomas Jefferson, Letter to the Member of the US House of Representatives, James Madison on March 1793 (as cited in Thomas Jefferson, Thomas Jefferson: Thoughts on War and Revolution: Annotated Correspondence (Algora Publishing 2009) 101). 14 Oona A Hathaway and Scoyy J Shapiro, The Internationalists – And Their Plan to Outlaw War (Allen Lane 2017) 86–87. 15 US Secretary of State, Daniel Webster, Letter to the British Envoy Extraordinary and Minister Plenipotentiary in Washington on 24 April 1841 (as cited in Eric Heinze and Malgosia Fitzmaurice, Landmark Cases in Public International Law (Martinus Nijhoff Publishers 1998) 1247–1255). 16 Garner (n 12).

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lawfully and without restriction by reason of the aforesaid state of war manufacture and sell within the United States arms and munitions of war and other articles known as ‘contraband of war’, although, they could not carry such articles upon the high seas for the use of belligerents without incurring the risk of capture and the penalties denounced by the law of nations in that behalf.17 As for the notion of self-defence, the already-mentioned incident of Caroline is also considered a pillar of international law because of its essential contribution to the theory of anticipatory self-defence.18 In December 1837, a group of Canadian loyalists acting under the Command of Alexander McLeod seized and set afre a vessel (the Caroline) in a New York port, killing a member of its crew in the process.19 The British Government argued that this was an act of self-defence since some US citizens had previously supported the rebels and it was further believed that the vessel belonged to Mackenzie, the rebels’ leader. While admitting that under certain circumstances anticipatory self-defence could be justifed, Webster did not recognise that this was the case in relation to those particular events. Rather, he argued: It will be for that Government to show a necessity of self-defence, instant, overwhelming leaving no choice of means, and no moment for deliberation. It will be for it to show, also, that the local authorities of Canada, even supposing the necessity of the moment authorized them to enter the territories of the United States at all, did nothing unreasonable or excessive; since the act, justified by the necessity of self-defence, must be limited by that necessity, and kept clearly within it.20 The infuence of de Vattel is again evident. In particular, he had stated: ‘The right of employing force, or making war, belongs to nations no farther than is necessary for their own defence’.21 Moreover, by claiming that his Government was not unwilling nor unable to preserve its neutrality, Webster implicitly admitted that should this be proved, the British Government could legitimately use force against US territory, which otherwise enjoyed ‘the right of the absolute immunity of its territory against aggression from abroad’.22 A few months later, President Tyler upheld Webster’s legal argument and claimed: ‘The territory of the United States must be regarded as sacredly secure against all such invasions, until 17 ibid 758–760. 18 Jan Klabbers, International Law (2nd ed, CUP 2017) 209. See by contrast Yoram Dinstein, War, Aggression and Self-defense (5th ed, CUP 2011) 197. 19 US Department of State, Office of the Historian, ‘Webster-Ashburton Treaty, 1842’ accessed 05 July 2020. 20 US Secretary of State, Daniel Webster, Letter to the British Envoy Extraordinary and Minister Plenipotentiary in Washington on 24 April 1841 (as cited in Heinze and Fitzmaurice (n 16)). 21 de Vattel (n 10) book 3 ch 3, 302. 22 US Secretary of State, Daniel Webster (n 20).

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they shall voluntary acknowledge inability to acquit themselves of their duties to others’.23 Notably, in 1818 the US had adopted the opposite position on the occasion of the First Seminole War against Florida, which was still under Spain’s jurisdiction. In November the same year President Monroe had argued that ‘[e]ven if the territory had been exclusively that of Spain and her power complete over it, we had a right by the law of nations to follow the enemy on it and to subdue him there. But the territory belonged, in a certain sense at least, to the savage enemy [the Seminoles] who inhabited it; the power of Spain had ceased to exist over it, and protection was sought under her title by those who had committed on our citizens hostilities which she was bound by treaty to have prevented, but had not the power to prevent’.24 Following the 1837 events, Alexander McLeod was found on US territory, arrested and put on trial for the crime of murder. However, he was eventually found not guilty and released. During the proceedings, the British Government exerted great diplomatic pressure for McLeod to be released, insisting on the act of state doctrine as a valid defence.25 President Tyler considered the dispute solved in 1842, when he claimed that a letter of apology sent in July was enough to ‘warrant forbearance from any further remonstrance against what took place, as an aggression on the soil and territory of this country’.26 In any case, the governmental policy of neutrality did not hinder the US from participating in those conflicts which were considered vital to the American interests. In the first decades of the nineteenth century, the US took an active part in the following conflicts: the 1798–1800 Quasi-War with France;27 the 1801 war against Tripoli;28 the 1805 conflict with Tunis;29 the 1812–1815 war against Great Britain;30 and the conflict against Algiers in 1815.31 While these conflicts had as main legal justification the necessity to protect US commerce and US

23 US President, John Tyler, Message to the Congress on 7 December 1841 (as cited in Heinze and Fitzmaurice (n 15) 1258–1259). 24 US President, James Monroe, Second Annual Message to the Congress on 16 November 1818, as cited by Craig Forcese, Destroying the Caroline: The Frontier Raid that Reshaped the Right to War (Irwin Law Inc 2018) 159. 25 Robert Y Jennings, ‘The Caroline and McLeod Cases’ (1938) 32 AJIL 82, 94. 26 US President, John Tyler, Message to the Congress on 11 August 1842 as cited by Craig Forcese (n 25) 122 [emphasis added]. 27 US Department of State, Office of the Historian, ‘The XYZ Affair and the Quasi-War with France 1798–1800’ accessed 21 April 2019. 28 US President, Thomas Jefferson, First Annual Message to the Congress on 8 December 1801. 29 US President, Thomas Jefferson, Fifth Annual Message to the Congress on 3 December 1805. 30 See ‘An Act Declaring War Between the United Kingdom of Great Britain and Ireland and the Dependencies Thereof and the United States of America and Their Territories’ approved on 18 June 1812. 31 US Department of State, Office of the Historian, ‘Barbary Wars, 1801–1805 and 1815–1816’ accessed 21 April 2019.

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citizens trading in Europe and in the Mediterranean, when it came to the war against the UK, in President Madison’s opinion It is difficult to account for the activity and combinations which have for some time been developing themselves among tribes in constant intercourse with British traders and garrisons without connecting their hostility with that influence and without recollecting the authenticated examples of such interpositions heretofore furnished by the officers and agents of that Government.32 Subsequently, the US Government did not take part in any hostilities in Europe for a century. The reason for such a peaceful attitude of the US Government during the nineteenth century is twofold. First, on 2 December 1823, President Monroe announced a new policy centred on a reciprocal non-interference between the American and the European Hemispheres.33 Second, from 1861 to 1865, the US Government had to face another kind of confict: the American Civil War. As for the Monroe Doctrine, in the years following its enunciation, it was interpreted, as it did not permit any intervention also in the American Hemisphere. The war with Mexico (1846–1848) was consistent with this doctrine because its justification relied on the territorial disputes related to the annexation of Texas.34 This notwithstanding the fact that many US Presidents, including President Polk on the occasion of his 1848 State of the Union address, openly admitted that the US annexation of California was based on conquest.35 Also, to justify the US decision not to intervene in the war between Chile and Spain, in 1866 the Secretary of State claimed: Those who think that the United States could enter as an ally into every war in which a friendly republican State on this continent becomes involved, forget that peace is the constant interest and the unwavering policy of the United States. . . . We have no armies for the purpose of aggressive war; no ambition for the character of a regulator.36

32 US President, James Madison, Special Message on 1 June 1812. 33 US President, James Monroe, Seventh Annual Message to Congress on 2 December 1823. 34 US Department of State, Office of the Historian, ‘The Annexation of Texas, the MexicanAmerican War, and the Treaty of Guadalupe-Hidalgo, 1845–1848’ accessed 21 April 2019. 35 Hathaway and Shapiro (n 15) 52. 36 US Secretary of State, William H Steward, Diplomatic Note to Mr Kilpatrick, Minister to Chile on 2 June 1866 (as cited in John B Moore (ed), Digest of International Law as Embodied in Diplomatic Discussions, Treaties and other International Agreements, International Awards, the Decisions of Municipal Courts, and the Writings of Jurists, and Especially in Documents, Published and Unpublished, Issued by Presidents and Secretaries of State of the United States, the Opinions of the Attorneys-General, and the Decisions of Courts, Federal and State (Vols. 1–8, GPO 1906) 445–446).

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In 1917 the Monroe Doctrine was still so central to the US policy that, in his address to the Senate, President Wilson proposed as a recipe for an enduring peace that the nations should with one accord adopt the doctrine of President Monroe as the doctrine of the world: that no nation should seek to extend its polity over any other nation or people, but that every people should be left free to determine its own polity, its own way of development, unhindered, unthreatened, unafraid, the little along with the great and powerful.37 With regard to the American Civil War, in 1861 11 states seceded from the US and established the Confederated States of America. Immediately after, President Lincoln upheld the idea of Secretary of State William Harry Seward and proclaimed a blockade of the Confederate ports. A number of international-lawrelated issues, including the rights of neutral vessels not to be stopped and searched by a belligerent,38 arose in this regard. Moreover, the US Supreme Court,39 in the Prize Cases, affrmed: ‘The proclamation of blockade is itself offcial and conclusive evidence to the Court that a state of war existed which demanded and authorized a recourse to such a measure, under the circumstances peculiar to the case’.40 Thus, the American Civil War not only justifes the US pacifc attitude in its international relations of the nineteenth century, but it also contributed to the jus ad bellum debate regarding what can determine the existence of a state of war.

3 Time for international conferences The end of the nineteenth century marked a new phase for the US international relations, which was a leading nation at all the most important international conferences of the time. The US presented itself as a champion with regard to the pacific settlement of disputes and gave a significant contribution to the development of the jus ad bellum. At a regional level, this coincided with the First International Conference of American States, which was held in Washington, DC, from 20 January to 27 April 1890, and came as a result of a constant advocacy by the US Secretary of State, James G Blaine. The so-called Pacific War (1879–1883) between Chile and Peru had made him realise that US commercial interests in the Hemisphere required stopping those wars that could be exploited by the Europeans (especially Great Britain).41 Thus, he had been fervently campaigning among congressmen on the 37 US President, Woodrow Wilson, Address to the Senate of the United States: “A World League for Peace” on 22 January 1917. 38 US Department of State, Office of the Historian, ‘The Trent Affair, 1861’ accessed 21 April 2019. 39 US Department of State, Office of the Historian, ‘The Blockade of Confederate Ports, 1861– 1865’ accessed 21 April 2019. 40 Clyde Eagleton, ‘The Attempt to Define War’ (1932–1933) 15 International Conciliation 237, 269. 41 Walter Lafeber, The Cambridge History of American Foreign Relations: American Search for Opportunity, 1865–1913 (CUP 1993 vol II) 74–75.

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importance of peace in the American hemisphere and considered arbitration the proper means for its achievement. Indeed, he believed that only by avoiding war could the US increase its exports and improve its commercial income.42 Consistently with this approach, John B Henderson, the US delegate to the Conference, submitted the following draft Resolution which should have been attached to the Treaty of Arbitration that states discussed on that occasion: Whereas, in the opinion of this conference, wars waged in the spirit of aggression or for the purpose of conquest should receive the condemnation of the civilized world: Therefore Resolved, That if any one of the nations signing the treaty of arbitration proposed by the conference, shall wrongfully and in disregard of the provisions of said treaty, prosecute war against another party thereto, such nations shall have no right to seize or hold property by way of conquest from its adversary.43 Besides the focus on conquest, it is interesting to notice that for a war to be considered an aggressive one, a special intent (i.e. the so-called animus aggressionis) needed to be proved. The fnal outcome of the Conference did not uphold this proposal. In fact, what was eventually attached to the treaty was a plan which had been submitted by Blaine in person and read as follows: 1. That the principle of conquest shall not, during the continuance of the treaty of arbitration, be recognized as admissible under American public law. 2. That all cessions of territory made during the continuance of the treaty of arbitration shall be void if made under threats of war or the presence of an armed force. 3. Any nation from which such cessions shall be exacted may demand that the validity of the cessions so made shall be submitted to arbitration. 4. Any renunciation of the right to arbitration made under the conditions named in the second section shall be null and void.44 Yet both the treaty and Blaine’s plan subsequently failed to meet the approval of the Governments, and therefore never entered into force.45 Arbitration was again discussed on the occasion of the First Peace Conference which was held at The Hague from 18 May to 29 July 1899. The US members of the Third Committee, namely the one dealing with mediation, arbitration and other methods of preventing armed conflicts between nations, were Andrew

42 US Department of State, Office of the Historian, ‘Blaine and Pan Americanism, 1880s/1890s’ accessed 21 April 2019. 43 Philip Jessup, ‘Harvard Research Draft Convention on Rights and Duties of States in Case of Aggression’ (1939) 33 AJIL Supp 819, 891. 44 ibid. See also Lafeber (n 41) 75. 45 John B Moore, ‘Application of the Principle of International Arbitration on the American Continents’ (1903) 22 Annals of the American Academy of Political and Social Science 35, 38–40.

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D White, Seth Low and Frederick W Holls.46 One of the three Conventions contained in the final Act of the Conference was the Convention for the Pacific Settlement of International Disputes. According to its Title 1: With the view of preventing, as often as possible, the resort to force between nations, the signatory Powers agree to employ all their efforts to assure the peaceful settlement of international differences.47 Under Title 2, mediation and good offces should be considered as useful means to settle international disputes.48 In this regard, Holls commented: Modern States cannot remain indifferent to international conflicts, no matter where they may arise, and who may be the parties. Under present conditions, war, though between two States only, must be regarded as an international evil, which should be prevented wherever possible, by international means.49 He also added: the work of the Conference is, of course, in direct and uncompromising opposition to the ideas of the ‘barrack-trained’ pseudophilosophers, especially in Germany, who have attempted to regard war as a ‘positive good’, a ‘necessary element in the Divine Government of the world,’ in a sense different from pestilence, famine, or evil in general.50 Article 27 of the Convention, in its relevant parts, read as follows: ‘The Signatory Powers consider it their duty, in case a serious dispute threatens to break out between two or more of them, to remind these latter that the Permanent Court of Arbitration is open to them’. The US delegation submitted an amendment which would limit the duty accepted by the signatory Powers to the cases where circumstances would permit, thus making it clear, upon the face of the Article, that each nation was to judge for itself when the duty could properly be discharged.51

46 See United States Commission to the First Peace Conference (The Hague), General Report to the US Secretary of State, John Hay on 31 July 1899 in James B Scott, The Hague Peace Conferences of 1899 and 1907A Series of Lectures Delivered before the Johns Hopkins University in the Year 1908 (The Johns Hopkins Press 1909 vol II) 17 ff. 47 Seth Low, ‘The International Conference of Peace’ (1899) 169 The North American Review 625. 48 Conference internationale de la paix, La Haye, 18 Mai-29 Juillet 1899, 102 (as cited in Jessup (n 43) 845). 49 Frederick W Holls, The Peace Conference at The Hague and its bearings on International Law and Policy (The MacMillan Company 1900) 181. 50 ibid 363–364. 51 Low (n 47) 636.

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However, since the Conference was towards its end, the amendment could not be upheld by the majority of the delegations. Therefore, on 25 July, when the Convention was about to be adopted, the US placed in the minutes of the Conference the following declaration which was then inserted in the Convention by a reference opposite to the signatures of the US plenipotentiaries: Nothing contained in this Convention shall be so constructed as to require the United States of America to depart from its traditional policy of not entering upon, interfering with, or entangling itself in the political questions or internal administration of any foreign state, nor shall anything contained in the said Convention be so construed as to require the relinquishment, by the United States of America, of its traditional attitude toward purely American questions.52 Holls reported his great satisfaction for what he considered a US diplomatic achievement by affrming: Never before that day had the Monroe Doctrine been officially communicated to the representatives of all the great Powers, and never before was it received with all the consent implied by a cordial acquiescence, and the immediate and unanimous adoption of the treaty upon that condition.53 The significance of the 1899 Convention was later the object of an article by Seth Low, who stated in his personal capacity: ‘No one supposes that this Convention, even if universally signed, will prevent all war; but it will compel the nations, in a new way, to justify war to the public opinion of mankind’.54 Arbitration was also discussed at the Second International Conference of American States which was held at Mexico City from 22 October 1901 to 31 January 1902. On that occasion, the US delegation advocated for a Protocol which should have reaffirmed the 1899 Hague Convention for the Pacific Settlement of International Disputes. However, the final outcome of the Conference was a Protocol which indicated Mexico and the USA – the only two American states among the signatories of the relevant Hague Convention – to mediate with all the other American states in order for them to adhere to the Convention.55 Towards the end of 1902 Great Britain, Germany and Italy established a warlike blockade of the principal ports of Venezuela in response to its refusal to settle any pecuniary claims against it or its people by these European countries.56 This 52 Holls (n 49) 271. 53 ibid. The same reservation was reiterated on the occasion of the signature of the 1907 Convention for the Pacific Settlement of International Disputes. See James B Scott (ed), The Hague Conventions and Declarations of 1899 and 1907_accompanied by Tables of Signatures, Ratifications and Adhesions of the Various Powers, and Texts of Reservations (OUP 1915) 87. 54 Low (n 47) 638. 55 Moore (n 45) 40–41. 56 Luis M Drago and H Edward Nettles, ‘The Drago Doctrine in International Law and Politics’ (1928) 8 The Hispanic American Historical Review 204.

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led the Argentinean Foreign Minister Luis M Drago to send a note to the US Administration through its representative to Washington. According to Drago: V.E. comprenderá que se haya sentido alarmado al saber que la falta de pago de los servicios de la deuda pública de Venezuela se indica como una de las causas determinantes del apresamiento de su flota, del bombardeo de uno de sus puertos y del bloqueo de guerra rigurosamente establecido para sus costas. Si estos procedimientos fueran definitivamente adoptados, establecerían un precedente peligroso para la seguridad y la paz de las naciones de esta parte de América. El cobro militar de los empréstitos supone la ocupación territorial para hacerlo efectivo, y la ocupación territorial significa la supresión o subordinación de los gobiernos locales en los países a que se extiende. Tal situación aparece contrariando visiblemente los principios muchas veces proclamados por las naciones de América, y muy particularmente la doctrina de Monroe, con tanto celo sostenida y defendida en todo tiempo por los Estados-Unidos, doctrina a que la República Argentina ha adherido antes de ahora.57 In short, the so-called Drago doctrine affrmed the Argentine ‘deseo de que la deuda pública de los Estados no sirva de motivo para una agresión militar’.58 In his 1905 annual address to the Congress, President Roosevelt dealt with this issue when he affrmed: We must make it evident that we do not intend to permit the Monroe Doctrine to be used by any nation on this Continent as a shield to protect it from the consequences of its own misdeeds against foreign nations. If a republic to the south of us commits a tort against a foreign nation, then the Monroe Doctrine does not force us to interfere to prevent punishment of the tort, save to see that the punishment does not assume the form of territorial occupation in any shape. The case is more difficult when it refers to a contractual obligation. Our own government has always refused to enforce such contractual obligations on behalf of its citizen by an appeal to arms. It is much to be wished that all foreign governments would take the same view. But they do not.59 Notably, on the same occasion, Roosevelt claimed as follows:

57 Argentinean Foreign Minister, Luis M Drago, Note to the Argentinean Minister in Washington on 29 December 1902 in Santiago Pérez Triana and William T Stead, La Doctrina Drago. Colleción de documentos (Imprenta de Wertheimer, Lea y Cia 1908) 6–7. 58 ibid 10. 59 US President, Theodore Roosevelt, Fifth Annual Message to the Senate and House of Representatives on 5 December 1905. For a review of the US policy in relation to the collection of debts on behalf of its citizen see Amos S Hershey, ‘The Calvo and Drago Doctrines’ (1907) 1 AJIL 26, 39–40.

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More and more war is coming to be looked upon as in itself a lamentable and evil thing. A wanton or useless war, or a war of mere aggression – in short, any war begun or carried on in a conscienceless spirit, is to be condemned as a peculiarly atrocious crime against all humanity.60 While this statement cannot be overestimated as it seems to be due to the rhetorical fervour of the President, for the frst time a US President defned war – and in particular a war of aggression – not only as a common crime, but rather as a ‘peculiarly atrocious crime against all humanity’. Also, Roosevelt, probably taking into consideration his current actions in the Dominican Republic,61 did not pronounce himself against any possible intervention. He just considered any territorial occupation to be prohibited. The same idea was reiterated the following year, when, at the Third International Conference of American States (Rio de Janeiro, July to August 1906), the representatives of the US received the following instructions: We have not considered the use of force for such a purpose consistent with that respect for the independent sovereignty of other members of the family of nations, which is the most important principle of international law and chief protection of weak nations against the oppression of the strong. . . . It is doubtless true that the non-payment of public debts may be accompanied by such circumstances of fraud and wrongdoing or violation of treaties as to justify the use of force. This government would be glad to see an international consideration of the subject which shall discriminate between such cases and the simple non-performance of a contract with a private person, and a resolution in favour of reliance upon peaceful means in cases of the latter class. It is not felt, however, that the conference at Rio should undertake to make such a discrimination or to resolve upon such a rule. Most of the American countries are still debtor nations, while the countries of Europe are the creditors. If the Rio conference, therefore, were to take such action it would have the appearance of a meeting of debtors resolving how their creditors should act, and this would not inspire respect. The true course is indicated by the terms of the program, which propose to request the second Hague conference, where both creditors and debtors will be assembled, to consider the subject.62 Echoing such diplomatic approach of the US, the outcome of the Rio Conference was a resolution, adopted by unanimous vote on 22 August 1906, according to which states would consider the advisability of inviting the second peace conference at the Hague to examine the question of the compulsory collection of public debts, 60 ibid. 61 Lafeber (n 41) 198–199. 62 Hershey (n 59) 39–40.

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Prelude to criminalisation of aggression and, in general, the best means tending to diminish among nations conflicts of purely pecuniary origin.63

The Second Hague Conference, which had been at first envisaged by Secretary of State John Hay in 1904,64 was held from 15 June to 18 October 1907, at the initial proposal of Theodore Roosevelt. Thirteen Conventions and a Declaration were annexed to its Final Act. For the very first time, all Latin American countries (but Honduras and Costa Rica) took part in the Conference.65 As for the US, on 19 June General Horace Porter received a letter from Mr Joseph H Choate, according to which: the United States of America reserves the right to present to the Conference by the intermediary of the First Commission . . . the question ‘of reaching an agreement for the limitation of the employment of force in the recovery of ordinary public debts, having their origin in contracts.66 On 16 July 1907, at the ffth meeting of the frst subcommission of the First Commission, Porter commented upon a US draft proposition concerning the payment of contract debts as follows: There is a general and growing impression that the employment of armed force to collect unadjusted contract debts from a debtor nation, unless restricted by some general international agreement, may become the most fruitful source of wars, or at least give rise to frequent blockades, threats of hostilities, and rumors of warlike intentions calculated to interrupt commerce, affect the markets of the world adversely, create a feeling of uneasiness, and disturb not only the countries concerned in the dispute but neutral nations as well. . . . There is no inherent right on their part to have a private contract converted in a national obligation. . . . The ablest writers upon international law consider that the State owes no such duty to its citizens or subjects, and that its action in such cases is entirely optional.67 63 ibid 26–27. 64 US Secretary of State, John Hay, Circular to the representatives of the United States accredited to the governments signatories to the acts of The Hague Conference, 1899 on 21 October 1904 in US Department of State, Papers relating to the foreign relations of the United States, with the annual message of the president transmitted to Congress December 6, 1904 (US GPO 1904) 10. 65 Thomas E Holland, ‘The Hague Conference of 1907’ (1908) 24 LQR 76, 77. See also Pérez Triana and Stead (n 57) X. 66 Joseph H Choate, Letter to the President of the First Commission of the Hague Conference of 1907 on 19 June 1907 (second plenary meeting) (as cited in James Brown Scott (ed), The Proceedings of the Hague Peace Conferences. Translation of the Official Texts (OUP 1921 vol I) 55). 67 General Horace Porter, Statement before the First subcommission of the First Commission of the Second International Peace Conference on 16 July 1907 (as cited in James Brown Scott (ed), The Proceedings of the Hague Peace Conferences. Translation of the Official Texts (OUP1921 Vol II) 226–232).

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Accordingly, the fnal draft of the US proposal, in its relevant parts, provided as follows: In order to prevent armed conflicts between nations, of a purely pecuniary origin growing out of contract debts claimed from the Government of one country by the Government of another country as due to its nationals, the signatory Powers agree not to resort to armed force for the collection of such contract debts. This stipulation, however, shall not apply when the debtor State rejects or ignores a proposal of arbitration or, in case of acceptance, makes it impossible to establish the compromis, or, after arbitration, fails to comply with the award.68 Article 1 of the Convention respecting the limitation of the employment of force for recovery of contract debts contained just some insignifcant changes in words and commentators considered it ‘a result that refects much honor on the United States and that must give satisfaction to everybody’.69 However, the Drago doctrine as it was eventually incorporated in this Convention did depart signifcantly from the original one because the former did not exclude the use of force tout court. Indeed, Luis Drago, while voting in favour of the US proposition, had forwarded a reservation according to which ‘[p]ublic loans, secured by bond issues and constituting the national debts, shall in no case give rise to military aggression or the material occupation of the soil of American nations’.70 In any case, the Second Peace Conference was doubtless an important step towards the limitation of the use of force. As Richard Olney, former US Secretary of State, put it: The interdependent relations of states, constantly increasing in number and closeness and strength, are constantly making war increasingly difficult, impracticable and repulsive. They are steadily bringing nearer and making more imperative agreements between the civilized states of the world, by which war, already branded as the worst possible violation of the dictates of common sense and sound morals, shall also be a crime in the sight of international law and as such be both preventable and punishable by all the forces which organized civilization may be able to command.71 Yet the US decided not to sign the sixth and seventh conventions as it was believed they could impair the US right to self-defence.72

68 US Proposition about Ordinary Public Debts on 29 August 1907 (as cited in Brown Scott (n 67) 913 [emphasis in original]). 69 Baron D’Estournelles De Constant, ‘The Results of the Second Hague Conference’ (1907) 1 International Conciliation 1, 14–15. 70 Luis M Drago, Statement before the First subcommission of the First Commission of the Second International Peace Conference on 27 July 1907 (as cited in Brown Scott (n 67) 307). 71 Richard Olney, ‘The Development of International Law’ (1907) 1 AJIL 418, 429–430. 72 David Jayne Hill, ‘The Net Result at The Hague’ (1907) 1 International Conciliation 1, 8.

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4 The search for justifications Towards the end of the nineteenth century commercial interests led the US to use armed force several times within a few years both in the Caribbean and the Pacific. Therefore, while trying to limit states’ recourse to armed force through diplomatic channels, the Government had to justify its military interventions. The turning point for this new policy was the 1898 SpanishAmerican War.73 The rebellion against the Spanish in Cuba had been unfolding since 1895, but the US Administration decided to intervene only in April 1898. Interestingly, in 1897 while listing the measures which remained to be tried for the US to overcome the troublesome situation in Cuba, President William McKinley categorically excluded forcible annexation because that, he said, ‘by our code of morality would be criminal aggression’.74 On 15 February 1898, the sinking of the US ship Maine in the Havana Harbour due to an explosion coming from outside created the battle cry for the war.75 According to McKinley, the grounds for the 1898 intervention were: the interests of humanity; the duty to protect the life and property of our citizens in Cuba; the right to check injury to our commerce and people through the devastation of the Island, and, most importantly, the need of removing at once and forever the constant menace and the burdens entailed upon our Government by the uncertainties and perils of the situation caused by an endurable disturbance in Cuba.76 Also, he added: ‘In the name of humanity, in the name of civilization, in behalf of endangered American interests which give us the right and the duty to speak and to act, the war in Cuba must stop’.77 In any case, [a]s a result of McKinley’s foreign policy choices in early 1898, the United States first went to war, then became responsible for a series of interventions in Cuba to protect US interests, and next sank into a decade-long involvement

73 US Department of State, Office of the Historian, ‘The Spanish-American War, 1898’ accessed 21 April 2019. 74 US President, William McKinley, Annual Message to the Congress on 6 December 1897 (as cited in Moore (n 36) 139). 75 Lafeber (n 41) 140. 76 US President, William McKinley, Message of the president United States on 5 December 1898 in US Department of State, Papers relating to the foreign relations of the United States, with the annual message of the president transmitted to Congress December 5, 1898 (US GPO 1898) LIII. 77 US President, William McKinley, Message of the president United States on 5 December 1898 in US Department of State, Papers relating to the foreign relations of the United States, with the annual message of the president transmitted to Congress December 5, 1898 (US GPO 1898) LIII.

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in Asia that led to more war, conflict with Japan and Russia, and the acceleration of the Chinese revolution.78 Moreover, while during the Spanish-American war the US annexed Hawaii,79 the treaty of peace with Spain (i.e. the Treaty of Paris signed on 10 December 1898) provided for an independent Cuba and also granted the cessation of Guam and Puerto Rico, and the selling of the Philippines to the US.80 Since all these territories were not independent states, the concomitant legal debate on the duty not to intervene, or even the very concept of ‘conquest’ did not apply to them. Indeed, in the so-called Insular Cases, the US Supreme Court ruled that the people of Puerto Rico had no full citizenship rights as that territory was acquired by conquest.81 The Philippine war is a convincing example of this double-standard attitude. Article 3 of the Treaty of Paris provided for the cessation of the Philippine islands to the US Government,82 but a rebellion led by Emilio Aguinaldo broke up few days before the US Senate’s ratification of the agreement in question.83 Therefore, the three-year conflict which followed could easily be assimilated to the colonial European practice of the time because ‘Americans tended to refer to the ensuing conflict as an “insurrection” rather than acknowledge the Filipinos’ contention that they were fighting to ward off a foreign invader’.84 Later, in 1904, President Roosevelt dispatched US ships in the Dominican Republic at the request of a US Company called Santo Domingo Improvement, to which the local Government had failed to pay customs.85 In his 1904 annual message to the Congress, Roosevelt gave a new interpretation of the Monroe Doctrine and claimed: Chronic wrongdoings, or an impotence which results in a general loosening of the ties of the civilized society, may in America, as elsewhere, ultimately require intervention by some civilized nations, and in the Western Hemisphere the adherence of the United States to the Monroe Doctrine may force the United States, however reluctantly, in flagrant cases . . . to the exercise of an international police power. . . . We would interfere with them only in the last resort, and then only if it became evident that their inability or unwillingness to do justice at home and abroad had violated the rights of the United

78 Lafeber (n 41) 144–145. 79 ibid 148. 80 US Department of State, Office of the Historian, ‘The Spanish-American War, 1898’ accessed 21 April 2019. 81 Lafeber (n 41) 153. 82 Treaty of Peace between the United States and Spain (signed 10 December 1898) 30 Stat 1754, TS 343. 83 US Department of State, Office of the Historian, ‘The Philippine-American War, 1899– 1902’ accessed 21 April 2019. 84 ibid. 85 Lafeber (n 41) 198.

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As a result, although it did not provide for it explicitly, the Monroe Doctrine was then interpreted as to justify several US interventions, especially in Latin America.87 These were at the same time functional to the US national interests and benefcial to humanity as a whole. Previous interventions in Cuba, Venezuela88 and Panama (to prevent – in the interests of ‘collective civilization’ – Colombia from suppressing the 1903 revolution in Panama),89 could be seen throughout the lens of the Monroe Doctrine. The degree of the ‘interference’ could vary and did not always imply the use of armed force: sometimes it was indeed sufficient to resort to the threat of force (e.g. the 1902–1903 Venezuelan crises). However, in his 1905 annual address to the Congress, President Roosevelt admitted that ‘in some South American countries there has been much suspicion lest we should interpret the Monroe Doctrine as in some way inimical to their interests’.90 Indeed, ‘[i]n reality, Roosevelt had not supported, but had inverted the Monroe Doctrine: in 1823 it had been created to protect Latin American revolutionaries against foreign intervention; in 1905, he redefined it to protect US interventionism against Latin American revolutionaries’.91 In any case, he reiterated what has been affirmed in 1904, by stating: [i]t is always possible that wrong actions toward this Nation, or toward citizens of this Nation, in some state unable to keep order among its own people, 86 US President, Theodore Roosevelt, Annual Message to the Congress on 6 December 1904. 87 US Department of State, Office of the Historian, ‘Monroe Doctrine, 1823’ accessed 21 April 2019. 88 US Department of State, Office of the Historian, ‘Venezuela Boundary Dispute, 1895–1899’ accessed 21 April 2019. 89 Charles G Fenwick, ‘Intervention: Individual and Collective’ (1945) 39 AJIL 645, 652. 90 US President, Theodore Roosevelt (n 59). 91 Lafeber (n 41) 199.

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unable to secure justice from outsiders, and unwilling to secure justice to those outsiders who treat it well, may result in our having to take action to protect our rights; but such action will not be taken with a view to territorial aggression, and it will be taken at all only with extreme reluctance and when it has become evident that every other resource has been exhausted.92 After its enunciation, Roosevelt’s corollary served as a justifcation for new US interventions in Cuba, Nicaragua, Haiti and the Dominican Republic. In 1906, for instance, while commenting on his decision to intervene once again in Cuba, President Roosevelt stated: It is unthinkable that we should continue a policy under which a given locality may be allowed to commit a crime against a friendly nation, and the United States Government limited, not to preventing the commission of the crime, but, in the last resort, to defending the people who have committed it against the consequences of their own wrongdoing. Last August an insurrection broke out in Cuba which it speedily grew evident that the existing Cuban Government was powerless to quell. . . . Thanks to the preparedness of our Navy, I was able immediately to send enough ships to Cuba to prevent the situation from becoming hopeless.93 However, if the insurrectionary habit becomes confirmed in the Island, it is absolutely out of the question that the Island should continue independent; and the United States, which has assumed the sponsorship before the civilized world for Cuba’s career as a nation, would again have to intervene and to see that the government was managed in such an orderly fashion as to secure the safety of life and property.94 As for Nicaragua, in 1909, 400 US Marines were sent in to protect the revolt, but when the local dictator Zelaya ordered the killing of two US mercenaries, President Taft decided to intervene.95 On that occasion, the US Secretary of State, Philander C Knox, wrote a diplomatic note to the Nicaraguan Chargé d’Affaires and claimed: The United States is convinced that the revolution represents the ideals and the will of a majority of the Nicaraguan people more faithfully than does the 92 US President, Theodore Roosevelt (n 59). 93 US President, Theodore Roosevelt, Annual Address to Congress on 3 December 1906 in US Department of State, Papers relating to the foreign relations of the United States with the annual message of the president transmitted to Congress December 3, 1906 (In two parts) (Part I, US GPO 1906) XLIII–XLIV. 94 ibid XLV. 95 Lafeber (n 41) 219.

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Prelude to criminalisation of aggression Government of President Zelaya. . . . There is now added the fact . . . that there are already indications of a rising in the western Provinces in favour of a presidential candidate intimately associated with the old régime. In this it is easy to see new elements tending toward a condition of anarchy which leaves . . . no definite responsible source to which the Government of the United States could look for the killing of Messrs Cannon and Groce, or indeed for the protection which must be assured American citizens and American interests in Nicaragua.96

Indeed, in his annual message to the Senate, Taft affrmed: At the date when this message is printed this Government has terminated diplomatic relations with the Zelaya Government, . . . and is intending to take such future steps as may be found most consistent with its dignity, its duty to American interests, and its moral obligations to Central America and to civilization.97 Therefore, American forces were sent to both coasts of Nicaragua to be in readiness should occasion arise to protect Americans and their interests, and remained there until the war was over and peace had returned to that unfortunate country. These events, together with Zelaya’s continued exactions, brought him so clearly to the bar of public opinion that he was forced to resign and to take refuge abroad.98 In the summer of 1912, another revolution arose and ‘the Government of that Republic having admitted its inability to protect American life and property against acts of sheer lawlessness on the part of the malcontents, and having requested this Government to assume that offce, it became necessary to land over 2,000 Marines and bluejackets in Nicaragua’.99 Wilson dealt again with the Monroe Doctrine on the occasion of his 1915 address to the Union. While the US ‘will aid and befriend Mexico, but we will not coerce her’,100 governments could use their military arms to defend the security

96 US Secretary of State, Philander C Knox, Note to the Nicaraguan Chargé d’Affaires on 1 December 1909 in US Department of State, Papers relating to the foreign relations of the United States with the annual message of the president transmitted to Congress December 7, 1909 (US GPO 1909) 456. 97 US President, William H Taft, Annual Address of the President on 7 December 1909. 98 US President, William H Taft, Annual Address of the President on 6 December 1910. 99 US President, William H Taft, Annual Address of the President on 3 December 1912. 100 US President, Woodrow Wilson, Annual Address of the President on 7 December 1915 in US Department of State, Papers relating to the foreign relations of the United States with the address of the president to Congress December 7, 1915 (US GPO 1915) IX–XI.

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and independence of their own peoples, as well as ‘the rights of those with whom they have made common cause, should they also be put in jeopardy’.101 The situation in Haiti (1915–1934) was the most blatant case of the US new power of international police.102 After the assassination of the Haitian President in July 1915, Marines were sent to Haiti. A few days after, Caperton, Commander of the US forces in the Haitian waters, issued a Proclamation which stated: I am directed by the United States Government to assure the Haitian people that the United States has no object in view except to ensure, to establish, and to help maintain Haitian independence and the establishment of stable and firm government by the Haitian people. . . . It is the intention to retain the United States forces in Haiti only so long as will be necessary for this purpose.103 Later, US Secretary of State Hughes justifed the continuous presence of the US forces in Haiti by observing: ‘In connection with the immediate exigency of preserving peace, it appeared essential from a humanitarian standpoint to aid the Haitian people to free themselves from the hopeless conditions which continued revolutions and a policy of despotic militarism had produced’.104 In 1916, relying on an alleged violation of the 1907 treaty, the US started the occupation of the Dominican Republic which would last till 1924.105 On 17 May, Admiral Caperton issued a proclamation to the people of the Dominican Republic which stated: in consequence of the fact that rebels have taken possession of the city, . . . and after all means to arrive to a peaceful settlement of the situation had been exhausted, it became necessary to have the city occupied by forces of the United States of America.106 Both Haiti and the Dominican Republic, which shared the island of Hispaniola, were strategic for the defence of the Panama Canal, which was officially opened in 1914. In particular, the War in Europe had led the US to fear that Germany could have occupied it.107

101 ibid XIII. 102 US Department of State, Office of the Historian, ‘U.S. Invasion and Occupation of Haiti, 1915–34’ accessed 21 April 2019. 103 Admiral William B Caperton, Proclamation of the United States on 9 August 1915 in US Department of State (n 100) 481. 104 US Secretary of State, Charles E Hughes, ‘Observations on the Monroe Doctrine’ (1923) 17 AJIL 611, 623. 105 Fenwick (n 89) 655. 106 Admiral William B Caperton, Notice to the people of the Dominican Republic on 17 May 1916 in US Department of State, Papers relating to the foreign relations of the United States with the address of the president to Congress December 5, 1916 (US GPO 1916) 228. 107 Hans Schmidt, The United States Occupation of Haiti, 1915–1934 (Rutgers 1971) 9.

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In conclusion, the 1898 intervention in Cuba marked a milestone in the US international relations, as since then they increased recourse to military force. Yet at the beginning of the twentieth century the US Administration combined traditional justifications, including the defence of the US interests (e.g. the violation of a treaty), or the protection of lives and property of US nationals, with new concepts, such as ‘the interests of humanity’ or the necessity of exercising an ‘international police’ power. All these arguments, which will be recurrent in the new millennium, were often used in combination with references to concepts such as the unwillingness or inability on the side of the ‘victim’ state to bring justice, grant order or protect US citizens’ lives and property.

5 The First World War At the outbreak of the Great War in Europe, on 4 August 1914, President Wilson issued a Proclamation of Neutrality Act, according to which: the statutes and the treaties of the United States and the law of nations alike require that no person, within the territory and the jurisdiction of the United States, shall take part, directly or indirectly, in the said wars, but shall remain at peace with all the said belligerents, and shall maintain a strict and impartial neutrality. . . . [W]hile the free and full expression of sympathies in public and private is not restricted by the laws of the United States, military forces in aid of a belligerent cannot lawfully be originated or organized within its jurisdiction; and . . ., while all persons may lawfully and without restriction by reason of the aforesaid state of war manufacture and sell within the United States arms and munitions of war, and other articles ordinary known as ‘contraband of war’, yet they cannot carry such articles upon the high seas for the use or services of a belligerent, nor can they transport soldiers and officers of a belligerent, or attempt to break any blockade which may be lawfully established and maintained during the said wars without incurring the risk of hostile capture and the penalties denounced by the law of nations in that behalf.108 In the following months, neutrality was further interpreted so as to imply the prohibition for US bankers to grant loans to any foreign nation at war, and for American manufacturers to sell to belligerents submarines or their component parts.109 Indeed, the US Government would have taken ‘all legal means to prevent the exportation of such craft and manufactured parts’.110

108 US President, Woodrow Wilson, Proclamation of Neutrality of August 4, 1914 with regard to the war between Austria-Hungary and Serbia in US Department of State, Papers relating to the foreign relations of the United States, 1914. Supplement, The World War (US GPO 1914) 547, 550–551. 109 US Secretary of State, William J Bryan, Telegram to the JP Morgan and Company on 15 August 1914 in US Department of State (n 108) 580. 110 Robert Lansing, The Counselor for the Department of State to James H Hayden on 1 December 1914 in US Department of State (n 108) 577.

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Also, the Department of State issued a Memorandum on 19 September 1914 declaring that ‘[c]ircumstantial evidence, supporting a rumor or suspicion that a merchant vessel intends to furnish a belligerent warship with fuel or other supplies on the high seas, is sufficient to warrant detention of the vessel until its intention can be investigated’.111 However, it was added, [a] neutral can only be charged with unneutral conduct when the supplies, furnished to a belligerent warship, are furnished directly to it in a port of the neutral or through naval tenders or merchant vessels acting as tenders departing from such port’.112 As for the responsibility arising from the damages linked to the practice of conversion of merchant vessels into warships at the high seas, on 19 August 1914, the Secretary of State disclaimed as a correct statement the assertion contained in a British note that the US Government would be held ‘responsible for any damages to British trade or shipping, or injury to British interests generally, which may be caused by such vessels having been equipped at, or departing from, United States ports’.113 The traditional difference between acts committed by American nationals and those attributable to the US Government was reaffirmed by a circular of the Department of State on 15 October 1914, which read as follows: generally speaking a citizen of the United States can sell to a belligerent government or its agent any article of commerce which he pleases. He is not prohibited from doing this by any rule of international law, by any treaty provision, or by any statute of the United States.114 Moreover, ‘a neutral government is not compelled by international law, by treaty, or by statute to prevent these sales to a belligerent’.115 Indeed, [f]or the Government of the United States itself to sell to a belligerent nation would be an unneutral act, but for a private individual to sell to a belligerent any product of the United States is neither unlawful nor unneutral, nor within the power of the Executive to prevent or control.116 Still, according to the Department of State, ‘the observance of neutrality in the conficts now engaging certain European powers requires American citizens to 111 US Department of State, Memorandum issued by the Secretary of State on 19 September 1914 in US Department of State (n 108) 619–620. 112 ibid. 113 William J Bryan, The Secretary of State to the British Chargé d’Affaires on 19 August 1914 in US Department of State (n 108) 602. 114 US Department of State, Public circular issued by the Secretary of State October 15, 1914, regarding neutrality and trade in contraband in US Department of State (n 108) 574. 115 ibid. 116 ibid.

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avoid participation in those conficts’.117 At the same time, neutrality could not be equal to perfect parity. Indeed, while the Austro-Hungarian Government had claimed that the US Government as a neutral state had the duty to sell arms only to the weaker side, the US Secretary of State argued: The recognition of an obligation of this sort, unknown to international practice of the past, would impose upon every neutral nation a duty to sit in judgment of the progress of the war and to restrict its commercial intercourse with a belligerent whose naval successes prevented the neutral from trade with the enemy.118 Furthermore, [a] nation whose principle and policy it is to rely upon international obligations and international justice to preserve its political and territorial integrity, might become the prey of an aggressive nation whose policy and practice it is to increase its military strength during time of peace with the design of conquest, unless the nation attacked can, after the war had been declared, go into the markets of the world and purchase the means to defend itself against the aggressor.119 In short, [t]he principles of international law, the practice of nations, the national safety of the United States and other nations without great military and naval establishments, the prevention of increased armies and navies, the adoption of peaceful methods of the adjustment of international differences, and, finally neutrality itself are opposed to the prohibition by a neutral nation of the exportation of arms, ammunition, or other munitions of war to belligerent powers during the progress of the war.120 Interestingly, in 1915 Senator Hitchcock protested against this attitude and stated: ‘International Law is entirely out of harmony with the spirit of the age in permitting this traffc’.121 In fact, war was not any more a legitimate method of settling international disputes. Yet, this idea was not very popular among policy-makers.122 117 US Department of State, Circular concerning the enlistment of Americans in foreign armies on 1 November 1915 in US Department of State, Papers relating to the foreign relations of the United States, 1915. Supplement, The World War (US GPO 1915) 773. 118 US Secretary of State, Robert Lansing, Note to the Ambassador in Austria-Hungary on 12 August 1915 in US Department of State (n 117) 794. 119 ibid. 120 ibid. 121 Garner (n 12) 786 [emphasis in original]. 122 ibid.

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The US Government hesitated for a long time before declaring war on Germany in 1917. Indeed, despite the fact that the 1915 torpedoing of the Lusitania and Arabic by the Germans caused the death of 131 US nationals and shocked the US public opinion, Wilson avoided entering into war. In his 1915 address to Congress he affirmed: ‘[W]e have stood apart, studiously neutral. It was our manifest duty to do so’.123 In other words, war was still considered just as a means to assert the rights of a people against aggression,124 even when events occurred that were ‘absolutely contrary to the rules, the practices, and the spirit of modern warfare’ and a ‘violation of many sacred principles of justice and humanity’.125 Two years later, the President came to a different conclusion. On 24 March 1916, a French cross-channel ferry, the Sussex, was sunk by the German UB-29 and 25 US citizens who were on board were killed.126 As a consequence, the German Government gave the US diplomatic assurances that it would abandon its U-boat campaign around Britain and in the Mediterranean. However, on 31 January 1917, Germany communicated its will to resume the policy of using submarines against any shipping seeking to pass through certain areas of the high seas. Thus, Wilson stated: If it is still the purpose of the Imperial Government to prosecute relentless and indiscriminate warfare against vessels of commerce by the use of submarines without regard to what the Government of the United States must consider the sacred and indisputable rules of international law and the universally recognized dictates of humanity, the Government of the United States is at last forced to the conclusion that there is but one course it can pursue.127 On 3 February 1917, Wilson announced that all diplomatic relations between the two countries were severed and added: if American ships and American lives should in fact be sacrificed by their naval commanders in heedless contravention of the just and reasonable understandings of international law and the obvious dictates of humanity, I shall take the liberty of coming again before the Congress, to ask that authority be given me to use any means that may be necessary for the protection of our seamen and our people in the prosecution of their peaceful and legitimate errands on the high seas.128

123 124 125 126

US President, Woodrow Wilson (n 100) IX. ibid XII. Garner (n 12) 608. Arthur S Link, Wilson, Volume IV: Confusions and Crises, 1915–1916 (Princeton University Press 1964) 228. 127 US President, Woodrow Wilson, Address to a Joint Session of Congress on the Severance of Diplomatic Relations with Germany on 3 February 1917. 128 ibid.

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Towards the end of the same month, the President went back to the Congress and while conceding that ‘the overt act which I have ventured to hope the German commanders would in fact avoid has not occurred’, he affrmed: there have been certain additional indications and expressions of purpose on the part of the German press and the German authorities which have increased rather than lessened the impression that, if our ships and our people are spared, it will be because of fortunate circumstances or because the commanders of the German submarines which they may happen to encounter exercise an unexpected discretion and restraint rather than because of the instructions under which those commanders are acting.129 Therefore, ‘[s]ince it has unhappily proved impossible to safeguard our neutral rights by diplomatic means against the unwarranted infringements they are suffering at the hands of Germany, there may be no recourse but to armed neutrality’.130 By armed neutrality, he meant the possibility of supplying US merchant ships with defensive arms, which – given the absence of a vote by the Senate – was eventually authorised by a presidential executive order.131 In any case, he still considered war as ultima ratio measure to be adopted in case an act of aggression by another country occurred. Indeed, he concluded his address by stating: ‘War can come only by the wilful acts and aggressions of others’.132 On 2 April 1917, Wilson summoned Congress with urgency and asked for a proclamation of the state of war. While being consistent with the US traditional approach centred on neutrality rights, freedom of commerce and protection of lives and property of US nationals, he affirmed with greater impetus those arguments which had been advanced by the Administration over the previous decades making reference to the interests of humanity and the US role as international police. Wilson claimed as follows: International law had its origin in the attempt to set up some law which would be respected and observed upon the seas, where no nation had right of dominion and where lay the free highways of the world. . . . This minimum of right the German Government has swept aside under the plea of retaliation and necessity.133 The German war against commerce was therefore ‘a warfare against mankind’, declared against all nations; and those wrongs were not common ones, rather ‘they cut to the very roots of human life’.134 129 US President, Woodrow Wilson (n 6). 130 ibid [emphasis added]. 131 US Department of State, the Office of the Historian, ‘American Entry into World War I, 1917’ accessed 21 April 2019. 132 US President, Woodrow Wilson (n 127). 133 US President, Woodrow Wilson, Address to a Joint Session of Congress Requesting a Declaration of War Against Germany on 2 April 1917. 134 ibid.

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However, he added: [O]ur object now . . . is to vindicate the principles of peace and justice in the life of the world as against selfish and autocratic power and to set up amongst the really free and selfgoverned peoples of the world such a concert of purpose and of action as will henceforth insure the observance of those principles. Neutrality is no longer feasible or desirable where the peace of the world is involved and the freedom of its peoples, and the menace to that peace and freedom lies in the existence of autocratic governments backed by organized force which is controlled wholly by their will, not by the will of their people. . . . We have no selfish ends to serve. We desire no conquest, no dominion. . . . We are but one of the champions of the rights of mankind.135 Along with these reasons, there was also the need to prevent Germany from making an alliance with Mexico against the US. This was envisaged in the Zimmermann Telegram, a secret document addressed to the German representative in Mexico that was intercepted and code broken by the British.136 However, Wilson did not mention it in his statement. This war for the rights of mankind was still fundamentally linked with US national interests. Indeed, as Austria-Hungary has ‘not made war upon us or challenged us to defend our right and our honor’, the US did not declare war on her till December.137 In his 1918 address to the Congress, Wilson stated: What we demand in this war . . . is that the world be made fit and safe to live . . . for every peace-loving nation which, like our own, wishes to live its own life, determine its own institutions, be assured of justice and fair dealing by the other peoples of the world as against force and selfish aggression.138 In any case, this was a war in which ‘civilization itself seem[ed] to be in the balance’ and America was ‘privileged to spend her blood and her might for the principles that gave her birth and happiness and the peace which she has treasured’.139 Therefore, the end of the ‘bygone era’ coincided with the end of the US impartial neutrality towards foreign wars: peace, justice and humanity, which had for long justifed such neutrality, were then reinterpreted as to leave no choice but for the US to abandon it; and the principles which gave birth to the US as an independent state, were now functional to its global role of international police.

135 ibid. 136 Jan Willem (Wim) Schulte Nordholt, Woodrow Wilson: A Life for World Peace (University of California Press 1991) 220. 137 US Department of State, the Office of the Historian, ‘American Entry into World War I, 1917’ accessed 21 April 2019. 138 US President, Woodrow Wilson, Address to the Congress on 8 January 1918. 139 US President, Woodrow Wilson (n 133).

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6 Conclusion Since the Declaration of Independence (1776), the history of the US has been always intertwined with the development of the jus ad bellum. For more than a century, the US did use military force just in a limited number of occasions. This found a theoretical support in the 1823 Monroe Doctrine. Meanwhile, the US Administration developed other legal arguments aimed at justifying its conduct towards belligerent states (neutrality doctrine) and gave a significant contribution to the notion of anticipatory self-defence on the occasion of the Caroline case. Towards the end of the nineteenth century, the US participated in the most important conferences of that time, becoming a leading country in the codification of international law in relation to the pacific settlement of disputes; this also led to the first attempts to limit the use of force by states. On the other hand, the 1898 Spanish-American War inaugurated a new phase in the US international relations, especially towards the states of the Western Hemisphere: the US intervened more and more often in their internal affairs, sometimes resorting to the use of military force. Since these interventions could not be grounded on selfdefence, the US mostly justified them with the need to protect the lives and property of its citizens when internal disorders of a state threatened them, and the latter was unwilling or unable to preserve order or provide justice. In addition, they relied on the ‘interests of humanity’ or an alleged US power of international police. With the First World War, this new phase reached a point of no return. Over the century, the Administration used the very same concepts, often of a natural-law origin, to justify both its ‘non-interventions’ and its interventions.

Bibliography International Treaties, case law and legal documents Treaty of Peace between the United States and Spain (signed 10 December 1898) 30 Stat 1754, TS 343

Secondary sources Acheson D., ‘The Arrogance of International Lawyers’ (1967–1968) 2 International Lawyer 591 Brown Scott J., The Hague Peace Conferences of 1899 and 1907A Series of Lectures Delivered before the Johns Hopkins University in the Year 1908 (The Johns Hopkins Press 1909 vol II) ———, The Hague Conventions and Declarations of 1899 and 1907: Accompanied by Tables of Signatures, Ratifications and Adhesions of the Various Powers, and Texts of Reservations (OUP 1915) ———, The Proceedings of the Hague Peace Conferences: Translation of the Official Texts (OUP 1921 vol I and II) D’Estournelles De Constant, ‘The Results of the Second Hague Conference’ (1907) 1 International Conciliation 1 de Vattel E., The Law of Nations or Principles of the Law of Nature Applied to the Conduct and Affairs of Nations and Sovereigns (GG and J Robinson 1797)

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Dinstein Y., War, Aggression and Self-defense (5th ed, CUP 2011) Drago L. M. and Nettles H. E., ‘The Drago Doctrine in International Law and Politics’ (1928) 8 The Hispanic American Historical Review 204 Eagleton C., ‘The Attempt to Define War’ (1932–1933) 15 International Conciliation 237 Fenwick C. G., ‘Intervention: Individual and Collective’ (1945) 39 AJIL 645 Forcese C., Destroying the Caroline: The Frontier Raid that Reshaped the Right to War (Irwin Law Inc 2018) Garner J. W., ‘Some Questions of International Law in the European War’ (1916) 10 AJIL 749 Hathaway O. A. and Shapiro S. J., The Internationalists – And Their Plan to Outlaw War (Allen Lane 2017) Hershey A. S., ‘The Calvo and Drago Doctrines’ (1907) 1 AJIL 26 Hill D. J., ‘The Net Result at The Hague’ (1907) 1 International Conciliation 1 Holland T. E., ‘The Hague Conference of 1907’ (1908) 24 LQR 76 Holls F. W., The Peace Conference at The Hague and Its Bearings on International Law and Policy (The MacMillan Company 1900) Hughes C. E., ‘Observations on the Monroe Doctrine’ (1923) 17 AJIL 611 Jennings R. Y., ‘The Caroline and McLeod Cases’ (1938) 32 AJIL 82 Jessup P., ‘Harvard Research Draft Convention on Rights and Duties of States in Case of Aggression’ (1939) 33 AJIL Supp 819 Klabbers J., International Law (2nd ed, CUP 2017) Lafeber W., The Cambridge History of American Foreign Relations: American Search for Opportunity, 1865–1913 (CUP 1993 vol II) Link A. S., Wilson, Volume IV: Confusions and Crises, 1915–1916 (Princeton University Press 1964) Low S., ‘The International Conference of Peace’ (1899) 169 The North American Review 625 Moore J. B. (ed), Digest of International Law as Embodied in Diplomatic Discussions, Treaties and Other International Agreements, International Awards, the Decisions of Municipal Courts, and the Writings of Jurists, and Especially in Documents, Published and Unpublished, Issued by Presidents and Secretaries of State of the United States, the Opinions of the Attorneys-General, and the Decisions of Courts, Federal and State (GPO 1906 vols 1–8) ———, ‘Application of the Principle of International Arbitration on the American Continents’ (1903) 22 Annals of the American Academy of Political and Social Science 35 Olney R., ‘The Development of International Law’ (1907) 1 AJIL 418 Pérez Triana S. and Stead W. T., La Doctrina Drago. Colleción de documentos (Imprenta de Wertheimer, Lea y Cia 1908) Reeves J. S., ‘The Influence of the Law of Nature upon International Law in the United States’ (1909) 3 AJIL 547 Schmidt H., The United States Occupation of Haiti, 1915–1934 (Rutgers 1971) Schulte Nordholt J. W., Woodrow Wilson: A Life for World Peace (University of California Press 1991) Schultz D. A., The Encyclopedia of American Law (Library of Congress Cataloging-in Publication Data 2002) US Department of State, Papers relating to the foreign relations of the United States, with the annual message of the president transmitted to Congress December 5, 1898 (US GPO 1898) ———, Papers relating to the foreign relations of the United States, with the annual message of the president transmitted to Congress December 6, 1904 (US GPO 1904)

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———, Papers relating to the foreign relations of the United States with the annual message of the president transmitted to Congress December 7, 1909 (US GPO 1909) ———, Papers relating to the foreign relations of the United States, 1914. Supplement, The World War (US GPO 1914) ———, Papers relating to the foreign relations of the United States, 1915. Supplement, The World War (US GPO 1915) ———, Papers relating to the foreign relations of the United States with the address of the president to Congress December 7, 1915 (US GPO 1915) ———, Papers relating to the foreign relations of the United States with the address of the president to Congress December 5, 1916 (US GPO 1916) Wright Q., ‘Repeal of the Neutrality Act’ (1942) 36 AJIL 8

2

The international delict of aggression (1918–1944)

1 Introduction Following the end of the First World War, a new phase in international relations began. First, the notion of international crimes was discussed within the Commission on the Responsibility of the Authors of the War at the Paris Peace Conference; second, an international organisation for the maintenance of peace, namely the League of Nations, was established for the very first time; third, in the decades which followed the Great War, states proactively contributed to either the codification or the progressive development of international law through the conclusion of a number of international instruments. The subject states tended to regulate the most was the use of force in their international relations. The socalled Pact of Paris (1928), for instance, had a universal adherence. However, all the agreements which will be discussed in the present chapter were not sufficient to prevent the Second World War from happening. During the war, a United Nations War Crimes Commission (hereinafter the UNWCC) was established with the purpose of investigating the crimes committed by the Axis Powers in connection with the conflict. Again, the central question was whether the planning and launching of an aggressive war should be considered a crime. This chapter will investigate the US position from 1918 to 1944. Over this period, the US gave a fundamental contribution to the regulation of the use of force and considered aggression as an international wrongful act, although no criminal responsibility was attached to those people responsible for its commission. This chapter is structured as follows. Section 2 deals with the 1919 debate over the relevant provisions of the Versailles Treaty. Section 3 describes the regional treaties to which the US became a Party during the 1920s. Section 4 shows how in the 1920s the protection of lives and property of US was still the main justification for the US interventions in Latin America. Section 5 focuses on the negotiation process of the so-called Pact of Paris. Section 6 relates to the US practice in the 1930s, when aggression came into relevance on the occasion of both the conclusion of regional treaties and the talks for a universal disarmament. Section 7 analyses the interpretation of the Pact of Paris given by the US Administration in the 1930s and up until the moment the US entered into the Second World War. Section 8 concerns the implications that the emergence of the notion

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of aggression had for concepts such as neutrality and self-defence. Finally, Section 9 deals with the discussions about the establishment of the Organization of the United Nations (UN) and the debate within the UNWCC.

2 The Paris Peace Conference With the end of the First World War approaching, President Wilson, in his famous speech in early January 1918, had a great impact on the discussions over the conditions for peace.1 However, in 1918 the idea of attributing a certain degree of responsibility to Germany for its aggression came from the Allies. While Wilson had indicated the mere restoration of the territories invaded by Germany, according to the Memorandum of observations by the Allied Governments, Germany should have paid compensation to the victims of its aggression.2 Subsequently, in January 1919, the Plan of the preliminary conversations between the Allied Foreign Ministries provided for a provisional list of the principles that needed further discussion.3 This included ‘the solemn repudiation of all infringements of the law of nations and of principles of humanity’. Also, of the 18 Committees and Commissions which were about to be established, one would have dealt with the question of ‘Penalties for crimes committed during the war’.4 On 25 January 1919, the Preliminary Peace Conference established a Commission on the League of Nations (hereinafter the LoNs), in charge of drafting the constitution of the organisation which should have been incorporated in the Peace Treaty.5 The present section will first focus on the debate concerning the hypothesis of punishing those among the Germans responsible for the commission of international crimes, and then on the discussions within the Allied and Associated Powers upon the Covenant of the LoNs.

2.1 The US and the 1919 Commission on the Responsibility of the Authors of the War and on Enforcement of Penalties The Commission on the Responsibility of the Authors of the War and on Enforcement of Penalties was established by the Preliminary Peace Conference on 25 January 1919 and was composed of 15 members.6 Its main purpose was 1 US President, Woodrow Wilson, Address to a Joint Session of Congress on the Conditions of Peace on 8 January 1918. 2 President Wilson’s Adviser, Colonel Edward M House, Telegram of the Special Representative to the Secretary of State on 4 November 1918 in US Department of State, Papers relating to the foreign relations of the United States, 1918. Supplement 1, The World War (US GPO 1918 vol I) 461. 3 The Chargé in France, Robert W Bliss, Note to Mr Henry White on 9 January 1919 in US Department of State, Papers relating to the foreign relations of the United States, 1919. The Paris Peace Conference (US GPO 1919 vol I) 388. 4 ibid 390. 5 Sami Sarè, The League of Nations and the debate on disarmament (1918–1919) (Edizioni Nuova Cultura 2013) 128. 6 Bartłomiej Krzan, Prosecuting International Crimes: A Multidisciplinary Approach (BRILL 2016) 100.

The international delict of aggression 37 to report both on the degree – if any – of responsibility of the authors of the war, however highly placed, and the constitution and procedure of an international tribunal.7 The US was represented by the Secretary of State, Robert Lansing, and the US Legal Adviser, Major James Brown Scott.8 Among the three subcommittees which were set up, the second one dealt with the Responsibility of the Authors of the War and was the only one which did not see the participation of any US Representatives.9 In March 1919, the Subcommissions handed their reports over to the Commission, which then issued a report that was unanimously adopted by the Preliminary Peace Conference, to which, however, the US and Japanese delegations decided to attach their own dissenting reports.10 As for the US, it concurred to the conclusion of the Commission that war was premeditated by the Central Powers, together with their Allies, and that the neutrality of Belgium and Luxemburg had been violated.11 The US delegates added that ‘these acts should be condemned in no uncertain terms and their perpetrators should be held up to the execration of mankind’.12 However, they dissented on the following fundamental issues. First, the Majority had recommended the constitution of a ‘High Tribunal’ which was to apply ‘the principles of the law of nations as they result from the usages established among the civilised peoples, from the laws of humanity and from the dictates of public conscience’.13 The American and Japanese members of the Commission objected that the ‘law of nations’ lacked precision as it had never been drafted and enacted.14 Second, the US opposed the Commission’s conclusion that all persons belonging to enemy countries, however high their position may have been, without distinction of rank, including Chiefs of States, who have been guilty of offences against the laws and customs of war or the laws of humanity, are liable to criminal prosecution.15

7 Preliminary Peace Conference, Draft Resolution Relative to the Responsibility of the Authors of the War and the Enforcement of Penalties on 25 January 1919 in US Department of State, Papers relating to the foreign relations of the United States, The Paris Peace Conference, 1919 (US GPO 1919 vol III) 202. 8 Carnegie Endowment for International Peace, Violations of the Laws and Customs of War: Report of the Majority and Dissenting Reports of the American and Japanese Members of the Commission of Responsibilities at the Conference of Paris (Pamphlet 32, Clarendon Press 1919) 2. 9 US Department of State (n 7) 65. 10 Carnegie Endowment for International Peace (n 8) 3. See also William A Schabas, The Trial of the Kaiser (OUP 2018) 112; Kirsten Sellars, ‘The First World War, Wilhelm II and Article 227: The Origin of the Idea of ‘Aggression’ in International Criminal Law’ in Claus Kreß and Stefan Barriga (eds), The Crime of Aggression: A Commentary (CUP 2017) 19, 33. 11 Carnegie Endowment for International Peace (n 8) 60. 12 ibid 63. 13 ibid 24. 14 The United Nations War Crimes Commission, History of the United Nations War Crimes Commission and the Development of the Laws of War (His Majesty’s Stationery Office 1948) 436. 15 Carnegie Endowment for International Peace (n 8) 20.

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Indeed, with regard to an incumbent Chief of State, the law applicable was the law of his country, not the law of a foreign country or group of countries; the tribunal to which he is responsible is the tribunal of his country, not of a foreign country or group of countries, and the punishment to be inflicted is the punishment prescribed by the law in force at the time of the commission of the act, not a punishment created after the commission of the act.16 Moreover, a Head of State could be liable just ‘for violations of positive law in the strict and legal sense of the term’ and not for ‘what may be called political offences’.17 In short, an incumbent sovereign was ‘exempt under international law – the law made or consented to by all nations. He is immune from suit in any court, national or international’.18 However, the US did concur with the Commission’s conclusion in relation to the criminality of the act of initiating and waging an aggressive war. In particular, according to the Commission: the premeditation of a war of aggression, dissimulated under a peaceful pretence, then suddenly declared under false pretexts, is conduct which the public conscience reproves and which history will condemn, but by reason of the purely optional character of the Institutions at The Hague for the maintenance of peace (International Commission of Enquiry, Mediation and Arbitration) a war of aggression may not be considered as an act directly contrary to positive law, or one which can be successfully brought before a tribunal. . . .19 Robert Lansing subsequently commented that ‘[t]he decision was reached with reluctance because of the frm conviction that the German ruler was guilty, although his guilt was not of a nature which could be declared and punished by a judicial tribunal’.20 Indeed, ‘war was and is, by its very nature, inhuman, but acts consistent with the laws and customs of war, although these acts are inhuman, are nevertheless not the object of punishment by a court of justice’.21 Interestingly, article 231 of the Versailles Treaty provided for what would be later defned a penalisation of ‘aggressive war by holding the aggressor responsible for losses

16 ibid 66. 17 ibid 66. See also Robert Lansing, ‘Some Legal Questions of the Peace Conference’ (1919) 13 AJIL 631, 645. 18 James Brown Scott, ‘The Trial of the Kaiser’ in Edward M House and Charles Seymour, What Really Happened at Paris: The Story of the Peace Conference 1918–1919 by American Delegates (Charles Scribner’s Sons 1921) 231, 239. 19 Carnegie Endowment for International Peace (n 8) 21. 20 Lansing (n 17) 643. 21 ibid 646–647.

The international delict of aggression 39 resulting from the war’.22 According to Wright, article 231 ‘was contrary to the report of the Peace Conference commission on responsibilities’.23 Furthermore, the Commission had concluded that: 2 On the special head of the breaches of the neutrality of Luxemburg and Belgium, the gravity of these outrages upon the principles of the law of nations and upon international good faith is such that they should be made the subject of a formal condemnation by the Conference. 3 On the whole case . . . it would be right for the Peace Conference, in a matter so unprecedented, to adopt special measures, and even to create a special organ in order to deal as they deserve with the authors of such acts. 4 It is desirable that for the future penal sanctions should be provided for such grave outrages against the elementary principles of international law.24 The US Commissioners objected to the third conclusion. They considered it conficted with the idea that no national of the enemy could be charged for the commission of a war of aggression or in violation of international treaties. Moreover, the crimes related to the initiation of the war were not of a legal nature, rather of a moral one. Therefore, it was not advisable to deal with them by means of an ad hoc organ, let alone a judicial body.25 In any case, some of the issues discussed both in the Majority and the dissenting Reports were later reflected in article 227 of the Versailles Treaty, which was originally drafted by President Wilson in person, chief of the US Delegation in Paris, who – with the aim to reach a compromise within the Council of Four concerning the trial of the Kaiser – took inspiration from a letter written by Lansing on 8 April and made the Italian, British and French representatives sign his proposal.26 Article 227 of the Versailles Treaty, which was then finalised by the Drafting Committee, read as follows: The Allied and Associated Powers publicly arraign William II of Hohenzollern, formerly German Emperor, for a supreme offence against international morality and the sanctity of treaties. A special tribunal will be constituted to try the accused, thereby assuring him the guarantees essential to the right of defence. It will be composed of five judges, one appointed by each of the following Powers: namely, the United States of America, Great Britain, France, Italy and Japan. In its decision the tribunal will be guided by the highest motives of international policy, with a view to vindicating the solemn obligations of

22 Clyde Eagleton, ‘The Attempt to Define Aggression’ (1930) 13 International Conciliation 581, 587. 23 Quincy Wright, ‘The Outlawry of War’ (1925) 19 AJIL 76, 83–84. 24 Carnegie Endowment for International Peace (n 8) 23. 25 ibid 68. 26 Schabas (n 10) 192–195.

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The international delict of aggression international undertakings and the validity of international morality. It will be its duty to fix the punishment which it considers should be imposed. The Allied and Associated Powers will address a request to the Government of the Netherlands for the surrender to them of the ex-Emperor in order that he may be put on trial.

Although article 227 went beyond the ‘formal condemnation’ provided by the Majority Report, it did not mention aggression expressis verbis. Plus, it never found any practical application as Netherlands did not surrender the Emperor. Subsequently, however, this provision played an important role in relation to the discussions on the existence of a crime of aggression under customary international law. As for the fourth conclusion of the Majority Report, the US representatives affirmed to be ‘unwilling formally to dissent’.27 Indeed, while ‘[t]hey believe that any nation going to war assumes a grave responsibility, and that a nation engaging in a war of aggression commits a crime’, they considered it unfeasible to provide penal sanctions for future ‘grave outrages against the elementary principles of international law’ such as the initiation of a war of aggression. This was due to ‘the difficulty of determining whether an act is in reality one of aggression or of defence’, and ‘the difficulty of framing penal sanctions, where the consequences are so great or may be so great as to be incalculable’.28 Still, on 1 May 1919 Wilson agreed on the British proposal to cut off the expression ‘not for an offence against criminal law, but’, which came just before the notorious terms of article 227, namely ‘for a supreme offence against the international morality and the sanctity of treaties’.29 Indeed, it was believed that that wording of the draft could be ‘construed as an admission on the part of the Allied and Associated Powers that the German Emperor had not committed any offences against criminal law’.30 The American representatives had also submitted without success the following proposal: The Commission on Responsibilities recommends that: 1. A Commission of Inquiry be established to consider generally the relative culpability of the authors of the war and also the question of their culpability as to the violations of the laws and customs of war committed during its course. 2. The Commission of Inquiry to consist of two members of the 27 Carnegie Endowment for International Peace (n 8) 69. 28 ibid. 29 The Council of Four, Draft Clause prepared by the Drafting Committee of the Peace Conference, on instructions received from the Council of the First Delegates of the Powers with General Interests After Consideration of Report of the Commission (Annex IV) on 1 May 1919 in US Department of State, Papers relating to the foreign relations of the United States, The Paris Peace Conference, 1919 (US GPO 1919 vol V) 401–402. 30 The Council of Four, Notes of a Meeting held at President Wilson’s House in the Place des EtasUnis, Paris on 1 May 1919 in US Department of State (n 29) 389.

The international delict of aggression 41 five following Powers: United States of America, British Empire, France, Italy, and Japan; and one member from each of the five following Powers: Belgium, Greece, Portugal, Roumania, and Serbia. 3. The enemy be required to place their archives at the disposal of the Commission, which shall forthwith enter upon its duties and report jointly and separately to their respective governments on the 11th November, 1919, or as soon there-after as practicable.31 The US proposal only considered the violations of the laws and customs of war, which needed to be punished ‘according to law, not according to passion’.32 According to the US representatives, [a] judicial tribunal only deals with existing law and only administers existing law, leaving to another forum infractions of the moral law and actions contrary to the laws and principles of humanity. A further objection lies in the fact that the laws and principles of humanity are not certain, varying with time, place, and circumstance, and according, it may be, to the conscience of the individual judge. There is no fixed and universal standard of humanity.33 Thus, by referring to the ‘principles of humanity’, the principle of legality – contained in ‘an express clause of the Constitution of the United States’ and provided by ‘the law and practice of civilized communities’ – would be violated.34 Furthermore, they recalled the 1812 leading case of United States v. Hudson, in which the Supreme Court held that ‘the legislative authority of the Union must make an act a crime, affx a punishment to it, and declare the court that shall have jurisdiction of the offence’. According to the US delegates, ‘what was true of the American States must be true of this looser union called the Society of Nations’.35 The US delegates also fled a Memorandum which was partially upheld by the Commission and formed the basis for articles 228–229 of the Treaty.36 In conclusion, in 1919 immunities of high officials and the principle of legality were the main obstacles to the criminalisation of aggression. Notably, establishing whether a war was in self-defence or had an aggressive nature was too difficult, and this made the US delegation conclude that no future criminalisation of aggression was feasible.

31 Carnegie Endowment for International Peace (n 8) 69. 32 Brown Scott (n 18) 249–250. 33 Commission on the Responsibility of the Authors of the War and on Enforcement of Penalties, ‘Report Presented to the Preliminary Peace Conference on March 29, 1919. Annex II: Memorandum of Reservations Presented by the Representatives of the United States to the Report of the Commission on Responsibilities’ (1920) AJIL 127, 147. 34 ibid. 35 Carnegie Endowment for International Peace (n 8) 75. 36 Brown Scott (18) 250–251.

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The international delict of aggression

2.2 The Covenant of the League of Nations The Commission on the LoNs was established by the Preliminary Peace Conference on its plenary session of 25 January 1919 and was chaired by President Wilson in person.37 The incorporation of the Covenant of the organisation into the Peace Treaty was indeed conceived by the President.38 The so-called HurtsMiller plan had been elaborated by the British and American legal advisers and formed the basis of the discussion in Paris.39 Notably, on 9 January 1919 the US Technical Advisers, Miller and Scott, had sent to the Secretary of State a draft proposal, whose article B, dealing with the LoNs, provided that ‘Each Member Power severally covenants and guarantees that it will not violate the territorial integrity or impair the political independence of any other Member Power’ (art 13). However, a breach of the obligation prescribed by article 13 and determined by a majority vote within the Council, in accordance with article 15, would have just led to a suspension of the rights linked to the State’s membership of the League (art 16) and constituted an ‘act unfriendly to all other Member Powers’ which in any case would be merely followed by diplomatic reactions (art 17).40 On 14 February 1919, President Wilson read a draft Covenant which had been unanimously voted by the Commission. It was not significantly different from the definitive Convention that was later adopted by the Conference.41 The main variation was in the wording of article XVI. Indeed, the draft presented to the Conference used the expression [s]hould any of the High contracting Parties break or disregard its covenants under Article XII, it shall thereby ipso facto be deemed to have committed an act of war against all the other members of the League42 whereas eventually the chosen language in the Covenant provided: ‘[s]hould any Member of the League resort to war in disregard of its covenants under XII, XIII, or XV, it shall ipso facto be deemed to have committed an act of war against all other Members of the League’. Unlike the US initial proposal, therefore, these rudimental erga omnes treatybased duties were not linked to a violation of the territorial integrity or political

37 Preliminary Peace Conference, Draft Resolution Relative to the League of Nations (Annex 1) on 25 January 1919 in US Department of State (n 7) 201. See also Sarè (n 5) 130. 38 Sarè (n 5) 129. See also Erik Goldstein, The First World War Peace Settlements, 1919–1925 (Routledge 2013) 38. 39 Goldstein (n 38) 38. 40 The Technical Advisers to the Commission to Negotiate Peace, Miller and Scott, Note to the Secretary of State on 9 January 1919 in US Department of State (n 3) 320. 41 US President, Woodrow Wilson, Address before the Preliminary Peace Conference, Plenary Session on 14 February 1919 in US Department of State (n 7) 230. 42 The Preliminary Peace Conference, Minutes of the Plenary Session (Annex A) on 14 February 1919 in US Department of State (n 7) 235 [emphasis in original].

The international delict of aggression 43 independence of a state (which later will become a fundamental element of aggression); rather, they were connected to those provisions concerning the pacific settlement of disputes and arbitration among the members of the League. Moreover, the draft contained a new provision (i.e. article XXI) which would be inserted in the Covenant without any changes in wording and read as follows: ‘Nothing in this Covenant shall be deemed to affect the validity of international engagements, such as treaties of arbitration or regional understandings like the Monroe doctrine, for securing the maintenance of peace’.43 For the very first time, the Monroe Doctrine was inserted expressis verbis in a binding instrument. However, the US Administration subsequently deemed this provision ‘inaccurate’ because the Monroe Doctrine ‘is not part of international law nor is it a “regional understanding”’.44 The intent was to imply ‘that the United States is asserting a separate national right of self-defense, and that in the exercise of this right it must have an unhampered discretion’.45 In other words, despite admitting the existence of certain rules of international law which governed the matter, the US was the only legitimate judge regarding their right of self-defence. Despite Wilson’s intentions,46 the US failed to ratify the Treaty of Versailles due to a fierce opposition within the Senate.47 Thus, the Covenant of the LoNs, which was incorporated in it, did not enter into force for the US. The most controversial issue which contributed to this failure was article 10 of the Covenant which read as follows: 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. In case of any such aggression or in case of any threat or danger of such aggression the Council shall advise upon the means by which this obligation shall be fulfilled. This provision substantially differed from article 13 of the draft debated in early January within the US Administration. First, it only related to an ‘external aggression’ coming from a state not member of the League; second, it provided for the

43 Preliminary Peace Conference: Minutes of the Plenary Sessions (Annex I: Report of the Commission of the League of Nations) on 28 April 1919 in US Department of State (n 7) 327. 44 Instructions to the US delegates of the Seventh International Conference of American States held at Montevideo on 3–26 December 1933 in US Department of State, Foreign relations of the United States diplomatic papers, 1933 (in five volumes). The American republics (US GPO 1933 vol IV) 137. 45 US Secretary of State, Charles E Hughes, ‘Observations on the Monroe Doctrine’ (1923) 17 AJIL 611, 617. 46 US President, Woodrow Wilson, Address before the Preliminary Peace Conference, Protocol No 2, Plenary Session on 25 January 1919 in US Department of State (n 7) 180. 47 US Department of State, Office of the Historian, ‘The Paris Peace Conference and the Treaty of Versailles’ accessed 21 April 2019.

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Council to advise – even if by unanimous vote – on the measures to be adopted, which were in no way limited to diplomatic methods, and thus could have implied the use of force. As it will be pointed out later, ‘[u]nder the Covenant it is even possible for a war in self-defense to be illicit, and so a war of aggression to be licit, if carried out in execution of the obligations of the Covenant’.48 Hence, it is not surprising that one of the reservations which were attached to the Treaty of Versailles on the occasion of its ratifcation by the US Senate in November 1919, the so-called Lodge amendment, read as follows: The United States assumes no obligation to preserve the territorial integrity or political independence of any other country by the employment of its military or naval forces, its resources, or any form of economic discrimination, or to interfere in any way in controversies between nations, including all controversies relating to territorial integrity or political independence, whether members of the league or not, under the provisions of article 10, or to employ the military or naval forces of the United States, under any article of the treaty for any purpose, unless in any particular case the Congress, which, under the Constitution, has the sole power to declare war or authorize the employment of the military or naval forces of the United States, shall in the exercise of full liberty of action, by act or joint resolution so provide.49 While Wilson deemed the amendment unnecessary because of the unanimity required by the Covenant, the feeling that the Covenant could have limited the decisional power of the Congress in relation to the use of force was shared by a majority of congressmen and by infuential fgures, including Herbert Hoover, Charles Evans Hughes, Elihu Root and Henry L Stimson.50

3 Conferences and multilateral agreements in the 1920s After Versailles and for two decades, the US proved to be particularly active in feeding the idea of the necessity to outlaw war. Leaving aside any discussion on the individual criminal responsibility of the aggressors, aggression came into relevance both in relation to the issue of the pacific settlement of international disputes and on the occasion of the talks about the reduction of armaments. However, the fear that the US could not be fully sovereign when taking a decision regarding the use of force, was still predominant within the Administration.51

48 Eagleton (n 22) 591. 49 ‘The United States and the League of Nations: Reservations of the United States Senate of November 1919, and March 1920’ (1920–1921) 7 International Conciliation 348, 352. 50 Michael J Glennon, ‘The Constitution and Chapter VII of the United Nations Charter’ (1991) 85 AJIL 63, 75–76. 51 US Department of State, Papers relating to the foreign relations of the United States, 1922 (US GPO 1922 vol I) 338. See also US Secretary of State, Frank B Kellogg, ‘The War Prevention Policy of the United States: An address before the Council on Foreign Relations, New York, March 15, 1928’ (1928) Foreign Relations, Suppl. i, xi.

The international delict of aggression 45 In the post-First World War era, the jus ad bellum was for the first time relevant at the 1922 Washington Conference. Through the so-called Nine-Power treaty, its signatories – including the US, bound themselves to respect the territorial integrity of China.52 As it was later stated by the then-Secretary of State Stimson, ‘The Treaty was . . . a deliberate covenant of self-denial among the signatory powers of all acts of aggression which were calculated to interfere with [the] development [of the free institutions of a self-governing Republic]’.53 Since the US was not a member of the LoNs, it neither participated in the voting process of the relevant documents within the organisation, nor did it adhere to those treaties which were drafted within the League, including the 1923 Draft Treaty of Mutual Assistance, or the 1924 Protocol for the Pacific Settlement of International Disputes. As for the former, it never came into force because of a strong opposition from states, including the US, whose opinion was requested by the Secretary General of the League.54 Its article 1 provided that ‘[t]he High Contracting Parties solemnly declare that aggressive war is an international crime and severally undertake that no one of them will be guilty of its commission’.55 The Committee of Jurists of the League of Nations also opposed it for a number of reasons. For example, it was considered preferable to refer to ‘war contrary to the provisions of the Covenant’, rather than ‘aggressive war’.56 The 1924 Protocol originated from a proposal formulated by a group of US private citizens,57 including James T Shotwell,58 according to which the competence to decide on aggression was left to the Court. A refusal by a state to submit its case to the Court within four days from the initial claim was considered enough to ascertain the existence of an aggression.59 In the final version of the Protocol, however, the competence to decide on aggression was attributed once again to the Council.60 The Protocol constituted an attempt to broaden the scope of the Covenant to all wars of aggression.61 Once more, the US disfavoured this treaty. 52 US Department of State, Office of the Historian, ‘The Washington Naval Conference, 1921– 1922’ accessed 21 April 2019. 53 US Secretary of State, Henry L Stimson, Telegram to the Minister in Switzerland on 12 February 1932 in US Department of State, Peace and War: United States Foreign Policy, 1931–1941 (US GPO 1943) 165. 54 US Secretary of State, Charles E Hughes, Reply to the Secretary General of the League of Nations on 16 June 1924 in US Department of State, Papers relating to the foreign relations of the United States, 1924 (US Government Printing Office 1924 vol I) 80. 55 Treaty of Mutual Assistance in Benjamin B Ferencz, Defining International Aggression – The Search for World Peace. A Documentary History and Analysis (Oceana Publications 1975 vol I) 77. 56 Ferencz (n 55) 13–14. 57 ibid 14–15. 58 Oona A Hathaway and Scott J Shapiro, The Internationalists – And Their Plan to Outlaw War (Allen Lane 2017) 117–118. 59 Wright (n 23) 102. 60 Ferencz (n 55) 17. 61 Eagleton (n 22) 597.

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Secretary of State Kellogg, speaking on behalf of the President,62 confirmed what he had previously stated as a personal opinion, namely that the Protocol could appear to be a proposal of a concert against the United States, when the Powers joining in the Protocol considered that the United States had committed some act of aggression, although the United States might believe itself to be entirely justified in its action, in fact be acting in accordance with its traditional policies.63 Article 4 of the Protocol indeed provided for sanctions under article XVI of the Covenant for those states which would recourse to war in disregard of the Covenant.64 The US became only a party to regional agreements. As a result of the Fifth International Conference of the American States (Santiago, 1923), the US adhered to the Treaty to Avoid or Prevent Conflicts between the American States, whose article 1 provided that states parties would refrain from using armed force against other parties and agreed to submit any disputes to a Commission of inquiry which was established by article 4 of the treaty.65 At the Sixth International Conference of the American States (Habana, February 1928), the US delegates were members of the subcommittee on the pacific settlement of disputes, which unanimously adopted a draft resolution whose preamble stated that ‘the American Republics desire to express that they condemn war as an instrument of national policy in their mutual relations’.66 Still, at its last plenary session, the Conference unanimously adopted a rephrased proposal submitted by the Mexican representative, which had been previously endorsed by the US delegate, Charles E Hughes. The Mexican proposal read as follows: ‘The Sixth International Conference of American States, Considering: . . . That war of aggression constitutes an international crime against the human species; Resolves: 1. All aggression is considered illicit and as such is declared prohibited’.67 Notably, Hughes stated that ‘the United States . . . is opposed to any act of aggression’.68 The Conference also adopted a resolution according to which ‘the American

62 US Secretary of State, Frank B Kellogg, Memorandum of a Conversation With the British Ambassador on 8 January 1925 in US Department of State, Papers relating to the foreign relations of the United States, 1925 (US GPO 1925 vol I) 19. 63 US Secretary of State, Frank B Kellogg, Memorandum of a Conversation With the British Ambassador on 5 January 1925 in US Department of State (62) 17. 64 Fifth Assembly of the League of Nations, Protocol for the Pacific Settlement of International Disputes on 2 October 1924 in Ferencz (n 55) 132. 65 Treaty to Avoid or Prevent Conflicts between the American States (Gondra Treaty) (adopted 3 May 1923, entered into force 8 October 1924) (1923) 33 LNTS 25. 66 US Department of State, Report of the Delegates of the United States of America to the Sixth International Conference of American States, Held at Habana, Cuba. January 16 to February 20, 1928 (US GPO 1928) 26. 67 ibid 26–27. 68 US Delegate at the Sixth International Conference of American States, Charles E Hughes, Statement before the Plenary Session of the Conference on 18 February 1928 in US Department of State, Report of the delegates of the United States of America to the sixth International

The international delict of aggression 47 Republics desire to express that they condemn war as an instrument of national policy in their mutual relations’.69

4 The legal grounds for interpositions of a temporary character: US practice during the 1920s In the 1920s, the idea of legitimate interventions for reasons other than self-defence came into relevance in relation to Latin America. Once more, the protection of the lives and property of US citizens was the main legal ground – together with the observance of treaty obligations – to justify interventions. At the same time, other American States tried to have the principle of non-intervention in the internal affairs of a state reaffirmed in order to counterbalance the US legal arguments. This conflict was striking in relation to the situation in Nicaragua, where the US military forces had been stationed since 1912. Yet following the 1925 elections, they gave notice to withdraw.70 In early 1926, however, the disorders following General Chamorro’s arrival to power led the US Department of State to announce that it would not have recognised the new Government.71 States signatories of the 1923 General Treaty of Peace and Amity were invited to act accordingly.72 Indeed, although it was not a party to that treaty, the US felt ‘a moral obligation to apply its principles’.73 The possibility of an intervention aimed at protecting the life and property of US citizens was at first envisaged in August 1926.74 At the beginning, the US offered its good offices.75 Then, when Diaz took the power, the US recognised his Government,76 but made clear that it would not have provided the Nicaraguan Government with any armed assistance against revolutionists.77 However, towards the end of December 1926, the US Secretary of State was ‘compelled

69 70

71 72 73 74 75 76 77

conference of American states held at Habana, Cuba, January 16 to February 20, 1928. With appendices (US GPO 1928) 25. ibid 310. US President, Calvin Coolidge, Message to Congress on 10 January 1927 in US Department of State, Papers relating to the foreign relations of the United States, 1927 (US GPO 1927 vol III) 290. US Department of State, Press release on 8 June 1926 in US Department of State, Papers relating to the foreign relations of the United States, 1926 (US GPO 1926 vol II) 787. US Secretary of State, Frank B Kellogg, Note to the American missions in Costa Rica, Guatemala, Honduras, and Salvador on 7 January 1926 in US Department of State (n 71) 780. Calvin Coolidge, Message to Congress (n 70) 289. US Secretary of State, Frank B Kellogg, Note to the Chargé in Nicaragua Dennis on 27 August 1926 in US Department of State (n 71) 789. US Secretary of State, Frank B Kellogg, Note to the Chargé in Nicaragua Dennis on 11 September 1926 in US Department of State (n 71) 792. US Department of State, Press release on 17 November 1926 in US Department of State (n 70) 807. US Secretary of State, Frank B Kellogg, Note to the Chargé in Nicaragua Dennis on 8 December 1926 in US Department of State (n 71) 810. See Also US Secretary of State, Frank B Kellogg, Note to the Minister in Nicaragua Eberhardt on 18 December 1926 in US Department of State (n 71) 812.

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reluctantly to recommend the landing of American armed forces but only for the protection of American and foreign lives and property’78 and invited ‘American forces in Nicaragua to preserve the strictness neutrality between the revolutionists and constitutional authorities’.79 As President Coolidge put it in early 1927: I have deemed it my duty to use the powers committed to me to insure the adequate protection of all American interests in Nicaragua, whether they be endangered by internal strife or by outside interference in the affairs of that Republic.80 US armed forces remained in Nicaragua during the elections. The following year, at the Plenary Session of the VI Pan-American Conference, the Salvadoran representative submitted a draft resolution, which was not adopted by the conference, condemning all interventions in the internal affairs of a state. The US delegate, Charles E Hughes, interpreted it as connected to the situation in Nicaragua and, while reaffirming that the US would refrain from all aggression, stated: What are we to do when government breaks down and American citizens are in danger of their lives? . . . Now it is a principle of international law that in such a case a government is fully justified in taking action – I would call it interposition of a temporary character – for the purposes of protecting the lives and property of its nationals. I could say that that is not intervention.81

5 The Pact of Paris The so-called Kellogg-Briand Pact (1928) constituted the most significant exception to the ‘US regionalism’ of that time. In March 1927, Aristide Briand, the French Foreign Minister who had been awarded the Peace Nobel Prize in 1926 for his role in the reconciliation between France and Germany after the First World War, met with James T Shotwell.82 Shotwell was a member of the Carnegie Endowment for International Peace and believed that the French refusal to participate in the upcoming Naval Conference made her appear as a reactionary country. To overcome this problem, he advised Briand to make a statement on the occasion of the tenth anniversary of the US

78 US Secretary of State, Frank B Kellogg, Draft letter to the Secretary of the Navy Wilbur on 28 December 1926 in US Department of State (n 71) 819. 79 ibid. 80 Coolidge (n 70) 298. 81 US Delegate at the Sixth International Conference of American states, Hughes (n 68) 14–15. 82 Harold Josephson, James T. Shotwell and the Rise of Internationalism in America (Fairleigh Dickinson University Press 1974) 159.

The international delict of aggression 49 entry into the First World War in order to propose a bilateral treaty on the renunciation of war as an instrument of national policy.83 Briand liked the idea and, on 6 April 1927, gave a public speech whereby he proposed a treaty between France and the US to renounce war in their relations.84 Two months later, this proposal was officially advanced through diplomatic channels.85 Notably, this initiative could enjoy broad support from the public. During the 1920s, the US public opinion had been pushing for the outlawry of war. In particular, an American Committee, established by Salmon Oliver Levinson,86 had a huge impact on the policies of men like the Republican Senator William Borah, chairman of the Foreign Relations Committee of the US Senate from 1924. After a long series of unsuccessful attempts, he introduced a resolution on 12 December 1927 which provided that ‘it is the view of the Senate of the United States that war between nations should be outlawed as an institution or means of the settlement of international controversies by making it a public crime under the law of nations’.87 The initiative of Senator Borah was consonant to the international feeling of the time: in September, for instance, the Assembly of the LoNs had resolved that ‘all wars of aggression are, and always shall be, prohibited’, being a war of aggression an international crime.88 As for the US Administration, it expressed its willingness to start negotiating the proposed treaty on 28 December. However, it was deemed preferable to consider the idea of a universal agreement, rather than a bilateral instrument.89 France showed to be favourable to this suggestion, but between the two Governments, a divergence arose on whether the treaty should have outlawed all wars or just ‘wars of aggression’. As the US Secretary of State Kellogg wrote to the French Ambassador in January 1928: the Government of the United States [proposes] that the original formula submitted by M. Briand which envisaged the unqualified renunciation of all war as an instrument of national policy be made the subject of preliminary discussions with the other great powers.90 83 ibid 160. 84 French Minister for Foreign Affairs, Aristide Briand, Statement made to the Associated Press on 6 April 1927 in US Department of State (n 71) 611. 85 The Ambassador in France, Herrick, Note to the Secretary of State on 2 June 1927 in US Department of State (n 71) 613. 86 Salmon Oliver Levinson, Outlawry of War (American Committee for the Outlawry of War 1921). 87 Sheldon Glueck, The Nuremberg Trial and Aggressive War (first published 1946, Kraus Reprint Co. 1976) 33–34 [emphasis in original]. 88 Ferencz (n 55) 20. 89 US Secretary of State, Frank B Kellogg, Note to the French Ambassador Claudel on 28 December 1927 in US Department of State (n 85) 626. 90 US Secretary of State, Frank B Kellogg, Note to the French Ambassador Claudel on 11 January 1928 in James T Shotwell, ‘The Pact of Paris with Historical Commentary’ (1928) 12 International Conciliation 447, 469–470.

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Notably, [i]f, . . . such a declaration were accompanied by definitions of the word “aggressor” and by exceptions and qualifications stipulating when nations would be justified in going to war, its effect would be very greatly weakened and its positive value as a guaranty of peace virtually destroyed.91 Indeed, ‘[f]rom the broad standpoint of humanity and civilization, all war is an assault upon the stability of human society, and should be suppressed in the common interest’.92 In other words, war per se should have been abolished. To support his arguments, Kellogg mentioned article 1 of the 1923 Treaty of Mutual Assistance which the US had openly opposed.93 Also, he considered ‘signifcant’ that one of the two anti-war resolutions adopted by the Sixth International Conference of American States contained the same language of Briand’s original proposal.94 Therefore, the US objection to limiting the scope of the treaty to ‘wars of aggression’ was based partly upon a very real disinclination to see the ideal of world peace qualified in any way, and partly upon the absence of any satisfactory definition of the word ‘aggressor’ or the phrase ‘wars of aggression’. It is difficult for me to see how a definition could be agreed upon which would not be open to abuse.95 What Kellogg had in mind was ‘a treaty so simple and unconditional that the people of all nations could understand it, a declaration which could be a rallying point for world sentiment, a foundation on which to build a world peace’.96 According to article 1 of the Pact, The High Contracting Parties solemnly declare in the names of their respective peoples that they condemn recourse to war for the solution of international controversies, and renounce it, as an instrument of national policy in their relations with one another.

91 US Secretary of State, Frank B Kellogg, Diplomatic note to the French Ambassador Claudel on 27 February 1928 in David H Miller, The Peace Pact of Paris: A Study of the Briand-Kellogg Treaty (GP Putnam’s Sons 1928) 175–176. 92 ibid. 93 US Secretary of State, Frank B Kellogg, Note to the French Ambassador Claudel on 27 February 1928 in US Department of State, Treaty for the Renunciation of War. Text of the treaty, notes exchanged instrument of ratification and of adherence and other papers (US GPO 1933) 23. 94 US Secretary of State, Frank B Kellogg, Address delivered before the Council on Foreign Relations on 15 March 1928 in Miller (90) 274–275. 95 ibid 276–277. 96 US Secretary of State, Frank B Kellogg, Statement before the League for Political Education at New York on 28 March 1930 (as cited in Henry L Stimson, in ‘The Pact of Paris: Three Years of Development’ (1932–1933) 11 Foreign Affairs-Special Supplement vii, xiv).

The international delict of aggression 51 One of the most controversial issues related to the obligations that could stem from a violation of the treaties by one or more of its parties. In December 1928, Kellogg replied to the inquiries of the US Senate Committee on Foreign Relations by claiming: how there can be a moral obligation for the United States to go to Europe to punish the aggressor or punish the party making war, where there never was such a suggestion made in the negotiation, where nobody agreed to it, and where there is no obligation to do it, is beyond me. . . . As I see it, we have no more obligation to punish somebody for breaking the antiwar treaty than for breaking any one of the other treaties which we have agreed to.97 The Pact was therefore conceived as an ‘ordinary’ one, notwithstanding the subject it regulated. The same interpretation was given in 1933 by then Secretary of State Stimson who stated: the Briand-Kellogg Pact provides for no sanctions of force. It does not require any signatory to intervene with measures of force in case the Pact is violated. Instead it rests upon the sanction of public opinion, which can be made one of the most potent sanctions in the world.98 Yet he also asserted that ‘[m]oral disapproval, when it becomes the disapproval of the whole world, takes on a signifcance hitherto unknown in international law’.99 Also, one might have argued that the only reference to any sort of duties could only be found in the preamble.100 When in 1929 President Hoover, together with Ramsay MacDonald, made a joint statement, in Stimson’s opinion, he ‘marked an epoch’ by defning the obligations arising from the Pact as ‘positive’.101 While it was deemed to be ‘definite’, the effect of the Pact was ‘perhaps as yet undefined’.102 According to Shotwell, for instance, ‘what is proposed is “renunciation,” not “outlawry” of war. Outlawry would call for a whole new set of provisions which lie entirely beyond the scope of the present treaty’.103 Still, the US had to reassure the other parties that the authorisation under article 10 of the Covenant of the LoNs was not a positive requirement, so it could easily coexist with the anti-war treaty. Likewise, a violation of 1925 Locarno Treaty of mutual guarantee between Germany, Belgium, France, Great Britain 97 US Secretary of State, Frank B Kellogg, Statement before the United States Senate, Committee on Foreign Relations on 7 December 1928. 98 US Secretary of State, Frank B Kellogg, Statement before the League for Political Education at New York on 28 March 1930 (as cited in Stimson (n 95)). 99 US Secretary of State, Henry L Stimson (n 95). 100 Shotwell (n 89) 451–452. 101 The US Secretary of State, Henry L Stimson (n 95) 24. 102 The US Secretary of State, Cordell Hull, Memorandum to the Committee on Foreign Relations of the US Senate on 17 May 1933 in US Department of State (n 52) 183. 103 Shotwell (n 89) 454.

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and Italy, would have resulted in a violation of the Pact of Paris. This was also applicable to neutralised states or in case of the breach of the Locarno Treaty by states not parties to the Pact of Paris.104 In short, the most important word, . . . is the word ‘national’. Not all war is renounced, even as an instrument of policy. Only that kind of war is renounced which is, as M. Briand put it, the spontaneous and willful assertion of a nation’s purpose. This leaves untouched the collective action of the guarantors of peace under the Covenant or the Treaty of Locarno.105 On the internal front, one of the main concerns related to the notion of selfdefence. Secretary Kellogg in person testifed that: There is nothing in the American draft of an antiwar treaty which restricts or impairs in any way the right of selfdefense. That right is inherent in every sovereign state and is implicit in every treaty. Every nation is free at all times and regardless of treaty provisions to defend its territory from attack or invasion and it alone is competent to decide whether circumstances require recourse to war in self-defense. If it has a good case, the world will applaud and not condemn its action. Express recognition by treaty of this inalienable right, however, gives rise to the same difficulty encountered in any effort to define aggression. It is the identical question approached from the other side.106 Therefore, it was preferable not to refer to self-defence explicitly because this could have led to the search for a defnition of it and if I had started out to define what aggression was and what self-defense was, I would not have been able to negotiate a treaty during my lifetime or that of anybody present here. They have been struggling with that question in Europe in the League of Nations for years, and finally Chamberlain himself stated that if any definition of ‘aggressor’ would be followed, it would be a trap for the innocent and a signpost for the guilty, or language to that effect.107 When the US Senate gave its advise and consent to ratify the treaty, it added some interpretative reservations according to which the US ‘has a right to take

104 Diplomatic note of the Government of the United States to the Governments of Australia, Belgium, Canada, Czechoslovakia, France, Germany, Great Britain, India, Irish Free State, Italy, Japan, New Zealand, Poland, and South Africa on 23 June 1928 in Shotwell (n 90) 497–498. 105 Shotwell (n 90) 455. 106 Diplomatic note (n 104). 107 US Secretary of State, Frank B Kellogg, Statement before the United States Senate, Committee on Foreign Relations on 7 December 1928.

The international delict of aggression 53 such measures as it believes necessary to the defense of the country, or to prevent things that might endanger the country’.108

6 Conferences and multilateral agreements in the 1930s 6.1 Aggression and the principle of non-intervention in the internal affairs of an American state Between the end of the 1920s and the beginning of the 1930s, the US adhered to all those regional instruments which condemned war as a means for settling American disputes or as an instrument of national policy. While the US was not inclined to give up on its prerogative to use force for ‘interpositions of temporary character’, in the 1930s the Latin American states did achieve some significant successes. At the International Conference of American States on Conciliation and Arbitration (Washington 1929), the US, together with other 19 American states, signed a General Convention of Inter-American Conciliation, by which they affirmed that the ‘condemnation of war as an instrument of national policy in their mutual relations’ was ‘one of the fundamental bases of inter-American relations’.109 Also, the US had first used its good offices, and then participated in the Washington-based Commission of Neutrals to settle by pacific means the territorial dispute between Bolivia and Paraguay concerning the Chaco region. However, these attempts failed completely.110 As a result, on 3 August 1932 the US, along with 18 South American Republics, adopted a resolution whereby they declared ‘they will not recognize any territorial arrangement of this controversy which has not been obtained by peaceful means nor the validity of territorial acquisitions which may be obtained through occupation or conquest by force of arms’.111 The following year, the US Secretary of State endorsed this idea and stated: ‘[t]he people of my country strongly feel that the so-called right of conquest must for

108 US and Others v. Araki and Others, Dissenting Opinion of member for the Netherlands, Justice Bernard VA Röling, at 29. See also Judgment of the Nuremberg International Military Tribunal 1946 (1947) 41 AJIL 172, 207. As for the relevant literature, see Hersch Lauterpacht, ‘The Pact of Paris and the Budapest Articles of Interpretation’ (1935) 20 Transaction of the Grotius Society 178, 198. David K Linnan, ‘Self-Defense, Necessity and UN Collective Security: United States and Other Views’ (1991) DJCIL 57, 63–64. 109 General Convention of Inter-American Conciliation, signed at Washington on 5 January 1929 in US Department of State, Papers relating to the foreign relations of the United States, 1929 (US GPO 1929 vol I) 653. 110 Frank O Mora and Jerry W Cooney, Paraguay and the United States: Distant Allies (University of Georgia Press 2010) 70–71. 111 The Representatives of Nineteen American Republics Assembled in Washington, Declaration to the Governments of Paraguay and Bolivia on 3 August 1932 in US Department of State, Foreign relations of the United States diplomatic papers, 1932. The American Republics (US GPO 1932 vol V) 159–160.

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ever be banished from this hemisphere. . . . The New Deal indeed would be an empty boast if it did not mean that’.112 With the newly elected US President Franklin D Roosevelt, the US Administration changed its attitude towards the Western Hemisphere’s countries. In his inaugural address on 4 March 1933, Roosevelt stated: I would dedicate this Nation to the policy of the good neighbor – the neighbor who resolutely respects himself and, because he does so, respects the rights of others – the neighbor who respects his obligations and respects the sanctity of his agreements in and with a world of neighbors.113 At the Seventh Pan-American Conference (Montevideo, December 1933), the Convention on the Rights and Duties of States was adopted. Its article 8 read as follows: ‘No state has the right to intervene in the internal or external affairs of another’.114 The US added a reservation to the Convention which provided that: the United States Government in all of its international associations and relationships and conduct will follow scrupulously the doctrines and policies which it has pursued since March 4 which are embodied in the different addresses of President Roosevelt since that time and in the recent peace address of myself . . . and in the law of nations as generally recognized and accepted.115 Notably, article 11 read as follows: The Contracting States definitely establish as the rule of their conduct the precise obligation not to recognize territorial acquisitions or special advantages which have been obtained by force whether this consists in the employment of arms, in threatening diplomatic representations, or in any other effective coercive measures of force imposed by another state or indirectly or for any motive whatever even temporary.116

112 US Secretary of State, Honorable Cordell Hull, Address regarding peace proposal on 15 December 1933 in US Department of State, Report of the delegates of the United States of America to the seventh International Conference of American States, Montevideo, Uruguay, December 3–26, 1933 (US GPO) 117. 113 US President, Franklin D Roosevelt, Inaugural Address on 4 March 1933. 114 Charles G Fenwick, ‘Intervention: Individual and Collective’ (1945) 39 AJIL 645, 654–655. 115 US Reservation to the Convention on the Rights and Duties of States on 22 December 1933 in US Department of State (n 53) 202–203. 116 Convention on Rights and Duties of States on 26 December 1933 in US Department of State, Report of the delegates of the United States of America to the seventh International Conference of American States, Montevideo, Uruguay, December 3–26, 1933 (US GPO) 167–168.

The international delict of aggression 55 The US also announced its willingness to sign the 1933 Rio Treaty of NonAggression and Conciliation (known as the Saavedra Lamas Treaty). According to its article 1: The high contracting parties solemnly declare that they condemn wars of aggression in their mutual relations or in those with other States and that the settlement of disputes or controversies between them shall be effected only by pacific means which have the sanction of international law. According to article 2: They declare that as between them territorial questions must not be settled by violence, and that they will not recognize any territorial arrangement not obtained by pacific means, nor the validity of the occupation or acquisition of territories brought about by force of arms.117 At the Inter-American Conference for the Maintenance of Peace (Buenos Aires 1936), the US proposed the adoption of a Draft Convention Coordinating the Existing Treaties between the American States and Extending Them in Certain Respects. The main aim was to push states to ratify and implement all the relevant international instruments which had been adopted.118 Enunciating his eight pillars for the maintenance of peace, the US Secretary of State stated: ‘Founded upon justice and humanity, the great principles of international law are the sources and the fountain of the equality, the security and the very existence of nations. Armies and navies are not permanent substitutes’.119 He added that together with international law, ‘moral law and the whole integrity and honor of governments are in danger of being ruthlessly tramped upon’.120 At the outset of the Conference, states then adopted a Declaration whereby they affirmed that: the following principles are accepted by the American Community of Nations: (a) proscription of territorial conquest and, that, in consequence, no acquisition made through violence shall be recognized; (b) Intervention by one State in the internal or external affairs of another State is condemned; (c) Forcible collection of pecuniary debts is illegal; (d) Any differences or disputes between the American nations, whatever its nature or origin, shall be settled by the methods of conciliation, or unrestricted arbitration, or through operation of international justice.121 117 Anti-war Treaty of Non-aggression and Conciliation (Saavedra Lamas Treaty) (adopted 10 October 1933, entered into force on 13 November 1935) 163 LNTS 393. 118 US Secretary of State, Cordell Hull, Address delivered at Buenos Aires on 5 December 1936 in US Department of State (n 53) 347. 119 ibid 350. 120 ibid 351. 121 Declaration of Principles of Intern-American Solidarity and Cooperation, Buenos Aires, 21 December 1936 in US Secretary of State, Cordell Hull, Address delivered at Buenos Aires on 5 December 1936 in US Department of State (n 53) 353.

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A Convention for the Maintenance, Preservation and Reestablishment of Peace and an Additional Protocol relative to non-Intervention were also adopted.122 These instruments provided for a mandatory system of consultation every time peace was – even remotely – threatened in the American Hemisphere and reaffrmed the principle of non-intervention. The issue of aggression arose on the occasion of the discussions related to the Treaty on the Prevention of Controversies.123 Some delegates considered that the victim of aggression needed to be treated differently from the aggressor. Thus, the Conference referred a proposal by Bolivia on the definition of the aggressor and the application of sanctions to the Committee of Experts for the Progressive Codification of International Law.124 In December 1938, some of the provisions of the Pact of Paris were inserted in the proposal for a Convention on the Consolidation of American Peace Agreements, submitted by the US on the occasion of the Eighth Pan-American Conference (Lima, 1938). Interestingly, while according to a Mexican proposal states needed to condemn ‘wars of aggression’, the US suggested – as did the Committee of Experts that studied the subject – to condemn the recourse to war tout court.125 Eventually, states adopted Resolution XXIV which referred all the materials concerning the definition of aggression – including the report by the Committee of Experts – to the International Conference of American Jurists.126 States also adopted the Declaration of American Principles, which defined as ‘inadmissible’ the intervention in the internal affairs of an American state by another American state.127 Outside the Western Hemisphere, however, the US applied the same legal grounds it had previously used for its interventions in Latin America, namely the protection of its interests, mixed with treaty obligations. In accordance with the Boxer Protocol (1901), the US had maintained its army in China since 1912, following the events which led to the establishment of the Republic of China.128 When, in 1938, the US announced its intention to withdraw from Chinese territory, the president in person affirmed:

122 US Department of State, Report of the Delegation of the United States of America to the Inter-American Conference for the Maintenance of Peace (US GPO 1937) 116 and 124. 123 ibid 143. 124 ibid 24. 125 Pan American Union, Codification of International Law: Improvement and Coordination of Inter-American Peace Instruments: (Resolution XV of the eighth International Conference of American States) (Pan American Union 1941) 38. 126 Pan American Union, Codification of International Law: Improvement and Coordination of Inter-American Peace Instruments: (Resolution XV of the eighth International Conference of American States) (Pan American Union 1941 vol 1) 188. 127 Eighth International Conference of American States (Lima), Declaration of American Principles on 24 December 1938 in US Department of State (n 53) 440–441. 128 Alfred Emile Cornebise, The United States 15th Infantry Regiment in China, 1912–1938 (McFarland & Co. 2004) 27.

The international delict of aggression 57 From time immemorial it has been the practice of civilized nations to afford protection, by appropriate means and under the rule of reason, to their nationals and their rights and interests abroad. . . . In the case of China, where unusual local conditions were such that the protection afforded by local authorities did not suffice to give security against excited and lawless elements, there have occasionally been sent – not by this country alone but by a number of countries – armed forces, to contribute to the affording of such protection as is due under the rules of international law and the provisions of treaties. American forces thus sent to China have at no time had any mission of aggression, and it has been the practice of the American Government to withdraw such forces whenever and as soon as the local situation so develops as to warrant the view that their withdrawal can be effected without detriment to American interests and obligations in general.129

6.2 Disarmament and aggression During the first half of the 1930s, states engaged in significant discussions on the universal reduction of armaments. This subject was considered to relate to the idea of aggression. For example, in 1933 President Roosevelt advanced a proposal for a Pact of non-aggression by asserting that: all nations of the world should enter into a solemn and definitive pact of nonaggression; that they should solemnly reaffirm the obligations they have assumed, and provided these obligations are faithfully executed by all signatory powers, individually agree that they will send no armed forces of whatever nature across their frontiers.130 The same year, however, at the Conference for the Reduction and Limitation of Armaments (Geneva), delegates discussed a Soviet draft Declaration containing a defnition of aggression, which had been submitted to the other representatives on 6 February 1933 because ‘no system of security against aggression could be complete and effcacious in the absence of a clear idea as to what constituted aggression’.131 The US representative objected to it as ‘the difficulty lay in the necessarily limitative nature of any definition’.132 A Committee on Security Questions was then established with the aim of studying the Soviet proposal on the definition of the aggressor and reporting to the Political Commission of the Conference.133 129 US Secretary of State, Cordell Hull, Address on 17 March 1938. 130 US President, Franklin D Roosevelt, Message to Various Chiefs of State on 16 May 1933 in US Department of State, Foreign relations of the United States diplomatic papers, 1933. General (US GPO 1933 vol I) 143. 131 Document Conf.D./C.G./P.V.38 (as cited in Ferencz (n 55) 202–203 and 206). 132 The Acting Chairman of the American Delegation, Hugh Gibson, Note to the Secretary of State on 10 March 1933 in US Department of State (n 130) 29. 133 Document Conf.D./C.G./P.V.38 (as cited in Ferencz (n 55) 214).

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Since the British, Germans and Italians would have objected to any definition of aggression, Davis, Chairman of the American Delegation, listed three alternative paths for the US Administration: first, together with the British he worked out a formula which was meant to serve as a guide, rather than a conclusive determination of an act of aggression. This formula was not going to be of any relevance for the US as it would have concerned part I of the Pact of Nonaggression which would not apply to the US. However, the formula could have been mentioned in a unilateral declaration, which could have stated: The High Contracting Powers . . . agree that they will consider as prima facie of such breach or of such recourse to war, the fact that a state in violation of treaties, invades with its armed forces the territory of another state, whether by land, sea or air and whether with or without a declaration of war. In the event that there have been mutual invasions of territory by two or more states, then the fact that any state refuses to evacuate territory which it may have thus invaded . . . shall be deemed to be prima facie evidence of the breach or the resort to war. . . .134 Second, on 24 May 1933, the Rapporteur of the Committee on Security Questions presented in Geneva a draft defnition of aggression based on fve facts, whose article 1 read as follows: The aggressor in an international conflict shall, subject to the agreements in force between the parties to the dispute, be considered to be that State which is the first to commit any of the following actions: 1) a 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, naval or air forces, with or without a declaration of war, on the territory, vessels or aircraft of another State; 4) naval blockade of the coasts or ports of another State; 5) provision of support to armed bands formed in its territory which have invaded 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 or protection.135 Since the US objections to any defnition of aggression were based on their excessive rigidity, article 1 could be rephrased so that the fve facts constituting aggression could have been used as mere guiding criteria for all states.136 Third, the US delegates might have rejected any defnition, even if it was not a binding rule.137 134 The Chairman of the American Delegation, Norman H Davis, Note to the Secretary of State on 30 May 1933 in US Department of State (n 130) 176 [emphasis in original]. 135 League of Nations Conference for the Reduction and Limitation of Armaments, Report of the Committee on Security Questions on 24 May 1933 (Conf.D./C.G./108) (as cited in Ferencz (n 55) 215). 136 The Chairman of the American Delegation (n 134) 177. 137 ibid.

The international delict of aggression 59 In 1934, on the occasion of the US sponsorship of a Treaty on the Manufacture of and Traffic in Arms, Roosevelt suggested that an understanding between the US, Great Britain and France and possibly other powers could be reached. According to article 1 of his proposal, 1. The signatory powers agreed over a period of 10 years that they will not allow any armed forces to cross the frontier of any neighbor nation or of any other nation and that such an act is declared to be the act of an aggressor.138 This proposal mirrored the substance of the one advanced by the President one year earlier, but its importance lay in being an attempt to defne aggression. Notably, If, then, such an agreement were signed by a great majority of the nations on the definite condition that it would go into effect only when signed by all the nations, it would be a comparatively easy matter to determine which nations in this enlightened time are willing to go on record as belonging to the small minority of mankind which still believes in the use of the sword for invasion of and attack upon their neighbors.139

7 The Pact of Paris in the 1930s In the years between its signature and the beginning of the Second World War, the Pact of Paris was considered an instrument marking a fundamental change in international law: a war between its parties was not a matter of their exclusive concern any more.140 Rather, thanks to both the Covenant and the Briand-Kellogg Pact, that conflict had become ‘of legal concern to everybody connected with the treaty’.141 As Henry Stimson put it: War between nations was renounced by the signatories of the Briand-Kellogg Pact. This means that it has become illegal throughout practically the entire world. It is no longer to be the source and subject of rights. It is no longer to be the principle around which the duties, the conduct, and the rights of nations revolve. It is an illegal thing. Hereafter when two nations engage in armed conflict either one or both of them must be wrongdoers – violators 138 US Under Secretary of State, William Phillips, Note to the Chief of the Division of Western European Affairs Moffat on 22 October 1934 in US Department of State Foreign relations of the United States diplomatic papers, 1934. General, the British Commonwealth (US GPO 1934 vol I) 170. 139 US President, Franklin D Roosevelt, Address on 28 December 1933. 140 Henry L Stimson, ‘Neutrality and War Prevention’ (1934/35) 16 International Conciliation 347, 350. 141 US Secretary of State, Henry L Stimson (as cited in Quincy Wright, ‘The Meaning of the Pact of Paris’ (1933) 27 AJIL 39, 40).

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The international delict of aggression of the general treaty. We no longer draw a circle about them and treat them with the punctilios of the duelist’s code. Instead we denounce them as lawbreakers.142

It is worth noting that, while at the time of its negotiation the US had insisted upon the omission of the word ‘aggression’ from the Pact of Paris, in 1932 the US delegate at the Geneva Conference for the Reduction and Limitation of Armaments, stated: ‘Since practically all the nations of the world have now pledged themselves not to wage aggressive war, we believe this Conference should and can successfully devote itself to the abolition of weapons which are devoted primarily to aggressive war’.143 The same year, Secretary of State Stimson defned the attacks by the Peruvian military forces in the Colombian region of Leticia as ‘acts of aggression’ and invited the Peruvian Administration to respect the binding instruments applicable to the case, including the Pact of Paris, the Resolutions adopted by the VI International Conference of American States and the 1932 Declaration of Washington.144 The US Administration therefore linked the idea of aggressive war, or even of an ‘act of aggression’, to the Pact of Paris, although the treaty was silent in this respect. Also, in 1933, Norman Davis asserted that in the future the definition of aggression could be influenced by the Pact of Paris as it had been ratified by a large majority of states. Indeed: Virtually all the nations of the world have entered upon the solemn obligation of the Briand-Kellogg Pact to renounce war as an instrument of national policy and to settle their disputes only by pacific means. . . . In the long run, we may come to the conclusion that the simplest and most accurate definition of an aggressor is one whose armed forces are found on alien soil in violation of treaties.145 Just few months earlier, however, the US had been particularly reticent to sign the Anti-War treaty, proposed by the Argentinean Administration in 1932 with the purpose, inter alia, of contributing ‘to the uniform acceptance of the KelloggBriand Pact and, what is of greater importance, to its effective application through the conclusion among the South American Republics of a similar and coincident agreement’.146 According to the US Secretary of State: 142 US Secretary of State, Stimson (n 96) x. 143 US delegate at the General Disarmament Conference, Honorable Hugh S Gibson, Address on 9 February 1932 in US Department of State (n 53) 161. 144 US Secretary of State, Henry L Stimson, Note to the Peruvian Minister of Foreign Affairs Manzanilla on 25 January 1933 in US Department of State (n 44) 423–428. 145 The Chairman of the United States Delegation, Honorable Norman H Davis, Address Delivered at the General Disarmament Conference, Geneva, on 22 May 1933 in US Department of State (n 53) 387. 146 US Secretary of State, Henry L Stimson, Note to the Argentinean Ambassador on 3 March 1933 in US Department of State (n 44) 228.

The international delict of aggression 61 the language used is sufficiently different to raise the question whether or not the obligations undertaken in the Kellogg-Briand Pact had need of being either modified or re-interpreted. For instance, the second paragraph of the Preamble and also Article I speak of ‘wars of aggression’. The language of Article I of the Pact of Paris, whereby the Contracting Parties condemn ‘recourse to war’ was most carefully considered by this Government when it was first proposed, and the use of the word ‘aggression’ was purposely avoided.147 Therefore, ‘[s]hould this Government re-affrm the principles of the Pact in other terms . . . it would inevitably weaken the prestige of the Kellogg-Briand Pact’.148 When on 15 June 1934 the US Senate gave its advice and consent for ratifcation of the Treaty, a reservation was added according to which: ‘[i]n adhering to this Treaty the United States does not thereby waive any rights it may have under other treaties or conventions or under international law’.149 With the aim of clarifying the legal meaning of the Pact, in 1934 the International Law Association adopted the Budapest articles of interpretation which equated the ‘resort to armed force’ to ‘war’.150 Lauterpacht, however, affirmed that the Pact did in fact prohibit the mere resort to war.151 Indeed, ‘[t]he renunciation of recourse to force does not follow logically from the renunciation of the right of war’.152 In any case, in the 1930s the Pact of Paris came into relevance in connection with two particular situations, namely the conflict between Japan and China and the one which involved Italy and Ethiopia. In September 1931, an explosion destroyed a section of the Japanese railway track near the city of Mukden, China. The Japanese then retaliated by invading Manchuria and establishing the state of Manchukuo.153 Taking into account the absence of any evidence in relation to a Chinese involvement in the incident and relying on articles 1 and 2 of the Kellogg-Briand Pact, the US minister to China stated that this was doubtless ‘an aggressive act’. Also, he added that ‘the steps taken by Japan in Manchuria must fall within any definition of war’.154 In October, however, Stimson sent a telegram to the Chargé in Japan in which he recalled the obligations they had voluntarily assumed by becoming parties to the Pact of Paris, and hoped that ‘Japan and China will refrain from any measures which

147 148 149 150 151 152 153

154

ibid 229. ibid 231. US Department of State (n 44) 239. Quincy Wright, ‘The Concept of Aggression in International Law’ (1935) AJIL 373, 376–377. Lauterpacht (n 108) 180. ibid 182. US Department of State, Office of the Historian, ‘The Mukden Incident of 1931 and the Stimson Doctrine’ accessed 21 April 2019. The US Minister in China, Nelson T Johnson, Telegram to the Secretary of State on September 1931 in US Department of State (n 53) 155.

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might lead to war’.155 A few months later, on 7 January 1932, a note addressed to the Governments of China and Japan inaugurated what would be called the Stimson doctrine by affirming: in view of the present situation and of its own rights and obligations therein, the American Government deems it to be its duty to notify . . . that it cannot admit the legality of any situation de facto nor does it intend to recognize any treaty or agreement entered into between those Governments, or agents thereof, which may impair the treaty rights of the United States or its citizens in China, including those which relate to the sovereignty, the independence, or the territorial and administrative integrity of the Republic of China, or to the international policy relative to China, commonly known as the open door policy; and that it does not intend to recognize any situation, treaty, or agreement which may be brought about by means contrary to the covenants and obligations of the Pact of Paris of August 27, 1928, to which treaty both China and Japan, as well as the United States, are parties.156 Subsequently, Stimson affrmed that the situation ‘cannot, under any circumstances, be reconciled’ with the Nine-Power Treaty and the Pact of Paris.157 In October the same year, the Assembly of the LoNs approved the Lytton report and concluded that in no way the measures undertaken by Japan could be considered justified under the law of self-defence. With a letter dated 25 February 1933, Stimson declared that the US was in substantial accord with the Commission’s findings.158 As a consequence of the adoption of the Lytton report, Japan withdrew from the League. This event had been envisaged by Stimson in early 1933 when he stated: ‘I could see . . . no other course than for Japan to get out of the League of Nations and the Kellogg Pact. . . . We recognized that Japan had a right to live her own way, provided she did not break treaties which she had made’.159 As for Ethiopia, Mussolini used the 1934 incident along the borders with the Italian Somaliland as an excuse to invade Ethiopia on 3 October 1935, despite its membership at the LoNs and notwithstanding it being a party to the Pact of

155 US Secretary of State, Henry L Stimson, Note to the Chargé in Japan on 20 October 1931 in US Department of State (n 53) 159. 156 US Secretary of State, Henry L Stimson, Note to the Ambassador in Japan on 7 January 1932 in US Department of State (n 53) 160. See also the ILC, ‘Final Report on Draft Articles on the Law of the Treaties with Commentaries adopted at its 56th session’, in Yearbook of the International Law Commission 1966, vol II (A/56/10) discussing the existence of an obligation of non-recognition in response to serious breaches of obligations arising under peremptory norms. 157 US Secretary of State, Henry L Stimson, Letter to the Chairman of the Committee on Foreign Relation, William E Borah on 23 February 1932 in US Department of State (n 53) 173. 158 US Department of State (n 53) 7. 159 US Secretary of State, Henry L Stimson, Memorandum regarding a Conversation with the Japanese Ambassador (Debuchi) on 5 January 1933 in US Department of State (n 53) 175.

The international delict of aggression 63 Paris. The US approach towards the situation in Ethiopia can be distinguished in two phases: before and after the 3 October 1935 Italian aggression, respectively. At first, the US Administration anticipated an argument which would be peculiar to its attitude during the second half of the 1930s. Independently from the Pact of Paris – all members of the international community had the right (even if not the duty) to ask for a peaceful solution of any controversies.160 Unlike what had happened for the Sino-Japanese conflict, after the aggression on Ethiopia, the US Administration did not embrace the position of the LoNs. As US Secretary of State Cordell Hull put it: the League of Nations organization at Geneva solemnly adjudged an aggressor in this war, while the United States did not; . . . the Geneva agency seeks to aid Ethiopia, which the United States does not; . . . the Geneva agency seeks to embargo all imports from Italy; which this Government does not.161 The US legal position mainly relied on the treaty obligations deriving from the Pact. For instance, Hull affirmed as follows: with both Italy and America signatories of the Paris Peace Pact with the solemn obligations it imposes upon each, it is not possible to understand how Italy can go to war and announce to the United States Government that despite the Paris Pact it must supply Italy with materials of war under penalty of being guilty of an unfriendly act, as stated.162 However, from July 1937, as the Sino-Japanese confict started to have a largescale character, the US Administration considered the principles at stake as independent from any treaty. As President Roosevelt, using the same words of Secretary of State Hull,163 asserted: The situation is definitely of universal concern. The questions involved relate not merely to violations of specific provisions of particular treaties; they are questions of war and peace, of international law, and especially of principles of humanity. It is true that they involve definite violations of agreements, and especially of the Covenant of the League of Nations, the Briand-Kellogg

160 See US Secretary of State, Cordell Hull, Statement on 12 September 1935 in US Department of State (n 53) 277. See also US Secretary of State, Cordell Hull, Telegram to the Italian Ambassador on 18 August 1935 in US Department of State (n 53) 266. 161 US Secretary of State, Cordell Hull, Memorandum of a conversation with the Italian Ambassador Rosso on 22 November 1935 in US Department of State (n 53) 299. 162 ibid 300. 163 US Secretary of State, Cordell Hull, Telegram sent to the Minister in Switzerland Harrison on 28 September 1937 in US Department of State (n 53) 382. See also Rapporteur Philip Jessup, ‘Harvard Research Draft Convention on Rights and Duties of States in Case of Aggression’ (1939) 33 AJIL Supp 819, 846.

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The international delict of aggression Pact, and the Nine-Power Treaty. But they also involve problems of world economy, world security, and world humanity.164

The US Government found itself in general agreement with the conclusion reached in the 6 October report by the LoNs.165 Also, on the occasion of the adoption of the Declaration of Brussels by the Nine-Power Conference, the SinoJapanese situation was defned ‘of concern to all countries members of the family of nations’.166 Given these precedents, the US reaction to the annexation of Austria in March 1938 appears to be quite inconsistent: it was not defined as an aggression and the Pact was not mentioned at all. At first, the US adopted a policy of ‘no-comment’ and only on passing referred to the use of force by Germany.167 Also, it was decided to take time and postpone any decision on whether to recognise the consequences of the annexation, although it was clear that the principles at stake were the same of the situations in Manchukuo and Ethiopia.168 The Pact was recalled by Roosevelt in September 1938, few days before the Prime Ministers of Italy, Germany, France and the UK met in Munich to solve the Czech crisis due to Hitler’s claims on Sudetenland, a Czech region with a high percentage of German population.169 According to the US President, any use of force on a scale which was likely to result in a general war was ‘as unnecessary as it is unjustifiable’.170 However, he did not criticise the Munich Agreement, whereby the territories in question were ceded to Germany, without even consulting the Czechs. Moreover, when German occupied Bohemia and Moravia in March 1939, the US condemned it by referring to the ‘need for respect the sanctity of the treaties and of the pledge word, and for non intervention by any nation in the internal affairs of other nations’.171 The acting Secretary of State Welles also recalled that the US had for long had a policy of condemnation of military aggression.172 One month later, the Italian invasion of Albania was defined as an

164 US President, Franklin D Roosevelt, Address delivered at Chicago on 5 October 1937 in US Department of State (n 53) 386. 165 US Department of State, Press Release on 6 October 1937 in US Department of State (n 53) 388. 166 Declaration adopted by the Conference at Brussels on 15 November 1937 in US Department of State (53) 390. 167 US Undersecretary of State, Summer Welles, Memorandum of Conversation with the German Ambassador on 14 March 1838 in US Department of State, Foreign relations of the United States diplomatic papers, 1938. General (US GPO 1938 vol I) 442. 168 US Assistant Secretary of State, George S Messersmith, Note to the Chargé in Austria Wiley on 16 March 1838 in US Department of State (n 168) 452. 169 US Department of State, Press Release on 26 September 1938 in US Department of State (n 53) 425. 170 US President, Franklin D Roosevelt, Telegram to the Chancellor of Germany, Hitler on 27 September 1938 US Department of State (n 53) 428. 171 US Acting Secretary of State, Summer Welles, Statement on 17 March 1939 in US Department of State (n 53) 454–455. 172 ibid.

The international delict of aggression 65 ‘additional threat to the peace of the world’.173 The language chosen in commenting these events, therefore, was far from corresponding to different legal categories. This is even clearer if one considers that in April 1939 Roosevelt deemed them all as equal to ‘acts of aggression’.174 The Pact of Paris was once again mentioned at the outset of the Second World War, at the Panama Conference. On that occasion Under Secretary of State Welles stated: In modern civilization, every country has a natural right that war shall not be loosed upon humanity. This right was subscribed to by every nation of the civilized world in the so-called Pact of Paris, and it is this right so solemnly subscribed to, that is today being flagrantly violated.175 The US kept making inconsistent terminological choices during the first years of the war. For instance, when the Soviets attacked Finland on 30 November 1939, Roosevelt criticised it ‘as a profound shock to the Government and people of the United States’ and added that all peace-loving nations would have unanimously condemned this new resort to military force.176 Then, in April 1940 Roosevelt claimed: ‘force and military aggression are once more on the march against small nations, in this instance through the invasion of Denmark and Norway’.177 As for Belgium, the Netherlands and Luxembourg, Roosevelt claimed: ‘This very day, the tenth of May, 1940, three more independent nations have been cruelly invaded by force of arms. . . . The overwhelmingly greater part of the population of the world abhors conquest and war and bloodshed’.178 Following the Italian attack on France, the President wrote that: In accordance with its policy not to recognize the results of conquest of territory acquired through military aggression, the Government of the United States will not consider as valid any attempts to infringe by force the independence and territorial integrity of France.179

173 US Secretary of State, Cordell Hull, Statement on 8 April 1939 in US Department of State (n 53) 455. 174 US President, Franklin D Roosevelt, Press Conference on 15 April 1939 [emphasis added]. 175 US Under Secretary of State, Summer Welles, Address at Panama Conference on 23 September 1939 in US Department of State (n 53) 493. 176 US President, Franklin D Roosevelt, Statement on the Conflict between Russia and Finland on 1 December 1939. 177 US President, Franklin D Roosevelt, Statement on the Nazi Invasion of Denmark and Norway on 13 April 1940. 178 US President, Franklin D Roosevelt, Radio Address Before the Eighth Pan American Scientific Congress on 10 May 1940. 179 US President, Franklin D Roosevelt, Note to the President of the French Council of Ministers on 15 June 1940 in US Department of State (n 53) 553. See also US President, Franklin D Roosevelt, Address on 10 June 1940.

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Yet when the Soviets occupied the Baltic states of Lithuania, Estonia and Latvia, the US Administration preferred to take time and did not publicly condemn it.180 By contrast, Great Britain and China were considered as resisting aggression in a number of occasions.181 Moreover, the President was quite clear in relation to the Italian ‘aggression’ to Greece,182 and the Administration considered the ‘barbaric invasion of Yugoslavia by the Nazis as another aggression against a small country’.183 Finally, in June 1941 the attack against Soviet Union was considered as a ‘treacherous’ one.184 Hence, in the 1930s the US Administration occasionally linked to the Pact concepts such as ‘aggression’, ‘act of aggression’ or ‘war of aggression’, which they used interchangeably. On the other hand, when the US did not mention the Pact of Paris, it considered the principles at stake as they were applicable per se, being them ‘principles of humanity’. Yet in no occasion did they refer to a breach of the Pact as a crime.

8 Neutrality and self-defence The US attitude towards neutrality significantly reshaped between the two world wars: the traditional policy of non-intervention and impartiality gradually modified so as to become a doctrine of non-belligerency during the first years of the war. Two important factors influenced the US neutrality doctrine, namely the US engagement in the talks for disarmament and the growing awareness of the importance of avoiding war. As for the former, the idea of impartiality towards belligerents was interpreted since 1935 as a need for the US to keep out of war, which implied a prohibition to trade arms and munitions of war with any belligerent. Unlike the previous conception of neutrality which in fact encouraged the production of arms, this new interpretation was well consistent with the US idea of disarmament meanwhile advanced at the international level. As for the latter, a number of international instruments (e.g. the Covenant of the League of Nations and the Kellogg-Briand Pact) expressively condemned, or were interpreted as having condemned, aggression. This idea ended up affecting the US doctrine of Neutrality.

180 The US Assistant Chief of the Division of the European Affairs, Memorandum on 15 July 1940 in US Department of State, Foreign relations of the United States diplomatic papers, 1940. General (US GPO 1940 vol I) 390. 181 US President, Franklin D Roosevelt, Report to Congress on the Operations of the Lend-Lease Act on 10 June 1941. 182 US President, Franklin D Roosevelt, Note to King George of Greece on 5 December 1940 in US Department of State (n 53) 595. 183 US Secretary of State, Cordell Hull, Statement on 6 April 1941 in US Department of Stat (n 53) 638–639. 184 US Acting Secretary of State, Summer Welles, Statement at the Press Conference on 23 June 1941 in US Department of State (n 53) 683.

The international delict of aggression 67 The joint Resolution of the Congress approved by the President on 31 January 1922185 anticipated the idea of neutrality which would have developed in the 1930s, that is, an embargo on arms and munitions of war against Nicaragua covering the trade of US private citizens in a conflict of a non-international character.186 Yet in February 1928 the US signed the Havana Convention on Maritime Neutrality, which considered the ‘established rules of neutrality as an attitude of absolute impartiality’.187 However, in 1931 Stimson wrote: I could not believe that any American Government would seek to use our Navy to enforce an extreme doctrine of neutrality under which American merchants were seeking to trade with an aggressor nation so declared by the League and against whom Britain and British public opinion were sanctioning the use of the British Navy.188 Neutrality was again discussed in relation to the situation in Japan. In 1933, the US Senate debated, without adopting, Resolution 93, which provided for a presidential power of proclaiming embargoes, whenever a state of war between the targeted countries existed. Stimson claimed that ‘this Government should no longer be left in the position of being unable to join the other governments of the world in preventing the supply of arms and munitions for use in an international confict’.189 He also unsuccessfully advocated for an arms embargo against Japan.190 Following a decision of the Council of the LoNs, in 1934 the US established an embargo on arms against both Bolivia and Paraguay, which had been confronting since 1932 in the Chaco War.191 Two years later, the constitutionality of the Congressional Joint Resolution giving the President the power to issue an executive order establishing an embargo was challenged, although without success, before the Supreme Court by Curtiss-Wright. On that occasion, Justice

185 US Secretary of State, Frank B Kellogg, Note to the Minister in Costa Rica Davis on 16 September 1926 in US Department of State, Papers relating to the foreign relations of the United States, 1926 (US GPO 1926 vol II) 793. 186 See as a precedent the 1912 embargo of arms against revolutionists in Mexico. Martin Sicker, The Geopolitics of Security in the Americas: Hemispheric Denial from Monroe to Clinton (Greenwood Publishing Group 2002) 75. 187 Lauterpacht (n 108) 181. 188 US Secretary of State, Henry L Stimson, Memorandum of a Conversation With the British Prime Minister MacDonald at Scriberscross Farmhouse, Scotland on 7 August 1931 in US Department of State, Papers relating to the foreign relations of the United States, 1931 (US GPO 1931 vol I) 515–516. 189 US Secretary of State, Henry L Stimson, Letter to the Chairman of the Committee on Foreign Affairs McReynolds on 5 April 1933 in US Department of State (n 53) 178. 190 US Department of State (n 53) 7. 191 Stephen C Neff, The Rights and Duties of Neutrals: A General History (Juris Publishing 2000) 179. See also Anique H M van Ginneken, Historical Dictionary of the League of Nations (Scarecrow Press 2006) 56.

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George Sutherland stated that the US external affairs’ powers did not depend upon an affirmative grant of the Constitution.192 In 1934, the US submitted at the General Disarmament Conference a proposal according to which, ‘in the event of any act of aggression the signatory powers would decline to trade in any manner, shape or form with an aggressor’.193 While this attempt remained victim of a diplomatic impasse, at the national level an important turning point was the adoption on 31 August 1935 of the Neutrality Act. It provided for the same presidential power of deciding on embargoes on arms and munitions which two years earlier had failed to pass.194 The US applied it to both Ethiopia and Italy by declaring an embargo on 5 October 1935,195 but made it clear that the US was not joining the League’s members in the adoption of economic sanctions on Italy.196 However, the Italian contention that ‘to be neutral the United States must furnish war supplies’ was considered ‘incomprehensible’.197 Being a measure targeting both parties to the conflict, therefore, the question of which part was the aggressor was irrelevant. In February 1936 the Neutrality Act was amended by a joint Resolution which extended the embargo to all financial aspects by prohibiting any person in the US to furnish credit under whatever form to any part or subdivision of all belligerents. Importantly, an exception was provided in case of a conflict between one or more American Republics and non-American states.198 Given that the Neutrality Act only applied when a war between nations existed, it could not apply to internal disorders or civil strives, such as the Spanish civil war. However, the policy of non-intervention in the internal affairs of a state was initially deemed sufficient to guarantee that US citizens would have not interfered.199 It was only on 8 January 1937 that an embargo on arms, ammunition or implements of war was established against Spain.200 In line with this measure, on 1 May 1937 the Neutrality Act was amended to include any civil strife that ‘is of a magnitude or is being conducted under such conditions that the export of arms, ammunitions, or implements of war . . . would threaten or endanger the peace of the United States’.201

192 David L Sloss, Michael D Ramsey, and William S Dodge, International Law in the U.S. Supreme Court (CUP 2011) 281. 193 The US Under Secretary of State (n 138). 194 US Department of State (n 53) 266. 195 US President, Franklin D Roosevelt, Statement on 5 October 1935 in US Department of State (n 53) 283. 196 US Department of State (n 53) 31. 197 ibid 32. 198 ibid 313. 199 The US Acting Secretary of State, William Phillips, Circular telegram to the Diplomatic And Consular Officers of the United States in Spain on 7 August 1936 in US Department of State (n 154) 322. 200 US Department of State (n 53) 353. 201 ibid 356.

The international delict of aggression 69 The Act contained the so-called Cash-and-Carry clause, which at the discretion of the President allowed belligerent nations to acquire any sort of items but arms from the US, provided that they could pay immediately and carry them on non-American ships.202 This provision was designed to be able to help France and the UK in case of war against the Axis Powers.203 Still, President Roosevelt proclaimed that the US would have applied the Neutrality Act to both China and Japan with respect to merchant vessels own by the US Government.204 From 1938 an increase in armaments was demanded, which kept growing till the moment the US declared war on Japan in 1941.205 Meanwhile, in 1939 the US idea of neutrality changed again. As President Roosevelt put it: At the very least, we can and should avoid any action, or any lack of action, which will encourage, assist or build up an aggressor. We have learned that when we deliberately try to legislate neutrality, our neutrality laws may operate unevenly and unfairly -may actually give aid to an aggressor and deny it to the victim. The instinct of self-preservation should warn us that we ought not let that happen anymore.206 Hence, this new interpretation characterised by the need to avoid any ‘lack of action’ was inherently linked with the idea of aggression. Accordingly, in March 1939 Roosevelt tried – without success – to have the embargo provision repealed after the occupation of Czechoslovakia by the Nazis. The Neutrality Act was then finally modified in November 1939: the embargo provision was repealed, and the cash-and-carry clause now included all trading with belligerents.207 In 1940, those states fighting ‘against the aggressor’, including France208 and Greece,209 benefitted from these aids. Besides, the US neutrality had to reconcile with a changing self-defence. In July 1940, at Habana, the American states declared [t]hat any attempt on the part of a non-American State against the integrity or inviolability of the territory, the sovereignty or the political independence

202 US Department of State, the Office of the Historian, ‘The Neutrality Acts, 1930s’ accessed 21 April 2019. 203 ibid. 204 US President, Franklin D Roosevelt, Statement on 14 September 1937 in US Department of State (n 53) 380. 205 US President, Franklin D Roosevelt, Message to the Congress on 28 January 1938 in US Department of State (n 53) 404. See also US President, Franklin D Roosevelt, Address to the Congress on 16 May 1940 in US Department of State (n 53) 530. 206 US President, Franklin D Roosevelt, Address to Congress on 4 January 1939 in US Department of (n 53) 449. 207 US Department of State, the Office of the Historian (n 204). 208 US President, Franklin D Roosevelt (n 181) 553. 209 US President, Franklin D Roosevelt (n 184) 595.

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The international delict of aggression of an American State shall be considered as an act of aggression against the states which signed the declaration.210

Furthermore, the need of preventing ‘the aggressor from attaining control of the high seas’ became a central part of the US idea of national defence.211 Indeed, even territories outside the Western Hemisphere in Europe could be converted to ‘strategic centers of aggression against nations of the American Continent’.212 This idea led the US to reach an agreement with the occupied Denmark on Greenland (1941) and lay behind the US replacement of the UK forces in Iceland, which was seen as ‘essential to national defence’ and as a ‘strategic outpost for Americas’.213 Therefore, in 1940 Roosevelt conceived the so-called Lend-Lease Act, which would be passed in March 1941. Pursuant to this measure, payments by belligerents could be postponed because the US Government would have lent all the necessary material.214 The attack on Great Britain which had begun during the summer 1940 showed that the British could not use the Cash-andCarry Act any more because they were not able to pay immediately. Among the arguments in favour of the Bill, the 1934 non-binding Budapest articles of interpretation of the Pact of Paris were recalled.215 However, this measure attracted a lot of critics mainly based on the alleged incompatibility of the Act with neutrality.216 Thus, probably influenced by Lauterpacht,217 Robert Jackson, in his capacity as US Attorney General, spoke in favour of the adoption of the Act and claimed: There would be obvious inconsistency in the United States invoking the benefits of a Covenant to which it refused adherence, but I cite the Covenant because it both evidences and dates the changed position of both war and neutrality in the world’s thought. And it was followed by another commitment to which we were a party.218

210 Declaration of Reciprocal Assistance and Cooperation for the Defense of the Nations of the Americas on 30 July 1940 in US Department of State (n 53) 563. 211 US Secretary of State, Cordell Hull, Address on 24 April 1941 in US Department of State (n 53) 651. 212 Agreement between USA and Denmark on 9 April 1940 in US Department of State (n 53) 642. 213 ibid. US President, Franklin D Roosevelt, Message to the Congress on 7 July 1941 in US Department of State (n 53) 686. 214 Lend-Lease Act, 11 March 1941 in US Department of State (n 53) 631. 215 Stanimir A Alexandrov, Self-Defense Against the Use of Force in International Law (Martinus Nijhoff Publishers 1996) 64. 216 See Edwin Borchaerd, ‘War, Neutrality and Non-Belligerency’ (1941) 35 AJIL 618. 217 Hersch Lauterpacht, ‘Memorandum on the Principles of International Law Concerning the Question of Aid to the Allies by the United States’ in Elihu Lauterpacht (ed), Hersch Lauterpacht, International Law Being the Collected Papers of Hersch Lauterpacht (CUP 2004 vol V) 645–658. 218 Attorney General of the United States, Robert H Jackson, Address at the Interamerican Bar Association, Havana, Cuba on 27 March 1941.

The international delict of aggression 71 Therefore, Some of our scholarship has not caught up with this century which, by its League of Nations Covenant with sanctions against aggressors, the KelloggBriand Treaty for renunciation of war as an instrument of policy, and the Argentine Anti-War Treaty, swept away the nineteenth century basis for contending that all wars are alike and all warriors entitled to like treatment. And this adoption in our time of a discriminating attitude towards warring states is really a return to earlier and more healthy precepts.219 Indeed, [t]he very basis of these treaties was the assumption that, in this age of interdependence, all its signatories had a direct interest in the maintenance of peace and that war had ceased to be a matter of exclusive interest for the belligerents directly affected.220 The Lend-Lease Act had so important implications that even his supporters could not but admit its value. The Secretary of War Henry Stimson, for instance, called it ‘a declaration of economic war’.221 Moreover, the defence of and the assistance provided to Great Britain through this act was essential for the maintenance of the freedom in the high seas.222 Yet the act was applicable to all victims of aggression. Indeed, it was also known as the ‘aid-to-democracies bill’223 and found application in relation to other states. For instance, once the Vichy Government had concluded an armistice with Italy and Germany, helping Free France was considered vital to the defence of the US.224 The act found application in relation to China,225 (despite the fact that the US kept being the main supplier of oil for the ‘aggressor’ Japan),226 as well as Yugoslavia.227 In 1941, the Congress approved a joint resolution which repealed section 6 of the 1939 Neutrality Act to allow the arming of US merchant ships for their defence.228 This was considered a measure of ‘immediate necessity and extreme 219 ibid. 220 ibid. 221 Henry L Stimson and McGeorge Bundy, On Active Service in Peace and War (Harper and Brothers 1948) 360. 222 US Secretary of State, Cordell Hull, Statement before the US Senate Committee on the Foreign Affairs on 15 January 1941 in US Department of State (n 53) 612. 223 US President, Franklin D Roosevelt, Address on 15 March 1941 in US Department of State (n 53) 631. See also US Secretary of State, Cordell Hull, Note to the Minister in Portugal Fish on 10 April 1941 in US Department of State (n 53) 639. 224 US Department of State (n 53) 109. 225 US President, Franklin D Roosevelt (n 183). 226 US President, Franklin D Roosevelt, Informal Remarks to the Volunteer Participation Committee on 24 July 1941 in US Department of State (n 53) 703–704. 227 US Secretary of State, Cordell Hull (n 185) 638–639. 228 US Department of State (n 53) 787.

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urgency’. Sections 2 and 3 were also repealed. Indeed, according to the President, ‘it is essential to the proper defence of our country that we cease giving the definite assistance which we are now giving to the aggressors. For, in effect, we are inviting their control of seas by keeping our ships out of the ports of our own friends’.229 Quincy Wright underlined that ‘[w]hile the reports of the Senate and House Committees on the recent repeal measure emphasized the principle of self-defense, official advocates of the measure in the House and Senate hearings repeatedly referred to the criminal character of Germany’s aggression’.230 On 27 May 1941, Roosevelt proclaimed an ‘unlimited national emergency’, which required that the US ‘military, naval, air, and civilian defenses be put on the basis of readiness to repel any and all acts or threats of aggression directed toward any part of the Western Hemisphere’.231 In particular, an ‘unrestricted submarine warfare . . . constitutes . . . – an act of aggression’.232 Lastly, self-defence was then the justification for the US declaration of war on Japan after the attack against Pearl Harbour on 7 December 1941. Roosevelt did not use the word ‘aggression’ but claimed: we will not only defend ourselves to the uttermost but will make it very certain that this form of treachery shall never again endanger us. Hostilities exist. There is no blinking at the fact that our people, our territory, and our interests are in grave danger.233 Then, in January 1942, the Foreign Ministers of the American Republics (Rio de Janeiro) adopted Resolution XXIV according to which they resolved: To make it of record that Japan by perpetrating armed aggression against the United States of America has violated the fundamental principles and standards of international law. To condemn such aggression and protest against it to the civilized world and extend this condemnation and protest to the Powers which have associated themselves with Japan.234

229 US President, Franklin D Roosevelt, Message to the Congress on 9 October 1941 in US Department of State (n 53) 761. 230 Quincy Wright, ‘Repeal of the Neutrality Act’ (1942) 36 AJIL 8, 21. 231 US President, Franklin D Roosevelt, Proclamation 2487 – Proclaiming That an Unlimited National Emergency Confronts This Country, Which Requires That Its Military, Naval, Air and Civilian Defenses Be Put on the Basis of Readiness to Repel Any and All Acts or Threats of Aggression Directed Toward Any Part of the Western Hemisphere on 27 May 1941. 232 US President, Franklin D Roosevelt, Radio Address on 11 September 1941 US Department of State (n 53) 740. 233 US President, Franklin D Roosevelt, Address to Congress Requesting a Declaration of War with Japan on 8 December 1941. 234 Third Meeting of the Ministers of Foreign Affairs of the American Republics, Final Act, Rio de Janeiro, 15–28 January 1942 in Supplement: Official Document (1942) 36 AJIL 61, 85.

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9 Aggression during the Second World War During the war, aggression came into relevance when the Major Allied Powers discussed two different issues: the principles and structure of the organisation to be established at the end of the war, and the punishment of those enemies who had committed the most odious atrocities.

9.1 A new international organisation for the maintenance of peace In August 1941 Roosevelt and Churchill issued a Joint Declaration, known as the Atlantic Charter. Among its eight points, the last one affirmed that the Governments of the UK and the US believed ‘that all of the nations of the world, for realistic as well as spiritual reasons must come to the abandonment of the use of force’. Therefore, the establishment of a permanent system of general security was necessary.235 The same principles were then reaffirmed by 26 states through the adoption of a Joint Declaration on 1 January 1942.236 In October 1943, the Foreign Ministers of Great Britain, China, Soviet Union and the US met in Moscow and issued a Joint Declaration, whereby they declared the necessity of establishing a general international organisation.237 Therefore, from July to October 1944 the representatives of China, USSR, the UK and the US met at Dumbarton Oaks to delineate the structure of the future international organisation. On that occasion, any explicit reference to aggression in the Charter of the organisation was strongly opposed by both the US and the UK. According to the US, the concept of aggression was already included in those of threat to and breach of the peace.238 On 18 July 1944, the US had prepared a tentative proposal which in its relevant parts read as follows: V PACIFIC SETTLEMENT of DISPUTES 1. All states, whether members of the international organization or not, should be required (a) to settle disputes by none but pacific means, and (b) to refrain from the threat or use of force in their international relations in any manner inconsistent

235 The President of the United States of America, Franklin D Roosevelt, and the Prime Minister of the United Kingdom, Winston LS Churchill, The Atlantic Charter on 14 August 1941. 236 The Governments of the United States, the United Kingdom, the Union of Soviet Socialist Republics, China, Australia, Belgium, Canada, Costa Rica, Cuba, Czechoslovakia, Dominican Republic, El Salvador, Greece, Guatemala, Haiti, Honduras, India, Luxembourg, Netherlands, New Zealand, Nicaragua, Norway, Panama, Poland, South Africa, Yugoslavia, Declaration by the United Nations on 1 January 1942. 237 Moscow Conference, Joint four-nation Declaration and Statement on Atrocities in October 1943. See also the President of the United States, the Prime Minister of Great Britain, and the Premier of the Soviet Union at the Tehran conference, Declaration of the Three Powers on 1 December 1943. As for the relevant measures adopted by the Congress, see HJ Res 25, 78th Cong (1943) (also known as the Fulbright Resolution); and S Res 192, 78th Cong (1943) (also known as the Connally Resolution). 238 Oscar Solera, Defining the Crime of Aggression (Cameron May 2007) 63.

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The international delict of aggression with the purposes envisaged in the basic instrument of the international organization.239

The choice of ‘should’ is a useful indicator about the legal value which the US attributed to these principles. Yet the latter were also directed to states that were not members of the organisation, thus unveiling their erga omnes nature. An earlier draft also requested members ‘not to use force . . . except under the authority of the international organization’. This language was changed to meet objections of those who feared that that could affect the right of self-defence.240 The US tentative proposal also provided: VI DETERMINATION of THREATS to the PEACE or BREACHES of THE PEACE AND ACTION WITH RESPECT THERETO 1. The executive council should be empowered to determine the existence of any threat to the peace or breach of the peace, and to decide upon the action to be recommended or taken to maintain or restore peace. . . . The executive council should be empowered to determine whether any condition, situation, or act involving an alleged threat to the peace or breach of the peace is of sufficient gravity to require action. Note: The conditions, situations, and acts envisaged above include, for example: a. employment of military forces by a state within the jurisdiction of another state not authorized by the international organization.241 It was only the consolidated proposal of October 1944, in its Chapter VIII, section B, paragraph 2, that the term ‘act of aggression’ was mentioned for the frst time. It provided that: In general the Security Council should determine the existence of any threat to the peace, breach of the peace or act of aggression and should make recommendations or decide upon the measures to be taken to maintain or restore peace and security.242

9.2 The United Nations War Crimes Commission On 13 January 1942, the representatives of nine occupied countries met in London and issued the so-called St James’s Declaration, according to which war

239 United States Tentative Proposals for a General International Organization on 18 July 1944 in Ruth B Russell, A History of The United Nations Charter: The Role of the United States 1940–1945 (The Brookings Institution 1958) 1000. 240 ibid 296, note 23 [emphasis added]. 241 United States Tentative Proposals (n 241) 1001. 242 Washington Conversations on International Peace and Security Organization on 7 October 1944 in Pillars of Peace, Pamphlet 4 (Book Department of the Army Information School 1946) 41 [emphasis added].

The international delict of aggression 75 criminals would be ‘sought out, handed over to justice and judged’.243 In August the same year, President Roosevelt notified that: When victory has been achieved, it is the purpose of the Government of the United States, as I know it is the purpose of each of the United Nations, to make appropriate use of the information and evidence in respect to these barbaric crimes of the invaders, in Europe and Asia. It seems only fair that they should have this warning that the time will come when they shall have to stand in courts of law in the very countries which they are now oppressing and answer for their acts.244 On 7 October 1942, Roosevelt declared: With a view to establishing responsibility of the guilty individuals through the collection and assessment of all available evidence, this Government is prepared to cooperate with the British and other Governments in establishing a United Nations Commission for the Investigation of War Crimes.245 One year later, in October 1943, the Foreign Ministers of Great Britain, China, Soviet Union and the US met in Moscow. On that occasion they issued a Statement on Atrocities, signed by all but China, according to which: those German officers and men and members of the Nazi party who have been responsible for or have taken a consenting part in . . . atrocities, massacres and executions will be sent back to the countries in which their abominable deeds were done in order that they may be judged and punished according to the laws of these liberated countries and of free governments which will be erected therein. . . . The above declaration is without prejudice to the case of German criminals whose offenses have no particular geographical localization and who will be punished by joint decision of the government of the Allies.246 Also, these three countries declared that Austria was ‘the frst free country to fall a victim to Hitlerite aggression’ and ‘[t]hey regard the annexation imposed on Austria by Germany on March 15, 1938, as null and void’.247 243 Declaration of the Governments of the Nine occupied European States signed at St James’s Palace on 13 January 1942 in UNWCC Declarations by United Nations Governments and leaders on the subject of War Crimes (14 June 1944) UNWCC Doc C.29. 244 US President, Franklin D Roosevelt, Reply to the Collective Note of Nine Allied Governments (Signatories of the St. James’ Declaration) of 30 July 1942 on 21 August 1942 in UNWCC (n 245) UNWCC Doc C.29. 245 US President, Franklin D Roosevelt, Statement on the Plan to Try Nazi War Criminals on 7 October 1942. 246 Moscow Conference (n 239). 247 Moscow Conference, Declaration on Austria in October 1943.

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Almost at the same time of Moscow, on 20 October 1943, the representatives of 17 Allied Nations met at the British Foreign Office in London and established the United Nations Commission for the Investigation of War Crimes.248 It was agreed that the Commission would have its premises in London with the initial primary purposes of investigating and recording the evidence of war crimes committed in the occupied territories, identifying the individuals responsible for those crimes and reporting to the Governments on the cases on which they thought they could have sufficient evidence.249 In 1944, the UNWCC distributed its work over three main Committees. The first one dealt with investigations, the second discussed problems connected to the enforcement and the third focused on substantial legal issues. On 27 April 1944, the Czech Representative to Committee III, Ečer, introduced the subject of the criminality of an aggressive war for the first time. Delegates should not have decided whether aggressive war was a crime according to the Briand-Kellogg Pact. In fact, the Second World War could not be considered ‘a simple aggressive war’. Rather, it was ‘a total one’.250 Therefore, he submitted a Draft Declaration, according to which the punishment of the authors of the crimes committed in connection with the Second World War was one of the main aims of the United Nations war. In particular, those responsible for the ‘monstrous crime of preparing and launching’ that total war needed to be punished.251 Initially, the Committee III submitted to the Commission a resolution which also considered the ‘crimes committed for the purposes of preparing or launching the war, irrespective of the territory where these crimes have been committed’.252 The same resolution provided for the categories of ‘crimes that may be committed in order to prevent the restoration of peace’.253 On 6 June 1944, the Commission decided to leave out this latter category but referred the first one back to the Committee III for further consideration. A subcommittee composed of Dr Ečer, Lieut-Col Hodgson (US), Dr de Moor (the Netherlands), and Sir Arnold McNair (UK) was then established with the aim to consider whether the preparation and launching of the war per se should be deemed a war crime.254 Thus, Sir McNair prepared a note which in its relevant parts read as follows: I do not consider that de lege lata a judge would hold that the effect of the Peace Pact was to make it a criminal act. At any rate I submit that such a ruling would be contrary to English and (I think) American conceptions 248 The United Nations War Crimes Commission (n 14) 2. 249 ibid 113–114. 250 UNWCC Committee III Scope of the Retributive action of the United Nations according to their official declarations, Rapporteur Ečer (27 April 1944) UNWCC Doc III/4. 251 ibid. 252 UNWCC Resolution proposed by Committee III (16 May 1944) UNWCC Doc C.20. 253 ibid. 254 UNWCC, Report of the Sub-Committee appointed to consider whether the preparation and launching of the present war should be considered ‘War Crimes’ (15 September 1944) UNWCC Doc III/9.

The international delict of aggression 77 of international law . . . and I find it difficult to believe that, at any rate, an English or an American lawyer would hold that a treaty which, like the Peace Pact of Paris, provides no sanctions and makes no reference to the criminal law, can impose upon a party any duty to punish its nationals for procuring a breach of that treaty or authorise one party to punish the nationals of another party for doing so.255 The US representative Hodgson, together with de Moor, recommended to Committee III to adopt the following conclusions: I) Acts committed by individuals merely for the purpose of preparing for and launching aggressive war and not falling within the next paragraph are, lege lata, not “war crimes”. . . . (III) However, such acts as mentioned sub. (I) and especially the acts and outrages against the principles of the laws of nations and against international good faith perpetrated by the responsible leaders of the axis powers and their satellites in preparing and launching this war are of such gravity that they should be made the subject of a formal condemnation in the peace-treaties.(IV) It is desirable that for the future penal sanctions should be provided for such grave outrages against the elementary principles of international law.256 This recommendation was adopted with the report of the subcommittee by Committee III on 18 September 1944 by a majority composed of all members but the Czech Representative, who in fact issued a minority report on 27 September 1944. He argued that the preparation and launching of the Second World War were crimes according to the criminal laws of the occupied countries and, at the time, ‘crimes against the whole of mankind according to the general principles of international law’. Besides quoting Stimson,257 he recalled the intervention of the US delegate, Campbell Lee, at the 1934 Budapest Conference. On that occasion, Lee had stated: As a citizen of the Country whose Government initiated the Pact of Paris and a member of the Committee, I rise to second the report in principle. The Pact is a part of the supreme law of the United States, on a par with the Constitution itself. . . . Today is accepted that a new revolutionary principle was adopted in 1928. The violator of this common treaty must be taken into consideration. His acts have been declared illegal by the whole world.258 255 Sir Arnold McNair, Note on the questions submitted, namely, whether (i) the preparation for and the launching of the present war by individuals, and (ii) preparatory acts by individuals which are themselves criminal acts, can or ought to be treated by the Commission as “War Crimes” (18 August 1944) UNWCC Doc C.43. 256 UNWCC (n 256). 257 US Secretary of State, Stimson (n 96) x. 258 UNWCC, Minority Report presented by B Ečer, on the question whether the preparation and launching of the present war should be considered as crimes being within the scope of the United Nations War Crimes Commission (27 September 1944) UNWCC Doc C.59.

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When the issue was submitted to the Commission, the British and US delegates both acting on instructions, asked for the vote to be postponed. Indeed, at the insistence of US Secretary of War Stimson, US Representative Pell was notifed that, at that time, the Administration could not express an opinion on this matter.259 This became the subject of an internal debate within the US Administration. On 27 November 1944, Stimson replied to a note by the Department of State by stating that: It is . . . suggested that, in the meantime, the question be made a subject of study in your office and in the office of the Judge Advocate General of the Army, and that further consultation then be had in the light of such studies.260 However, on 30 November 1944, Stimson forwarded to his Assistant, John J McCloy, a Memorandum prepared by Willie Chanler, a New York attorney serving in the War Department. This concerned the legal basis for the punishment of Hitler and his associates for their acts of aggression. As Stimson affirmed: It takes up the subject from a new approach – an approach of international law as modified by the Pact of Paris and seeks to demonstrate that these defendants could be charged and convicted for the offense of attempting to overrun and annihilate Germany’s peaceful neighbors in violation of treaty obligations and attempting to destroy the peace of the world in an effort to conquer Europe. While this thesis is, I think, a little in advance of the progress of international thought, it is nevertheless along lines of approach which thoughtful members of the international bar have been putting forward during the past twenty years. . . . While I don’t think that the advance has been sufficiently generally recognized to make it safe to place our charges against these men on this basis, nevertheless a chance may come for using some of the arguments he advances and perhaps in making a step forward in international law on this subject.261 According to Chanler, his plan was a most beneficial and useful step in the difficult path towards the elimination of war. . . . But the greatest advantage of the proposal would be that it would get around the great stumbling block which has stayed all previous attempts

259 Arieh J Kochavi, Prelude to Nuremberg. Allied War Crimes policy and the question of punishment (The University of North Carolina Press 1998) 97–100. 260 US Secretary of War, Henry L Stimson, Note to the US Secretary of State, Cordell Hull on 27 November 1944 in Bradley F Smith, The American Road to Nuremberg: The Documentary Record 1944–1945 (Hoover Institution Press 1982) 68. 261 US Secretary of War, Henry L Stimson, Cover letter to the Assistant Secretary of War, John J McCloy, on 30 November 1944, attached to Memorandum on Aggressive War by Colonel William Chanler on 28 November 1944 in Smith (n 262) 68–69.

The international delict of aggression 79 to outlaw wars of aggression: the difficulty of defining an ‘aggressor’ in a formal treaty. . . . There would be no need of entering into new treaty. We would simply have a judicial determination analogous to a common law precedent to the effect that the facts presented by Hitler’s course of conduct constitute a violation of the Kellogg Pact and deprive him and his followers of the protection of International Law. This . . . would . . . put upon a nation contemplating such a war the burden of being certain that it could establish its good faith before an international tribunal.262 Also, ‘once it is done, it will be International Law, regardless of possible present doubts. If it presents a possibility of contributing to the future peace of the world, legalistic objections should not be permitted to stand in the way’.263 Moreover, ‘[t]he exception permitting defensive war should be limited to a defense against actual or undeniably imminent armed aggression. Otherwise, the Pact is meaningless’.264 Meanwhile, the office of the Judge Advocate General expressed its opposition to Chanler’s idea as ‘the views expressed by Sir Arnold McNair . . . are, in general, an accurate reflection of present international law’.265 While ‘[r]esort to war is unlawful under the Pact, . . . it by no means follows that aggressive war is made a crime’. As a matter of fact, ‘[t]here is not the remotest suggestion in the Pact that the authors of a war in violation thereof were to be criminally responsible for their wrong. . . . Such violations are . . . ‘delicts’; they will support claim in behalf of individuals who sustain injuries therefrom. But they are not crimes’.266 Hence, since a war of aggression might be considered an immoral thing, an affirmative vote will discredit the Commission among lawyers; a negative vote will discredit it with the public. . . . It is therefore believed essential that the whole question be withdrawn from the Commission’s consideration, and that no further action be taken by it at the present time.267 As a consequence, McCloy and Bernays from the War Department redrafted their plan by focusing on conspiracy including the notion of aggressive war.268 Despite the contrary sentiment of the majority of the people involved in this internal debate,269 by the end of 1944 the idea of criminality of aggression started to gain some support. Herbert Wechsler, then Assistant Attorney General, wrote

262 Colonel William Chanler, Memorandum on Aggressive War on 30 November 1944 in Smith (n 262) 73. 263 ibid 74. 264 ibid 72 [emphasis added]. 265 Memorandum for the Judge Advocate General, Major General Myron C Cramer, issued shortly before 18 December 1944 in Smith (n 262) 79 [emphasis in original]. 266 ibid 81. 267 ibid 82. 268 Kochavi (n 261) 207–208. 269 See also Sheldon Glueck, War Criminals. Their Prosecution & Punishment (Alfred A Knopf 1944) 37–38.

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a Memorandum to Francis Biddle, future US Judge at the International Military Tribunal, in which he stated: the crime charged involves so many elements of criminality under the accepted laws of war and penal laws of all civilized states that the incorporation of the additional factors in question does not offer the type of threat to innocence which the prohibition of ex post facto laws is designed to prevent. The problem, moreover, is not a legal problem in any genuine sense since under international law the victors may determine the terms of peace.270

10 Conclusion This chapter has investigated the US legal position in relation to the notion of aggression from 1918 to 1944. The US played a significant role in the establishment of the LoNs, whose Covenant – eventually inserted in the Versailles Peace Treaty – contained a provision relevant to aggression, although within the context of a rudimental collective security system. However, the treaty failed to be ratified by the US Senate. Yet in 1928 US Secretary of State Frank B Kellogg advocated, together with French Foreign Minister Aristide Briand, for the conclusion of a Pact which ‘outlawed war’. The so-called Pact of Paris, together with the Covenant of the LoNs, contributed to the international emergence of the notion of aggression, which was subject to condemnation in a number of regional instruments to which the US became a Party in the 1930s. During the same years, aggression affected the US doctrines of neutrality and self-defence. Nevertheless, for 25 years the US consistently considered aggression as a mere international wrongful act and no criminal responsibility was attributed to those people responsible for its commission. Indeed, in 1919 the US Representatives to the Commission on the Responsibility of the Authors of the War claimed that the launching of a war in violation of international treaties was a moral wrong, and not a crime. Although the US Administration did give to the 1928 Pact of Paris a broader interpretation during the 1930s, nothing until the very end of 1944 could suggest a change from the 1919 perspective. When the issue arose within the UNWCC, the US Representatives were instructed to postpone any vote. Meanwhile, the subject was debated from within and some advocated in favour of the criminality of aggression. Those theories only met Presidential approval in early 1945, a year which marked a huge change in the US approach towards the criminality of aggression. This will be the focus of the first part of the following chapter.

270 The Assistant Attorney General, Herbert Wechsler, Memorandum for the Attorney General Francis Biddle on 19 December 1944 in Smith (n 262) 86 [emphasis in original].

The international delict of aggression 81

Bibliography International Treaties, case law and legal documents Anti-war Treaty of Non-aggression and Conciliation (Saavedra Lamas Treaty) (adopted 10 October 1933, entered into force on 13 November 1935) 163 LNTS 393 Commission on the Responsibility of the Authors of the War and on Enforcement of Penalties, ‘Report Presented to the Preliminary Peace Conference on March 29, 1919. Annex II: Memorandum of Reservations Presented by the Representatives of the United States to the Report of the Commission on Responsibilities’ (1920) AJIL 127 The Council of Four, Draft Clause prepared by the Drafting Committee of the Peace Conference, on instructions received from the Council of the First Delegates of the Powers with General Interests After Consideration of Report of the Commission (Annex IV) on 1 May 1919 ———, Notes of a Meeting held at President Wilson’s House in the Place des Etas-Unis, Paris on 1 May 1919 Declaration of the Governments of the Nine occupied European States signed at St James’s Palace on 13 January 1942 in UNWCC Declarations by United Nations Governments and leaders on the subject of War Crimes (14 June 1944) UNWCC Doc C.29 Declaration of Reciprocal Assistance and Cooperation for the Defense of the Nations of the Americas on 30 July 1940 Eighth International Conference of American States (Lima), Declaration of American Principles on 24 December 1938 Fifth Assembly of the League of Nations, Protocol for the Pacific Settlement of International Disputes on 2 October 1924 General Convention of Inter-American Conciliation, signed at Washington on 5 January 1929 The Governments of the United States, the United Kingdom, the Union of Soviet Socialist Republics, China, Australia, Belgium, Canada, Costa Rica, Cuba, Czechoslovakia, Dominican Republic, El Salvador, Greece, Guatemala, Haiti, Honduras, India, Luxembourg, Netherlands, New Zealand, Nicaragua, Norway, Panama, Poland, South Africa, Yugoslavia, Declaration by the United Nations on 1 January 1942 Judgment of the Nuremberg International Military Tribunal 1946 (1947) 41 AJIL 172 Moscow Conference, Declaration on Austria in October 1943 ———, Joint four-nation Declaration and Statement on Atrocities in October 1943 Pan American Union, Codification of International Law: Improvement and Coordination of Inter-American Peace Instruments: (Resolution XV of the Eighth International Conference of American States) (Pan American Union 1941) Preliminary Peace Conference, Draft Resolution Relative to the League of Nations (Annex 1) on 25 January 1919 ———, Draft Resolution Relative to the Responsibility of the Authors of the War and the Enforcement of Penalties on 25 January 1919 ———, Minutes of the Plenary Session (Annex A) on 14 February 1919 ———, Minutes of the Plenary Sessions (Annex I: Report of the Commission of the League of Nations) on 28 April 1919 The President of the United States of America, Franklin D Roosevelt, and the Prime Minister of the United Kingdom, Winston LS Churchill, The Atlantic Charter on 14 August 1941

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———, Declaration of the Three Powers at the Tehran conference, on 1 December 1943 The Representatives of Nineteen American Republics Assembled in Washington, Declaration to the Governments of Paraguay and Bolivia on 3 August 1932 Third Meeting of the Ministers of Foreign Affairs of the American Republics, Final Act, Rio de Janeiro, 15–28 January 1942 in Supplement: Official Document (1942) 36 AJIL 61 Treaty to Avoid or Prevent Conflicts between the American States (Gondra Treaty) (adopted 3 May 1923, entered into force 8 October 1924) (1923) 33 LNTS 25 UNWCC Committee III Scope of the Retributive action of the United Nations according to their official declarations, Rapporteur E er (27 April 1944) UNWCC Doc III/4 UNWCC, Minority Report presented by E er, on the question whether the preparation and launching of the present war should be considered as crimes being within the scope of the United Nations War Crimes Commission (27 September 1944) UNWCC Doc C.59 ———, Report of the Sub-Committee appointed to consider whether the preparation and launching of the present war should be considered ‘War Crimes’ (15 September 1944) UNWCC Doc III/9 UNWCC Resolution proposed by Committee III (16 May 1944) UNWCC Doc C.20 Washington Conversations on International Peace and Security Organization on 7 October 1944 in Pillars of Peace, Pamphlet 4 (Book Department of the Army Information School 1946)

Secondary Sources Alexandrov S. A., Self-Defense Against the Use of Force in International Law (Martinus Nijhoff Publishers 1996) Borchaerd E., ‘War, Neutrality and Non-Belligerency’ (1941) 35 AJIL 618 Brown Scott J., ‘The Trial of the Kaiser’ in House E. M. and Seymour C. (eds), What Really Happened at Paris: The Story of the Peace Conference 1918–1919 by American Delegates (Charles Scribner’s Sons 1921) 231 Carnegie Endowment for International Peace, Violations of the Laws and Customs of War: Report of the Majority and Dissenting Reports of the American and Japanese Members of the Commission of Responsibilities at the Conference of Paris (Pamphlet 32, Clarendon Press 1919) Cornebise A. E., The United States 15th Infantry Regiment in China, 1912–1938 (McFarland & Co. 2004) Eagleton C., ‘The Attempt to Define Aggression’ (1930) 13 International Conciliation 581 Fenwick C. G., ‘Intervention: Individual and Collective’ (1945) 39 AJIL 645 Ferencz B. B., Defining International Aggression – The Search for World Peace. A Documentary History and Analysis (Oceana Publications 1975 vol I) Glennon M. J., ‘The Constitution and Chapter VII of the United Nations Charter’ (1991) 85 AJIL 63 Glueck S., War Criminals. Their Prosecution & Punishment (Alfred A Knopf 1944) ———, The Nuremberg Trial and Aggressive War (first published 1946, Kraus Reprint Co. 1976) Goldstein E., The First World War Peace Settlements, 1919–1925 (Routledge 2013)

The international delict of aggression 83 Hathaway O. A. and Shapiro S. J., The Internationalists – And Their Plan to Outlaw War (Allen Lane 2017) Hughes C. E., ‘Observations on the Monroe Doctrine’ (1923) 17 AJIL 611 Jessup P., ‘Harvard Research Draft Convention on Rights and Duties of States in Case of Aggression’ (1939) 33 AJIL Supp 819 Josephson H., James T. Shotwell and the Rise of Internationalism in America (Fairleigh Dickinson University Press 1974) Kellogg F. B., ‘The War Prevention Policy of the United States: An Address before the Council on Foreign Relations, New York, March 15, 1928’ (1928) Foreign Relations, Suppl. i Kochavi A. J., Prelude to Nuremberg. Allied War Crimes Policy and the Question of Punishment (The University of North Carolina Press 1998) Krzan B., Prosecuting International Crimes: A Multidisciplinary Approach (BRILL 2016) Lansing R., ‘Some Legal Questions of the Peace Conference’ (1919) 13 AJIL 631 Lauterpacht H., ‘The Pact of Paris and the Budapest Articles of Interpretation’ (1935) 20 Transaction of the Grotius Society 178 ———, ‘Memorandum on the Principles of International Law Concerning the Question of Aid to the Allies by the United States’ in Lauterpacht E. (ed), International Law Being the Collected Papers of Hersch Lauterpacht (CUP 2004 vol V) Levinson S. O., Outlawry of War (American Committee for the Outlawry of War 1921) Linnan D. K., ‘Self-Defense, Necessity and UN Collective Security: United States and Other Views’ (1991) DJCIL 57 Miller D. H., The Peace Pact of Paris: A Study of the Briand-Kellogg Treaty (GP Putnam’s Sons 1928) Mora F. O. and Cooney J. W., Paraguay and the United States: Distant Allies (University of Georgia Press 2010) Neff S. C., The Rights and Duties of Neutrals: A General History (Juris Publishing 2000) Russell R. B., A History of The United Nations Charter: The Role of the United States 1940–1945 (The Brookings Institution 1958) Sarè S., The League of Nations and the Debate on Disarmament (1918–1919) (Edizioni Nuova Cultura 2013) Schabas W. A., The Trial of the Kaiser (OUP 2018) Sellars K, ‘The First World War, Wilhelm II and Article 227: The Origin of the Idea of ‘Aggression’ in International Criminal Law’ in Kreß C. and Barriga S. (eds), The Crime of Aggression: A Commentary (CUP 2017) 19 Shotwell J. T., ‘The Pact of Paris with Historical Commentary’ (1928) 12 International Conciliation 447 Sicker M., The Geopolitics of Security in the Americas: Hemispheric Denial from Monroe to Clinton (Greenwood Publishing Group 2002) Sloss D. L., Ramsey M. D., and Dodge W. S., International Law in the U.S. Supreme Court (CUP 2011) Smith B. F., The American Road to Nuremberg: The Documentary Record 1944–1945 (Hoover Institution Press 1982) Solera O., Defining the Crime of Aggression (Cameron May 2007) Stimson H. L., ‘The Pact of Paris: Three Years of Development’ (1932–1933) 11 Foreign Affairs-Special Supplement vii ———, ‘Neutrality and War Prevention’ (1934/35) 16 International Conciliation 347 Stimson H. L. and Bundy M., On Active Service in Peace and War (Harper and Brothers 1948)

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The United Nations War Crimes Commission, History of the United Nations War Crimes Commission and the Development of the Laws of War (His Majesty’s Stationery Office 1948) US Department of State, Papers relating to the foreign relations of the United States, 1918. Supplement 1, The World War (US GPO 1918 vol I) ———, Papers relating to the foreign relations of the United States, 1919. The Paris Peace Conference (US GPO 1919 vol I, vol III, and vol V) ———, Papers relating to the foreign relations of the United States, 1922 (US GPO 1922 vol I) ———, Papers relating to the foreign relations of the United States, 1924 (US GPO 1924 vol I) ———, Papers relating to the foreign relations of the United States, 1925 (US GPO 1925 vol I) ———, Papers relating to the foreign relations of the United States, 1926 (US GPO 1926 vol II) ———, Papers relating to the foreign relations of the United States, 1927 (US GPO 1927 vol II and vol III) ———, Papers relating to the foreign relations of the United States, 1929 (US GPO 1929 vol I) ———, Papers relating to the foreign relations of the United States, 1931 (US GPO 1931 vol I) ———, Foreign relations of the United States diplomatic papers, 1932. The American Republics (US GPO 1932 vol V) ———, Foreign relations of the United States diplomatic papers, 1933 (in five volumes). The American republics (US GPO 1933 vol I and vol IV) ———, Treaty for the Renunciation of War. Text of the treaty, notes exchanged instrument of ratification and of adherence and other papers (US GPO 1933) ———, Foreign relations of the United States diplomatic papers, 1934. General, the British Commonwealth (US GPO 1934 vol I) ———, Foreign relations of the United States diplomatic papers, 1940. General (US GPO 1940 vol I) ———, Peace and War: United States Foreign Policy, 1931–1941 (US GPO 1943) van Ginneken A. H. M., Historical Dictionary of the League of Nations (Scarecrow Press 2006) Wright Q., ‘The Outlawry of War’ (1925) 19 AJIL 76 ———, ‘The Meaning of the Pact of Paris’ (1933) 27 AJIL 39 ———, ‘The Concept of Aggression in International Law’ (1935) AJIL 373 ———, ‘Repeal of the Neutrality Act’ (1942) 36 AJIL 8

3

The international crime of aggression (1945–1952)

1 Introduction On 3 January 1945, a presidential Memorandum addressed to the Secretary of State determined an important change in the US approach towards the criminalisation of aggression. This inaugurated a significant – although relatively brief – phase in which the US played a leading role in the affirmation of this legal concept. At first at the San Francisco Conference for the establishment of the Organization of the United Nations (UN), and then at the London Conference, which led to the adoption of the so-called London Agreement, the US turned out to be fundamental for the ‘codification’ of Crimes against Peace. Aggression was considered as the supreme crime through which all the other international crimes committed by the Axis Powers became a matter of ‘universal’ concern. Men such as Robert H Jackson gave an essential contribution to the notion of Crimes against Peace: indeed, the Tokyo Judgment tended to modulate itself according to the one of the International Military Tribunal (IMT), which in turn mostly upheld what had been suggested by the US Prosecutor. Moreover, a series of 12 US subsequent trials were held in Nuremberg. Four of them dealt with Crimes against Peace and so contributed to the consolidation of some of the most important aspects of the IMT Judgment. Last but not least, the first years of the newborn Organization of the UN are also of great importance when it comes to trace the US approach towards Crimes against Peace. Yet with the intensification of the Cold War’s dynamics and, in particular, with the Korean War, this proactive attitude came to an end. The seven years going from 1945 to 1952 constituted a fundamental moment for current international law. This chapter is structured as follows. Section 2 deals with the 1945 change within the US Administration. Section 3 analyses the negotiations which resulted in the Act of Chapultepec and the UN Charter. Also, attention is paid to the negotiations in relation to the Trial of Nazi War Criminals. Section 4 concerns the London Conference leading to the adoption of the agreement containing the Charter of the IMT. Sections 5, 6, 7 focus on the legal precedents which were established in the aftermath of the Second World War. Section 8 deals with the US contribution to the crystallisation of the law established through these legal

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precedents, whereas Section 9 discusses the treaties on collective security which were concluded at the beginning of the Cold War.

2 A new year’s change On 3 January 1945, Roosevelt sent a Memorandum to the Secretary of State which read as follows: Please, send me a brief report on the status of the proceedings before the War Crimes Commission, and particularly the attitude of the U.S. representative on offenses to be brought against Hitler and the chief Nazi war criminals. The charges should include an indictment for waging aggressive warfare, in violation of the Kellogg Pact. Perhaps these and other charges might be joined in a conspiracy indictment.1 During the Christmas holidays, the idea of the criminality of aggressive war reached the President out of the institutional channels. Indeed, Chanler had worked for the Pentagon with Colonel Boettiger, Roosevelt’s son-in-law. Thus, he tried to exploit this friendship and wrote to the Colonel a short note with his November Memorandum attached, which reached the President.2 The day after, a Memorandum from the War Department argued that: More than any other law, . . . international law grows and develops with the growth and development of the public conscience upon which it is founded. Whatever was the public view toward aggressive war at the time of the Versailles Conference, it will not be disputed that the launching of a war of aggression today is condemned by the vast majority of mankind as a crime. A formal declaration in treaty form to this effect by the United Nations today would therefore unquestionably rest on solid grounds, and of itself would constitute valid international law. This would be true even if a declaration were made today as a new and original matter. It is not necessary to labor that point, however, for there have been, since the Versailles Conference, four formal Governmental declarations on the broadest international basis condemning aggressive war as a crime. These public acts constitute the clearest sanction for the proposition that in the international law of today aggressive war is a crime.3

1 US President, Franklin D Roosevelt, Memorandum to the Secretary of State on 3 January 1945 in US Department of State, Foreign relations of the United States. Conferences at Malta and Yalta, 1945 (US Government Printing Office 1945) 401. See also Bradley F Smith, The American Road to Nuremberg: The Documentary Record 1944–1945 (Hoover Institution Press 1982) 92. 2 Jonathan A Bush, ‘“The Supreme . . . Crime” and Its Origins: The Lost Legislative History of the Crime of Aggressive War’ (2002) 102 ColumLRev 2324, 2363. 3 Major Brown and Colonel Bernays, Memorandum on 4 January 1945 in Smith (n 1) 94–96.

The international crime of aggression 87 These acts were the Geneva Protocol (although neither Germany nor the US had taken any offcial part in the negotiations related to it); the 1927 Resolution adopted by the Eighth Assembly of the LoNs; the Resolution of the Sixth Pan American Conference; and the Kellogg-Briand Pact.4 According to the Memorandum: The argument which is generally made in opposition to the view that under present international law aggressive war is a crime, is that the Kellogg-Briand Pact, while condemning recourse to war, does not declare that a violation of the treaty constitutes a crime. This argument, however, obviously does not apply to the League of Nations proceedings and to the action taken by the Sixth Pan American Conference, in all of which aggressive war was precisely denounced as a crime. Furthermore, there are many crimes in international law, recognized and established as such and punishable even by death, which are nowhere in any treaty or statute of international application specifically declared to be crimes, and for which criminal sanctions and punishments are nowhere provided.5 For instance, under neither the 1907 Hague Convention IV with the Regulations annexed as a part thereof, nor the Geneva Prisoners of War Convention of 1929, was a violation of the rules set forth therein declared to be a crime, nor a criminal sanction or punishment for individual offenders prescribed. Yet it is universally accepted that violations of these Conventions constitute war crimes and that individual offenders may be punished even by death.6 Thus, there was no reason why this could not be the case with the Kellogg-Briand Pact. Moreover, the current war was launched in violation of treaties of friendship and non-aggression and ‘without any declaration of hostilities as required by Hague Convention No III of 1907’.7 Still, the divergence among Judge Rosenman and Ambassador Davies, who had been both appointed by Roosevelt to coordinate the US policies on war crimes in December 1944, made it necessary to arrange an interdepartmental meeting on 18 January 1945.8 Stimson then wrote: I was glad to find they were all in favor on legal action rather than political action . . ., and secondly, that . . . they were coming to the view which I have

4 5 6 7 8

ibid. ibid. ibid. ibid. Arieh J Kochavi, Prelude to Nuremberg: Allied War Crimes Policy and the Question of Punishment (The University of North Carolina Press 1998) 210.

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The international crime of aggression held from the first that we had better stage up a big trial in which we can prove the whole Nazi conspiracy to wage a totalitarian war of aggression violating in its profess all of the regular rules which limit needless cruelty and destruction.9

As a result, Bernays and Weir drafted a memorandum which was approved by Secretaries Stimson and Stettinius, as well as the Attorney General Biddle, and was forwarded to Roosevelt on 22 January.10 The Memorandum signifcantly differed from its previous drafts insofar as it lacked any reference to the notion of aggressive war.11 Both ‘the premeditated design to conduct military operation’ and ‘the fagrant disregard of solemnly entered obligations under the Locarno Treaty, the Kellogg-Briand Pact, and non-aggression pacts’ disappeared from the consolidated version. In fact, the Memorandum merely mentioned the making of ‘a total war’ among the list of the crimes to be punished. However, Ambassador Davies sent a recommendation to Roosevelt according to which: It would . . . be far preferable for the sake of the judgment of posterity . . . to secure the punishments of ‘War Criminals’ on specific crimes now, and leave for the Peace Treaties and subsequent development of the Peace Structure, to declare by specific Convention that waging Total War, Launching Aggression, and Crimes Against Humanity, are specific International Crimes, and provide punishment therefore.12. . . [A]nd if then, that Court would render its judgments only upon ‘Crimes’ specifically defined and recognized to be ‘Crimes’ as of this date, and by ‘obiter dicta’ recommend and declare that other ‘Crimes against Humanity’ not yet legally defined, such as Total War, Aggression, Conspiracy, and the like, should be defined proscribed as ‘International Crimes’, with suitable punishment attached for the future, there could never arise, either now or for the posterity, any criticism that the spirit of Justice, Law, and Order, which we proclaim this War is being fought to establish, were violated by a disregard of one of the fundamental civil liberties that should apply to all Criminals, whether common or political.13 In any case, in Yalta they only decided ‘to transfer the matter to the respective Foreign Ministers upon the conclusion of the conference’.14 The British Foreign 9 Henry L Stimson and McGeorge Bundy, On Active Service in Peace and War (Harper & Brothers 1947) 586–587. 10 Annex A to the US Legal Adviser, Green H Hackworth, Note to the Secretary of State James F Byrnes on 22 January 1945 US Department of State (n 1) 403–406. See also Kochavi (n 8) 210. 11 cf Memorandum for the President, after the meeting on 8 January between representatives of Justice, State and War as well as Judge Rosenman and Ambassador Davies on 13 January 1945 in Smith (n 1) 99; Memorandum for the President on 18 January 1945 in Smith (n 1) 108. 12 Ambassador Joseph E Davies, Immediate Recommendation to the President for his coming Conference (Yalta) on 18 January 1945 in Smith (n 1) 114. 13 ibid 116–117. 14 Kochavi (n 8) 213.

The international crime of aggression 89 Offce then invited the US to discuss in secret the issues related to war criminals.15 Judge Rosenman, General Weir and Colonel Cutter were sent to London,16 where discussions started on 4 April 1945.17 Subsequently, the new President Truman appointed Robert Jackson to the new post of Chief Counsel for the Prosecution of Axis Criminality.18

3 Regional vs universal aggression As a result of the Conference on War and Post-War Problems (Mexico City from 21 February to 8 March 1945), the American States adopted the so-called Act of Chapultepec, namely Resolution VIII on Reciprocal Assistance and American Solidarity, which resolved: That every attack of a State against the integrity or the inviolability of the territory, or against the sovereignty or political independence of an American State, shall, conformably to Part III thereof [having to do with consistency with the purposes and principles of the ‘general international organization’ when organized], be considered as an act of aggression against the other States which sign this Act. In any case invasion by armed forces of one State into the territory of another trespassing boundaries established by treaty and demarcated in accordance therewith shall constitute an act of aggression.19 The US delegate pointed out that this provision constituted ‘a non-exclusive criterion for determining aggression’.20 Notably, according to the Act of Chapultepec, an aggression against an American State committed by another American State was to be considered an act of aggression against all the signatories. This new element is particularly interesting if one considers that the US had strongly opposed any reference to ‘aggression’ in the Dumbarton Oaks proposals. The regional applicability of Resolution VIII could explain this incongruence. Yet it was established that no positive obligations other than the mere duty to consult each other arose in case of a ‘regional’ aggression.21 In April 1945, aggression was again the subject of discussions at the international conference of San Francisco, where, as President Roosevelt had put it, ‘we

15 The British Ambassador, Halifax, Note to the Acting Secretary of State on 6 March 1945 in US Department of State, Foreign relations of the United States: Diplomatic Papers, 1945. European Advisory Commission, Austria, Germany (US GPO 1945 vol III) 1152. 16 US Acting Secretary of State, Dean Acheson, Memorandum to the President on 17 March 1945 in US Department of State (n 15) 1155–1156. 17 Kochavi (n 8) 207–208. 18 Kirsten Sellars, ‘Crimes Against Peace’ and International Law (CUP 2013) 79. 19 Marjorie M Whiteman, Digest of International Law (US GPO 1963 vol V) 815. 20 Ruth B Russell, A History of The United Nations Charter: The Role of the United States 1940–1945 (The Brookings Institution 1958) 564. 21 Inter-American Conference on War and Peace, Act of Chapultepec on 3 March 1945 in Supplement: Official Document (1945) 39 AJIL 108, 110.

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all hope, and confidently expect, to execute a definite charter of organization under which the peace of the world will be preserved and the forces of aggression permanently outlawed’.22 While the first part of this section will focus on the negotiations which led to the formulation of the relevant provisions of the UN Charter (i.e. articles 2(4), 51 and 39), the second part will deal with the negotiations relating to the treatment of war criminals, which were conducted among the main Allies only.

3.1 (a) Article 2(4) of the Charter of the United Nations In San Francisco, the issue related to the obligation of states not to use force in their international relations was extensively analysed.23 Article 2(4) of the UN Charter is for sure the most relevant provision and read as follows: ‘All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations’. This definitive language was due to an Australian amendment to the Dumbarton Oaks proposals, which in fact did not include the formula ‘against the territorial integrity or political independence of any state’.24 New Zealand had introduced an amendment to the Australian one which read: ‘All members of the Organization undertake collectively to resist every act of aggression against any member’.25 Interestingly, one of the reasons that led to its rejection was the fact that it did not provide for any definition of aggression.26 The US opposed this amendment because the letter of article 2(4) already provided for the only obligation they could agree on, and ‘[i]t seemed undesirable to include too narrow a concept of aggression in the Charter’. Also, aggression was conceived to be included in the broader category of ‘threat to the peace’, which in the future could be used to cover new forms of aggression.27 At the same time, delegates discussed another amendment which was proposed by Panama and read as follows: ‘(to be added to the New Zealand amendment) and to preserve against aggression the territorial integrity and political 22 US President, Franklin D Roosevelt, Address to Congress on the Yalta Conference on 1 March 1945. 23 US President, Harry S Truman, Statement from Washington at the Opening Session on 25 April 1945 in US Department of State, The United Nations Conference on International Organization. San Francisco, California April 25 to June 26, 1945. Selected documents (US GPO 1946) 246. See also US Secretary of State, Edward R Stettinius, Statement at the First Plenary Session on 26 April 1945 in Documents of the United Nations Conference on International Organization (United Nations Information Organizations 1945 vol I) 125. 24 US Department of State (n 23) 100. 25 ibid 108. 26 Report of Rapporteur of Subcommittee I/1/A to Committee I/1 on 1 June 1945 in US Department of State (n 23) 485–486. 27 Committee I/1, Verbatim records of the twelfth meeting on 5 June 1945 in Documents of the United Nations Conference on International Organization (United Nations Information Organizations 1945 vol VI) 344.

The international crime of aggression 91 independence of all Members’. Again, the US objected to it for two reasons. First, paragraph 4 already contained that essential principle; second, its language was ‘reminiscent of certain features of the Covenant which had made that document unacceptable to the United States’.28 As Leo Gross put it: ‘Presumably, there is a difference between the positive duty to respect in Article 10 of the Covenant and the negative duty in Article 2, paragraph 4, of the Charter to “refrain”’.29 Indeed, the Great Powers considered it ‘not part of their responsibility to preserve the integrity and independence of their fellow members. They did not wish to assume such a great responsibility’.30 In San Francisco, the precedents of both the Pact of Paris and the Covenant were decisive when drafting the Charter. For instance, ‘[w]hat was now prohibited was the deliberate initiation of a situation of force. Henceforth, there was to be no room for the argument about whether or not the hostilities amounted to “war”’.31 In so doing, the difficulties due to the Pact of Paris’s reference to the term ‘war’ were eliminated. On 4 June 1945, this new element was well-described by the US Representative at the Committee I/1, who made it clear ‘that the intention of the authors of the original text was to state in the broadest terms an absolute all-inclusive, prohibition’: to this end, ‘the phrase “or in any other manner” was designed to insure that there should be no loopholes’.32 In 1963, this idea was reaffirmed by the US Representative to the Sixth Committee of the General Assembly (GA), who indeed stated: Article 2, paragraph 4, of the Charter constituted a great advance over [its] important precursors. . . . [I]nstead of merely placing restrictions on the right to wage war, the Charter concerned itself with the use of force and even the threat of using force. Taken together with the positive obligations of Article 2, paragraph 3, the prohibition of paragraph 4 was comprehensive and compelling.33

3.1 (b) Article 51 of the Charter of the United Nations At Dumbarton Oaks, it had been decided to postpone any discussion in relation to the authorisation of the use of force, and the definitive proposals did not even mention the right to self-defence. However, in San Francisco the four sponsoring Governments and France submitted a brand-new draft provision, which was

28 Documents of the United Nations Conference on International Organization (n 27) 346. 29 Leo Gross, ‘The Charter of the United Nations and the Lodge Reservations’ (1947) 41 AJIL 531, 548–549. 30 ibid 549. 31 Elihu Lauterpacht, ‘The Legal Irrelevance of the “State of War”’ (1968) 62 ASILPROC 58, 62. 32 Documents of the United Nations Conference on International Organization (n 27) 335. 33 UN Doc. A/C.6/SR.808, at 15.

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eventually adopted with no significant changes in its words.34 In particular, it was Secretary Stettinius, during a Press Conference on 15 May,35 who presented the draft which read as follows: Nothing in this Charter impairs the inherent right of individual or collective self-defense if an armed attack occurs against a member state, until the Security Council has taken the measures necessary to maintain international peace and security. Measures taken in the exercise of this right of self-defense shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under this Charter to take at any time such action as it may deem necessary in order to maintain or restore international peace and security.36 While no explicit reference to the Monroe Doctrine was included in the Charter, Senator Thomas Terry (Tom) Connally affrmed before the Foreign Relations Committee of the US Senate that ‘the purpose of the Charter is to strengthen the Doctrine rather than to weaken it’.37 The US Adviser at San Francisco, John Foster Dulles, also claimed that ‘there is nothing in the Charter which impairs a nation’s right of self-defense’ and ‘there is nothing whatsoever in this Charter that impairs the Monroe Doctrine as a doctrine which has been proclaimed, sustained, and recognized by the world as a doctrine of self-defense’.38 However, the Monroe Doctrine could be limited by the fact that article 51 considered self-defence just when an armed attack against a Member state occurred. Therefore, ‘[t]his may be construed as excluding resort to self-defense against contemplated or impending aggression’.39 Yet thanks to the US veto power it was impossible to have any Security Council (hereinafter SC)’s decision against it for an improper implementation of the right of self-defence.40 As the US delegate to Committee III/1 put it on 13 June 1945: if a major power became the aggressor the Council had no power to prevent war. In such case the inherent right of self-defense applied, and the nations of the world must decide whether or not they would go to war.41 34 cf article 51 of the UN Charter. 35 Whiteman (n 19) 1070. 36 Amendments to and Comments on Dumbarton Oaks Proposals in US Department of State (n 23) 192. 37 Leo Gross, Essays on International Law and Organization (BRILL 1983 vol 1) 568. 38 Gross, ‘The Charter of the United Nations’ (n 29) 536. 39 ibid 537. On 20 May 1945, the US delegation discussed the choice of wording in the draft and concluded that right of self-defence was intentionally limited to the occasion of an armed attack. Minutes of the Forty-Eighth Meeting (Executive Session), of the United States Delegation, Held at San Francisco on 20 May 1945 in US Department of State, Foreign Relations of the United States: Diplomatic Papers, 1945, General: The United Nations (US GPO 1967 Vol I) 818. 40 ibid. 41 Documents of the United Nations Conference on International Organization (United Nations Information Organizations 1945 vol XI) 514.

The international crime of aggression 93 In other words, as the Republican Senator Vandenberg liked to say, article 51 provided a means for the US to act ‘within the Charter but outside the veto’.42

3.1 (c) Collective security under the Charter of the United Nations According to article 39 of the UN Charter: 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. The original US proposal at Dumbarton Oaks did not refer to an act of aggression, which was in fact added at the insistence of Russia and China.43 In San Francisco, the US Delegation opposed a number of amendments, including those sponsored by Bolivia and the Philippine Commonwealth that offered a list of events (e.g. invasion of, or attack on, another state, interfering with its internal affairs, etc.) in which the Council’s determination would have been automatic.44 When, in July 1945, the UN Charter was under consideration of the Committee on Foreign Relations of the Senate, Senator Brooks noticed the lack of any definition in the Charter of the phrase ‘act of aggression’.45 Then Pavsvolsky, Special Assistant to the Secretary of State for International Organization and Security Affairs, affirmed: That, Senator, was done deliberately, because it was found impossible to find a comprehensive, all-inclusive definition, and it was felt that unless the definition of the word ‘aggression’ were left to the Security Council itself, we would simply be setting up standards which would provide an easy escape for a would-be aggressor.46 Senator Tom Connally added: We felt that ‘aggression’ was a term of such common knowledge and so well understood that it would be wiser to leave it to the determination of each

42 Stewart Patrick, Best Laid Plans: The Origins of American Multilateralism and the Dawn of the Cold War (Roman & Littlefield Publishers 2009) 275. 43 Carrie McDougall, The Crime of Aggression under the Rome Statute of the International Criminal Court (CUP 2013) 67. 44 US Department of State, Charter of the United Nations. Report to the President on the results of the San Francisco Conference by the Chairman of the United States Delegation, the Secretary of State (US GPO 1945) 91–92. 45 Hearings before the Committee on Foreign Relations on 10 July 1945, 79th Cong. 1st sess., on the Charter of the United Nations, submitted by the President of the United States on 2 July 1945 (as cited in Whiteman (n 19) 739–740). 46 ibid.

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The international crime of aggression particular case on the facts and circumstances attending it at the time, rather than to undertake to anticipate all the possible situations which might make this definition too long and would exclude some of the possible situations.47

Moreover, when Senator Brooks recalled that the Act of Chapultepec contained a defnition of aggression, Connally affrmed that ‘[i]nvasion would be so palpably an act of aggression that it would be unnecessary to defne it’.48

3.2 Informal negotiations dealing with the treatment of war criminals While negotiating the terms of the UN Charter in San Francisco, delegates of the four major Powers met informally to discuss the treatment of war criminals, an issue that had been considered just by the UK and the US delegates earlier that month. Although he was not physically present, the newly appointed Chief Counsel for the Prosecution of Axis Criminality,49 Robert H Jackson, helped in redrafting a US proposal which was submitted at the first informal meeting. Jackson, for example, had criticised a draft dated 28 April as it was necessary to keep a cooler tone given that instrument was about to have a fundamental importance in international law.50 At the first informal meeting, on 3 May 1945, this US draft was chosen as a basis for the discussions.51 Accordingly, the four Governments agreed on four general principles, namely: first, trial of the major war criminals rather than political disposition; second, return of criminals whose crimes had fixed geographic localization to the countries where their crimes were committed; third, an international military tribunal to hear the cases of the major war criminals; and fourth, a committee of four representatives or chiefs of counsel to prepare and manage the prosecutions, one to represent each of the four Governments.52 The US draft provided for the following categories of acts to be charged: a. Violation of the customs and rules of warfare. b. Invasion by force or threat of force of other countries in violation of international law or treaties c. Initiation of war in violation of international law or treaties. d. Launching 47 ibid. 48 ibid. 49 Memorandum of a Conversation held in San Francisco on 3 May 1945 in US Department of State (n 15) 1161. 50 Draft Executive Agreement (redraft apparently by Colonel Cutter and Justice Jackson) on 2 May 1945 in Smith (n 1) 182. 51 Kochavi (n 8) 220. 52 American Draft of Definitive Proposal, Presented to Foreign Ministers at San Francisco in April 1945 in Robert H Jackson, Report of Robert H Jackson, United States Representative to the International Conference on Military Trials, London 1945 ( US GPO 1949) 24.

The international crime of aggression 95 a war of aggression. e. Recourse to war as an instrument of national policy or for the solution of international controversies.53 Notably, the draft proposal dated 28 April included ‘[t]he treacherous invasion by force, or threat of force, of neighboring countries in violation of international customs’.54 On 16 May 1945, option ‘e’ was deleted, as well as the reference to ‘treaties’ was eliminated from both options ‘b’ and ‘c’, whereas it was decided to insert after option ‘d’ the following paragraph: ‘International law shall be taken to include the principles of the law of nations as they result from the usages established among civilized people, from the laws of humanity, and the dictates of the public conscience’.55 This draft proposal was accompanied by a revised version of the 22 January Memorandum, according to which the major Axis leaders have been responsible for ‘[c]rimes, acts which violate generally accepted standards of the conduct of individuals and nations – not only during the war but in preparing for it and starting it. The violation of these standards is regarded by the world as criminal’.56 Notably, a previous version attempted to identify the sources of these ‘standards’ and stated: ‘Those standards are defined partly by custom; partly by treaties; but, in any event, they constitute law, the violation of which is regarded by the world as criminal’.57 Indeed, ‘[i]nternational law must develop to meet the needs of the times just as the common law has grown, not by enunciating new principles but by adapting old ones’.58 In other words, Jackson made sure that aggression, in one form or another, stayed in the American draft proposals for the international tribunal. This being in clear opposition to the legal thought of other staff members, including Telford Taylor,59 who in early June wrote: ‘[a]lthough the phrase ‘illegal launching’ is a ‘law idea’, . . . the thing we want to accomplish is not a legal thing but a political thing’.60 Hence, he advanced the idea of a political declaration made by the Allies, which however did not meet a broad support.61

4 London The representatives of the four Major Allies met in London from 26 June to 8 August 1945 to discuss of the treatment of the Nazi war criminals. As for the US, 53 ibid. 54 Colonel Cutter, Redraft of proposals on 28 April 1945 in Smith (n 1) 174 [emphasis added]. 55 Executive Agreement Draft 2 (As developed at San Francisco) on 16 May 1945 in Smith (n 1) 201. 56 American Memorandum on 30 April 1945 in Jackson (n 52) 33. 57 Draft of argument in favour of trial on 20 April 1945 attached to John J McCloy, cover letter to Secretary of War Stimson on 23 April 1945 in Smith (n 1) 158. 58 American Memorandum (n 56) 37. 59 Bush (n 2) 2367. 60 Telford Taylor, An approach to the preparation of the prosecution of Axis criminality on early June 1945 in Smith (n 1) 210–211. 61 Sellars (n 18) 115–116.

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already in early June, Jackson had reported to the President on the advancement of his work in Europe after his first month in office. According to this report, Doubtless what appeals to men of good will and common sense as the crime which comprehends all lesser crimes, is the crime of making unjustifiable war. War necessarily is a calculated series of killings, of destructions of property, of oppressions. Such acts unquestionably would be criminal except that International Law throws a mantle of protection around acts which otherwise would be crimes, when committed in pursuit of legitimate warfare. In this they are distinguished from the same acts in the pursuit of piracy or brigandage which have been considered punishable whenever and by whomever the guilty are caught.62 However, [b]y the time the Nazis came to power it was thoroughly established that launching an aggressive war or the institution of war by treachery was illegal and that the defense of legitimate warfare was no longer available to those who engaged in such an enterprise. It is high time that we act on the juridical principle that aggressive war-making is illegal and criminal.63 Jackson argued that a social contract idea would have justifed the punishment of the aggressor by the international community.64 As for the lack of precedents, Jackson affrmed that ‘[i]nternational Law . . . is an outgrowth of treaties or agreements between nations and of accepted customs. But every custom has its origin in some single act’.65 Using almost the same words he would later choose for his Opening Statement before the IMT, Jackson compared International Law to Common-law, which adapts ‘settled principles to new situations’.66 The US legal position at the upcoming Conference in London would be based ‘on the common sense of justice’ and could not ‘be complicated or obscured by sterile legalisms developed in the age of imperialism to make war respectable’.67 The acts in questions had offended the conscience of the people of the US and ‘were criminal by standards generally accepted in all civilized countries’.68 Thus, ‘[o]ur people felt that these were the deepest offenses against that International Law described in the Fourth Hague Convention of 1907 as including the “laws

62 Justice Robert H Jackson, Report to the President on 6 June 1945 in Jackson, Report of Robert H Jackson (n 52) 51. 63 ibid 52 [emphasis added]. 64 ibid 53. 65 ibid 52. 66 ibid 52. 67 ibid 51. 68 ibid 48.

The international crime of aggression 97 of humanity and the dictates of the public conscience”’.69 In other words, the test for criminality should have been guided by ‘the feeling of outrage’ which had grown among the US people.70 The tremendous acts committed by the Nazi within Germany could then become relevant to the US Government as they were to be considered ‘preparatory to the launching of an international course of aggression’. Importantly, this report was released to the press by the White House with a statement of the President’s approval and was widely published throughout Europe as well as in the United States. This report was accepted by other governments as an official statement of the position of the United States and as such was placed before all of the delegations to the London Conference.71 Few days before the Conference started, the US circulated a proposal which did not signifcantly differ from the edited version which had followed to San Francisco.72 It listed the criminal acts the Tribunal should have jurisdiction on, namely: c. Invasion of another country by force or threat of force, or the initiation of war, in violation of international law. d. Launching a war of aggression. ‘International Law’ shall be taken to include treaties between nations and the principles of the law of nations as they result from the usages established among civilized peoples, from the laws of humanity, and the dictates of the public conscience.73 The US defnition of the crime did not ‘involve causes; it involves only actual aggressive war — the attack’.74 Once in London, the US delegates had to overcome the differences with the other representatives. In particular, the US ‘regarded a war of aggression as criminal per se; the French regarded it as criminal only when it is a means by which other long recognized crimes are committed’.75 For the US delegation, it was

69 70 71 72

ibid 49. ibid 50 [emphasis added]. ibid 42. Executive Agreement Draft 2 (As developed at San Francisco) on 16 May 1945 in Smith (n 1) 201. 73 Revision of American Draft of Proposed Agreement on 14 June 1945 in Jackson, Report of Robert H Jackson (n 52) 58. 74 Minutes of Conference Session of 26 June 1945 in Jackson, Report of Robert H Jackson (n 52) 84. 75 Robert H Jackson, Address before School of Advanced International Studies, Institute in the Teaching of International and Comparative Law, Association of American Law Schools on 25 August 1948. See also Sellars (n 18) 91.

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indeed fundamental to prove that the Nazi war was illegal and criminal from its very beginning. As Jackson stated: Germany did not attack or invade the United States in violation of any treaty with us. The thing that led us to take sides in this war was that we regarded Germany’s resort to war as illegal from its outset, as an illegitimate attack on the international peace and order. . . . [H]ence we were not doing an illegal thing in extending aid to peoples who were unjustly and unlawfully attacked. . . . Now we . . . want this group of nations to stand up and say, as we have said to our people . . . that launching a war of aggression is a crime and that no political or economic situation can justify it. . . . Now it may be that we were mistaken in our attitude and philosophy and that what Germany has done is legal and right, but I am not here to confess the error nor to confess that the United States was wrong, in regarding this as an illegal war from the beginning and in believing that the great crime of crimes of our century was the launching of a needless war in Europe. . . . That is one of the things we want to prove, because we want the Germans and anybody else to know that as far as the United States is concerned it regards any attack on the peace of the world as an international crime.76 Hence, the criminality of aggression was linked to the interpretation that the US had given of neutrality in the second half of the 1930s.77 In contrast with the French idea, all the other crimes committed against minorities within Germany were relevant just because they were ‘part of a plan for making an illegal war’.78 Furthermore, while the French proposed a formula according to which a policy of aggression must be carried out both in breach of treaties and in violation of international law, Jackson preferred them to be considered as they were alternative options.79 According to the US Representative, however, the real and ‘the uncompromisable’ difference was with the Soviets, according to which a war of aggression was a crime only when perpetrated by the Axis Powers.80 As Jackson put it: ‘we were prepared to break up the conference without agreement rather than to accept a definition so conditioned’.81 Indeed, ‘the criminal character of such acts could not depend on who committed them and that international crimes could only be defined in broad terms applicable to statesmen of any nation guilty of the proscribed conduct’.82 Eventually, the US proposed to limit the jurisdiction of 76 Minutes of Conference Session of 25 July 1945 in Jackson, Report of Robert H Jackson (n 52) 385. 77 Minutes of Conference Session of 19 July 1945 in Jackson, Report of Robert H Jackson (n 52) 299–300. 78 Minutes of Conference Session of 23 July 1945 in Jackson, Report of Robert H Jackson (n 52) 330–331. 79 Minutes of Conference Session of 19 July 1945 (n 77) [emphasis added]. 80 Jackson, Address before School of Advanced International Studies (n 75). 81 ibid. See also Jackson, Report of Robert H Jackson (n 52) VIII. 82 Jackson, Report of Robert H Jackson (n 52) VII–VIII [emphasis added]. See also Minutes of Conference Session of 23 July 1945 in Jackson, Report of Robert H Jackson (n 52) 336;

The international crime of aggression 99 the Tribunal to those who, on behalf of the Axis Powers, carried out the crimes provided for in the Statute, without limiting the definition of the crime.83 The early American proposal, as well as all the proposals submitted by the other delegations, did not provide for any standard for the determination of what constituted a war of aggression. In mid-July, for instance, the US proposed an amendment providing as follows: It is suggested that there be added as a parenthesis after subparagraph (b) of Article 6 the following: ‘(An invasion of another country in the absence of an attack upon, invasion of, or declaration of war against such country shall for purposes of this Agreement constitute the launching of a war of aggression)’.84 When the Soviets raised the concerns about such lacuna as it could be used for propaganda purposes, the US proposed to rely on the treaties to which the Soviets were already parties. However, this idea was coldly received.85 While just few months earlier, the US had opposed a similar provision to be included in the UN Charter, in order to justify the need for a defnition of aggression in the Tribunal’s Charter Jackson affrmed: ‘Political defnition seems to be much more diffcult than judicial defnition. Either we or the court have got to defne this concept on which we predicate a charge of crime’.86 The only US definition of aggression was presented to the other delegates on 19 July but eventually was not adopted because of the strong opposition by both the Soviet and the French delegation.87 It read as follows: An aggressor, for the purposes of this Article, is 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, naval, or air forces, with or without a declaration of war, on the territory, vessels, or aircraft of another state; (4) Naval blockade of the coasts or ports of another state; (5) Provision of support to armed bands formed in its territory which have invaded 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 or protection. No political, military,

83 84 85 86 87

and US Delegation, Notes on Proposed Definition of ‘Crimes’ on 31 July 1945 in Jackson (52) 394. Minutes of Conference Session of 24 July 1945 in Jackson, Report of Robert H Jackson (n 52) 361. Amendments Proposed by American Delegation on 16 July 1945 in Jackson, Report of Robert H Jackson (n 52) 244. Jackson, Address before School of Advanced International Studies (n 75). Minutes of Conference Session of 19 July 1945 in Jackson, Report of Robert H Jackson (n 52) 309. Jackson, Address before School of Advanced International Studies (n 75).

100

The international crime of aggression economic or other considerations shall serve as an excuse or justification for such actions; but exercise of the right of legitimate self-defense, that is to say, resistance to an act of aggression, or action to assist a state which has been subjected to aggression, shall not constitute a war of aggression.88

The defnition followed word for word the language of articles II and III of the 1933 Convention for the Defnition of Aggression between Poland, Romania, Estonia, Turkey, Latvia, Persia, Afghanistan and USSR.89 The only signifcant difference was the attempt to defne also self-defence, that is, ‘resistance to an act of aggression, or action to assist a state which has been subjected to aggression’. This latter defnition contemplated just the case of a defence against an actual ‘act of aggression’, with the only exception of a mere declaration of war. Once again, the expression ‘act of aggression’ was used interchangeably with the terms ‘aggression’ and ‘war of aggression’, while later Jackson affrmed he was ready to leave aside the threat of war.90 Towards the end of July, the US redrafted the definition of crimes which then read as follows: The following acts shall be deemed criminal violations of International Law, and the Tribunal shall have power and jurisdiction to convict any person who committed any of them on the part of the European Axis powers. . . . (c) Invasion, attack or initiation of war against another state in breach of treaties, agreements or assurances, or otherwise in violation of International Law. (d) Launching a war of aggression. (e) Entering into a common plan or enterprise aimed at subjugation of other nations, which plan or enterprise did involve or was reasonably likely to involve in its execution any of the foregoing acts or a combination of such acts with lawful ones. No political, military, economic or other consideration may serve as an excuse or justification for any such action. Exercise of the right of legitimate self-defense, that is to say, resistance to armed invasion or attack, or action to assist a State which has been subjected to armed invasion or attack, shall not constitute a war of aggression.91 Hence, it seems that launching a war of aggression was – as it used to be until June – a separate legal category from the other criminal acts of ‘[i]nvasion, attack or initiation of war against another state in breach of treaties, agreements or

88 Definition of ‘Aggression’ Suggested by American Delegation as Basis of Discussion on 19 July 1945 in Jackson, Report of Robert H Jackson (n 52) 294. 89 Convention for the Definition of Aggression (signed on 3 July 1933, entered into force 16 October 1933) 147 LNTS 69. 90 Minutes of Conference Session of July 23, 1945 in Jackson, Report of Robert H Jackson (n 52) 332–333. 91 Redraft of Definition of ‘Crimes’, Submitted by American Delegation on 25 July 1945 in Jackson, Report of Robert H Jackson (n 52) 374.

The international crime of aggression 101 assurances, or otherwise in violation of International Law’. Moreover, the common plan or enterprise was for the frst time formalised. According to Jackson, this was the means by which we hope to reach a great number of persons who are deserving of trial and punishment but against whom specific acts, other than joining in the plan and promoting the plan, might be very difficult to prove.92 Therefore, ‘[t]he knowingly incitement and planning is as criminal as the execution’.93 Furthermore, the definition of crimes was still accompanied by a definition of the aggressor which now read as follows: An aggressor, for the purposes of this article, means that state which is 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, naval or air forces, with or without a declaration of war, on the territory, vessels or aircraft of another State. No political, military, economic or other considerations may serve as an excuse or justification for such actions, but exercise of the right of legitimate self-defense, that is to say, resistance to an act of aggression, or action to assist a State which has been subjected to aggression, shall not constitute a war of aggression.94 Notably, the categories of ‘naval blockade’ and ‘provision of support to armed bands formed in its territory which have invaded 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 or protection’, both present in the 19-July defnition of aggression, disappeared. Moreover, the first-to-attack element was a decisive part of the test to qualify the aggressor, which could be considered so by simply declaring war against another state. This element, which conflicted with the recalling, on the side of the US, of the IV 1907 Hague Convention, could have resulted in the criminalisation of every war. It then disappeared from the last US draft proposal on 31 July 1945 which read as follows: The Tribunal established by the Agreement referred to in Article 1 hereof shall have power and jurisdiction to try and determine charges of crime

92 Minutes of Conference Session of 23 July 1945 in Jackson, Report of Robert H Jackson (n 52) 332–333. 93 Minutes of Conference Session of 25 July 1945 in Jackson, Report of Robert H Jackson (n 52) 376. 94 Proposed Definition of ‘Aggression’, Submitted by American Delegation on 25 July 1945 in Jackson, Report of Robert H Jackson (n 52) 375.

102

The international crime of aggression against individuals who and organizations which acted in aid of the European Axis Powers and to impose punishments on those found guilty. The following acts, or any of them, are crimes coming within its jurisdiction for which there shall be individual responsibility: (a) THE CRIME or WAR, namely, planning, preparation, initiation or waging of a war of aggression or a war in violation of any international treaty, agreement, or assurance, or in particular, of the General Treaty for the Renunciation of War, or participation in a common plan or conspiracy for the accomplishment of any of the foregoing.95

Hence, the defnition of aggression was dropped off, but a reference to the Pact of Paris was included. The London Agreement was signed on 8 August 1945. Irony of fate, on the very same day the ‘synthesis of legalism and moralism’ produced another symbol of the American exceptionalism: Nagasaki.96 The formula eventually inserted in the Charter attached to the Agreement read as follows: Article 6. The Tribunal established by the Agreement referred to in Article 1 hereof for the trial and punishment of the major war criminals of the European Axis countries shall have the power to try and punish persons who, acting in the interests of the European Axis countries, whether as individuals or as members of organizations, committed any of the following crimes. The following acts, or any of them, are crimes coming within the jurisdiction of the Tribunal for which, there shall be individual responsibility: (a) CRIMES AGAINST PEACE: namely, planning, preparation, initiation or waging of a war of aggression, or a war in violation of international treaties, agreements or assurances, or participation in a common plan or conspiracy for the accomplishment of any of the foregoing.97 Jackson defned article 6(a) as ‘the most signifcant features of the agreement signed in London’ and ‘a tremendous step forward in international law’.98 Indeed, ‘[i]f it were still no crime to launch a war of aggression, then it would be doubtful whether there ought to be any war crimes at all’.99 This was the reason why he believed that the agreement as a whole was ‘a basic charter in the International Law of the future’.100

95 Revision of Definition of ‘Crimes’, Submitted by American Delegation on 31 July 1945 in Jackson, Report of Robert H Jackson (n 52) 395. 96 Elizabeth Borgwardt, A New Deal for the World: America’s Vision for Human Rights (The Belknap Press of Harvard University Press 2005) 217. 97 Agreement and Charter on 8 August 1945 in Jackson, Report of Robert H Jackson (n 52) 423. 98 Robert H Jackson, ‘Worst Crime of All’ New York Times Magazine (9 September 1945) 9. 99 ibid. 100 Justice Robert H Jackson, Report to the President on 7 October 1946 in Jackson, Report of Robert H Jackson (n 52) 437.

The international crime of aggression 103 As for the Charter, Jackson claimed that ‘the Four Powers . . . announce it as a declaratory act rather than as the creation of new doctrine’.101 Right after the conclusion of the agreement, moreover, Dr Schwelb prepared a Memorandum for the UNWCC according to which: If many allied nations will adhere to the Agreement, these principles will appear not only as the view of the four powers states, but, practically of the whole international community of nations. In adhering to the Agreement, the individual allied states will be forming and developing the common law of nations.102 Captain Wolff, on behalf of the US, reported that ‘we fnd ourselves in entire accord with the views expressed in the memorandum’103 and pointed out that ‘[t]he agreement must be recognized as constituting a great advance in international law and in the adoption of measures to prevent aggressive war’.104 Jackson commented as follows: Whatever the state of law has been, such conduct is a crime now. [Given] the Agreement of August 8, 1945 in London, the old order, by which all war was legal, visibly passed away. I think it already passed away and that the London Agreement only recognized an evolution that already had been consummated.105 The question of whether the Charter was just declaratory of existing law or in fact created new law was considered of utmost importance by a number of authorities. According to Lord Wright, for instance, the crimes provided by the Charter are not crimes because of the agreement of the four Governments, but . . . the Governments have scheduled them as coming under the jurisdiction of the Tribunal because they are already crimes by existing law. On any other assumption the Court would not be a Court of law but a manifestation of power.106 In this respect, Jackson argued that: It is true that the London Agreement is more explicit in declaring aggressive war to be a crime than any preceding international document. This may be 101 Minutes of Conference Session of 20 July 1945 in Jackson, Report of Robert H Jackson (n 52) 316. 102 Egon Schwelb, Preliminary note on the legal consequences of adherence to the agreement establishing the International Military Tribunal (21 August 1945) UNWCC Doc III/13. 103 UNWCC Committee III Notes on meeting held on 27 August 1945 UNWCC Doc 2/1945. 104 ibid. 105 Robert H Jackson, Forward in Sheldon Glueck, The Nuremberg Trial and Aggressive War (first published 1946, Kraus Reprint Co. 1976) X. See also Jackson, Report of Robert H Jackson (n 52) XII. 106 Lord Robert A Wright, ‘War Crimes Under International Law’ (1946) 62 LQR 41.

104

The international crime of aggression because greater explicitness was required in a legal document than in diplomatic undertaking. It may be because the London Agreement represents the work of jurists and lawyers rather than diplomats.107

Furthermore, ‘[t]he Agreement makes explicit as offenses against International Law, crimes not before prosecuted but long considered criminal by the common sense of mankind’.108 However, even in the case it was a new step in international law, Jackson was willing to share the odium of correcting that anomalous situation. It was an immoral doctrine against the common sense of men that wars of aggression must never bring retribution upon their instigators. If there is one thing on which simple human beings would all agree it is that war makers should be punished for their crime – the crime which ranks above and includes all others.109 On 9 January 1946, the UNWCC discussed the question of the competence to consider charges of Crimes against Peace and Crimes against Humanity. In this respect, on 23 January Captain Wolff read the following statement prepared by Colonel Hodgson: ‘As regards the . . . question, [whether the mentioned crimes are crimes under international law], the position of my Government is indicated by the London Agreement and by the trial now in progress at Nuremberg’.110

5 Nuremberg The US prosecutorial reasoning related to article 6(a) of the Nuremberg Charter was mostly upheld by the IMT. According to William Schabas, for instance, ‘[t]he “supreme international crime” expression used by the Nuremberg judges to describe crimes against peace was an almost inexorable consequence of the prosecutorial strategy and the evidence that was led before the Tribunal’.111

107 Jackson, Forward (n 105). See also US Department of State, Report of Robert H Jackson, United States Representative to the International Conference on Military Trials, London 1945 (US GPO1949) XII. 108 Robert H Jackson, Address at the University of Buffalo Centennial Convocation on 4 October 1946. 109 Robert H Jackson, ‘Justice Jackson Weighs Nuremberg’s Lessons’ New York Times Magazine (16 June 1946) 12. See also Glueck (n 105) 102. 110 UNWCC Statement on the case of Sepp Dietz (Czechoslovak case No 26) by the Secretary to Committee III (19 March 1946) UNWCC Doc C.185. 111 William A Schabas, ‘Origins of the Criminalization of Aggression: How Crimes Against Peace Became the “Supreme International Crime”’ in Mauro Politi and Giuseppe Nesi (eds), The International Criminal Court and the Crime of Aggression (Ashgate 2004) 17, 29. See, for example, Assistant Trial Counsel for the United States, Major Frank B Wallis, Presentation of the briefs and documents before the International Military Tribunal on 23 November 1945 in Trials of the Majors War Criminals before the International Military

The international crime of aggression 105 In his Opening Statement, Robert H Jackson, and subsequently the other US prosecutors during the presentation of the case with regard to count 1 (i.e. conspiracy to commit Crimes against Peace), developed concepts that had been already raised during the negotiations in London. These were the relevance of those crimes committed by Nazis against German minorities because of their link with the aggressive war,112 the reliance on those international instruments concluded between the two world wars which were seen as the result of the demand of the common sense of men113 and the future applicability of the Nuremberg law to all nations, including the ones sitting in judgement.114 Also, [a] failure of these Nazis to heed, or to understand the force and meaning of this evolution in the legal thought of the world is not a defense or a mitigation. If anything, it aggravates their offence. . . . Indeed, by their own law – had they heeded any law – these principles were binding on these defendants. Article 4 of the Weimar Constitution provided that ‘the generally accepted rules of International Law are to be considered as binding integral parts of the law of the German Reich.’ Can there be any doubt that the outlawry of aggressive war was one of the ‘generally accepted rules of International Law’ in 1939?115 The US Prosecutor proposed a defnition of the aggressor mostly identical to the one submitted in London, but for the omission of the naval blockade.116 Notably, the event which legitimised an intervention in support of others was the one in favour of the victim of a ‘war of aggression’, whereas the draft submitted in London had referred to the ‘act of aggression’.117 A legitimate self-defence, moreover, was still considered excluded from the application of the Charter.118

112

113 114 115 116 117 118

Tribunal Nuremberg, 14 November 1945–1 October 1946 (International Military Tribunal 1947 vol II) 241. Representative and Chief Counsel for the United States of America, Robert H Jackson, Opening Statement for the United States of America at the Palace of Justice, Nürnberg on 21 November 1945 in Trials of the Majors War Criminals (n 111) 127. cf Associate Trial Counsel for the United States, Sidney Alderman, Presentation of the briefs and documents before the International Military Tribunal on 23 November 1945 in Trials of the Majors War Criminals (n 111) 242. See also Robert H Jackson, The Case against the Nazi War Criminals (Alfred A Knopf 1946) 11. Jackson, Opening Statement (n 112) 145–146. ibid 154. cf Minutes of Conference Session of 24 July 1945 in Jackson, Report of Robert H Jackson (n 52) 361. ibid 146 [emphasis added]. ibid 148. cf Redraft of Definition of ‘Crimes’ Submitted by American Delegation on 25 July 1945 in Jackson, Report of Robert H Jackson (n 52) 374. Jackson, Opening Statement (n 112) 148. See also Jackson, Address before the Air Force Association on 16 September 1947. ibid. See also Robert H Jackson, Address before the Air Force Association (n 117).

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The international crime of aggression

In his Closing Statement, Jackson argued that ‘by all the canons of plain common sense, these were unlawful wars of aggression in breach of treaties and in violation of assurances’,119 and such violations of international law were of concern of the entire community of Nations, as it had always been the case for piracy.120 These were not ‘technical or incidental transgression of international conventions’, rather ‘it is their abnormal and inhuman conduct which brings [the defendants] to this bar’.121 Moreover, as it had happened in London, Jackson insisted on the necessity for international law to develop throughout the common-law method.122 As he later explained, ‘[t]he Common Law judge . . . applies . . . natural law that binds each man to refrain from acts so inherently wrong and injurious to others that he must know they will be treated as criminal’.123 It was the inherent immoral nature of the conducts object of the trial that led the common sense of mankind to demand for the punishment of their perpetrators.124 These concepts were upheld by the Tribunal in the following passage from its Judgement: The charges in the Indictment that the defendants planned and waged aggressive wars are charges of the utmost gravity. War is essentially an evil thing. Its consequences are not confined to the belligerent states alone, but affect the whole world. To initiate a war of aggression, therefore, is not only an international crime; it is the supreme international crime differing only from other war crimes in that it contains within itself the accumulated evil of the whole.125 According to the US Prosecutor, ‘[c]rimes always are committed only by persons. While it is quite proper to employ the fction of responsibility of a state or corporation for the purpose of imposing a collective liability, it is quite intolerable to let such a legalism become the basis of personal immunity’.126 The idea that in case of international crimes, individuals would be personally responsible, independently of their function, was embraced by the Tribunal in one of its most famous passages according to which:

119 US Chief Prosecutor, Robert H Jackson, Closing Statement before the International Military Tribunal on 26 July 1946 in Trials of the Majors War Criminals before the International Military Tribunal Nuremberg, 14 November 1945–1 October 1946 (International Military Tribunal 1947 vol XIX) 402–403. 120 ibid 149. 121 ibid 102. cf Lord Wright (n 106) 40–41. 122 ibid 147. cf Glueck (n 105) 40–41. 123 Robert H Jackson, Address before the Canadian Bar Association on 1 September 1949. See also Justice Robert H Jackson, Report to the President on 7 October 1946 in Jackson, Report of Robert H Jackson (n 52) 439. cf Henry L Stimson, ‘The Nuremberg Trial: Landmark in Law’ (1947) Foreign Affairs 179, 180. 124 Jackson, Opening Statement (n 112) 99 and also 154. 125 Judgment of the Nuremberg International Military Tribunal 1946 (1947) 41 AJIL 172, 186. cf Lord Wright (n 106) 47. 126 Jackson, Opening Statement (n 112) 150.

The international crime of aggression 107 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. The provisions of Article 228 of the Treaty of Versailles already referred to illustrate and enforce this view of individual responsibility. The principle of international law, which under certain circumstances, protects the representatives of a state, cannot be applied to acts which are condemned as criminal by international law. The authors of these acts cannot shelter themselves behind their official position in order to be freed from punishment in appropriate proceedings. . . . On the other hand the very essence of the Charter is that individuals have international duties which transcend the national obligations of obedience imposed by the individual state.127 Moreover, Colonel Taylor, US Associate Trial Counsel, claimed before the Tribunal that It stands to reason that that crime is committed most consciously and culpably by a nation’s leaders – the leaders in all the major fields of activity which are necessary to and closely involved in the waging of war. . . . That is why the principal leaders in all these fields of activity share responsibility for the crime.128 In Taylor’s opinion, military leaders should always ‘act in accordance with international law and the dictates of the public conscience’.129 Likewise, the Tribunal held as follows: Hitler could not make aggressive war by himself. He had to have the cooperation of statesmen, military leaders, diplomats, and business men. When they, with knowledge of his aims, gave him their cooperation, they made themselves parties to the plan he had initiated.130 As for the value of the Charter, the Tribunal held that [i]t is not an arbitrary exercise of power on the part of the victorious Nations, but . . . it is the expression of international law existing at the time of its creation; and to that extent is itself a contribution to international law.131 At Nuremberg, the US was in charge of presenting the case for count 1, relating to the commission of Crimes against Peace.132 It was therefore necessary to 127 Judgment of the Nuremberg International Military Tribunal 1946 (n 125) 221. 128 Associate Trial Counsel for the United States, Colonel Telford Taylor, Presentation of the briefs and documents before the International Military Tribunal on 4 January 1946 in Trials of the Majors War Criminals before the International Military Tribunal Nuremberg, 14 November 1945–1 October 1946 (International Military Tribunal 1947 vol IV) 438. 129 ibid 438–439. 130 Judgment of the Nuremberg International Military Tribunal 1946 (n 125) 223. 131 ibid 216. cf US Chief Prosecutor, Robert H Jackson, Closing Statement (n 119) 398. 132 International Military Tribunal, Indictment in Trials of the Majors War Criminals before the International Military Tribunal Nuremberg, 14 November 1945–1 October 1946

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refer to the aggressive character of the wars which had been conspired. Thus, according to Sidney Alderman, US Associate Trial Counsel, it was possible to trace five conspiratorial phases. The first was primarily preparatory, although it did involve overt acts. That phase covers roughly the period from 1933 to 1936. In that period the Nazi conspirators, having acquired governmental control of Germany by the middle of 1933, turned their attention toward utilization of that control for foreign aggression. Their plan at this stage was to acquire military strength and political bargaining power to be used against other nations. . . . The second phase of their utilization of control for foreign aggression involved the actual seizure and absorption of Austria and Czechoslovakia in that order. . . . The third phase may be measured in months rather than years: from March 1939 to September 1939. The previous aggression being successful, having been consummated, without the necessity of resorting to actual war, the conspirators had obtained much desired resources and bases and were ready to undertake further aggressions, by means of war if necessary. By September 1939 war was upon the world. The fourth phase of the aggression consisted of expanding the war into a general European war of aggression. . . . In the next phase the Nazi conspirators carried the war eastward by invasion of the territory of the Union of Soviet Socialist Republics, and finally, through their Pacific ally, Japan, precipitated the attack on the United States at Pearl Harbor.133 Hence, the conspiracy to commit Crimes against Peace against both Austria and Czechoslovakia dated back the earliest days of the Nazi Party. As for the former, German Nazis bore responsibility even for the 1934 assassination of Chancellor Dollfuss and the related putsch in Austria.134 As for the latter, ‘the Henlein movement was an instrument, a puppet of the Nazi conspirators’.135 In line with this reasoning and despite the fact that article 6(a) merely referred to unlawful wars, the IMT considered the invasion of Austria and the occupation of Czechoslovakia as acts of aggression and deemed some of the defendants

(International Military Tribunal 1947 vol I) 31. See also Associate Trial Counsel for the United States, Sidney Alderman, Presentation of the briefs and documents before the International Military Tribunal on 26 November 1945 in Trials of the Majors War Criminals (n 111) 293–294. 133 Alderman, Presentation of the briefs (n 112) 248. 134 Associate Trial Counsel for the United States, Sidney Alderman, Presentation of the briefs and documents before the International Military Tribunal on 28 November 1945 in Trials of the Majors War Criminals (n 111) 356. 135 Associate Trial Counsel for the United States, Sidney Alderman, Presentation of the briefs and documents before the International Military Tribunal on 3 December 1945 in Trials of the Majors War Criminals before the International Military Tribunal Nuremberg, 14 November 1945–1 October 1946 (International Military Tribunal 1947 vol III) 71.

The international crime of aggression 109 responsible for conspiring such aggressions.136 Indeed, the absence of bloodshed was ‘really immaterial’ as ‘the methods employed to achieve the object were those of an aggressor’.137 Rather, the US Prosecutor had claimed that after the Munich Agreement and the consequent acquisition of the Sudetenland, ‘in their program of aggression the defendants had used as a pretext for their conquests the union of the Volksdeutsche, the people of German descent, with the Reich’.138 Moreover, the war against Poland ‘was most plainly an aggressive war, which . . . resulted in the commission of countless crimes, both against the laws and customs of war, and against humanity’.139 No excuse was provided at the time of the invasion and occupation of both Denmark and Norway, which were in fact ‘acts of aggressive war’,140 while at Nuremberg the defendants grounded them on self-defence.141 The ‘advancement of [Nazi] aggressive policies’ was behind the invasion of Belgium, Luxemburg and the Netherlands,142 while the ‘aggressive war against Greece and Yugoslavia had long been in contemplation, certainly as early as August of 1939’.143 Alderman argued that the invasion of the Soviet Union was in violation of the non-aggression Pact that had been signed by Germany and the Soviet Union on 23 August 1939.144 The political and economic domination of Germany depended on the elimination of the Soviet Union, which became a real urgency once the campaign against Great Britain appeared to have failed.145 Also, it ‘was one of the most cold-bloodedly premeditated attacks on a neighboring power in the history of the world’.146 Again, the Tribunal followed the prosecutorial line by holding that [t]he plans for the economic exploitation of the U.S.S.R. for the removal of masses of the population, for the murder of Commissars and political leaders, were all part of the carefully prepared scheme launched on 22 June

136 Judgment of the Nuremberg International Military Tribunal 1946 (n 125) 197. cf, for example, Associate Trial Counsel for the United States, Sidney Alderman, Presentation of the briefs and documents before the International Military Tribunal on 29 November 1945 in Trials of the Majors War Criminals (n 111) 427–428; Alderman, Presentation of the briefs (n 135) 35. 137 Judgment of the Nuremberg International Military Tribunal 1946 (n 125) 194. 138 Alderman, Presentation of the briefs (n 135) 86. 139 Judgment of the Nuremberg International Military Tribunal 1946 (n 125) 203. 140 ibid 207. 141 ibid 206. 142 ibid 208. 143 ibid 211. 144 Associate Trial Counsel for the United States, Sidney Alderman, Presentation of the briefs and documents before the International Military Tribunal on 7 December 1945 in Trials of the Majors War Criminals before the International Military Tribunal Nuremberg (n 135) 330. 145 ibid. 146 Associate Trial Counsel for the United States, Sidney Alderman, Presentation of the briefs and documents before the International Military Tribunal on 10 December 1945 in Trials of the Majors War Criminals before the International Military Tribunal Nuremberg (n 135) 337.

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The international crime of aggression without warning of any kind, and without the shadow of legal excuse. It was plain aggression.147

Notably, Alderman argued that apart from their own aggressive intentions and declaration of war against the United States, . . . [t]hey were aware that the Japanese had prepared plans for attack against the United States, and they accepted the consequences by assuring the Japanese that they would declare war on the United States should a United States-Japanese conflict result.148 In this regard the Tribunal held as follows: [I]t is apparent that in the course of 1941 . . . Japan was given every encouragement to adopt a policy which would almost certainly bring the United States into the war. And when Japan attacked the United States fleet in Pearl Harbor and thus made aggressive war against the United States, the Nazi Government caused Germany to enter that war at once on the side of Japan by declaring war themselves on the United States.149 Thus, as the US Prosecutor had claimed, both the mere incitement to commit aggression and the act of declaring war alongside with the aggressor Japan made the Nazi leaders liable before the Tribunal.150 The ‘Tribunal decided that some of the defendants planned and waged aggressive wars against 12 nations’.151 While according to the US Prosecutors the wars at issue were both wars of aggression and wars in violation of international treaties, agreements and assurances, the Tribunal held that once it was established that these belonged to the first category, it was pointless to consider whether they were also to be included in the second one.152 Moreover, it was not strictly necessary to establish whether or not the planning and waging of a war of aggression was a crime at the time of the execution of the London Agreement.153 This notwithstanding, the Tribunal decided to consider the legal effect of the Pact of Paris. In the opinion of the Tribunal, the solemn renunciation of war as an instrument of national policy necessarily involves the proposition that such a war is illegal in international law; and that those who plan and wage such a war, 147 Judgment of the Nuremberg International Military Tribunal 1946 (n 125) 213 [emphasis added]. 148 Alderman, Presentation of the briefs and documents (n 146) 398. 149 Judgment of the Nuremberg International Military Tribunal 1946 (n 125) 214. 150 cf Alderman, Presentation of the briefs and documents (n 146) 397. 151 Judgment of the Nuremberg International Military Tribunal 1946 (n 125) 214. 152 ibid. cf, for example, Alderman, Presentation of the briefs before the Tribunal (n 112) 243–244. 153 Judgment of the Nuremberg International Military Tribunal 1946 (n 125) 217.

The international crime of aggression 111 with its inevitable and terrible consequences, are committing a crime in so doing. War for the solution of international controversies undertaken as an instrument of national policy certainly includes a war of aggression, and such a war is therefore outlawed by the Pact.154 Hence, all the wars waged in violations of the Pact were criminal, and all wars of aggression simply constituted their own subcategory. Plus, even if the Pact did not expressively declare its violations as crimes, ‘those who wage aggressive war are doing that which is equally illegal, and of much greater moment than a breach of one of the rules of the Hague Convention’.155 Indeed, In interpreting the words of the Pact, it must be remembered that international law is not the product of an international legislature, and that such international agreements as the Pact of Paris have to deal with general principles of law, and not with administrative matters of procedure. The law of war is to be found not only in treaties, but in the customs and practices of states which gradually obtained universal recognition, and from the general principles of justice applied by jurists and practised by military courts. This law is not static, but by continual adaptation follows the needs of a changing world.156 The interpretation that the Tribunal gave of the Pact was supported by the international history which preceded it. The Tribunal cited the 1923 draft Treaty of Mutual Assistance, to which the ‘principal objection appeared to be in the diffculty of defning the acts which would constitute “aggression”, rather than any doubt as to the criminality of aggressive war’;157 the preamble to the 1924 Protocol for the Pacifc Settlement of International Disputes (‘Geneva Protocol’), because [a]lthough the Protocol was never ratified, it was signed by the leading statesmen of the world, representing the vast majority of the civilized states and peoples, and may be regarded as strong evidence of the intention to brand aggressive war as an international crime;158 the 1927 declaration of the Assembly of the LoNs;159 and the 1928 Resolution adopted by the American republics at the Sixth (Havana) Pan-American Conference.160 154 ibid 218. cf also Jackson, Opening Statement (n 112) 145–146. 155 Judgment of the Nuremberg International Military Tribunal 1946 (n 125) 219–220. 156 ibid 219–220. cf Justice Robert H Jackson, Report to the President on 6 June 1945 in Jackson, Report of Robert H Jackson (n 52) 52. 157 ibid. 158 ibid. 159 ibid. 160 ibid.

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Therefore, acts of regional application, treaties which were never even opened to signature and preambles of treaties which were merely signed (and not by all nations then sitting in judgement, as it was the case for the US) and never entered into force, were all cited to support the idea that under the Pact of Paris the act of resorting to a war of aggression was a criminal act as it was demanded by the conscience of the world.161 Articles 227 and 228 of the Treaty of Versailles were also considered.162 Later, former Secretary of War Harry Stimson, who had been fundamental in the making of the crime of aggression in its early phase, affirmed that the condemnation of war under the Pact of Paris was a mere moral one. However, the Nazi aggression had proved what had been already shown in 1917, namely that ‘peace is indivisible’. Therefore, ‘[t]he man who makes aggressive war at all makes war against mankind. That is an exact, not a rhetorical, description of the crime of aggressive war’.163 Indeed, ‘[i]t was not a trick of the law which brought them to the bar; it was the “massed angered forces of common humanity”’.164 In short, it was the ‘enforcement of a moral judgment which dates back a generation. It is a growth in the application of law that any student of our common law should recognize as natural and proper’.165 As for the principle of legality, according to the IMT, it was a mere ‘principle of justice’ and because of their positions in the Government, ‘the defendants or at least some of them must have known of the treaties signed by Germany’. Therefore, ‘they must have known that they were acting in defiance of all international law when in complete deliberation they carried out their designs of invasion and aggression’.166 Lastly, the Tribunal held that ‘whether action taken under the claim of self-defence was in fact aggressive or defensive must ultimately be subject to investigation and adjudication if international law is ever to be enforced’.167 Such idea was also implicit in the Closing Statement by Jackson,168 who also argued that ‘[i]f these defendants may now cynically plead self-defense, although no good-faith need of self-defense was asserted or contemplated by any responsible leader at that time, it reduces nonaggression treaties to a legal absurdity’.169 Of the 22 defendants before the IMT, Göring was found guilty on both count 1 (conspiracy to commit a war of aggression) and count 2 (participation in the planning, preparation, initiation and waging of wars of aggression, which were also wars in violation of international treaties, agreements and assurances). Indeed, he ‘was the moving force for aggressive war, second only to Hitler’.170 161 162 163 164 165 166 167 168 169 170

ibid 220. ibid 220. Stimson (n 123) 184. ibid 179. ibid 185. Judgment of the Nuremberg International Military Tribunal 1946 (n 125) 217. ibid 207. Jackson, Closing Statement (n 119) 421–422. ibid 422–423. Judgment of the Nuremberg International Military Tribunal 1946 (n 125) 273.

The international crime of aggression 113 Hess was guilty on both counts as until June 1941 he was ‘Hitler’s closest personal confidant’ and therefore he should have known about ‘Hitler’s aggressive plans’, as well as he took action to carry out such plans.171 Moreover, although on 12 June he ‘carried certain peace proposals’ to England, ‘Hess wholeheartedly supported all Germany’s aggressive actions up to that time, and attempted to justify Germany’s action in connection with Austria, Czechoslovakia, Poland, Norway, Denmark, Belgium, and the Netherlands. He blamed England and France for the war’.172 Von Ribbentrop was found guilty on both counts, as in his capacity as Foreign Minister, he had attended a number of conferences which were judged diplomatically significant for Hitler’s plans. Plus, he signed the law incorporating Austria to Germany; wrote the Memoranda which attempted to justify the invasions of Denmark, Norway, Belgium, the Netherland and Luxembourg; participated in the aggressive plans against Czechoslovakia and Soviet Union; and played an important diplomatic role in relation to the attack on Poland.173 Keitel, who had been the Chief of the High Command of the Armed Forces since 1938, was found guilty on both counts, as his presence on the occasion of the Schuschnigg conference in February 1938 was a ‘military demonstration’ to put pressure on Austria. In April 1938 he considered with Hitler the possibility to create an ‘incident’ to justify an invasion of Czechoslovakia and signed many directives in this regard. After Munich, he initialed Hitler’s directive regarding the attack on Czechoslovakia and issued two supplements, stating inter alia that the ‘attack should appear to the outside world as “merely an act of pacification and not a warlike undertaking”’. Moreover, in 1940 the plans to attack Norway were placed under his ‘direct and personal guidance’. Lastly, he initialed ‘Case Barbarossa’ and issued a timetable for the invasion of the Soviet Union. Then, he directed all army units to carry out the economic directives for the exploitation of Russian territory, food and raw materials.174 Rosenberg was instrumental in arranging the conferences in December 1939 between Hitler and Quisling, which led to the preparation of the attack on Norway. He also had a major responsibility for the formulation and execution of occupation policies in the Occupied Eastern Territories. For these reasons, he was found guilty under both counts.175 Jodl was found guilty on both counts as he actively participated in important meetings, initiated relevant directives, was aware of the lawlessness of German aggression (e.g. against Norway and Czechoslovakia) and took an active part in the planning of the aggression of both Greece and Yugoslavia.176 Von Neurath

171 172 173 174 175 176

ibid 276. ibid 277. ibid 279. ibid 281–282. cf Alderman, Presentation of the briefs and documents (n 146) 345. ibid 287. cf Alderman, Presentation of the briefs and documents (n 146) 351. ibid 319. As for his role in planning the aggression against Czechoslovakia even during the negotiations which led to the Munich Agreement, see, for example, Alderman, Presentation of the briefs (n 135) 65–66.

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was found guilty on both counts because ‘he served as the chief German official in the Protectorate [of Bohemia and Moravia] when the administration of this territory played an important role in the wars of aggression which Germany was waging in the East’.177 Notably, Kaltenbrunner was found not guilty on count 1 as evidence had shown that he did participate merely in the aggressive act of Anschluss of Austria but did not show his participation in the planning of any war of aggression.178 The same being the case of Von Papen which was also found not guilty on count 2.179 Defendants Frank, Streicher and Bormann were found not guilty on count 1,180 whereas Sauckel was found not guilty on both counts.181 Frick was found guilty on count 2, as after six months from the annexation of Austria he had been appointed General Plenipotentiary for the Administration of the Reich and had signed the law and was responsible for the realisation of the unification of Austria. He also signed the laws for the incorporation of Sudetenland, Memel, Danzig, the Eastern territories (West Prussia and Posen), and Eupen, Malmedy and Moresnot, being also the person responsible for the incorporation; and the law for the establishment of a Protectorate of Bohemia and Moravia.182 As far as Funk was concerned, [he] was not one of the leading figures in originating the Nazi plans for aggressive war. His activity in the economic sphere was under the supervision of Göring as Plenipotentiary General of the Four Year Plan. He did, however, participate in the economic preparation for certain of the aggressive wars, notably those against Poland and the Soviet Union, but his guilt can be adequately dealt with under Count Two of the Indictment.183 The Tribunal held that Schacht was not involved in the planning of any of the specific wars of aggression charged in Count Two. His participation in the occupation of Austria and the Sudetenland . . . was on such a limited basis that it does not amount to participation in the common plan charged in Count One.184 Importantly, the Tribunal also held:

177 178 179 180 181 182 183 184

ibid 326. ibid 284. ibid 318. cf Alderman, Presentation before the IMT (n 134) 362, 378, and 387. Judgment of the Nuremberg International Military Tribunal 1946 (n 125) 289, 294, and 329. Ibid 289 and 311. Ibid 292. Ibid 297. Ibid 301.

The international crime of aggression 115 it is clear that Schacht was a central figure in Germany’s rearmament program, and the steps which he took, particularly in the early days of the Nazi regime, were responsible for Nazi Germany’s rapid rise as a military power. But rearmament of itself is not criminal under the Charter. To be a Crime against Peace under Article 6 of the Charter it must be shown that Schacht carried out this rearmament as part of the Nazi plans to wage aggressive wars.185 While evidence was insuffcient to fnd Dönitz guilty on count 1, he did wage aggressive war: in 1936 he was appointed commander of the submarine arm, and later, on 30 January 1943 became Commander-in-Chief of the German Navy and was the Head of State from 1 May to 9 May 1945, succeeding Hitler.186 Thus, his knowledge and participation in the waging of aggressive war was inferred from his position. Reader, Chief of German Naval Command, was found guilty on both counts, as he was present to the Hossbach Conference of 5 November 1937 and other important meetings. He conceived the invasion of Norway and, six days before the invasion of the Soviet Union, ordered to attacks the Russian submarines in the Baltic Sea.187 The Austrian defendant Seyss-Inquart had assumed responsibility for governing territory which had been occupied by aggressive wars and the administration of which was of vital importance in the aggressive war waged by Germany. Therefore, he was found guilty on count 2.188 Speer was found not guilty on both counts because ‘he became the head of the armament industry well after all of the wars had been commenced and were under way’, and ‘[h]is activities in charge of German armament production were in aid of the war effort in the same way that other productive enterprises aid in the waging of war’.189 Lastly, Fritzsche was found not guilty on both counts,190 whereas Von Schirach was found not guilty on count 1.191 A few days after the Tribunal had issued its judgement, Jackson commented on it as follows: ‘The power of the precedent’, Mr Justice Cardozo said, ‘is the power of the beaten path’. One of the chief obstacles to this trial was the lack of a beaten path. A judgment such as has been rendered shifts the power of the precedent to the support of these rules of law. No one can hereafter deny or fail

185 Ibid 300. By contrast, see Associate Trial Counsel for the United States, Sidney Alderman, Presentation of the briefs and documents before the International Military Tribunal on 27 November 1945 in Trials of the Majors War Criminals (n 111) 311–312. 186 Judgment of the Nuremberg International Military Tribunal 1946 (n 125) 302–303. 187 ibid 306–308. cf Alderman, Presentation before the Tribunal (n 132) 261. 188 Judgment of the Nuremberg International Military Tribunal 1946 (n 125) 314–315. 189 ibid 321. 190 ibid 326. 191 ibid 310.

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The international crime of aggression to know that the principles on which the Nazi leaders are adjudged to forfeit their lives constitute law – and law with a sanction.192

The same year, however, Jackson wrote: It is too early to know what influence this judgment will have on future International Law. But it is not too early to know that it constitutes one of the indispensable documents for consideration, whether as a precedent or as a point of departure. If the nations whose representatives fought for it and whose judges rendered it fail to obey the standards they set up, it may be discredited and neglected.193 Notably, ‘[n]o one of the prosecuting nations can long depart from these standards in its own practice without inviting the condemnation and contempt of civilization’.194 This view was shared by other eminent personalities, including Henry Stimson, who stated: ‘[t]he four nations prosecuting, and the 19 others subscribing to the Charter of the International Military Tribunal, have frmly bound themselves to the principle that aggressive war is a personal and punishable crime’.195 Therefore, ‘[a] standard has been raised to which Americans, at least, must repair’.196 Notably, in October 1946, President Truman affirmed before the GA of the UN that 23 members of the United Nations have bound themselves by the Charter of the Nuremberg Tribunal to the principle that planning, initiating or waging a war of aggression is a crime against humanity for which individuals as well as states shall be tried before the bar of international justice.197 The following year, the US included those ‘persons who initiated and carried on aggressive war’ within the category of ‘war criminals’.198 In the wake of this general enthusiasm, some writers also called for the US to assume ‘the leadership in initiating the outlawry of aggressive war by making

192 Justice Robert H Jackson, Report to the President on 7 October 1946 in Jackson, Report of Robert H Jackson (n 52) 437. See also Jackson, Address before the Canadian Bar Association (n 123). 193 Robert H Jackson, ‘Forward: The Nurnberg Trial becomes an Historic Precedent’ (1946) 20 Temple Law Quarterly 167. 194 Jackson, Address at the University of Buffalo (n 108). 195 Stimson (n 121) 188. 196 ibid 189. 197 US President, Harry S Truman, Address at the Opening Session of the United Nations General Assembly on 23 October 1946 [emphasis added]. See also US Chief Delegate, Warren R Austin, Opening Address to the General Assembly of the United Nations on 30 October 1946 (as cited in Quincy Wright, ‘The Law of the Nuremberg Trial’ (1947) 41 AJIL 38). 198 UN Doc. A/C.6/SR.46, 59.

The international crime of aggression 117 crimes against international peace punishable in national as well as in international courts. The judgment of Nuremberg makes that course imperative and points the way’.199 In the future, ‘the issue . . . will not be whether aggression is illegal, but the question will be who was the aggressor and who acted in self-defense’.200 In short, given the uncertainties within the US Administration before the conclusion of the London Agreement, one could argue that at that time aggression was not a crime under international law.201 However, the agreement itself as well as the way the Charter attached to it has been interpreted by the Nuremberg Tribunal might reasonably have contributed to the crystallisation of a custom which made aggression a crime since 1946. Moreover, when in public, US Representatives consistently advocated for the existence of an international crime of aggression ‘sometime before 1939’.202

6 Tokyo While their Representatives were meeting in London, in the summer of 1945, Stalin, Churchill and Truman met in Potsdam to discuss a number of issues relating to the post-war treatment of Germany and the ongoing conflict in the Pacific. On 26 July 1945 the US, the UK, and China issued the co-called Potsdam Declaration, whereas the Soviet Union adhered to it in August. According to this Declaration, the Allied Powers demanded an unconditional surrender of Japan, the alternative being its ‘prompt and utter destruction’, and announced that ‘stern justice shall be meted out to all war criminals’.203 After the US atomic attacks on the Japanese cities of Hiroshima and Nagasaki, Japan signed the instrument of surrender on 2 September, which provided that the Emperor, the Government and the Imperial General Headquarters of Japan would have taken ‘whatever action may be required by the supreme Commander for the Allied Powers . . . for the purpose of giving effect to [the Potsdam] Declaration’.204 The US State-War-Navy Coordinating Committee completed a draft proposal in September 1945 whose title was ‘Policy of the United States in Regard to the 199 200 201 202 203

George A Finch, ‘The Nuremberg Trial and International Law’ (1947) AJIL 20, 37. Jackson, Address before the Air Force Association (n 117). Schabas, ‘Origins of the Criminalization of Aggression’ (n 111) 17, 19. See, for example, Jackson, Closing Statement (n 119) 399. ‘The Potsdam Declaration’ on 26 July 1945, Annex A-1 to the Judgment of the International Military Tribunal for the Far East in John R Pritchard (ed), The Tokyo Major War Crimes Trial: The Records of the International Military Tribunal for the Far East with Authoritative Commentary and Comprehensive Guide (Edwin Mellen Press 1998 vol 104) 1–3. The hypothesis of a trial against the main Japanese war criminals had been discussed within the UNWCC in 1944. The US Representative, Herbert Pell, was a great supporter of the idea of a fair trial in the Orient. During his last days of life, President Roosevelt had also aligned himself to Pell’s cause. For more details, see Tim Maga, Judgment at Tokyo: The Japanese War Crimes Trials (The University Press of Kentucky 2001) 28–29. 204 ‘Instrument of Surrender’ on 2 September 1945, Annex A-2 to the Judgment of the International Military Tribunal for the Far East in Pritchard (n 203) 11–13.

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Apprehension and Punishment of War Criminals in the Far East’. Section A of this latter’s first paragraph contained Crimes against Peace as the main category of crimes over which the future Tribunal would have had jurisdiction. A proposal by the Supreme Commander for the Allied Powers, General MacArthur, providing for the establishing of an American Tribunal, instead of an international one, meanwhile, did not enjoy President Truman’s approval.205 Following the Moscow Agreement of December 1945,206 on 19 January 1946 General MacArthur issued a Special Proclamation which established the International Military Tribunal for the Far East (IMTFE) for the trial of those persons charged individually, or as members of organisations, or in both capacities, with offenses which included Crimes against Peace.207 MacArthur approved the Charter of the Tribunal on the same day. Notwithstanding the US initial idea to try the Japanese for the sole episode of Pearl Harbour, it followed the Nuremberg template, albeit with several textual additions.208 As for article 5(a), it read as follows: Crimes against Peace: Namely, the planning, preparation, initiation or waging of a declared or undeclared war of aggression, or a war in violation of international law, treaties, agreements or assurances, or participation in a common plan or conspiracy for the accomplishment of any of the foregoing.209 Besides the addition of the expression ‘undeclared war’, the IMTFE Charter differed from the IMT one because under the former, the other international crimes could be punished only if committed along with Crimes against Peace.210 In this sense, the IMTFE Charter seems to have anticipated the IMT Judgement which stated that aggression did include the commission of all the other international crimes. It was also in line with the position the US had held in London. The very long Indictment, which was signed for the US by the Chief of Counsel Joseph B Keenan, was lodged with the Tribunal on 29 April 1946 and consisted 205 See Yuma Totani, The Tokyo War Crimes Trial: The Pursuit of Justice in the Wake of World War II (Harvard University Asia Centre 2008) 21 ff. 206 ‘Moscow Agreement’ on 26 December 1945, Annex A-3 to the Judgment of the International Military Tribunal for the Far East in Pritchard (n 203) 15. 207 ‘Special Proclamation for the Establishment of an International Military Tribunal for the Far East’ on 19 January 1946, Annex A-4 to the Judgment of the International Military Tribunal for the Far East in Pritchard (n 203) 16–18. 208 Sellars (n 18) 182. 209 ‘Charter of the International Military Tribunal for the Far East’ on 19 January 1946, Annex A-5 to the Judgment of the International Military Tribunal for the Far East in Pritchard (n 203) 19–28. See also Neil Boister and Robert Cryer, The Tokyo International Military Tribunal: A Reappraisal (OUP 2008) 120; Sellars (n 18) 184–185. 210 Patrycja Grzebyk, Criminal Responsibility for the Crime of Aggression (Routledge 2013) 99. See also Sellars (n 18) 183. Robert Cryer, ‘The Tokyo International Military Tribunal and Crimes Against Peace (Aggression). Is There Anything to Learn?’ in Leyla Nadya Sadat (ed), Seeking Accountability for the Unlawful Use of Force (CUP 2018) 80, 83.

The international crime of aggression 119 of 55 counts of which 36 dealt with Crimes against Peace, later described by Keenan as ‘the vilest’ of the crimes.211 Counts 1–5 concerned conspiracy to wage a war of aggression; counts 6–17 regarded Japan’s ‘planning and preparation’ of aggressive wars; counts 18–26 related to the ‘initiation’ of aggressive wars; and counts 27–36 were about the ‘waging’ of aggressive wars.212 Moreover, a second group of counts dealt with murder and conspiring to murder, as Crimes against Peace, War Crimes and Crimes against Humanity.213 In particular, count 37 related to the charge of conspiring to commit murder of soldiers and civilians by initiating unlawful hostilities in violation of the 1907 Hague Convention No III; count 38 dealt with the charge of conspiring to murder soldiers and civilians by initiating hostilities in violation of certain international treaties, including the Pact of Paris; counts 39–43 dealt with the commission of murder on 7 and 8 December 1941 at Pearl Harbour (count 39), Kota Bharu (count 40), Hong Kong (count 41), on board HMS Petrel at Shanghai (count 42) and at Davao (count 43); count 51 charged certain accused of murder of members of armed forces of Mongolia and Soviet Union in 1939; and count 52 dealt with murder of members of armed forces of Soviet Union in 1938.214 As for the category of ‘planning and preparing a war of aggression’, the Tribunal did not enter convictions for those who were also found guilty of conspiracy to commit aggression. In particular, according to the Tribunal, the Prosecutor had proved existence of the conspiracy to wage wars of aggression to obtain Japan’s domination as alleged in count 1, whereas he had not done the same with count 5 (i.e. conspiracy with Germany and Italy to dominate the world).215 Moreover, it did not consider counts 18–26, as there was no need to differentiate between initiating and waging a war of aggression.216 In relation to counts 37 and 38, [i]t was argued that the waging of aggressive war was unlawful and involved unlawful killing which was a conspiracy to commit murder. From this it was

211 Bernard V A Röling and Christiaan F Rüter (eds), The Tokyo Judgment: The International Military Tribunal for the Far East (I.M.T.F.E.), 29 April 1946–12 November 1948 (University Press Amsterdam 1977 vol I) 20. See also Sellars (n 18) 188–189. 212 ibid 20–21. See also Sellars (n 18) 188–189. 213 ‘Indictment’, Annex A-6 to the Judgment of the International Military Tribunal for the Far East in Pritchard (n 203) 48. 214 Röling and Rüter (n 211) 21 [emphasis added]. 215 The Acting Political Adviser in Japan, William J Sebald, Note to the Secretary of State on 23 November 1948 in US Department of State, Foreign Relations of the United States, 1948: The Far East and Australasia (US GPO 1948 vol VII) 904. See also Boister and Cryer (n 209) 141. 216 Chief of Counsel of the Prosecution, Joseph B Keenan, Opening Statement on 3 May 1946 in Joseph B Keenan, Trial of Japanese War Criminals. Documents: 1. Opening statement by Joseph B. Keenan, Chief of Counsel. 2. Charter of the International Military Tribunal for the Far East. 3. Indictment (US GPO 1946 Far Eastern series No 12) 17. See also Röling and Rüter (n 211) 31.

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The international crime of aggression submitted further that a conspiracy to wage war unlawfully was a conspiracy also to commit murder.217

Keenan tried to prove the conspiracy to commit murder by arguing that ‘for years prior to January 1, 1928 the military in Japan had sponsored, organized and put into effect in the public-school system of Japan a program designed to instil a militaristic spirit in youth of Japan’.218 Moreover, ‘[a] plan was developed . . . which anticipated the creation of an “incident” in Manchuria’,219 which was followed by an immediate aggression.220 The same was true for the Marco Polo ‘incident’ (1937).221 However, the Tribunal claimed to have no jurisdiction on these charges because of the lack of any reference in the Charter.222 In addition, as for counts 39–52 (excluding 44) [n]o good purpose is to be served . . . in dealing with these parts of the offences by way of counts for murder when the whole offence of waging those wars unlawfully is put in issue upon the counts charging the waging of such wars.223 In short, the Tribunal decided to consider only the following counts of the indictment: 1. Conspiracy to wage wars of aggression. 27. Aggressive war against China. 29. Aggressive war against the United States. 31. Aggressive war against the British Commonwealth. 32 Aggressive war against The Netherlands. 33. Aggressive war against France. 35. Aggressive war against URSS at the Lake Khassan. 36. Aggressive war against URSS at Nomonhan. Thus, as the US Political Adviser in Japan pointed out, ‘the Tribunal simplified the prosecution’s theory of indictment almost to that followed at Nuremberg’.224 Keenan based his case for the prosecution of aggression upon the concepts of just and unjust wars.225 According to the Prosecution, [f]rom January 1st, 1928, onwards there was a plot in the Japanese Army, and particularly in the Kwantum Army, supported by certain civilians, to create an incident in Manchuria, which should form a pretext for Japan to conquer, occupy and exploit that Country as the first step in a scheme for domination which later extended to other parts of China to the territory of

217 218 219 220 221 222 223 224 225

Röling and Rüter (n 211) 32. Keenan (n 216) 21. ibid 22. ibid 22. ibid 23 and 25. ibid. ibid. Sebald (n 215) 904. Sellars (n 18) 207.

The international crime of aggression 121 the Union of Soviet Socialist Republics, and ultimately to a wider field, aiming to make Japan a dominant power in the world.226 Moreover, the Prosecution focused on the Japanese ‘economic aggression’ of China and other countries in the Pacifc. Indeed, Japan did not only aim at its enrichment but had ‘a scheme to weaken the resistance of China, to exclude other Nations and nationals, and to provide funds and munitions for further aggression’.227 In the occupied areas, Japan also sponsored a traffc in opium and other narcotics which ‘was used to fnance the preparation for and the waging of the wars of aggression set forth in the Indictment and to establish the puppet governments set up by the Japanese Government’.228 Moreover, [w]ith a view to future wars of aggression, and in order to prevent other nations from interference in her war of aggression already in progress against China, Japan from 1st January, 1932, onwards strengthened her naval, military, productive and financial preparation for war.229 In relation to the Soviet Union, the Prosecution held that Japan ‘was continually preparing war and performing acts of aggression against the Soviet Union’.230 In any case, as the US Prosecutor Keenan pointed out during his Opening Statement: Our specific purpose . . . is to confirm the already recognized rule that such individuals of a nation who, either in official positions or otherwise, plan aggressive warfare, especially in contravention of sound treaties, assurances, and agreements of their nations to the contrary, are common felons and deserve and will receive the punishment for ages meted out in every land to murderers, brigands, pirates, and plunderers. . . . We shall contend herein that it is no less an offense to plan and initiate the destruction of lives of a million people than it is to plan and initiate the murder of a single individual.231 Keenan argued in favour of the non-application of the act of state doctrine and immunities.232 However, in spite of article 6 of the IMTFE Charter, the Prosecutor

226 Appendix A to the Judgment of the International Military Tribunal for the Far East in Pritchard (n 204) 62. 227 ibid 65–66. Cf, for example, the US presentation of the case at Nuremberg in relation to conspiracy to commit Crimes against Peace against Soviet Union. Associate Trial Counsel for the United States, Sidney Alderman, Presentation (n 144) 330. 228 Appendix A to the Judgment of the International Military Tribunal for the Far East in Pritchard (n 204) 66–67. 229 ibid 68. 230 ibid 76. 231 Keenan (n 216) 3. 232 ibid.

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decided not to indict Emperor Hirohito.233 This was criticised by President Webb, as ‘even a Constitutional Monarch would not be excused for committing a crime at International Law on the advice of his Ministers’.234 Rather, he suggested that immunity should have been considered at the sentencing stage.235 As for the principle of legality, according to the US Prosecutor, the Charter creates no new law. Quite to the contrary, it defines criminal offenses of the gravest nature which have long been recognized as illegal in the mind and public conscience of the world. . . . [B]y whatever forms this state of international law was established or however it became crystallized, it was with the full realization that the dictates of humanity and the requirements of civilization demanded that these offenses be recognized as such and placed beyond the pale of civilized conduct.236 Hence, Keenan invited the Tribunal to consider the body of international law which was known as ‘common law’ or ‘general law’ or ‘natural law’.237 Thus, he quoted the US Supreme Court’s Justice Cardozo, who in the 1934 case of new Jersey v Delaware, stated: International law, or the law that governs between states, has at times, like the common law within states, a twilight existence during which it is hardly distinguishable from morality or justice till at length the imprimatur of a court attests its jural quality.238 He also quoted Lord Wright who in 1946 had affrmed as follows: International Law is progressive. . . . The pressure of necessity stimulates the impact of natural law and moral ideas and converts them into rules of law deliberately and overtly recognized by the consensus of civilized mankind. The experience of two great world wars within a quarter of a century cannot fail to have deep repercussions on the senses of the peoples and their demand for an International Law which reflects international justice.239 These arguments of a natural law origin were embraced by President Webb and Judge Bernard in their Separate and Dissenting Opinions, respectively.240 233 Mahmoud C Bassiouni, International Criminal Law: Sources, Subjects and Contents (Brill 2008) 52. For more details, see Totani (n 206) 43 ff. 234 US and Others v. Araki and Others, Separate Opinion of the President Webb, at 19. 235 ibid at 18. 236 Keenan (n 216) 6 [emphasis added]. 237 cf US and Others v. Araki and Others, Dissenting Opinon of the Member from France of the IMTFE, Henri Bernard, Memorandum to the General Secretary of the Tribunal on 12 November 1948, at 10. 238 Keenan (n 216) 10. 239 ibid 11–12. 240 Boister and Cryer (n 209) 130.

The international crime of aggression 123 The Defence had challenged the validity of the Charter and the jurisdiction of the Tribunal on the ground that the provisions of the Charter relating to Crimes against Peace constituted ex post facto law.241 In May 1946 the Tribunal had dismissed these challenges, but the reasons for its decision were made known only in the final Judgement in November 1948. Meanwhile, the IMT had issued its Judgement, so that the IMTFE preferred ‘to express its unqualified adherence’ to the reasoning of the Nuremberg Tribunal which dealt with the same issues raised by the Defence. The IMTFE held that the law of the charter was ‘decisive and bound’ upon the Tribunal, so as it would not need to record its opinion on these questions.242 In his attempt to demonstrate that the criminality of aggression was ‘a general principle of international law’ well before the acts which were under consideration of the Tribunal had been committed, Keenan erroneously cited the III Hague Convention affirming that it had branded undeclared wars as international crimes.243 Importantly, compared to what had been claimed by Jackson about the moment by which aggression had become a crime, he went even further: he maintained that wars of aggression were already a crime in 1928.244 On this point, Dissenting Judge Röling noted: it is illuminating to note that criminal responsibility on the part of the authors of aggressive war came under serious discussion only towards the end of the war. In 1928 this particular consequence of the Pact of Paris was by no means recognized.245 According to him, ‘Crimes against Peace’ were not considered as such before the end of 1943.246 To argue against any illegality of war after 1928 the Indian Member of the Tribunal, Justice Pal, cited the US application of neutrality with regard to the ‘alleged’ 1933 aggression of China by Japan, the application of the 1935 Neutrality Act to both Italy and Ethiopia, the 1937 Neutrality Act and the application of neutrality as announced by Roosevelt few weeks after the war in Europe broke out in 1939.247 Keenan quoted the one provided in 1943 by Webster, according to which aggression could be defined both as ‘[a] first or unprovoked attack, or act of hostility; the first act of injury or first act leading to a war or a controversy; an assault; also, the practice of attack or encroachment; as, a war of aggression’ and ‘[a] Nation that refuses to arbitrate or to accept an arbitration award, or any other

241 242 243 244 245

Röling and Rüter (n 212) 27. ibid 27–28. Keenan (n 216) 14. cf Judgment, 49576 (as cited in Boister and Cryer (n 209)). ibid 15. US and Others v. Araki and Others, Dissenting Opinion of the Member for the Netherlands, Justice Röling, at 34. 246 ibid at 44. See also Boister and Cryer (n 209) 132. 247 US and Others v. Araki and Others, Dissenting Opinion of the Member from India, Justice Pal, at 115. See also Boister and Cryer (n 209) 121.

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peaceful method, in the settlement of a dispute but threatens to use force or to resort to war’.248 In addition, he recalled the definition provided by James T Shotwell, in 1929, namely: ‘that state which goes to war in violation of its pledge to submit the matter of dispute to peaceful settlement having already agreed to do so’.249 Keenan also suggested that the essence of aggression lay in the aim of dominating a foreign country.250 The Tribunal made reference to the question of the definition when discussing the attacks of 7 December 1941 and held: They were unprovoked attacks, prompted by the desire to seize the possessions of these nations. Whatever may be the difficulty of stating a comprehensive definition of ‘a war of aggression’, attacks made with the above motive cannot but be characterized as wars of aggression.251 Justice Pal, dissenting, affrmed: ‘To leave the aggressive character of war to be determined according to “the popular sense” or “the general moral sense” of the humanity is to rob the law of its predictability’.252 Keenan also referred to the IMT Judgement, which had in turn incorporated Lauterpacht’s suggestion, when it had affirmed that the nature of an act taken under the claim of self-defence was ultimately to be subject to an investigation. This idea was upheld by the Majority, whereas Pal criticised it.253 As for the mens rea, in relation to defendant Matsui the Majority held that the element of knowledge of the criminality of the war was to be linked to the defendant’s knowledge of the fact of a policy, whereas the Prosecution had argued for his knowledge that the war was in breach of international agreements. While sometimes intention was inferred from the formula ‘active’ participation, in line with what had been argued by Keenan, many convictions appeared to require a mere knowledge.254 As for the US Administration, on 29 November, before the end of the appeals process, the US Secretary of Defense Kenneth Royall wrote to Truman ‘recommending an urgent review of the prosecution and punishment of the Japanese leaders for Crimes against Peace before the death sentences were carried out’.255 A reply to it was prepared by Katherine Fire and Philander Claxton, from the Office of the Legal Adviser of the State Department, according to whom:

248 249 250 251 252 253 254 255

Keenan (n 216) 15. ibid. Transcript, 42188 (as cited in Boister and Cryer (n 209) 122). Judgment, 49584 (as cited in Boister and Cryer (n 209) 123). On the Majority’s uncertain conception of aggression, see Boister and Cryer (n 209) 123. Pal (n 243) at 235. Boister and Cryer (n 209) 127. ibid 149–150. Fire and Claxton revised ‘Memorandum for the President’, 2 December 1948 as cited by Sellars (n 18) 257.

The international crime of aggression 125 For this Government now to suggest in any way to other governments that aggressive war should not be considered a crime would be complete abandonment of the moral leadership which we took in the matter. Moreover, no possible public or international justification is apparent for opposing the trial and punishment of Japanese who plotted aggressive war, and in fact launched it against the United States at Pearl Harbour, when the United States has already actively supported the trial and execution of German leaders for the same crime. Finally, such a reversal of policy would play into the hands of Soviet propaganda, which charges the United States with plotting aggressive war.256

7 Subsequent Nuremberg Trials On 20 December 1945, the four occupying powers in Germany, acting through the four Zone Commanders, promulgated Control Council Law No 10 to give effect to the terms of the Moscow Declaration of 30 October 1943 and the London Agreement of 8 August 1945, and the Charter issued pursuant thereto and in order to establish a uniform legal basis in Germany for the prosecution of war criminals and other similar offenders.257 The US Military Governor, General Joseph McNarney, could then establish different military tribunals at Nuremberg, pursuant to Military Government Ordinance No 7, promulgated on 18 October 1946.258 According to article II (1) (a) of the Control Council Law No 10: Each of the following acts is recognized as a crime: (a) Crimes against Peace. Initiation of invasions of other countries and wars of aggression in violation of international laws and treaties, including but not limited to planning, preparation, initiation or waging a war of aggression, or a war of violation of international treaties, agreements or assurances, or participation in a common plan or conspiracy for the accomplishment of any of the foregoing. Of the 12 trials which were held in the US zone, four dealt with Crimes against Peace: the so-called IG Farben,259 Krupp,260 High Command261 and Ministries case.262 Importantly, only fve defendants in the Ministries case were eventually 256 ibid. 257 Telford Taylor, Final Report to the Secretary of the Army on the Nuernberg War Crimes Trials under Control Council Law No 10 (US GPO 1949) 136. 258 ibid 137. 259 The United States of America vs. Carl Krauch, et al. (The IG Farben Case) US Military Tribunal Nuremberg, Case No VI (27 August 1947–30 July 1948). 260 The United States of America vs. Alfred Krupp, et al. (The Krupp Case) US Military Tribunal Nuremberg, Case No X (8 December 1947–31 July 1948). 261 The United States of America vs. Wilhelm von Leeb, et al. (The High Command Case) US Military Tribunal Nuremberg, Case No XII (30 December 1947–28 October 1948). 262 The United States of America vs. Ernst von Weizsäcker, et al. (The Ministries Case) US Military Tribunal Nuremberg, Case No XI (6 January 1948–13 April 1949).

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convicted for such a crime.263 In all cases in which the indictment provided for the conspiracy charge, the defendants were eventually acquitted for insuffcient evidence.264 The US Chief Prosecutor, Telford Taylor, stated: Men plan and prepare for war by acts lawful in them-selves – economic estimates, military plans and maneuvers, the manufacture of weapons, political memoranda – and to prove that these things are done with guilty intent to initiate an aggressive war is difficult enough at best.265 In general, Control Council Law No 10 adopted the Nuremberg Charter as a model, although the language differed in many aspects,266 including the insertion of invasion among the Crimes against Peace. As Taylor affirmed, this: can only mean that Control Council Law No 10 comprehended the seizures of Austria and Czechoslovakia (which the IMT indictment had referred to as ‘aggressive actions’ and ‘invasions,’ but had not charged as ‘aggressive wars’) under the definition of ‘crimes against peace.’ This is especially significant in that it serves to confirm that the use of force by one country to take away that which belongs to another is the cornerstone of what the Control Council Law is condemning, just as it had already been condemned by the civilized world and was later condemned in the IMT judgment.267 The US Military Tribunal indeed considered the invasions of both Austria and Czechoslovakia as aggressions and added: An invasion of this character is clearly such an act of war as is tantamount to, and may be treated as, a declaration of war. It is not reasonable to assume that an act of war, in the nature of an invasion, whereby conquest and plunder are achieved without resistance, is to be given more favorable consideration than a similar invasion which may have met with some military resistance.268 263 Taylor (n 257) 92. 264 ibid 71. In the Krupp case, the Prosecution had even claimed that the defendants had conspired among themselves. See Kevin J Heller, The Nuremberg Military Tribunals and the Origins of International Criminal Law (OUP 2011) 199–200. 265 Taylor (n 257) 66. 266 ibid 136. 267 The IG Farben case, Answer to Motion For Finding of Not Guilty on Count One and Count Five in Trials of War Criminals before the Nuernberg Military Tribunals under Control Council Law No 10 (US GPO 1953 vol VII) 525. The IMT did not convict any defendant for the commission of ‘acts of aggression’ under count 2 of the Indictments. It just convicted people for conspiring for the commission of ‘acts of aggression’ against Austria and Czechoslovakia. See Heller (n 264) 179–180. 268 The Ministries Case, Judgment in Trials of War Criminals before the Nuernberg Military Tribunals under Control Council Law No 10 (US GPO 1953 vol XIV) 330. See also The High Command Case, Judgment in Trials of War Criminals before the Nuernberg Military Tribunals under Control Council Law No 10 (US GPO 1953 vol XI) 485.

The international crime of aggression 127 Taylor later commented on this passage by stating: the square decision of Tribunal No. IV to this effect seems to me unassailable. Otherwise, it would follow that a great power may, with legal impunity, mass such large forces to threaten a weaker country that the latter succumbs without offering resistance. If it is a crime to initiate aggressive war by deliberately attacking another country by military force, surely it is no less a crime to conquer it by military threats.269 Another difference with the Nuremberg Charter was the insertion of article II (2) (f) pursuant to which: Any person without regard to nationality or the capacity in which he acted, is deemed to have committed a crime as defined in paragraph 1 of this Article, (f) with reference to paragraph 1 (a) if he held a high political, civil or military (including General Staff) position in Germany or in one of its Allies, co-belligerents or satellites or held high position in the financial, industrial or economic life of any such country. This provision, which only related to Crimes against Peace, was used by the Prosecutor in the four cases dealing with this category of crimes. However, he just referred to this clause ‘as descriptive of the status of the defendants, and not as part of the “charging language”’.270 As for the charge of participating in the planning or knowingly participating in an invasion or war of aggression or a war in violation of international laws, the IMT had relied on the participation in four secret meetings to assert the defendants’ knowledge of Hitler’s intentions and their consequent participation in the planning and initiation of aggressive wars.271 By contrast, in Farben, the Tribunal held that liability was limited to those ‘responsible for the formulation and execution of policies’.272 Moreover, the US Tribunal made a distinction between leaders and followers and affirmed: ‘If we lower the standard of participation to include them [the followers], it is difficult to find a logical place to draw the line between the guilty and the innocent among the great mass of German people’.273 Even more, in the High Command Case (and later in the Ministries case), it was established that the defendant had to be in ‘a position to shape or influence the policy that brings about its initiation or its continuance after initiation, either by furthering, or by hindering or preventing it’.274 269 Taylor (n 258) 107–108. 270 ibid 72. 271 The IG Farben case_Continued, Decision and Judgment of the Tribunal in Trials of War Criminals before the Nuernberg Military Tribunals under Control Council Law No 10 (US GPO 1953 vol VIII) 1102. 272 McDougall (n 43) 173. 273 The IG Farben case_ Continued (n 271) 1126–1127. 274 Taylor (n 258) 209. Taylor later commented that he doubted that Keitel (convicted by the IMT) could be considered any more ‘policy maker’ than the defendants in the High Command case. See Heller (n 264) 188.

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In Farben, the defendants were industrialists whose activities significantly contributed to the rearmament of Germany. However, the Tribunal reiterated what had been held by the IMT, namely that rearmament was not criminal per se.275 Indeed, as the Tribunal affirmed in the High Command case, not all wars were outlawed, being a war in legitimate self-defence a lawful one.276 As a result, in Farben, the Tribunal held that ‘[o]ne can be guilty only where knowledge of aggression in fact exists. . . . Any other test of guilt would involve a standard of conduct both impracticable and unjust’.277 Yet in the Ministries case, in relation to the required mens rea for ‘waging war’ through rearmament, the Tribunal held that the mere knowledge of the aggressiveness of the war was insufficient. Intent to wage this aggressive war had to be proved as well.278 As for the relation with the IMT Judgement, the Prosecutor quoted Phillip Jessup, who had claimed that ‘[i]naction by the whole society of nations from now on would constitute a repudiation of the precedent’.279 Accordingly, the Tribunal considered it as ‘basic and persuasive precedent as to all matters determined therein’.280 Yet in the opinion of the Prosecutor, if the Tribunal considered that Control Council Law No 10 needed clarification, it could have taken into consideration the factual event which had brought to ‘the codification of “crimes against peace,” namely the fact of “total war”’.281 The choice of the term ‘codification’ seems to imply that Taylor considered Crimes against Peace as unwritten law already applicable in 1939.282 In other words, ‘[t]here is no longer any real doubt about the law against aggression, any more than there was doubt about the law against murder or robbery in Bracton’s time’.283 To those who objected that aggressive war could not be considered a crime in the absence of a definition, Taylor replied by affirming that ‘[i]f we reject international law unless it is embodied in codes and statutes, . . . we shall never find it at all, for it cannot exist in this form without a correspondingly highly developed world political organization’.284 275 Notably, in the Krupp case, the Tribunal held that to consider the defendant responsible for ‘waging’ an aggressive war, rearmament needed to be started before the initiation of the war and the defendant’s knowledge of the aggressive character of the war must be proved. See Heller (n 264) 193. 276 The High Command Case (n 269) 487–488. In 1949, in the Ministries Case the Tribunal held that self-defence included the right of third countries to intervene in case of aggression in order to halt the invasion and punish the aggressor, even by resorting to force. See Heller (n 264) 183–184. 277 Taylor (n 257) 216. 278 Heller (n 264) 196. 279 The High Command Case, Opening Statement of the Prosecutor in Trials of War Criminals before the Nuernberg Military Tribunals under Control Council Law No 10 (US GPO1953 vol X) 152. See also Phillip C Jessup, ‘The Crime of Aggression and the Future of International Law’ (1947) LXII Political Science Quarterly 4. 280 The IG Farben case_ Continued (n 271) 1098. 281 The IG Farben case (n 268) 526 [emphasis added]. 282 ibid 524. 283 Taylor (n 257) 236–237. 284 ibid 219–220.

The international crime of aggression 129 In 1949, the Ministries Case ended with the conviction of von Weizsaecker, Keppler and Woermann of the Foreign Office, Lammers, and Koerner on the charge of committing Crimes against Peace.285 While the IMT and Tribunal V in Farben treated both planning as a part of the common plan to commit Crimes against Peace and planning as direct participation in the commission of Crimes against Peace as if they were synonyms, in the Ministries case the Tribunal broadened the scope of the planning charge, so as to include those who participated in the formulation of the policies essential for the success of the attacks.286 Then, the preparation charge encompassed the implementation of the aggressive plans formulated during the planning phase. The diplomatic preparation for aggression was central to the conviction of defendant Weizsaecker.287 These decisions were issued two and a half years after the IMT Judgement, in a completely different international climate.288 For this reason, Taylor commented that ‘the judgment is a powerful reminder that legal principles which have been judicially enforced cannot easily be buried and exhumed with each shift in the international winds’.289

8 The Nuremberg principles blowing in the wind A month after the Nuremberg Judgement was issued, the US Judge at the IMT Frank Biddle, in his report to the President, affirmed: Aggressive war was once romantic; now it is criminal. . . . The conclusions of Nurnberg may be ephemeral or may be significant. That depends on whether we now take the next step. It is enough to set one great precedent that brands as criminal aggressive wars between nations. Clearer definition is needed. . . . But now that it has been so clearly recognized and largely accepted, the time has come to make its scope and incidence more precise.290 Thus, he recalled article 13 of the Charter of the UN and suggested to the President to advance the proposal that the United Nations as a whole reaffirm the principles of the Nurnberg Charter in the context of a general codification of offences against

285 Tribunal VI set aside von Weizsaecker and Woermann’s convictions after they filed motions to correct the judgement. See Heller (n 266) 179. 286 Heller (n 264) 190–191. 287 ibid 191. 288 Taylor (n 257) 214–215. 289 ibid 222–223. 290 Francis Biddle, Correspondence with Harry S Truman, accompanied by related materials on 9 November 1946, Official File, Truman Papers, Harry S. Truman Presidential Museum & Library.

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President Truman replied by stating: ‘I hope we have established for all time the proposition that aggressive war is criminal and will be so treated’.292 The correspondence between Truman and Biddle led to a US proposal of a Resolution under the subject of ‘Codification of International Law’, which was to be submitted to the GA. Indeed, [i]t seems appropriate for the United States to take the lead in recommending to the United Nations that . . . the General Assembly itself approve the principles of international law established by the International Military Tribunal under the judgments which it rendered.293 The US proposal for a Resolution read as follows: The General Assembly, Recognizing the obligation laid upon it by Article 13, paragraph 1, subparagraph (a) of the Charter to initiate studies and make recommendations for the purpose of encouraging the progressive development of international law and its codification; and Taking note of the London agreement of 8 August, 1945 for the establishment of an international military tribunal for prosecution and punishment of the major war criminals; 1. 2.

approves the principles of international law established by the judgment of the Nuremberg Tribunal under the London agreement. Directs the Assembly Committee on the Codification of International Law created by the Assembly’s resolution of . . . to treat as a matter of primary importance the formulation of the principles of the London agreement and of the judgment of the Nuremberg Tribunal in the context of a general codification of offences against the peace and security of mankind or in an International Criminal Code.294

Notably, at a subsequent internal meeting, upon the suggestion of Charles Fahy, Legal Adviser to the US delegation, it was decided to change the word in paragraph 1 from ‘approves’ to ‘reaffrms’. Indeed, ‘nineteen states had adhered to statement by the United States, the United Kingdom, France, and the U.S.S.R.

291 ibid. 292 US President, Harry S Truman, Correspondence with Francis Biddle, accompanied by related materials on 12 November 1946, Official File, Truman Papers, Harry S. Truman Presidential Museum & Library. 293 US Delegation Working Paper on 14 November 1946 in US Department of State, Foreign relations of the United States, 1946. General; the United Nations (US GPO 1946 vol I) 539–541. 294 UN Doc. US/A/C.6/25.

The international crime of aggression 131 and thus the matter was already law’.295 Notably, at the meeting an issue was raised concerning the adoption of the suggested International Criminal Code: under the US Constitution a subsequent national legislation would have prevailed over the code and this could have been criticised by other delegations.296 Resolution 95 (I) as it was adopted on 11 December 1946 by a unanimous vote of the GA preferred the word ‘affirms’ instead of ‘reaffirms’. According to Antonio Cassese, [b]y ‘affirming’ those principles, the General Assembly (consisting at the time of fifty-five Member States) clearly intended to express its approval of and support for the general concepts and legal constructs of criminal law that could be derived from the IMT Charter and had been set out, either explicitly or implicitly, by the IMT. Translated into law-making terms, this approval and support meant that the world community had robustly set in motion the process for turning the principles at issue into general principles of customary law binding on member States of the whole international community.297 Over time, as Michael Scharf has pointed out, the International Court of Justice, the International Criminal Tribunal for the Former Yugoslavia, the European Court of Human Rights, and several domestic courts have cited the GA resolution affirming the principles of the Nuremberg Charter and judgments as an authoritative declaration of customary international law.298 Some have gone even further by attributing the same value that the Resolution attached to the Nuremberg Charter to both the Charter of the IMTFE and Control Council Law Number 10. For instance, according to the ICTY, these three instruments laid down ‘provisions that were either declaratory of existing law or which had been gradually transformed into customary international law’.299 Yet the Nuremberg principles which had been affirmed by Resolution 95(I) needed to be formulated. Thus, on 21 November 1947, the GA adopted

295 Minutes of the Twenty-first Meeting of the United States Delegation on 15 November 1946 in US Department of State (n 293) 541–543. See UN Doc A/C.6/69. 296 ibid. 297 Antonio Cassese, ‘Affirmation of the Principles of International Law Recognized by the Charter of the Nürnberg Tribunal’ (United Nations Audiovisual Library of International Law 2009) 7 May 2019. 298 Michael P Scharf, Customary International Law in Times of Fundamental Changes (CUP 2013) 65–67. 299 Prosecutor v. Kupreskic, Judgment, Case No: IT-95–16-A, ICTY Trial Chamber, January 14, 2000, para. 451 as cited in Scharf (n 298) 75 n34.

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Resolution 177(II) through which it directed the International Law Commission (ILC) to: (a) Formulate the principles of international law recognized in the Charter of the Nürnberg 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. The ILC adopted a formulation of the Nuremberg principles at its second session. Crimes against Peace, as defned by article 6(a) of the Nuremberg Charter, were included among those international crimes listed in the document. In 1950 the GA considered the Nuremberg principles as contained in the report of the Commission. The US Representative to the Sixth Committee then suggested that ‘[t]he appropriate time to discuss them would be after the Commission had incorporated them in a code of offences, in doing which it would no doubt take the views expressed in the Sixth Committee into account’.300 In any case, no one had questioned the validity of the underlying principles of the charter and judgment of Nürnberg, namely that crimes against peace, war crimes and crimes against humanity were punishable under international law. . . . The charter and judgment of Nürnberg as such needed no formulation, as they spoke for themselves as part of the great literature of international law.301 He also added that the US ‘could not consider any new formulation by the Commission as a formulation of the Nürnberg principles’.302 The issue of Crimes against Peace and aggression had arisen in those very same days in relation to the situation in Korea, following the invasion by the Democratic People’s Republic of Korea (DPRK) of the Republic of Korea (ROK), whose borders had been set on the 38th parallel since 1945.303 The US became the promoter of two resolutions adopted by the UNGA in 1950. On 3 November 1950, the GA adopted with no significant changes in wording a proposal which had been drafted within the US Department of State. This became Resolution 377 (V), also known as ‘Uniting for Peace’ Resolution, which established that whenever the UN SC was unable to act in the maintenance of the international peace and security, the GA could step in.304 300 301 302 303 304

UN Doc. A/C.6/SR.233, at 46. UN Doc. A/C.6/SR.238, at 12–13. UN Doc. A/C.6/SR.239, at 67. Whiteman (n 19) 1116–1117. cf US Department of State, Position on Paper: A Program of United Nations Action to stop Aggression on 1 September 1950 in US Department of State, Foreign relations of the United States, 1950. The United Nations; The Western Hemisphere (US GPO 1950 vol II) 328–330. See also Dominik Zaum, ‘The Security Council, the General Assembly, and War: The Uniting for Peace Resolution’ in Vaughan Lowe, Adam Roberts, Jennifer Welsh, and Dominik

The international crime of aggression 133 Within the US Administration, a debate unfolded on whether North Koreans should have been tried for Crimes against Peace. In a draft Memorandum addressed to the Assistant of the Secretary of State for the Far East, Rusk, it had been recommended that the US delegation to the UN discouraged this possibility. Indeed: [A]lthough a precedent was set when the United States took an active part in support of the principle of trying persons responsible for the crime of aggressive warfare (i.e. the International Military Tribunals at Nuremberg and for the Far East), . . . our Delegation should be instructed that the United States Government considers that the assignment of guilt against the North Korean leaders for war crimes of aggression is not desirable for the following reasons: (1) The North Korean regime is not and has never been since its inception free from overriding Soviet control or influence. Therefore, primary responsibility for the aggression should be placed at the door of the Kremlin, against which at this stage, of course, no action can be taken. In this sense the North Korean regime may be considered as having acted only as an agent for Soviet policy. . . . (3) Any war crimes trials of a type such as that conducted before the International Military Tribunal at Nuremberg can serve only to intensify the hatred already unfortunately engendered between the populations of north and south Korea by intensive Communist propaganda and by the current hostilities, thus rendering the achievement of an effective and peaceful political unification of the peninsula more difficult. . . . (5) Some of the effectiveness of punishing North Korean leaders for the crime of aggression, were they to fall into our hands, would be dissipated by the fact of Soviet influence over and connivance in the plan of aggression and its execution.305 Yet the US promoted, together with Bolivia, France, Lebanon, Mexico, the Netherlands and the UK,306 the adoption of what would become known as Resolution ‘Peace through Deeds’, namely Resolution 380 (V). According to its frst paragraph, [t]he General Assembly . . . solemnly reaffirms that, whatever the weapons used, any aggression, whether committed openly, or by fomenting civil strife

Zaum (eds), The United Nations Security Council and War: The Evolution of Thought and Practice since 1945 (OUP 2008) 154, 158. 305 The Acting Officer in Charge of Korean Affairs, Arthur B Emmons, Draft Memorandum to the Assistant Secretary of State for Far Eastern Affairs, Rusk on 10 October 1950 in US Department of State, Foreign relations of the United States, 1950. Korea (US GPO 1950 vol VII) 924–925. 306 Draft Resolution by France, Lebanon, Mexico, Netherlands, United Kingdom and United States of America submitted on 25 October 1950 UN Doc. A/C.1/597. See also Revised Draft Resolution by Bolivia, France, Lebanon, Mexico, Netherlands, United Kingdom and United States of America submitted on 28 October 1950 UN Doc. A/C.1/597/Rev.1.

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The international crime of aggression in the interest of a foreign Power, or otherwise, is the gravest of all crimes against peace and security throughout the world.307

Then, on 12 December 1950, the GA invited Governments to submit their comments in order for the ILC to be able to draft the Code of Offences.308 The ILC included aggression among the offences against the peace and security of mankind in its 1951 draft code.309 Moreover, ‘[a]fter deciding, by ten votes to one, that the threat of employment of force was an offence, it decided, by six votes to four, that such a threat did not constitute aggression’.310 In any case, the US Administration was in agreement with these findings. In 1951 the Assistant of the Secretary of State for the UN Affairs claimed that through the adoption of the ‘Peace Through Deeds’ Resolution . . . it was pointed out that the real crime was aggression’.311 Moreover, the US had made ‘a most solemn commitment in signing the United Nations Charter that we would not commit the crime of aggression’.312 Meanwhile, in 1950 the Soviet delegation submitted a draft definition of aggression to the GA, which adopted Resolution 378 (V) and referred the question of the definition of aggression to the ILC for its consideration. Furthermore, in 1952 the Soviets submitted another draft resolution on the definition of aggression.313 As a consequence, the Greek Representative to the Sixth Committee of the GA presented a draft resolution according to which it appeared ‘to be inappropriate to attempt to define aggression’ and it was decided ‘to take no action on the proposal of the Union of Soviet Socialist Republics concerning the definition of aggression and to leave it to the competent organs of the United Nations to determine at their discretion what constitutes aggression’.314 The US and the UK supported this proposal.315 According to the US delegate John Maktos: 307 Benjamin B Ferencz, Defining International Aggression: The Search For World Peace. A Documentary History and Analysis (Oceana Publications, Inc. 1975 vol II) 2. cf President Dwight D Eisenhower, Statement by the President following the Landing of United States Marines at Beirut on 15 July 1958. 308 ILC, ‘Report of the International Law Commission on the Work of its 2nd Session’ (5 June – 29 July 1950) UN Doc A/5/12. cf Robert H Jackson, Address before the American Society of International Law on 30 April 1949. 309 ILC, ‘Report of the International Law Commission on the Work of its 3rd Session’ (16 May – 27 July 1951) UN Doc A/1858, para 53. 310 Whiteman (n 19) 843–844. 311 The Assistant Secretary of State for United Nations Affairs, John D Hickerson, Note to the Chairman of the Joint Congressional Committee on Atomic Energy on 21 August 1951 in US Department of States, Foreign relations of the United States, 1951. National Security affairs; foreign policy (US GPO 1951 vol I) 517. 312 ibid 518–519. 313 Draft Resolution by Union of Soviet Socialist Republics before the VI Committee of the UNGA on 5 January 1952 UN Doc. A/C.6/L.208. 314 Draft Resolution by Greece before the VI Committee of the UNGA on 4 January 1952 UN Doc. A/C.6/L.206. 315 Ferencz (n 307) 3.

The international crime of aggression 135 The United States delegation had always felt that aggression could not be satisfactory defined. Any enumeration of aggressive acts would be incomplete. . . . Aggression was a legal problem still at a stage at which it should not be crystallized. . . . Furthermore, crystallization should take place in the maturity of the law, not in its development. What constitutes aggression in law is still a problem in the developmental stage.316 Few months later, Justice Jackson showed to be in agreement with the US delegate’s stance when he affrmed that ‘that codifcation is an enterprise that belongs to maturity rather than to infancy of any branch of legal learning’. However, If the United Nations Organization were to put international criminal law in statutory form, it certainly must define criminal aggression. It seemed to me that the London Charter should have done so, but, for reasons which you can learn from a study of the minutes of the Conference, my efforts to obtain a definition were unsuccessful. The omission had no serious consequences on the Nurnberg trial. Hitler’s wars were aggressive ones under any conception of aggression that any reasonable tribunal could entertain. But it will never do to try borderline cases without precisely declared standards of guilt. We cannot count upon future aggressions to be so crudely and blatantly documented by archives captured from the aggressor. Penal sanctions are apt to miscarry unless they are adapted to more discreet and subtle aggressions.317 As for the Soviet proposal, Maktos stated that it defined the aggressor as the one who was the ‘first’ to commit certain actions. In his view that definition was illusory, for the word ‘first’ was not defined, nor were the expressions which followed it. To ask a State to wait so as not to be the ‘first’ to attack might give the enemy a great tactical advantage.318 Some days later, in response of the critics raised by some members of the VI Committee, Maktos affrmed: A number of delegations had said the United States had in 1945 argued the view which was now that of the Soviet Union. That was quite true, and the United States did not in any way pretend that it was not. In 1945, the United States had been in favour of a definition of aggression because at that time there had been every reason to believe that the term ‘international co-operation’ would have a real connotation. Unfortunately, the state of international relations had become such as to convince the United States

316 US Representative to the Sixth Committee of the UN General Assembly, John Maktos, Statement on 10 January 1952 (282nd meeting). 317 Robert H Jackson, Address before the American Society of International Law on 26 April 1952. 318 Maktos (n 316).

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The international crime of aggression that a definition of aggression had become not only undesirable but even dangerous.319

On 31 January 1952, the GA adopted Resolution 599 (VI) whereby it included in the agenda of its seventh session the question of defning aggression because although the existence of the crime of aggression may be inferred from the circumstances peculiar to each particular case, it is nevertheless possible and desirable, with a view to ensuring international peace and security and to developing international criminal law, to define aggression by reference to the elements which constitute it. In November the same year, the US moved that the Sixth Committee adjourn the debate ‘on the ground that it is not desirable to prepare and recommend a defnition of aggression at the present time’.320 In sum, in 1952 the US publicly admitted its change of position in relation to the idea of defining aggression, which was then considered impossible to realise. John Maktos argued that at that time the crystallisation process might not have been entirely completed. Moreover, the US started to maintain that the determination of the existence of an unlawful use of force (expression which was notably used as a synonym of aggression) should have been left to the competent organ of the UN, namely the SC.

9 Individual and collective defence in the second half of the 1940s In the second half of the 1940s, security became one of the most urgent issues for the US. The notion of aggression was again central, but this time in relation to the regional treaties to which the US became a party. Furthermore, the US relied on concepts such as threat of aggression and indirect aggression.321 From 1946, the US provided economic support and military aid to Greece, Turkey and Iran, justifying this practice by arguing that this was necessary for its national security as those countries might be victims of Soviet aggression.322

319 US Representative to the Sixth Committee of the UN General Assembly, John Maktos, Statement on 14 January 1952 (286th meeting) [emphasis added]. 320 Motion by the United States of America before the VI Committee of the UNGA on 26 November 1952 UN Doc A/C.6/L.266. 321 See, for example, US Department of State Working Paper on 26 August 1947 in US Department of State, Foreign relations of the United States, 1947. General; The United Nations (US GPO 1947 vol 1) 166. See also United States Delegation Working Paper on 27 October 1947 in US Department of State, Foreign relations of the United States, 1947. General; The United Nations (US GPO 1947 vol 1) 98. 322 Memorandum prepared in the Office of the Near East and African Affairs on 21 October 1946 in US Department of State, Foreign relations of the United States, 1946. The Near East and Africa (US GPO 1946 vol VII) 242–243. In the same volume, see also Memorandum prepared in the Office of the Near East and African Affairs on 18 October 1946.

The international crime of aggression 137 Subsequently, on 12 March 1947, Truman enunciated the Doctrine which would be known after him. On the occasion of his special message to the Congress in relation to the situation in Greece and Turkey, the President affirmed: We shall not realize our objectives, . . . unless we are willing to help free peoples to maintain their free institutions and their national integrity against aggressive movements that seek to impose upon them totalitarian regimes. This is no more than a frank recognition that totalitarian regimes imposed on free peoples, by direct or indirect aggression, undermine the foundations of international peace and hence the security of the United States.323 Thus, the US policy of containment was based on the possible domino effect which any aggression could have had on the European countries and in the Middle East.324 Notably, the notion of indirect aggression became central to the debate. In particular, It is a universally accepted principle of international law that for one nation to arm or otherwise assist rebellious forces against another Government is a hostile and aggressive act. Not only has this principle been upheld in a number of famous cases in international law, but it has also found expression in international agreements.325 In addition to that, the Legal Adviser of the Department of State claimed that in compliance with article 51 of the UN Charter, the US could have provided military assistance to Greece even in the case of an aggression different from an ‘armed attack’.326 However, when the UNGA adopted Resolution 181(II), establishing a repartition plan for Palestine, the US issued an embargo on arms on both sides.327 The rationale behind it was that Armed interference in Palestine by the Arab States to prevent the implementation of the Assembly’s resolution would clearly be aggression contrary to the obligations of those states under the Charter. If such interference takes the form of furnishing arms and assistance for guerrilla action in Palestine, the character of the aggression is similar to that now going on in Greece.328 323 US President, Harry S Truman, Address before a Joint Session of Congress on 12 March 1947. See also The US Acting Secretary of State, Dean Acheson, Note to the Secretary of State on 25 October 1946 in US Department of State (n 322) 841. 324 US President, Harry S Truman, Address before a Joint Session of Congress on 12 March 1947. 325 UN Doc. A/PV.82, 20. 326 Legal Adviser of the US Department of State, Ernest A Gross, Memorandum to the Assistant Director of the Executive Secretariat McWilliams in US Department of State, Foreign relations of the United States, 1948. Eastern Europe; The Soviet Union (US GPO 1948 vol IV) 17. 327 Shlomo Slonim, ‘The 1948 American Embargo on Arms to Palestine’ (1979) 94 Political Science Quarterly 495, 498. 328 Dean Rusk, Memorandum to the Under Secretary of State Lovett on 26 January 1948 in US Department of State, Foreign relations of the United States, 1948. The Near East, South Asia, and Africa (in two parts) (US GPO 1948 vol V, part 2) 558.

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From 1947, the US also began to conclude regional agreements on collective security. In August, the American countries met in Rio de Janeiro to negotiate the Inter-American Treaty of Reciprocal Assistance.329 As the US Director of the Offce of the European Affairs, John D Hickerson, later pointed out, the strength of this treaty was the automatic response to any attack, whether from within or from outside the Western Hemisphere.330 Indeed, according to article 3(2), ‘the Organ of Consultation shall meet without delay for the purpose of . . . agreeing upon the measures of a collective character that should be taken’. Thus, although within the framework of the UN Charter, the Rio Treaty converted the right provided in article 51 of the UN Charter into an obligation.331 Notably, according to article 6, the Organ of Consultation was also supposed to meet every time an aggression different from an armed attack affected an American state. The use of force was listed within the measures which could be decided by the Organ of Consultation (article 8). Moreover, article 9 provided for a non-exhaustive list of acts which constituted aggression. In particular, (a) Unprovoked armed attack by a State against the territory, the people, or the land, sea or air forces of another State; (b) Invasion, by the armed forces of a State, of the territory of an American State, through the trespassing of boundaries demarcated in accordance with a treaty, judicial decision, or arbitral award, or, in the absence of frontiers thus demarcated, invasion affecting a region which is under the effective jurisdiction of another State. In April 1948, at the Ninth Pan-American Conference (Bogotá) States adopted the Charter of the Organization of American States with the purpose of providing ‘for common action on the part of those States in the event of aggression’.332 The condemnation of any war of aggression was indeed inserted among the principles of the Organization (article 5(e)). As for collective security, it replicated the relevant provisions of the Rio Treaty.333 It condemned the intervention in the internal affairs of a state (articles 15–17) but had an accompanying resolution on ‘Preservation and Defense of democracy in America’, on the basis of which the US would justify most of its subsequent interventions in Latin

329 Inter-American Treaty of Reciprocal Assistance and Final Act of the Inter-American Conference for the Maintenance of Continental Peace and Security (adopted 2 September 1947, entered into force 3 December 1948) 21 UNTS 77. See Patrick (n 42) 290. 330 US Director of the Office of the European Affairs, John D Hickerson, Memorandum of Conversation in US Department of State, Foreign relations of the United States, 1948. Western Europe (US GPO 1948 vol III) 11. 331 Pan American Union, ‘Applications of the Inter-American Treaty of Reciprocal Assistance 1948–1956’ (Legal Division, Department of International Law, Pan American Union 1957) 8. 332 Charter of the Organization of American States (adopted 30 April 1948, entered into force 13 December 1951) 119 UNTS 3 art 4 (c). 333 ibid, articles 24 and 25.

The international crime of aggression 139 America as it deemed communism a direct threat to the security of the Western Hemisphere.334 Meanwhile, on 17 March 1948, President Truman had welcomed the signature on that very same day of the Pact of Brussels by France, the Netherlands, Luxembourg, Belgium and the UK.335 A treaty on economic collaboration and collective self-defence which, pursuant to its article IV provided that: If any of the High Contracting Parties should be the object of an armed attack in Europe, the other High Contracting Parties will, in accordance with the provisions of Article 51 of the Charter of the United Nations, afford the Party so attacked all the military and other aid and assistance in their power. The same day, President Truman commented: This development deserves our full support. . . . I am sure that the determination of the free countries of Europe to protect themselves will be matched by an equal determination on our part to help them to protect themselves.336 On 13 April 1948, the National Security Council through NSC 9 recommended the initiation of negotiations with the countries of the Pact of Brussels for a ‘Collective Defense Agreement for the North Atlantic Area’,337 which was eventually authorised by the US Senate through the adoption of the so-called Vandenberg Resolution on 11 June 1948.338 Negotiations took place for all the winter of 1948–1949. As for the duties deriving from the treaty in the case of an armed attack against any of its parties, the Europeans had suggested to refer to article IV of the Brussels Pact, whereas the US proposed to insert a provision similar to article 3 of the 1947 Rio Treaty.339 In December 1948, an agreement was reached on the terms of article 5, which was in between the two provisions: an attack on a party was to be considered an attack on all and would result in an automatic response, either by military means or through the adoption of non-military measures. The explicit reference to automatic military interventions caused some problems in Capitol Hill, and the newly appointed Secretary of State, Dean Acheson, had to renegotiate the terms of article 5.340

334 Patrick (n 42) 291. 335 Treaty between Belgium, France, Luxembourg, Netherlands and the United Kingdom of Great Britain and Northern Ireland for collaboration in economic, social and cultural matters and for collective self-defence (adopted 19 March 1948, entered into force 25 August 1948) 19 UNTS 51. 336 US President, Harry S Truman, Special Message to the Congress on the Threat to the Freedom of Europe on 17 March 1948. 337 Patrick (n 42) 275. 338 ibid 276. 339 Patrick (n 42) 277. 340 ibid 279.

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The North Atlantic Treaty was eventually signed on 4 April 1949.341 Acheson described it as ‘an embodiment and institutional corollary of the United Nations’.342 Vandenberg affirmed before the Senate that the treaty was consistent with the US policy of preventive action against aggression which dated back to the formulation of the Monroe Doctrine.343 Article 1, pretty much identical to article 1 of the 1947 Rio Treaty, borrowed the language of article 2 (4) of the UN Charter. Moreover, according to article 5: The Parties agree that an armed attack against one or more of them in Europe or North America shall be considered an attack against them all and consequently they agree that, if such an armed attack occurs, each of them, in exercise of the right of individual or collective self-defence recognised by Article 51 of the Charter of the United Nations, will assist the Party or Parties so attacked by taking forthwith, individually and in concert with the other Parties, such action as it deems necessary, including the use of armed force, to restore and maintain the security of the North Atlantic area. Therefore, although an attack on a European party to the treaty would be equal to an attack on the US, the Government did succeed in maintaining a US absolute discretion in relation to the means to assist the state victim of the attack. In this sense, it is unclear whether article 5 did in fact add any legal obligation to the ones deriving to all states from their membership of the UN. Notably, on the occasion of the Senate hearings on the North Atlantic Treaty, Senator Fulbright asked: ‘Would an internal revolution, perhaps aided and abetted by an outside state, in which armed force was being used in an attempt to drive the recognized government from power be deemed an “armed attack” within the meaning of Article 5?’344 Secretary Acheson replied: ‘I think it would be an armed attack’.345 As for article 4, it provides for a mere possibility of consultation ‘whenever, in the opinion of any of them, the territorial integrity, political independence or security of any of the Parties is threatened’. Article 3 is of a certain interest as it reads as follows: ‘In order more effectively to achieve the objectives of this Treaty, the Parties, separately and jointly, by means of continuous and effective self-help and mutual aid, will maintain and develop their individual and collective capacity to resist armed attack’. This was used as the legal premise for the Military Assistance Programme before the Congress, when article 3 was interpreted

341 North Atlantic Treaty (adopted 4 April 1949, entered into force 24 August 1949) 34 UNTS 243. 342 Patrick (n 42) 275. 343 ibid 280. 344 North Atlantic Treaty, Hearings before the Committee on Foreign Relations, US Senate, 81st Cong., 1st sess., pt. 1, April–May 1949 as cited in Marjorie M Whiteman, Digest of International Law (US GPO 1971 vol XII) 232. 345 ibid.

The international crime of aggression 141 as it was aimed at resisting aggression, and not a mere armed attack.346 In this regard, in March 1949, while discussing the relation between article 3 of the Treaty and article 51 of the UN Charter, the US Representatives affirmed that according to the US Administration, the terms ‘armed attack’ and ‘aggression’ had always indicated pretty identical concepts.347 It was also added that articles 3 and 5 dealt with the so-called direct aggression, whereas article 4 related to indirect aggression, which – being difficult to define – was left to a mere process of consultation.348 In September 1951 at San Francisco the US, Australia and New Zealand signed a Pact (known as ANZUS) with a similar object of the ones just described.349 Again, according to article III, states parties would have consulted in case of threat to their political independence or territorial integrity. However, article IV was much less demanding than its equivalent provisions in the other instruments. Indeed, an ‘armed attack’ to any party was just considered as ‘dangerous to the peace and safety of all the others’, which in turn bound themselves to ‘act to meet the common danger in accordance with its constitutional processes’. In sum, while all the international agreements concluded after the Second World War made reference to article 51 of the UN Charter, states maintained a certain room for manoeuvre. The US delegate to the VI Committee of the GA confirmed that this was also the attitude of his Government when he stated that ‘[h]is Government would hesitate at that time to commit itself to the view that the right of individual or collective self-defence could under no possible circumstances be invoked except after actual armed attack’.350 Moreover, in 1952 Maktos ‘wondered whether . . . the United States of America would have been considered an aggressor if it had received prior notice of the attack on Pearl Harbor and had destroyed the enemy forces entrusted with that operation’.351

10 Conclusion This chapter has analysed a short but important phase in relation to the US legal position on aggression. In 1945, the US became the main supporter of the insertion of the category of Crimes against Peace into the Charter of the IMT. While the US submitted a definition of aggression during the London negotiations, in no occasion it considered the adoption of a similar definition as a

346 Policy Paper approved by the Foreign Assistance Correlation Committee on 20 May 1949 in US Department of State, Foreign relations of the United States, 1949. National security affairs, foreign economic policy (US GPO 1949) 312. 347 Minutes of the Eighteenth Meeting of the Washington Exploratory Talks on Security on 15 March 1949 in US Department of State, Foreign relations of the United States, 1949. Western Europe (US GPO 1949) 221. 348 ibid 222. 349 Security Treaty between Australia, New Zealand and the United States of America (adopted 1 September 1951, entered into force 29 April 1952) 131 UNTS 83. 350 UN Doc. A/C.6/SR.168, at 79. 351 UN Doc. A/C.6/SR.282, at 6. cf Whiteman (n 19) 759–760.

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conditio sine qua non for charging individuals with Crimes against Peace. Besides different international instruments, Prosecutors at the IMT, IMTFE and at the Subsequent Nuremberg Trials, acting as US representatives, relied on natural-law arguments to fill the gap of positive international law. In this sense, the feeling of a morale mission was indeed fundamental. Last but not least, the US played a leading role in the process of affirming the Nuremberg principles by the UNGA, as well as in the adoption of Resolution ‘Peace through Deeds’ in 1950. This was the last time aggression was defined as the gravest international crime by the US. In 1952, in fact, the Cold War winds led the US to suggest postponing any consideration of the issue of defining aggression. Meanwhile, the US had an inconsistent approach towards the possibility of defining aggression for ‘political’ purposes within regional or universal agreements. While it agreed on the inclusion of a non-exhaustive definition of aggression in the Act of Chapultepec, it firmly opposed the insertion of any similar measures in the UN Charter. The US interpretation of notions such as ‘aggression’, ‘threat to aggression’ and ‘armed attack’ was also affected by the new challenges due to the Cold War.

Bibliography International Treaties and legal documents ILC, ‘Report of the International Law Commission on the Work of its 2nd Session’ (5 June – 29 July 1950) UN Doc A/5/12 ———, ‘Report of the International Law Commission on the Work of its 3rd Session’ (16 May – 27 July 1951) UN Doc A/1858 Inter-American Conference on War and Peace, Act of Chapultepec on 3 March 1945 in Supplement: Official Document (1945) 39 AJIL 108 Judgment of the Nuremberg International Military Tribunal 1946 (1947) 41 AJIL 172 Prosecutor v. Kupreskic, Judgment, Case No: IT-95–16-A, ICTY Trial Chamber, January 14, 2000 UN Doc. A/C.6/SR.46 UN Doc. A/C.6/SR.168 UN Doc. A/C.6/SR.233 UN Doc. A/C.6/SR.238 UN Doc. A/C.6/SR.239 UN Doc. A/C.6/SR.282 UN Doc. A/PV.82 The United States of America vs. Alfred Krupp, et al. (The Krupp Case) US Military Tribunal Nuremberg, Case No X (8 December 1947–31 July 1948) The United States of America vs. Carl Krauch, et al. (The IG Farben Case) US Military Tribunal Nuremberg, Case No VI (27 August 1947–30 July 1948) The United States of America vs. Ernst von Weizsäcker, et al. (The Ministries Case) The United States of America vs. Wilhelm von Leeb, et al. (The High Command Case) US Military Tribunal Nuremberg, Case No XII (30 December 1947–28 October 1948) US Military Tribunal Nuremberg, Case No XI (6 January 1948–13 April 1949)

The international crime of aggression 143 Secondary Sources Bassiouni M. C., International Criminal Law: Sources, Subjects and Contents (Brill 2008) Boister N. and Cryer R., The Tokyo International Military Tribunal: A Reappraisal (OUP 2008) Borgwardt E., A New Deal for the World_ America’s Vision for Human Rights (The Belknap Press of Harvard University Press 2005) Bush J. A., ‘“The Supreme . . . Crime” and Its Origins: The Lost Legislative History of the Crime of Aggressive War’ (2002) 102 ColumLRev 2324 Cassese A., ‘Affirmation of the Principles of International Law Recognized by the Charter of the Nürnberg Tribunal’ (United Nations Audiovisual Library of International Law 2009) Cryer R., ‘The Tokyo International Military Tribunal and Crimes Against Peace (Aggression). Is There Anything to Learn?’ in Sadat L. N. (ed), Seeking Accountability for the Unlawful Use of Force (CUP 2018) 80 Finch G. A., ‘The Nuremberg Trial and International Law’ (1947) AJIL 20 Glueck S., The Nuremberg Trial and Aggressive War (first published 1946, Kraus Reprint Co. 1976) Gross L., ‘The Charter of the United Nations and the Lodge Reservations’ (1947) 41 AJIL 531 ———, Essays on International Law and Organization (BRILL 1983 vol 1) Grzebyk P., Criminal Responsibility for the Crime of Aggression (Routledge 2013) Heller K. J., The Nuremberg Military Tribunals and the Origins of International Criminal Law (OUP 2011) International Military Tribunal, Trials of the Majors War Criminals before the International Military Tribunal Nuremberg, 14 November 1945–1 October 1946 (1947 vol I, vol II, vol III, vol IV, vol XIX) Jackson R. K., ‘Worst Crime of All’ New York Times Magazine (9 September 1945) ———, The Case against the Nazi War Criminals (Alfred A Knopf 1946) ———, ‘Forward: The Nurnberg Trial becomes an Historic Precedent’ (1946) 20 Temple Law Quarterly 167 ———, ‘Weighs Nuremberg’s Lessons’ New York Times Magazine (16 June 1946) ———, Report of Robert H Jackson, United States Representative to the International Conference on Military Trials, London 1945 ( US GPO 1949) Jessup P., ‘The Crime of Aggression and the Future of International Law’ (1947) LXII Political Science Quarterly 4 Keenan J. B., Trial of Japanese War Criminals. Documents: 1. Opening Statement by Joseph B. Keenan, Chief of Counsel. 2. Charter of the International Military Tribunal for the Far East. 3. Indictment (US GPO 1946 Far Eastern series No 12) Kochavi A. J., Prelude to Nuremberg: Allied War Crimes Policy and the Question of Punishment (The University of North Carolina Press 1998) Lauterpacht E., ‘The Legal Irrelevance of the “State of War”’ (1968) 62 ASILPROC 58 Maga T., Judgment at Tokyo: The Japanese War Crimes Trials (The University Press of Kentucky 2001) McDougall C., The Crime of Aggression under the Rome Statute of the International Criminal Court (CUP 2013) Patrick S., Best Laid Plans: The Origins of American Multilateralism and the Dawn of the Cold War (Roman & Littlefield Publishers 2009)

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Pritchard J. R. (ed), The Tokyo Major War Crimes Trial. The Records of the International Military Tribunal for the Far East with Authoritative Commentary and Comprehensive Guide (Edwin Mellen Press 1998 vol 104) Röling B. V. A. and Rüter C. F. (eds), The Tokyo Judgment. The International Military Tribunal for the Far East (I.M.T.F.E.), 29 April 1946–12 November 1948 (University Press Amsterdam 1977 vol I) Russell R. B., A History of The United Nations Charter: The Role of the United States 1940–1945 (The Brookings Institution 1958) Schabas W. A., ‘Origins of the Criminalization of Aggression: How Crimes Against Peace Became the “Supreme International Crime”’ in Politi M. and Nesi G. (eds), The International Criminal Court and the Crime of Aggression (Ashgate 2004) Scharf M. P., Customary International Law in Times of Fundamental Changes (CUP 2013) Sellars K., ‘Crimes Against Peace’ and International Law (CUP 2013) Slonim S., ‘The 1948 American Embargo on Arms to Palestine’ (1979) 94 Political Science Quarterly 495 Smith B. F., The American Road to Nuremberg: The Documentary Record 1944–1945 (Hoover Institution Press 1982) Stimson H. L., ‘The Nuremberg Trial: Landmark in Law’ (1947) Foreign Affairs 179 Stimson H. L. and Bundy M., On Active Service in Peace and War (Harper & Brothers 1947) Taylor T., Final Report to the Secretary of the Army on the Nuernberg War Crimes Trials under Control Council Law No 10 (US GPO 1949) Totani Y., The Tokyo War Crimes Trial: The Pursuit of Justice in the Wake of World War II (Harvard University Asia Centre 2008) US Department of State, Charter of the United Nations. Report to the President on the results of the San Francisco Conference by the Chairman of the United States Delegation, the Secretary of State (US GPO 1945) ———, Documents of the United Nations Conference on International Organization (United Nations Information Organizations 1945 vol I) ———, Foreign relations of the United States. Conferences at Malta and Yalta, 1945 (US GPO 1945) ———, Foreign relations of the United States: Diplomatic papers, 1945. European Advisory Commission, Austria, Germany (US GPO 1945 vol III) ———, Foreign relations of the United States, 1946. General; the United Nations (US GPO 1946 vol I) ———, Foreign relations of the United States, 1946. The Near East and Africa (US GPO 1946 vol VII) ———, The United Nations Conference on International Organization. San Francisco, California April 25 to June 26, 1945. Selected documents (US GPO 1946) ———, Foreign relations of the United States, 1947. General; The United Nations (US GPO 1947 vol 1) ———, Foreign relations of the United States, 1948. Eastern Europe; The Soviet Union (US GPO 1948 vol III, vol IV) ———, Foreign relations of the United States, 1948. The Far East and Australasia (US GPO 1948 vol VII) ———, Foreign relations of the United States, 1948. The Near East, South Asia, and Africa (in two parts) (US GPO 1948 vol V, part 2) ———, Foreign relations of the United States, 1949 (GPO Printing Office 1949)

The international crime of aggression 145 ———, Foreign relations of the United States, 1949. Western Europe (US GPO 1949) ———, Foreign relations of the United States, 1950. Korea (US GPO 1950 vol VII) ———, Foreign relations of the United States, 1950. The United Nations; the Western Hemisphere (US GPO 1950 vol II) ———, Foreign relations of the United States, 1951. National Security affairs; foreign policy (US GPO 1951 vol I) ———, Trials of War Criminals before the Nuernberg Military Tribunals under Control Council Law No 10 (US GPO 1953 vol VII, vol VIII, vol X, vol XI, vol XIV) Whiteman M. M., Digest of International Law (US GPO 1963 vol V) Wright Q., ‘The Law of the Nuremberg Trial’ (1947) 41 AJIL 38 Wright R. A., ‘War Crimes Under International Law’ (1946) 62 LQR 41 Zaum D., ‘The Security Council, the General Assembly, and War: The Uniting for Peace Resolution’ in Lowe V., Roberts A., Welsh J., and Zaum D. (eds), The United Nations Security Council and War:_The Evolution of Thought and Practice since 1945 (OUP 2008) 154

4

An indefinable aggression (1952–2002)

1 Introduction Mostly as a consequence of the Cold War, the 1952 marked a point of non-return for the crime of aggression and the US Administration. From that moment and for a long time, the US claimed that a definition of aggression was unfeasible. Aggression as such merely came into relevance for purposes of propaganda against the Soviets. Then, when the UNGA adopted Resolution 3314 (1974), the US made it clear that this would not be relevant for individual criminal responsibility. Also, they have for long avoided recalling the precedent of Nuremberg. More recently, the International Criminal Court (ICC)’s jurisdiction over the crime of aggression has constituted one of the main obstacles to the US adherence to the Rome Statute. This chapter is structured as follows. Sections 2 and 3 deal with the US during the Cold War. They focus on their practice relating to Latin America and the notion of self-defence, respectively. Section 4 concerns three episodes in which the Soviets resorted to force and the US reacted by defining them as aggressions. Sections 5 and 6 analyse the debate within the relevant bodies of the UN leading to the adoption of two important resolutions (i.e. Res 2625 (1970) and Res 3314 (1974)). Section 7 explores the US contribution to the adoption of those treaties and resolutions regulating some aspects of states’ behaviour in the outer space. Section 8 regards the First Gulf War. First, attention is paid to the resolutions adopted on that occasion as they would come again into relevance in relation to the 2003 Iraqi War; second, the section examines the debate which unfolded within the US Administration regarding the possibility of prosecuting Saddam Hussein for his aggression against Kuwait. Section 9 deals with the negotiations culminating with the 1998 Rome Conference.

2 US practice during the Cold War: interventions in Latin America During the Cold War, the US considered as a threat to the American hemisphere any interference in the internal affairs of the American states by either the Soviet or the Chinese Governments. Communism was then perceived as a threat

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which could justify the activation of the procedure of consultation under the Rio Treaty or a military intervention taken in collective self-defence.1 This was clear since the Tenth Pan-American Conference (Caracas). On 28 March 1954, states adopted the so-called Caracas Declaration and decided to unify their efforts against any communist intervention in their internal affairs.2 On that occasion, the US tried – without success – to obtain a clear reference to the situation in Guatemala, and in June President Eisenhower approved a CIA covert operation through which the military dictator Carlos Castillo Armas was installed.3 Four years later, on 9 July 1960 Nikita Khrushchev claimed that the Monroe Doctrine was dead and that any attack against Cuba would cause a Soviet retaliation against the US.4 However, at the seventh meeting of Ministries of Foreign Affairs (San José), convened by the Council of OAS on 16 August, the US Secretary of State, Christian A Herter, considered the establishment of a Communist regime in Cuba as an issue related to the peace and security of the hemisphere. Hence, on 28 August states adopted by 19 votes to none the so-called San José Declaration through which they condemned any intervention or the threat of intervention, even when conditional, by an extra-continental power in the affairs of the American republics and declares that the acceptance of a threat of extra-continental intervention by any American state endangers American solidarity and security.5 However, when, after the air raids against Havana in April 1961, Cuba and the Soviet Union labelled this episode as ‘imperialist aggression’ before the First Committee of the UNGA, the US Representative, Adlai Stevenson, denied any US involvement.6 In response to these accusations, Kennedy wrote a letter to Khrushchev stating that ‘[i]n the event of any military intervention by outside

1 See, for example, US Department of State, Paper prepared for the Tenth Pan-American Conference in March 1954 in N Stephen Kane and William F Sanford Jr (eds), Foreign Relations of the United States, 1952–1954, The American Republics (US GPO 1983 vol IV) 281. 2 See Stephen G Rabe, Eisenhower and Latin America: The Foreign Policy of Anticommunism (UNC Press Books 1988) 42. 3 Thomas Paterson, Garry J Clifford, Shane J Maddock, Deborah Kisatsky, Kenneth Hagan, American Foreign Relations: A History (Cengage Learning 2009 vol II) 304–305. 4 Lloyd J Macham, The United States and Inter-American Security, 1889–1960 (University of Texas Press 2014). 5 ibid. 6 Editorial Note in Louis J Smith (ed), Foreign Relations of the United States, 1961–1963, Cuba, January 1961 – September 1962 (US GPO 1997 vol X) 228–229. See also US Permanent Representative to the UN, Adlai E Stevenson, Telegram to the Department of State on 19 April 1961 in Louis J Smith (ed), Foreign Relations of the United States, 1961–1963, Cuba, January 1961 – September 1962 (US GPO 1997 vol X) 297, note 2. With regard to the failed invasion of Cuba and operation Mongoose, see US Department of State, Office of the Historian, ‘The Bay of Pigs Invasion and its Aftermath, April 1961 – October 1962’ accessed 11 May 2019.

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force we will immediately honor our obligations under the inter-American system to protect this hemisphere against external aggression’.7 Furthermore, while recalling the so-called Declarations of Caracas and San José, on 8 May 1961, a circular to all embassies in Latin America announced that Kennedy wanted to condemn and isolate Castro at the Inter-American level, considering the situation in Cuba as an aggression different from an armed attack within the meaning of article 6 of the Rio Treaty.8 The following year, at the Eighth Meeting of Consultation of Ministers of Foreign Affairs, states adopted a number of resolutions dealing with Cuba. In particular, on 31 January 1962, they excluded the Government of Cuba from participation in the Inter-American System as, according to Resolution VI, its identification with Marxism-Leninism was incompatible with the principles and objectives of the American system. Moreover, article 3 of Resolution II urged the member states to take those steps that they may consider appropriate for their individual or collective self-defense, and to cooperate, as may be necessary or desirable, to strengthen their capacity to counteract threats or acts of aggression, subversion, or other dangers to peace and security resulting from the continued intervention in this hemisphere of Sino-Soviet powers, in accordance with the obligations established in treaties and Agreements such as the Charter of the Organization of American States and the InterAmerican Treaty of Reciprocal Assistance.9 Last but not least, through Resolution VII, states established an embargo on arms and implements of war of every kind against Cuba, while on February 3 the White House announced a total embargo on trade between the US and Cuba, which only provided for exceptions on humanitarian grounds. The main aim ‘was to reduce the economic capacity of the Castro government to engage in acts of aggression, subversion, or other activities endangering the security of the United States and other nations of the hemisphere’.10 Subsequently, on 22 October 1962, President Kennedy announced a naval blockade in response to a ‘series of offensive missile sites . . . in preparation on that imprisoned island. The purpose of these bases can be none other than to provide a nuclear strike capability against the Western Hemisphere’.11 As a matter of fact, the issue of a blockade had been discussed within the US Administration 7 US President, John F Kennedy, Letter to Chairman Khrushchev on 18 April 1961 in Smith (ed) (n 6) 283. 8 US Department of State, Circular Telegram to All Posts in Latin America on 8 May 1961 in Smith (ed) (n 6) 511. 9 See Stanimir A Alexandrov, Self-Defense against the Use of Force in International Law (Martinus Nijhoff Publishers 1996) 243. 10 US Officer in Charge of Cuban Affairs, Robert A Hurwitch, Memorandum to the Chief of Operations, Operation Mongoose Brigadier Edward G Lansdale on 16 February 1962 in Smith (ed) (6) 744, note 3. 11 US President, John F Kennedy, Address to the Nation on 22 October 1962.

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since 1961, when Representatives from the Department of Defence argued that without any prior direct aggression by Cuba towards the US, a US blockade would be considered an act of war in violation of international treaties such as the Rio Treaty.12 Thus, it was not a coincidence that Kennedy chose to avoid the term ‘blockade’, in favour of ‘quarantine’. The following day, the OAS Council considered the presence of Soviet missiles in Cuba as a threat to the American Hemisphere and, in accordance with articles 6 and 8 of the Rio Treaty, decided on the quarantine.13 In a letter dated 24 October 1962, Khrushchev affirmed that ‘[t]he Soviet Government considers that the violation of the freedom to use international waters and international air space is an act of aggression which pushes mankind toward the abyss of a world nuclear-missile war’.14 Also, while negotiating the solution of the Missile Crisis, the Soviets made it clear that any US declaration making explicit reference to the Rio Treaty would be illegal as, according to its articles 6 and 8, it authorised actions in self-defence in response to acts different from armed attacks and allowed states to use force without any UN SC’s authorisation.15 Thus, they submitted – without success – before the UN SC some draft resolutions condemning the quarantine as ‘an act of aggression’. The 23 October OAS Resolution did not mention article 51 of the UN Charter as a legal ground for the use of force in Cuba.16 Also, whilst it was true that at the Ninth Meeting of Foreign Affairs the US Secretary of State Rusk had stated that ‘we feel that the Rio Treaty specifically recognized the existence of various forms of aggression’,17 the US Legal Advisers too avoided any reference to article 51.18 Rather, according to the US Administration, the relevant provision was article 53 of the UN Charter.19 This notwithstanding, the US argued that

12 Interdepartmental meeting, Memorandum for the Records on 7 February 1961 in Smith (ed) (6) 82. 13 US President, John F Kennedy, Letter to Nikita Khrushchev on 23 October 1962 in Edward C Keefer, Charles S Sampson, and Louis J Smith (eds), Foreign Relations of the United States, 1961–1963, Cuban Missile Crisis and Aftermath (US GPO 1996 vol XI) 175. See also Pope G Atkins, Encyclopedia of the Inter-American System (Greenwood Publishing Group 1997) 111–112. 14 Soviet President, Nikita Khrushchev, Letter to President Kennedy on 24 October 1962 in Keefer, Sampson, and Smith (eds) (n 13) 187. 15 US Deputy Permanent Representative to the UN Security Council, Charles W Yost, Telegram from the Mission of the UN to the Department of State on 3 December 1962 in Keefer, Sampson, and Smith (n 13) 570. 16 Antonio Cassese, The Current Legal Regulation of the Use of Force (Martinus Nijhoff Publishers 1986) 228. See also Aiden Warren and Ingvild Bode, Governing the Use-of-Force in International Relations: The Post-9/11 US Challenge on International Law (Palgrave Macmillan 2014) 50–51. 17 Marjorie M Whiteman, Digest of International Law (US GPO 1963 vol V) 840–841. cf Memorandum for the Attorney General_Re: legality under international law of remedial action against use of Cuba as a missile base by the Soviet Union in Abram Chayes, The Cuban Missile Crisis: International Crises and the Role of Law (UPA 1974) 125. 18 Tom Ruys, ‘Armed Attack’ and Article 51 of the UN Charter: Evolutions in Customary Law and Practice (CUP 2010) 267–270. 19 Cassese (n 16) 228.

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‘“[a]uthorization” does not necessarily mean “prior” or “express” authorization’. Yet if it was true that the Council had not voted in favour of the Soviet resolution, a draft resolution approving the US action failed to be adopted as well.20 In any case, according to the US Legal Adviser, ‘[g]reat care must be exercised in generalizing from the Cuban experience. It is a “case.” As with a common law decision, the governing principle will not emerge until there are other cases with which to contrast and compare it’.21 Following the Cuba Crisis, on 18 November 1963, US President Kennedy announced the doctrine which would be named after him by stating: ‘We . . . must . . . use every resource at our command to prevent the establishment of another Cuba in this hemisphere’.22 In 1965, this doctrine was broadly interpreted by President Johnson as he considered the civil strife in the Dominican Republic as the occasion of a covert act by communists. Hence, on 28 April, he ordered 400 Marines to Santo Domingo, which increased to 30,000 in a week.23 On 1 May, the Commander of the US force, Bruce Palmer, received the following instructions from General Earl G Wheeler, Chairman of the Joint Chiefs of Staff: ‘Your announced mission is to save US lives. Your unannounced mission is to prevent the Dominican Republic from going Communist’.24 Subsequently, on 6 May the Tenth Meeting of Consultation established an Inter-American force,25 with the only aim to cooperate in the restoration of normal conditions in the Dominican Republic, in maintaining the security of its inhabitants and the inviolability of human rights, and in the establishment of an atmosphere of peace and conciliation that will permit the functioning of democratic institutions.26 The US replied to the Soviet critics before the UN SC by stating that the InterAmerican force in Santo Domingo was not an ‘enforcement action’ within the meaning of article 53 of the UN Charter. Rather, it could be compared to the

20 Jules Lobel and Michael Ratner, ‘Bypassing the Security Council: Ambiguous Authorizations to Use Force, Cease-Fires and the Iraqi Inspection Regime’ (1999) 93 AJIL 124, 131. 21 US Legal Adviser, Honorable Abram Chayes, ‘Law and Conflict: Changing Patterns and Contemporary Challenges–Panel: Cuban Quarantine: Implications for the Future: Remarks’ (1963) 57 Proceedings of the American Society of International Law at its Annual Meeting 10, 12–13. cf Abraham D Sofaer, ‘International Law and Kosovo’ (2000) 36 StanJIntlL 1, 10. 22 Memorandum for the Record of the Cuba Meeting on 19 February 1964 in David C Geyer and David H Herschler (eds), Foreign Relations of the United States, 1964–1968, South and Central America; Mexico (US GPO 2004 vol XXXI) 9. 23 Cassese (n 16) 229. 24 Editorial Note in Daniel Lawler and Carolyn Yee (eds), Foreign Relations of the United States, 1964–1968, Dominican Republic; Cuba; Haiti; Guyana (US GPO 2005 vol XXXII) 102. 25 Christian Walter, ‘The US Intervention in the Dominican Republic – 1965’ in Tom Ruys, Olivier Corten, and Alexandra Hofer (eds), The Use of Force in International Law: A Casebased approach (OUP 2018) 118, 121. 26 Resolution establishing Inter-American Force in Office of Public Communication, Bureau of Public Affairs, The Department of State Bulletin (Vol. 52) 863.

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UN force in Congo. However, as some states pointed out, the former differed from the latter as it lacked the consent of the state.27 It was only with the Cold War approaching its conclusion that the US operations in Latin America were again grounded in article 51. This was the case, for example, for the US support to contras in Nicaragua. Indeed, President Reagan claimed that because of the Sandinista Government in Nicaragua, ‘[t]he national security of all the Americas is at stake in Central America’.28 Thus, ‘[s]upport for freedom fighters is self-defense and totally consistent with the OAS and U.N. Charters’.29 Also, self-defence was used as a justification for the 1989 US intervention in Panama aimed at overthrowing Manuel Noriega. On that occasion, the US Department of State made it clear that: This right of self-defense entitles the United States to take necessary measures to defend U.S. military personnel, U.S. nationals and U.S. installations. Further, the U.S. has both the right and the duty under Article IV of the Panama Canal Treaty to use its armed forces to protect and defend the Canal and its availability to all nations. In addition, the legitimate democratically elected government of Panama was consulted and welcomed our actions.30 Thus, although it invoked the right to individual self-defence, the US Administration clarifed that Panama had expressed its consent, as if the former argument alone was not fully convincing.

3 US practice during the Cold War: self-defence During the Cold War, the argument of self-defence was used in relation to US armed interventions outside the Western hemisphere. For instance, it was the main legal ground for the 1958 US intervention in Lebanon and for the war in Vietnam. As for the former, in 1957 President Eisenhower announced his doctrine which provided for ‘military assistance and cooperation with any nation or group of nations [in the Middle East] which desires such aid’ and the employment of the US armed forces ‘to secure and protect the territorial integrity and political independence of such nations, requesting such aid, against overt armed aggression from any nation controlled by International Communism’.31 This was consonant 27 Cassese (n 16) 233. 28 US President, Ronald Reagan, Address Before a Joint Session of the Congress on Central America on 27 April 1983. 29 US President, Ronald Reagan, Address Before a Joint Session of the Congress on the State of the Union on 6 February 1985. 30 US Department of State, Press Guidance in ‘Contemporary Practice of the United States Relating to International Law’ (1990) 84 AJIL 536, 547–548. 31 US President, Dwight D Eisenhower, Special Message to the Congress on the Situation in the Middle East on 5 January 1957. See also HJ Res 117, 85th Cong (1957) (also known as ‘To promote peace and stability in the Middle East’).

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with the treaty obligations of the US, including the UN Charter and any action or recommendations of the UN.32 When, in 1958 the entire area surrounding Lebanon was threatened by a spreading Pan-Arabic movement, its President, Camille Chamoun, requested US intervention invoking the Eisenhower doctrine.33 Then, in July 1958 Secretary of State Rusk recalled that the terms ‘armed attack’ in both the North Atlantic Treaty and the UN Charter must be interpreted as comprising the case of an internal revolution sponsored from without.34 However, the Marines’ landing was justified by an argument of collective self-defence due to the Iraqi external support of the rebels. Also, the internal disorder constituted a threat for the US citizens present in the territory.35 A few days later, President Eisenhower affirmed that ‘wars of aggression are crimes against humanity’.36 In August 1958, he justified the US assistance to Lebanon by recalling Resolutions ‘Essentials for Peace’ and ‘Peace through Deeds’ that ‘denounce[d], as a form of aggression and as an international crime, the fomenting of civil strife in the interest of a foreign power. We want to prevent that crime – or at least prevent it having fatal consequences’.37 The occurrence of an internal ‘revolution’ supported from without constituted the main legal ground for another US intervention, namely the Vietnam War. The 1954 Geneva Conference put an end to the first war of Indochina with an agreement which divided Vietnam in two parts. On that occasion, the US made a formal declaration according to which it ‘would view any renewal of the aggression in violation of the aforesaid agreements with grave concern and as seriously threatening international peace and security’.38 The following year, on 8 September, the US signed the Southeast Asia Collective Defense Treaty (also known as

32 ibid. 33 John Whiteclay Chambers and Fred Anderson, The Oxford Companion to American Military History (OUP 1999) 387. 34 US Secretary of State John F Dulles, Press release on 1 July 1958 (as cited in Whiteman (n 17) 1108). See also US President, Dwight D Eisenhower, Address before the Third Emergency Session of the General Assembly of the United Nations on 13 August 1958 (as cited in Marjorie M Whiteman, Digest of International Law (US GPO 1971 vol XII) 140). 35 Thomas M Franck, ‘Who Killed Article 2(4)? Or: Changing Norms Governing the Use of Force by States’ (1970) 64 AJIL 809, 815. 36 US President, Dwight D Eisenhower, Annual Message to the Congress on the State of the Union on 10 January 1957. cf US Department of the Army, The Law of Land Warfare (FM No 27–10 18 July 1956): according to its Section II Crimes against Peace are considered crimes under International Law. 37 US President, Dwight D Eisenhower, Address to the Third Special Emergency Session of the General Assembly of the United Nations on 13 August 1958. In line with this, see US President, John F Kennedy, News Conference on 8 May 1963. 38 US Legal Adviser of the Department of State, Leonard C Meeker, Memorandum on the Legality of United States Participation in the defense of Viet-Nam submitted to the Senate Committee on Foreign Relations on March 8 1965 in ‘Practice of the United States Relating to International Law’ (1966) 60 AJIL 559, 573.

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the Manila Pact) with Australia, France, New Zealand, Pakistan, the Philippines, Thailand and the UK.39 This Pact was similar to those treaties of regional security to which the US had already adhered. The language of article 1 recalled that of article 2(4) of the UN Charter (as article 1 of the Rio Treaty); in case of ‘aggression’ equal to an armed attack, article 3(1) provided for the possibility of collective action although always within the limits imposed by the states’ Constitutions; whereas in case of a use of force different from an armed attack, article 3(2) simply provided for consultation. Yet article 2 differed from similar provisions as it provided for a mutual aid in case of ‘armed attack’ or subversive activities against any of the signatory states. At that time, the US Administration had embraced the so-called domino theory whereby the implantation of a Communist regime in a single country would cause the same fate to its neighbours. Hence, President Eisenhower first, and Kennedy later, increased the US economic and military support to South Vietnam, where the Vietcong guerrilla had been unfolding since 1959.40 In particular, President Kennedy defined the situation in Vietnam as a threat to the peace and an aggression already in 1961.41 Then, in the summer of 1964, President Johnson asked permission from the Congress to use armed force. He defined as ‘an act of aggression’ the North Vietnamese attacks, on 2 and 4 of August respectively, against two US destroyers, the Maddox and the Turner Joy, which were stationing in the Gulf of Tonkin. To these attacks, the US, acting on self-defence, responded with some raids.42

39 Southeast Asia Collective Defense Treaty (signed 8 September 1954, entered into force 19 February 1955) 209 UNTS 23. 40 John F Kennedy Presidential Library and Museum, ‘Vietnam’ accessed 12 May 2019. See also US Department of State, The Office of the Historian, ‘U.S. Involvement in the Vietnam War: The Gulf of Tonkin and Escalation, 1964’ accessed 12 May 2019. 41 US President, John F Kennedy, Statement before the UN General Assembly on 25 September 1961. 42 US President, Lyndon B Johnson, Radio Address to the Nation on 4 August 1964. See HJ Res 1145, 88th Cong (1964) (also known as ‘Gulf of Tonkin Resolution’) which authorised the President ‘to take all necessary measures to repel any armed attack against the forces of the United States and to prevent further aggression’ and determined that ‘the United States . . . in accordance with its obligations under the Southeast Asia Collective Defense Treaty, . . . is therefore prepared, as the President determines, to take all necessary steps, including the use of armed force, to assist any member or protocol state of the Southeast Asia Collective Defense Treaty requesting assistance in defense of its freedom’. cf US President, Lyndon B Johnson, The President’s News Conference at the LBJ Ranch on 8 August 1964. See also Editorial Note in Edward C Keefer and Charles S Sampson (eds), Foreign Relations of the United States, 1964–1968, Vietnam, 1964 (US GPO 1992 vol I) 626; US Deputy Assistant Legal Adviser for European Affairs, Department of State, Julia W Willis, Examination of the United States position during the period from 1953 to 1975 on 16 February 1979 in Marian L Nash (ed), ‘Contemporary Practice of the United States Relating to International Law’ (1979) 73 AJIL 476,489–492. The Senate approved the ‘Gulf of Tonkin Resolution’ with only Morse and Gruenting dissenting, while the House of Representatives passed it

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However, when the US Representative to the UN was instructed to submit to the SC a draft resolution dealing with these events, any reference to aggression was avoided.43 On 5 August, Adlai E Stevenson indeed claimed: let me repeat that the United States vessels were in international waters when they were attacked. Let me repeat that freedom of the seas is guaranteed under long-accepted international law applying to all nations alike. Let me repeat that these vessels took no belligerent actions of any kind until they were subject to armed attack. And let me say once more that the action they took in self-defense is the right of all nations and is fully within the provisions of the Charter of the United Nations.44 On 10 August, President Johnson signed into law Joint Resolution 1145, also known as the Gulf of Tonkin Resolution, which expressed congressional approval and support of the ‘determination of the President, as Commander in Chief, to take all necessary measures to repel any armed attack against the forces of the United States and to prevent further aggression’.45 In February 1965, indeed, the US Representative to the UN SC presented a special report entitled ‘Aggression From the North, the Record of North Viet-Nam’s Campaign To Conquer South Viet-Nam’, which stated that ‘the situation in Viet-Nam makes it unmistakably clear that the character of that confict is an aggressive war of conquest waged against a neighbour’.46 With respect to the support received by the rebels in South Vietnam, the US Secretary of State Rusk claimed that: The paramount commitment of the Charter is Article 2, paragraph 4. . . . When Article 2, paragraph 4, was written it was widely regarded as general international law, governing both Members and non-Members of the United Nations. And on the universal reach of the principle embodied in Article 2, paragraph 4, wide agreement remains. . . . International law does not restrict internal revolution within a state, or revolution against a colonial

43 44

45 46

unanimously. Morse had claimed that the attacks on the US destroyers had not been so ‘unprovoked’ as the Maddox had been involved in the covert South Vietnamese raids against North Vietnam. See Stanley Karnow, Vietnam: A History (Pimlico 1994) 391–392. US Secretary of State, Dean Rusk, Telegram From the Department of State to the Mission at the United Nations on 5 August 1964 in Keefer and Sampson (n 42) 630. US Representative to the UN Security Council, Adlai E Stevenson, Statement on 5 August 1964 in Ritchard B Bilder (ed), ‘Contemporary Practice of the United States Relating to International Law’ (1965) 59 AJIL 103, 112–113. Editorial Note in Keefer and Sampson (n 42) 665. cf US Department of State, Draft Congressional Resolution on 24 May 1964 in Keefer and Sampson (n 42) 356–358. US Representative to the UN, Adlai E Stevenson, Letter the President of the UN Security Council on 27 February 1965 in Charles I Bevans (ed), ‘Contemporary Practice of the United States Relating to International Law’ (1965) 59 AJIL 610, 632–633. See also Franck, ‘Who Killed Article 2(4)? (n 31) 817.

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authority. But international law does restrict what third Powers may lawfully do in support of insurrection. . . . Viet-Nam presents a clear current case of the lawful versus the unlawful use of force. I would agree with General Giap and other Communists that it is a case for ‘wars of national liberation.’ We intend to meet that test. Were the insurgency in South Viet-Nam truly indigenous and self-sustained, international law would not be involved. But the fact is that it receives vital external support, in organization and direction, in training, in men, in weapons and other supplies. That external support is unlawful for a double reason. First, it contravenes general international law, which the United Nations Charter here expresses. Second, it contravenes particular international law: the 1954 Geneva Accords on Viet-Nam, and the 1962 Geneva Agreements on Laos.47 The fact that South Vietnam was not a member of the UN did not hinder this action. Indeed, ‘[t]he right of members to participate in the defense of nonmembers is upheld by leading authorities on international law’.48 When, on 28 July 1965, President Johnson announced that the US involvement in the conflict in Vietnam would be expanded, he claimed General Westmoreland had outlined the forces needed to meet the ‘mounting aggression’ in South Vietnam, and ‘[w]e will meet his needs’.49 On their side, both the Soviet and the North Vietnamese Government accused the US of committing aggression.50 To them, the US replied by stating that [w]hen the authorities in Hanoi decided to launch their attack against South Viet-Nam, they were fully aware of the fact that we had entered into treaty commitments which required us ‘to meet the common danger’ if a protocol state of the Manila Treaty were attacked and asked for our assistance.51

47 US Secretary of State, Dean Rusk, Address before the American Society of International Law on April 24, 1965 (as cited in Whiteman (n 34) 280–283). See also John M Cabot, Telegram from the Embassy in Poland to the Department of State on 21 April 1965 in Harriet D Schwar (ed), Foreign Relations of the United States, 1964–1968, China (US GPO 1998 vol XXX) 168; US Secretary of State, Dean Rusk, Paper on 27 December 1965 in David C Humphrey, Edward C Keefer, and Louis J Smith (eds), Foreign Relations of the United States, 1964–1968, Vietnam, June – December 1965 (US GPO 1996 vol III) 704–705. cf Stevenson (n 46) 632–633. 48 US Legal Adviser of the Department of State, Leonard C Meeker, Memorandum on the Legality of United States participation in the defense of Viet-Nam submitted to the Senate Committee on Foreign Relations on 8 March 1965 in Charles I Bevans (ed), ‘Practice of the United States Relating to International Law’ (1966) 60 AJIL 559, 568–569. See also Whiteman (n 34) 121–124. 49 Editorial Note in Humphrey, Keefer, and Smith (n 47) 273. 50 See, for example, North Vietnamese President, Ho Chi Minh, Letter to the Pope on 13 February 1967 in Kent Sieg (ed), Foreign Relations of the United States, 1964–1968, Vietnam, 1967 (US GPO 2002 vol V) 97. 51 US President, Lyndon Johnson, Letter to the Soviet Premier Alexei N Kosygin on 6 December 1966 in David C Humphrey (ed), Foreign Relations of the United States, 1964–1968, Vietnam, 1966 (US GPO 1998 vol IV) 906.

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Indeed, while Vietnam was not a party to this treaty, the signatory powers, in accordance with Article IV, decided to grant it the same protection they gave to themselves.52 Then, on 4 March 1966, the Legal Adviser of the Department of State, Leonard C Meeker, prepared a Memorandum on ‘[t]he Legality of United States Participation in the Defense of Viet-Nam’ which affirmed: an ‘armed attack’ is not easily fixed by date and hour as in the case of tradition warfare. However, the infiltration of thousands of armed men clearly constitutes an ‘armed attack’ under any reasonable definition. There may be some questions as to the exact date at which North Viet-Nam’s aggression grew into an ‘armed attack’, but there can be no doubt that it had occurred before February 1965.53 Importantly, the Legal Adviser implied that an ‘armed attack’ was more serious than an aggression and used the precedent of the North Korean armed attack against the South Korea.54 The US idea that North Vietnam had no right to impose itself on the South was reiterated in a 1967 telegram to the President by his Special Assistant. While commenting on the situation in West Bank, he asserted: The Israelis have no more right to impose their government on the West Bank of Jordan than the North Vietnamese have a right to impose their government on the South. They will accuse the Israelis of aggression; and, as we know, the concept of aggression can be defined in ways that suit the interests of the party making the definition.55 In April 1970, collective self-defence was also the main legal ground for the US incursions in the neutral territory of Cambodia as it was deemed unwilling or unable to prevent North Vietnam from using its territory to attack South Vietnam. In particular, for fve years North Vietnam had ‘maintained base areas in Cambodia against the expressed wishes of the Cambodian Government. These bases have been used in violation of Cambodian neutrality as supply points and

52 US Department of State, Operations Plan for Viet-Nam on 4 June 1958 in Edward C Keefer and David W Mabon (eds), Foreign Relations of the United States, 1958–1960, Vietnam (US GPO 1986 vol I) 45. 53 Whiteman (n 34) 121–124. 54 US Legal Adviser of the Department of State, Leonard C Meeker, Memorandum on the Legality of United States participation in the defense of Viet-Nam submitted to the Senate Committee on Foreign Relations on 8 March 1965 in Bevans (n 48) 569–570. 55 US Special Assistant to the President, Walt W Rostow, Telegram to President Johnson in Texas on 29 December 1967 in Louis J Smith (ed), Foreign Relations of the United States, 1964–1968, Arab-Israeli Dispute, 1967–68 (US GPO 2001 vol XX) 52. cf Telford Taylor, Nuremberg and Vietnam: An American Tragedy (Quadrangle Books 1970) 99.

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base areas for military operations against the Republic of Viet-Nam’.56 The US and South Vietnam’s actions were proportionate and restricted in extent, purpose and time. The main purpose was to help defend South Vietnam and US troops ‘from the continuing North Vietnamese armed attack’.57 As for the UN Charter, this had imposed new and important limitations on the use of armed force. However, they are surely authority for the proposition that, assuming the Charter’s standards are met, a belligerent may take action on a neutral’s territory to prevent violation by another belligerent of the neutral’s neutrality which the neutral cannot or will not prevent, providing such action is required in self-defense.58 On 8 May 1972, President Nixon announced that the entrances to North Vietnamese ports were being mined by US forces in response to new armed attacks launched by North Vietnam against the territory of South Vietnam. According to the US Legal Adviser, the ground for this measure was collective self-defence pursuant to article 51 of the UN Charter.59 This, of course, distinguishes the Vietnam case from the Cuban missile crisis, [where] there was no actual armed attack; and . . . great care was taken [there] to avoid a self-defense justification in the absence of an armed attack because of the dangerous precedential implications. In the current Vietnam situation, over the weekend of March 31 to April 2, North Vietnam launched a new and massive attack against South Vietnam across the demilitarized zone and over the international boundaries of Cambodia and Laos. . . . [T]he measures announced by President Nixon . . . are necessary . . . if these and future attacks are to be brought to an end.60 Therefore, the use of force aimed at preventing armed attacks which had not yet occurred (as in the case of Cuba) was considered a dangerous precedent to set up.

56 US Permanent Representative to the UN, Charles W Yost, Letter to the President of the Security Council on 5 May 1970 in Steven C Nelson (ed), ‘Contemporary Practice of the United States Relating to International Law’ (1970) 64 AJIL 928, 932–933. cf Telegram on 28 September 1968, on file in the Office of the Legal Adviser, Department of State in Stephen L Gibson (ed), ‘Practice of the United States Relating to International Law’ (1969) 63 AJIL 121, 122. 57 ibid. 58 US Legal Adviser of the Department of State, John R Stevenson, Statement before the Hammarskjold Forum of the Bar Association of the City of New York on 28 May 1970 in Nelson (n 56) 933–941. 59 US Legal Adviser of the Department of State, John R Stevenson, Letter on 6 June 1972 in Steven C Nelson (ed), ‘Contemporary Practice of the United States Relating to International Law’ (1972) 66 AJIL 836, 836–838. 60 ibid.

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Yet the US Representative before the UN SC, George H W Bush, argued that the measured adopted by the President were undertaken in self-defence in response to a ‘continuing [actual] aggression’.61 The following decade, anticipatory self-defence came into relevance in connection with terrorism. Israel used this justification on the occasions of the 1981 air strikes against Iraq and the 1985 air raids against the headquarters of the Palestine Liberation Organization (PLO) in Tunisia. As for the former, in June 1981 the UN SC unanimously adopted Resolution 487 which condemned these acts as ‘clear violation of the Charter of the United Nations and the norms of international conduct’,62 while the UNGA adopted Resolution 36/27 by 109 to 2 votes condemning Israel for its ‘premeditated and unprecedented act of aggression’.63 The US Legal Adviser, Abraham Sofaer, argued that ‘a potential attack may be treated as very likely to occur, even though it is not imminent’, but he also called the attention on the fact that the SC’s condemnation came as a result of Israel’s failure ‘to meet the test of necessity’.64 As for the 1985 Israelis air raid against the headquarters of the PLO in the area of Hamman-Plage (Tunisia), it was condemned by the UN SC – with the US abstaining – as ‘an act of aggression’ that was committed ‘in flagrant violation of the UN Charter’.65 Ambassador Vernon Walters yet pointed out that: We . . . recognize and strongly support the principle that a state subjected to continuing terrorist attacks may respond with appropriate use of force to defend against further attacks. This is an aspect of the inherent right of selfdefense recognized in the United Nations Charter.66 Hence, while maintaining the applicability of a broader anticipatory self-defence against the territory of a state supporting terrorists through its acts or omissions, necessity was to be proved by showing the existence of a continuing actual aggression. In the same years, the International Court of Justice (ICJ) issued its judgment in Nicaragua and held that it was ‘unable to consider that in customary international law, the provision of arms to the opposition in another State constitutes an armed attack’.67 Thus, the actions of Nicaragua did not give rise to El Salvador’s

61 US Permanent Representative to the UN, George H Bush, Report to the President of the Security Council on 8 May 1972 in Nelson (n 59) 838–840. 62 UNSC Res 487 (19 June 1981) UN Doc S/RES/487. 63 UNGA Res 36/27 (LVI) (13 November 1981). See also Michael P Scharf, Customary International Law in Times of Fundamental Changes (CUP 2013) 188. 64 Abraham D Sofaer, ‘On the Necessity of Pre-emption’ (2003) 14 EJIL 209, 221–222. 65 UNSC Res 573 (4 October 1985) UN Doc S/RES/573. See also Scharf (n 63) 189. 66 US Permanent Representative to the United Nations, Ambassador Vernon A Walters, Statement on 4 October 1985 in Marian L Nash (ed), ‘Contemporary Practice of the United States Relating to International Law’ (1986) 80 AJIL 151, 167. 67 Case Concerning Military and Paramilitary Activities In and Against Nicaragua (Nicaragua v. United States of America) (Merits) General List No 70 [1986] ICJ at 230.

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right of self-defence, let alone the US right to act on collective self-defence.68 According to Sofaer, [t]his unprecedented and artificial interpretation of the UN Charter directly threatened the scope of the Reagan Doctrine and U.S. efforts to assist other States defend against antidemocratic insurgencies. We rejected it. The United States rejected similarly restrictive views with regard to the meaning of ‘attack’ under Article 51 and engaged in bombing of terrorist camps in Libya after that country supported or used terrorists in attacks on U.S. nationals in Europe.69 President Reagan, in accordance with ‘established principles of international law’, treated those states in any way supporting either communists (i.e. Nicaragua) or terrorists (i.e. Libya) as being equal to actual aggressors.70 As for the so-called indirect armed aggression, Sofaer affrmed that ‘Since the days of President James Madison, the United States has repeatedly acted against armed bands that attacked Americans and then fed, seeking sanctuary in neighboring countries unwilling or powerless to prevent or punish their acts’.71 That the US was acting in compliance with international law could be demonstrated by recalling the Corfu Channel case, when the ICJ reaffrmed the ‘well-recognized’ principle that every country has an obligation ‘not to allow knowingly its territory to be used for acts contrary to the rights of other States’.72 Some UN resolutions, such as the Friendly Relations Declaration and the UN Defnition of Aggression, were also helpful to this aim.73 As for the possibility to act pre-emptively, in January 1986 Secretary of State Shultz reiterated what had been already illustrated by President Reagan in 1984 and called it absurd to argue that international law prohibits us from capturing terrorists in international waters or airspace; from attacking them on the soil of 68 Michael P Scharf and Paul R Williams, Shaping Foreign Policy in Times of Crisis (CUP 2010) 83. 69 ibid. As for the Reagan Doctrine, see Peter Tomsen, The Wars of Afghanistan: Messianic Terrorism, Tribal Conflicts, and the Failures of Great Powers (PublicAffairs 2011) 207; James M Scott, Deciding to Intervene: The Reagan Doctrine and American Foreign Policy (Duke University Press 1996). 70 US President, Ronald Reagan, The President’s News Conference on 7 January 1986. See also US President, Ronald W Reagan, Remarks at an Exhibit of Weapons Captured in Central America on 13 March 1986. cf US military intervention in Grenada on 23 October 1983 after a request by the Organisation of Eastern Caribbean States. In this regard, see US President, Ronald Reagan and President and Prime Minister of Dominica, Eugenia Charles, Remarks Announcing the Deployment of United States Forces in Grenada on 25 October 1983. 71 Abraham D Sofaer, ‘Terrorism and the Law’ (1985–1986) 64 Foreign Affairs 901, 919 [emphasis in original]. 72 ibid 920 [emphasis in original]. 73 ibid. See Scharf (n 63) 196.

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Hence, he did not mention any requirement of continuity in relation to the attack. George H W Bush, in his capacity as Vice President, publicly criticised Shultz’s arguments.75 Yet after a series of terrorist attacks against US citizens which had culminated in an attack in West Berlin on 5 April 1986, President Reagan decided to use force against Libya. On 14 April, an SC resolution condemning the US air strikes as ‘armed attacks’ failed to pass due to the veto by France, the UK and the US.76 However, the GA defined them ‘a violation of the Charter and international law’.77 President Reagan then affirmed that [b]y providing material support to terrorist groups which attack US citizens, Libya has engaged in armed aggression against the United States under established principles of international law, just as if he [Libyan leader Muammar al-Qaddafi] had used its own armed forces.78 The US Legal Adviser subsequently wrote that there was ‘strong evidence of some thirty possible impending attacks on U.S. facilities and personnel throughout the world’. Also, Oscar Schachter’s ‘accumulation of events theory’ provided that ‘a series of attacks accompanied by bellicose statements by those associated with the terrorists’ could be deemed as convincing indications of future attacks.79

74 US Secretary of State, George P Shultz, Address at National Defense University on 15 January 1986 (as cited in W Michael Reisman and Andrea Armstrong, ‘The Past and Future of the Claim of Preemptive Self-Defense’ (2006) 100 AJIL 525, 528). See also Bernard Gwertzman, ‘Shultz Supports Armed Reprisals’ New York Times (15 January 1986). cf Reisman and Armstrong (n 74) 527. 75 Reisman and Armstrong (n 74) 529. 76 The Acting US Permanent Representative to the UN, Ambassador Herbert S Okun, Letter to the President of the Security Council on 14 April 1986 in Nash (ed) (n 66) 632–633. See also The US Permanent Representative to the UN, Ambassador Vernon A Walters, Statement before the Security Council on 15 April 1986 in Nash (ed) (n 66) 635. 77 UNGA Res 41/38 (20 November 1986) UN Doc A/RES/41/38. See Belinda Helmke, Under Attack – Challenges to the Rules Governing the International Use of Force (Ashgate 2010) 180. 78 Sofaer (n 71) 921. 79 Ian Johnstone, ‘The Plea of “Necessity” in International Legal Discourse: Humanitarian Intervention and Counter-terrorism’ (2004–2005) 43 Columbia Journal of Transnational Law 337, 373. See also Craig Forcese, Destroying the Caroline: The Frontier Raid that Reshaped the Right to War (Inrwin Law Inc 2018) 233–234.

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4 US practice during the Cold War: aggression as an instrument of propaganda While the US was struggling to justify its military interventions, they also used aggression as an instrument of propaganda against their political opponents. In particular, they charged the Soviet Union with aggression in relation to the situations in Hungary (1956), Czechoslovakia (1968) and Afghanistan (1980). As for the events in Budapest, on 24 October 1956, Soviet tanks entered Hungary without encountering any particular resistance. Because of their mere presence in the Hungarian territory, the Legation in Hungary suggested that the US Administration should have publicly called it an ‘armed aggression’.80 Then, following the Soviet attacks starting on 4 November 1956, Ambassador Henry Cabot Jr Lodge at the UN SC defined the situation as a ‘threat to the peace’. The US draft Resolution (S/3733) which called upon the Soviets to cease their intervention in Hungary failed to be adopted because of the Soviet veto. Thus, the US proposed to convene an emergency session of the UNGA when Ambassador Lodge spoke of the ‘cynical and wanton acts of aggression’.81 The AG adopted Resolution 1104 (ES-II) which had been drafted by the White House and telephoned to Lodge and ‘[c]alls upon the Government of the Union of Soviet Socialist Republics to desist forthwith from all armed attack on the people of Hungary and from any form of intervention, in particular armed intervention, in the internal affairs of Hungary’.82 One year later, when discussing the opportunity of adopting a definition of aggression, the US Representative to the Sixth Committee of the UNGA, Philip M Klutzinick, cited the ‘aggression’ in Hungary to prove that all the definitions submitted by the Soviets and embodied in different treaties were useless as they could not prevent aggressions from happening. He argued that the US opposed the definition on the merits, and not on the difficulties of reaching any definition and recalled sub-paragraphs 4 (a), (b) and (c) of UNGA Resolution 1133 (XI),83 which however did not mention ‘aggression’, or ‘threat to the peace’, and read as follows: [The General Assembly] 4. . . . Finds that . . . (a) The Union of Soviet Socialist Republics, in violation of the Charter of the United Nations, has deprived Hungary of its liberty and political independence and the Hungarian of the exercise of their fundamental human rights;

80 Telegram From the Legation in Hungary to the Department of State on 24 October 1956 in Edward C Keefer, Ronald D Landa, and Stanley Shaloff (eds), Foreign Relations of the United States, 1955–1957, Eastern Europe (US GPO 1990 vol XXV) 272. 81 Editorial Note in Keefer, Landa and Shaloff (n 80) 389 and 392 [emphasis added]. 82 ibid 392. 83 UN Doc. A/C.6/SR.519, at 15 and 17.

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With regard to the 1968 Soviet intervention in Czechoslovakia, the US delegate to the Sixth Committee of the UNGA, John S Cooper, claimed: First, so far as relations between the USSR and Czechoslovakia were concerned, aggression had already been defined by treaty for over three decades. Secondly, the Soviet invasion and occupation were so clear a violation of the existing law of aggression, as laid down by the United Nations Charter.84 On that occasion, Cooper recalled that no evidence had been submitted to prove that that intervention had taken place with the consent of the host country.85 In other words, the lack of any explicit consent by the territorial state was an essential element to prove the aggressive nature of an act. Most importantly, the burden of proof was on the intervening state. Lastly, in relation to the Soviet invasion of Afghanistan (1979–1989), in 1980 President Jimmy Carter claimed that: I took several actions to demonstrate our Nation’s resolve to resist such hostile acts of aggression against a sovereign, independent nation. . . . This attempt to subjugate an independent, non-aligned Islamic people is a callous violation of international law and the United Nations Charter, two fundamentals of international order. Hence, it is also a dangerous threat to world peace.86 The US reaction to this invasion included economic sanctions and trade embargoes against the Soviet Union, as well as the US boycott of the 1980 Moscow Olympics. As Carter wrote in a letter addressed to the President of the Olympic Committee: The most important task of world leaders, public and private, is to deter aggression and prevent war. . . . If our response to aggression is to continue with international sports as usual in the capital of the aggressor, our other steps to deter aggression are undermined.87 84 UN Doc. A/C.6/SR.1074, at 7. See also Ambassador William T Bennett, Statement on 6 November 1972 at the Sixth Committee of the UN General Assembly in ‘Contemporary Practice of the United States Relating to International Law’ (1973) 67 AJIL 328, 330–331. 85 ibid at 10. 86 US President, James E Carter, The State of the Union Annual Message to the Congress on 21 January 1980 [emphasis added]. 87 US President, James E Carter, Letter to the President of the US Olympic Committee on the Games To Be Held in Moscow on 20 January 1980.

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Once Ronald Reagan became President, he also provided economic and military aids to the Afghan insurgents.88

5 Resolution 2625 (1970) In the 1960s, the UNGA had in its agenda the item ‘[c]onsideration of principles of international law concerning friendly relations and co-operation among States in accordance with the Charter of the United Nations’. In particular, in December 1963 a Special Committee on Principles of International Law concerning Friendly Relations and Co-operation among States (also known as ‘the 1964 Special Committee’) was established.89 On that occasion, the US delegate claimed that the proceedings of the San Francisco Conference and the work of some jurists seemed to indicate that every use of force or the threat to use force could be defined as a violation of the ‘the territorial integrity or the political independence’ of a state.90 Also, [t]he Charter, which was itself a great advance over international law of the nineteenth century, represented the consensus of the community of nations regarding the international law of the present and the future. . . . All the Member States were bound by the provisions of the Charter and looked to it as the fount of the international law of the future.91 Paper No 1 of the 1964 report of the Special Committee was replicated with some additions in a proposal submitted in 1966 by Australia, Canada, the US and the UK, which read as follows: 1. Every State has the duty to refrain in its international relations from the threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the purposes of the United Nations. 2. In accordance with the foregoing fundamental principle, and without limiting its generality: (a) Wars of aggression constitute international crimes against peace. (b) Every State has the duty to refrain from organizing or encouraging the organization of irregular or volunteer forces or armed bands within the territory or any other territory for incursions into the territory of another State or across international lines of demarcation, and to refrain from acts of armed reprisal or attack. (c) Every State has the duty to refrain from instigating, assisting or organizing civil strife or committing terrorist acts in another State or across international lines of demarcation,

88 US Department of State, Office of the Historian, ‘The Soviet Invasion of Afghanistan and the U.S. Response, 1978–1980’ accessed on 12 May 2019. See Tomsen (n 69) 207. 89 UNGA Res 1966 (XVIII) (16 December 1963). 90 UN Doc. A/C.6/SR.808, at 19. 91 UN Doc. A/C.6/SR.829, at 6.

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All the subsequent alternatives discussed within the Working Group established by the Drafting Committee of the Special Committee in 1967 kept considering a war of aggression as a Crime against Peace.93 In 1968, however, an agreed statement contained in the report of the Special Committee stressed that all acts of aggression were Crimes against Peace.94 The US, together with other states, submitted a new proposal in 1970, which still considered a ‘war of aggression’ an international Crime against Peace and provided for the state’s duty to refrain from propaganda in favour of a war of aggression. It also kept making reference to international boundaries and international lines of demarcation, such as armistice lines, and added the duty to refrain from using force which deprives people of self-determination and from organising or encouraging acts of terrorism. At the same time, states could provide assistance in the territories concerned only in accordance with the principles and purposes of the UN Charter,95 whereas they had the duty of non-recognition of territorial acquisition or military occupation.96 The UNGA adopted Resolution 2625 on 24 October 1970 without a vote. Later, the ICJ, in Nicaragua held that this consensus indicated states’ opinio juris as for its customary nature.97 While Resolution 2625 dealt explicitly with war of aggression, a few years later the UNGA adopted a historical Definition of Aggression.

6 Resolution 3314 (1974) On 14 December 1974, the UNGA adopted by consensus Resolution 3314 (XXIX) to which a Definition of Aggression was annexed. The works that resulted 92 UN Doc A/AC.125/L.22 in Report of the Special Committee on Principles of International Law concerning Friendly Relations and co-operation among States (Twenty-fourth session), Supplement No 19 UN Doc. A/7619, 17–18. 93 Report of the Special Committee on Principles of International Law concerning Friendly Relations and co-operation among States (Twenty-fifth session), Supplement No 19 UN Doc. A/7619, 24–25. 94 ibid 27. 95 UN Doc. A/C.6/1180, at 25. 96 See also UN Doc A/8018. 97 Nicaragua (n 67) at 188.

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in Resolution 3314 had begun more than two decades earlier: in 1952 the UNGA established – the US voting against – a Special Committee on the Question of Defining Aggression, which submitted its first report the following year.98 A number of issues were considered, including psychological aggression (or propaganda) and economic aggression, which the US delegate John Maktos suggested to leave aside.99 He also submitted that the outcome was meant to be a list of factors that the UN SC might have taken into account whenever it needed to decide on aggression.100 In 1954, the Assembly decided to defer any further consideration of either the international criminal court or the draft code of offences until the new Special Committee to define aggression had submitted its report.101 Meanwhile, in November 1954, the Sixth Committee of the GA discussed a draft Resolution submitted by Panama and Iran which provided for the following definition of aggression: 1.

2.

Aggression means any use of armed force by a State against another State for any purpose other than the exercise of the inherent right of individual or collective selfdefence or in pursuance of a decision or recommendation of a competent organ of the United Nations. In accordance with the foregoing definition, in addition to any other acts which such international bodies as may be called upon to determine the aggressor may declare to constitute aggression, the following are acts of aggression in all cases: (a) Invasion by the armed forces of a State of territory belonging to another State or under the effective jurisdiction of another State; (b) Armed attack against the territory, population or land, sea or air forces of a State by the land, sea or air forces of another State; (c) Blockade of the coast or ports or any other part of the territory of a State by the land, sea or air forces of another State; (d) The organization, or the encouragement of the Organization by the authorities or a State, of armed bands within its territory or any other territory for incursions into the territory of another State, or the toleration of the organization of such bands in its own territory, or the toleration of the use by such armed bands of its territory as a base of operations or as a point of departure for incursions into the territory of another State, as well as direct participation in or support of such incursions.102

98 UNGA Res 688 (VII) (20 December 1952). 99 Benjamin B Ferencz, Defining International Aggression: The Search for World Peace. A Documentary History and Analysis (Oceana Publications Inc 1975 vol II) 4. 100 ibid. 101 UNGA Res 897 (IX) (4 December 1954) and UNGA Res 898 (IX) (14 December 1954). See also Ferencz (n 99) 5. 102 Revised draft resolution submitted by Iran and Panama to the Sixth Committee of the UNGA on 3 November 1954 UN Doc A/C.6/L.335. cf UN Doc A/C.6/L.335/Rev.1.

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The US delegate Charles H Mahoney criticised this draft by affrming that it was doubtful whether the proposed definition was a definition of aggression relating to the international obligations of States or to the criminal responsibility of individuals, or to both. . . . Moreover, if the ‘international bodies’ included criminal tribunals, it was perfectly clear that no jurisdiction or directive could be given to them except by a duly ratified treaty.103 When Peru submitted again the same proposal two years later, the US delegate criticised it by affrming: To state that aggression was that which was not self-defence or enforcement action, and then not to define self-defence, would not be helpful. It would be just as valid, and of just as much utility, to state that self-defence was that which was not aggression or enforcement action. That would not reduce the problem of the Security Council.104 Moreover, [s]uch terms as “attack” were no more meaningful than the term “aggression”. Since both involved an evaluation of motive and assessment of danger, neither could be determined except on the basis of an ad hoc inquiry into all the circumstances.105 Hence, the US kept objecting to the possibility of a defnition tout court. In particular, the proposals submitted were based on the wrong assumption that ‘everything illegal was aggression’.106 Also, [i]t was not right . . . to cite in support of a general definition the precedents of the Act of Chapultepec of 8 March 1945 and the Inter-American Treaty of Reciprocal Assistance signed at Rio de Janeiro on 2 September 1947. . . . The signatories of those instruments belonged to the same geographical area and were united by many bonds, including a feeling of solidarity, which were not present to the same degree among the Members of the United Nations.107 Furthermore, a mixed defnition, favoured by most of the members, was criticised by the US because

103 UN Doc. A/C.6.SR.415, at 32–33. 104 Report of the Special Committee on the Question of Defining Aggression (Twelfth session), Supplement No 16 UN Doc. A/3574, 1–33. 105 ibid. 106 ibid. 107 US Representative to the UN, William Sanders, Statement before the Special Committee on the Question of Defining Aggression on 17 October 1956 (as cited in Whiteman (n 17) 767).

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[a] general definition would be of little value because it would be too vague, an enumerative definition would be dangerous because it might contain too much or too little, and a mixed definition was apt to combine the disadvantages of the other two types.108 In any case, the Special Committee decided not to vote on the drafts before it and the GA remained seized on the matter.109 Then, based on a US proposal, in 1957 a General Committee was set up with the aim of determining when the GA should again take up the question of defining aggression.110 It was only ten years later that the Special Committee decided to re-open the debate on the issue and established a new Special Committee.111 The same year the US delegate to the Sixth Committee claimed as follows: If there was any portion of the Charter relating to international peace and security which might usefully be subjected to that sort of treatment, it was not the concept of aggression in Article 39, but the primary rules of conduct – and, in particular, the prohibition of the threat or use of force – which were found largely in Article 2, and that work was already under way in the Special Committee on Principles of International Law concerning Friendly Relations and Co-operation among States. . . . It would be a misreading of the Charter to suggest that the Security Council, having determined that a State had used force in violation of Article 2, paragraph 4, should then start from the beginning and make a separate and independent finding of aggression. . . . At an earlier and perhaps more naive stage in the history of the Organization, his delegation had favoured trying to draft an official definition of aggression. It had arrived at its present contrary view in the light of sober reflection on twenty-two years of experience in the Organization.112 In 1968, the US criticised the draft proposal submitted by Colombia, the Congo (Democratic Republic of), Cyprus, Ecuador, Ghana, Guyana, Indonesia, Iran, Mexico, Spain, Uganda, Uruguay and Yugoslavia. The operative paragraph 8 of this proposal, also known as the Thirteen-Power draft, provided as follows: When a State is a victim in its own territory of subversive and/or terrorist acts by irregular, volunteer or armed bands organized by another State, it may take all reasonable and adequate steps to safeguard its existence and its institutions, without having recourse to the right of individual or collective self-defence against the other State under Article 51 of the Charter.113 108 109 110 111 112 113

Report of the Special Committee on the Question of Defining Aggression (n 92). Whiteman (n 17) 768. UN Doc. A/C.6/SR.533, at 3; UNGA Res 1181 (XII) (29 November 1957). Ferencz, Defining International Aggression (n 99) 8. UN Doc. A/C.6/SR.1018, at 13, 15 and 16. UN Doc A/AC.134/L.6 and Add.1 and 2 as cited in Report of Special Committee on the Question of Defining Aggression (Twenty-third session) UN Doc A/7185/Rev. 1.

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John S Cooper affrmed in this regard: The thirteen-Power draft . . . raised an issue regarding self-defence which was closely related to the question of including so-called ‘indirect’ uses of force in a definition. . . . [Its operative paragraph 8] was at variance with the Charter, . . . was not a part of international law, and was consequently extraneous either to a definition of aggression or to a statement of the law of self-defence.114 Most notably, he made clear that ‘a defnition of aggression could not characterize as aggression any activity that did not involve a use of force within the meaning of Article 2, paragraph 4, of the Charter’.115 According to Cooper, [t]he definition should be specifically applicable to certain political entities which were not generally recognized as States or whose status in international law might be disputed in some way, but which were nevertheless bound by the basic obligations of international law with respect to the use of force.116 As a consequence, for the very first time those states that had been objecting to any definition (Australia, Canada, Italy, Japan, the US and the UK) submitted their proposal in 1969 which, with its 1970 amendments read as follows: I. Under the Charter of the United Nations, ‘aggression’, is a term to be applied by the Security Council when appropriate in the exercise of its primary responsibility for the maintenance of international peace and security under Article 24 and its functions under Article 39. II. The term ‘aggression’ is applicable, without prejudice to a finding of threat to the peace or breach of the peace, to the use of force in international relations, overt or covert, direct or indirect, by a State against the territorial integrity or political independence of any other State, or in any other manner inconsistent with the Purposes of the United Nations. Any act which would constitute aggression by or against a State likewise constitutes aggression when committed by a State or other political entity delimited by international boundaries or internationally agreed lines of demarcation against any State or other political entity so delimited and not subject to its authority. III. The use of force in the exercise of the inherent right of individual or collective self-defence, or pursuant to decisions of or authorization by competent United Nations organs or regional organizations consistent with the Charter of the United Nations, does not constitute aggression. IV. The uses of force which may constitute aggression include, but are not necessarily limited to, a use of force by a State as described in paragraph II. 114 UN Doc. A/C.6/SR.1080, at 74. 115 ibid. 116 ibid. cf UN Doc A/6165.

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A. In order to: (1) diminish the territory or alter the boundaries of another State; (2) alter internationally agreed lines of demarcation; (3) disrupt or interfere with the conduct of the affairs of another State; (4) secure changes in the Government of another State; or (5) inflict harm or obtain concessions of any sort; B. By such means as: (1) invasion by its armed forces of territory under the jurisdiction of another State; (2) use of its armed forces in another State in violation of the fundamental conditions of permission for their presence, or maintaining them there beyond the termination of permission; (3) bombardment by its armed forces of territory under the jurisdiction of another State; (4) inflicting physical destruction on another State through the use of other forms of armed force; (5) carrying out deliberate attacks on the armed forces, ships, or aircraft of another State; (6) organizing, supporting or directing armed bands or irregular or volunteer forces that make incursions or infiltrate into another State; (7) organizing, supporting or directing violent civil strife or acts of terrorism in another State; or (8) organizing, supporting or directing subversive activities aimed at the violent overthrow of the Government of another State.117 As for the so-called indirect aggression, this was included within the defnition because for the US, ‘the Charter concept of aggression covered only acts committed in violation of Article 24 [sic] of the Charter, that is, acts entailing the use of armed force’. As a result, the Charter would refer to it simply as ‘aggression’.118 Subsequently, in 1971 the US, the principal opponent to the Soviet proposals, was ready for a compromise. First, a draft proposal concerning the principle of priority – a subject of particular interest for the Soviet delegation – was submitted. It provided that ‘In determining whether an act of aggression has taken place, due weight shall be given to the question which State frst used force’.119 Second, the US submitted a draft proposal concerning the aggressive intent according to

117 Draft proposal submitted by Australia, Canada, Italy, Japan, the United Kingdom of Great Britain and Northern Ireland and the United States of America (UN Doc A/AC.134/L.17 and Add.1 and 2) as cited in Report of the Special Committee on the Question of the defining Aggression (Twenty-fifth session), Supplement No 19 UN Doc A/8019, 59–60. From Report of the Special Committee on the Question of the defining Aggression by the General Assembly, @1970 United Nations, Reprinted with the permission of the United Nations. 118 UN Doc. A/C.6/SR.1169, at 24. 119 Draft proposal submitted by the United States of America (UN Doc A/AC.134/L.31) as cited in Report of the Special Committee on the Question of the defining Aggression in OR of the UNGA (Twenty-sixth session) Annex II, Supplement No 19 (UN Doc A/8419).

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which: In determining whether an act of aggression has taken place, the Security Council shall ascertain the existence of aggressive intent and determine whether a State’s actions were or were not undertaken for such purposes as to: (1) diminish the territory or alter the boundaries of another State; (2) alter internationally agreed lines of demarcation; (3) disrupt or interfere with the conduct of the affairs of another State; (4) secure changes in the Government of another State; (5) inflict harm or obtain concessions of any sort; or otherwise for the purpose of violating the territorial integrity or political independence of another State.120 During the meetings of 1972, general agreement arose on certain acts which were deemed aggressive independently of a declaration of war, such as invasion, bombardment or attack on the armed forces, ships or aircraft of another state and blockade. Moreover, the Six Powers conceived aggression as the use of armed force ‘however exerted’;121 as, in the opinion of the US, the weapon used was irrelevant for the purpose of defning aggression. The US delegation also wanted to drop the option according to which the act of retaining armed forces in another state in violation of the conditions under which their presence had been permitted could be considered relevant for the purposes of the defnition. The Six Powers accepted that only ‘due regard’ was given to the issue of ‘intent’, whereas the Soviet Union objected to the Six-Power suggestion to replicate the principle of non-intervention contained in Resolution 2625.122 In 1973, agreement was reached on the exclusive competence of the UN SC on aggression, and minor accidents were excluded from the definition. The US submitted to the Working Group within the Special Committee two texts to be included in the definition, namely: Acts proposed for inclusion The provisions of article ___ (article on priority and purpose) shall apply to any of the following uses of armed force, regardless of a declaration of war: ... Indirect uses of force The organization by a State, or encouragement of the organization of, or assistance to, irregular forces or armed bands or other groups, volunteers, 120 Draft proposal submitted by the United States of America (UN Doc A/AC.134/L.32) as cited in Report of the Special Committee on the Question of the Defining Aggression (Twenty-sixth session) Annex II, Supplement No 19 UN Doc A/8419. 121 Benjamin B Ferencz, ‘Defining Aggression: Where It Stands and Where It’s Going’ (1972) 66 AJIL 491, 497–498. 122 ibid 499–500.

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or mercenaries, which participate in incursions into another State’s territory or in the carrying out of acts involving the use of force in or against another State, or knowing acquiescence in organized activities within its own territory directed toward and resulting in the commission of such acts.123 In the spring of 1974, the UK, with the support of Japan and the US, criticised the mere reference to ‘aggression’ in the provision concerning the individual criminal responsibility contained in a Soviet Draft. Indeed, ‘[t]he International Military Tribunal had condemned aggressive war, and not simply aggression. The “Friendly Relations” Declaration had stated: “A war of aggression is a crime against the peace for which there is responsibility under international law”’.124 As Benjamin Ferencz has pointed out, [s]uspicions were voiced that the United States’ view was prompted by fears that the North Vietnamese might carry out their threat to put on trial as war criminals some captured American air-men who had participated in the bombing of North Vietnam and Cambodia, countries with which the United States was not officially at war.125 Eventually, the other delegations, including the Soviets, accepted the terms ‘war of aggression’ as they recognised that ‘aggression’ would have in fact caused a dangerous impasse.126 Thus, the Special Committee adopted by consensus a defnition of aggression which was then forwarded to the GA in its plenary, where the US delegate, Robert Rosenstock, affrmed: We should, of course, not allow our success to lead us to place too great an emphasis on what we have accomplished. . . . What we have produced is a document for use by the Security Council. The law concerning the use of force is found in the charter and in the Declaration on Principles of International Law Concerning Friendly Relations.127 Moreover, he pointed out that the frst use of armed force was just a prima facie evidence and the SC could conclude otherwise. Indeed, ‘all the circumstances of each particular case’ needed to be considered. In this regard, Rosenstock claimed that it was not necessary to make special reference to the intent or purposes of 123 Proposals submitted to the Working Group in Report of the Working Group as cited in Report of the Special Committee on the Question of the Defining Aggression (TwentyEighth Session) Appendix B, Supplement No 19 UN Doc A/9019, 22–23. 124 Ferencz (n 99) 44–45 [emphasis in original]. 125 ibid 43–44. 126 ibid 44–45. 127 US Legal Affairs Adviser to the UN Mission, Robert Rosenstock, Statement before the United Nations Special Committee on the Question of Defining Aggression on 12 April 1974 in Arthur W Rovine (ed), ‘Contemporary Practice of the United States Relating to International Law’ (1974) 68 AJIL 720, 733.

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the states involved since the animus aggressionis is universally understood to be an essential element and the notion of purposes is fully covered by the phrase ‘other relevant circumstances’.128 As for article 5 of the draft Declaration, he stated: The second paragraph of article 5 notes the continued validity of the principles which formed the basis for the post-World War II trials and which were enunciated in the Moscow Declaration of 1943, the London Agreement of 1945, and the Charter of the International Military Tribunal for the Far East. . . . The article does not attempt to alter or add to existing international law with regard to the consequences for states or individuals involved in acts of aggression.129 As for article 7, Western states, including the US, opposed the Syrian proposal to authorise the use force against any form of foreign or alien domination. In particular, the US considered this option ‘totally out of place in an instrument intended to further the cause of peace’.130 According to Benjamin Ferencz, ‘[t]he formulation of Article 7, . . . was another demonstration that agreement could be reached in wording even where there was really no agreement in principle’.131 As pointed out by Antonio Cassese, ‘the defnition does not grant liberation movements a right to use force’, due to a ‘strong objection’ by Canada, Italy, the Netherlands and the US.132 Eventually, after a long journey lasting two decades, on 14 December 1974, the GA adopted by consensus Resolution 3314 (XXIX).

7 The US and the outer space As far as the use of force in the outer space is concerned, from 1958 to the end of the 1970s, the US played a proactive role in the conclusion of new treaties and the establishment of relevant principles through the adoption of UNGA resolutions. Through the time, all Administrations have been consistent in arguing in favour of the applicability of the whole UN Charter, including its article 51 in the outer space. The GA dealt with the issue of outer space for the first time and established the Committee on the Peaceful Uses of the Outer Space in 1958.133 Three years later, the GA adopted by unanimous vote a resolution initiated inter alia by the US,134 whereby it ‘commends to States for their guidance in the exploration and use of outer space the following principles: (a) International law, including the Charter 128 129 130 131 132

ibid 735 [emphasis added]. ibid. Ferencz (n 99) 48. ibid. Bernard VA Röling, The Tokyo Trial and Beyond. Reflections of a Peacemonger (Antonio Cassese (ed), Polity Press 1993) 104. 133 UNGA Res 1348 (XIII) (13 December 1958). 134 See Australia, Canada, Italy and the United States of America, Draft Resolution submitted on 2 December 1961 UN Doc. A/C.1/L.301, A(1)(a).

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of the United Nations, applies to outer space and celestial bodies’.135 In 1963, again under the US initiative,136 the GA adopted unanimously a Declaration of Legal Principles Governing the Activities of States in the Exploration and Use of the Outer Space, containing nine principles which the US considered constituted international law.137 The fourth principle read as follows: The activities of States in the exploration and use of outer space shall be carried on in accordance with international law, including the Charter of the United Nations, in the interest of maintaining international peace and security and promoting international co-operation and understanding.138 According to the US, all relevant provisions of the UN Charter, including its articles 2(4) and 51,139 would apply. In February the same year, the US Representative had in fact justified the US nuclear tests in high altitude by claiming ‘[w]e cannot be placed in a position where developments in military technology could impair our ability to defend ourselves against aggression and to carry out our responsibilities in the maintenance of international peace and international security’.140 In December 1962, they claimed before the First Committee ‘the test of any space activity must be not whether it is military or non-military, but whether or not it is consistent with the United Nations Charter and other obligations of international law’.141 At the same time, ‘the United States . . . is determined to pursue every non-aggressive step which it considers necessary to protect its national security and the security of its friends and allies’.142 In 1963, once again under the US initiative,143 the GA adopted without a vote another resolution whereby it called upon states to refrain from placing in orbit, installing or stationing in any celestial body any object carrying nuclear weapons or any other weapons of mass destruction.144 The same year the US, the UK and

135 UNGA Res 1721 (XVI) (20 December 1961). 136 US Representative, Albert Gore, Letter to the Chairman of the First Committee on 8 December 1962. 137 UN Doc. A/AC.105/C.2/SR.20, 10–11. See also UNGA Res 1962 (XVIII) (13 December 1963); UN Doc. A/AC.105/C.2/SR.57. 138 This principle was already present in both the working paper and the report of the ad hoc Committee on the Peaceful Uses of Outer Space thanks to a working paper that had been submitted in 1960 by the US. See UN Doc. A/A.C./105/C.2/SR.15, 5. 139 UN Doc. A/AC.105/C.2/SR.20, 12. As for an express reference to the application of article 2(4) UN Charter to the international relations of States in the Outer Space, see UN Doc. A/C.1/PV.1289, 12. 140 UN Doc. A/AC.105/PV.11, 5. 141 UN Doc. A/C.1/PV.1289, 13. 142 ibid 14–15. 143 UN Doc. A/AC.105/C.2/SR.57, 5. 144 UNGA Res 1884 (XVIII) (17 October 1963). In April 1962, the US had submitted before the 18-Nation Committee on disarmament a draft Outline on Basic Provisions of a Treaty on General and Complete Disarmament in a Peaceful World which provided for the same

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Soviet Union signed in Moscow the Treaty Banning Nuclear Weapon Tests in the Atmosphere, in Outer Space, and Under Water, which was based on a US draft.145 Lastly, in early April 1966, Secretary of State Rusk sent a Memorandum to President Johnson, whereby he recommended that the President announce ‘as US initiative’ proposals for a treaty to govern activities on the moon and other celestial bodies.146 On 7 May, President Johnson outlined its key aspects, including the fact that ‘no country should be permitted to station weapons of mass destruction on a celestial body. Weapons tests and military manoeuvres should be forbidden’.147 An agreement with the other UN member states was announced in December 1966, and the text of the treaty was adopted by consensus by the GA.148 The treaty was signed in Washington on 27 January 1967 by 60 states, and in April the same year the US Senate gave its consent.149 According to its article III, States Parties to the Treaty shall carry on activities in the exploration and use of outer space, including the Moon and other celestial bodies, in accordance with international law, including the Charter of the United Nations, in the interest of maintaining international peace and security and promoting international co-operation and understanding. Curious enough, this provision, identical to those contained in the previously mentioned UNGA resolutions, was originally absent from the US draft treaty150 and was indeed contained in the proposal submitted by the Soviet Representative.151 Moreover, under article IV(2) of the treaty, ‘[t]he Moon and other celes-

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obligation. See US Arms Control and Disarmament Agency, Outline of Basic Provisions of a Treaty on General and Complete Disarmament in a Peaceful World (US GPO1965 vol 71) 7. Treaty Banning Nuclear Weapon Tests in the Atmosphere, in Outer Space and Under Water (adopted 5 August 1963, entered into force 10 October 1963) 480 UNTS 43 (Limited Nuclear Test Ban Treaty). See US President, John F Kennedy, Message to Chairman Khrushchev on 15 September 1962 in David W Mabon and David S Patterson (eds), Foreign Relations of the United States, 1961–1963, Volume VII, Arms Control and Disarmament (US GPO1995) 568. US Secretary of State, Dean Rusk, Memorandum to President Johnson on 2 April 1966 in Evans Gerakas, David S Patterson and Carolyn B Yee (eds), Foreign Relations of The United States, 1964–1968, Arms Control and Disarmament (US GPO1997 vol XI) 311–312. Statement read by the President’s Deputy Press Secretary, at a news conference in San Antonio on May 7 in Public Papers of the Presidents of the United States: Lyndon B. Johnson, 1966, Book I (US GPO1967) 487–488. Statement read by the Acting President’s Press Secretary, George Christian, Announcing the Reaching of an Agreement on an Outer Space Treaty on 8 December 1966 in Public Papers of the Presidents of the United States: Lyndon B. Johnson, 1966, Book II (US GPO1967) 1441. See also Annex to UNGA Res 2222 (XXI) (19 December 1966). US Office of the Historian, Editorial Note in Gerakas, Patterson and Yee (n 146) 431. US Permanent Representative to the UN, Arthur J Goldberg, Letter addressed to the Chairman of the Committee on the Peaceful Uses of Outer Space on 17 June 1966. URSS Acting Permanent Representative to the UN, Platon Dmitrievich Morozov, Letter addressed to the Secretary General on 16 June 1966. The legal subcommittee of the

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tial bodies shall be used by all State Parties to the Treaty exclusively for peaceful purposes’. The Soviet Union has interpreted it as prohibiting all military activities, while Western states and in particular the US have considered it to cover only the prohibition of acts of aggression.152 This is why, for instance, the Strategic Defense Initiative that President Reagan launched in 1983 was considered in compliance with this treaty.153 In 1979, the UNGA adopted, as an Annex to Resolution 34/68,154 another relevant treaty, which however has never been signed or ratified by the US:155 the Agreement Governing the Activities of States on the Moon and other Celestial Bodies. While its article II provides that ‘[a]ll activities on the moon . . . shall be carried out in accordance with International law, in particular the Charter of the United Nations’, article III(2) went further and read as follows: Any threat or use of force or any other hostile act or threat of hostile act on the moon is prohibited. It is likewise prohibited to use the moon in order to commit any such acts or to engage in any such threat in relation to the earth, the moon, spacecraft, the personnel of spacecraft or man-made space objects. Since then, the US has been constantly objecting to the adoption of all those GA resolutions, or parts thereof, dealing with the prevention of conventional arms race.156

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Committee on the Peaceful Uses of Outer Space approved the wording of this draft article on 2 August 1966. See UN Doc. A/AC.105/C.2/L.16. Matt Craven, ‘“Other Spaces”: Constructing the Legal Architecture of a Cold War Commons and the Scientific-Technical Imaginary of Outer Space’ 30 (2019) 2 EJIL 547, 558–559. See, for example, US Deputy Assistant Secretary Frank A Rose, Remarks at the Conference of Disarmament on 13 July 2010. Michel Bourbonnière and Ricky J Lee, ‘Legality of the Deployment of Conventional Weapons in Earth Orbit: Balancing Space Law and the Law of Armed Conflict’ 18 (2008) 5 EJIL 873, 881–882. UNGA Res 34/68 (5 December 1979) UN Doc. A/RES/34/68. UN Office for Outer Space Affairs, Status of International Agreements Relating to Activities in Outer Space as at 1 January 2020 accessed on 19 May 2020. UN Doc. A/43/PV.73, 27. In 1989, the US also voted against paragraphs 1 and 3 of a resolution reaffirming that the outer space should not be the arena of any arms race and that the international community should adopt further measure to prevent this from happening. UN Doc. A/44/PV.81, 27–30. See also UN Doc. A/48/PV.81, 10. See, similarly, in 1994, UN Doc. A/49/PV.90, 23–24. In 1995, UN Doc. A/50/PV.90, 11–12; in 1996 UN Doc. A/51/PV.79, 10. See also UN Doc. A/39/PV.97, at 344; UN Doc. A/40/PV.113, 35; UN Doc. A/41/PV.94, 31; UN Doc. A/42/PV.84, 24; UN Doc. A/43/PV.73, 29; UN Doc. A/44/PV.81, 31–35, UN Doc. A/45/PV.54, 22; UN Doc. A/46/PV.65, 21 and UN Doc. A/47/PV.81, 37. See also UNGA Res 47/68 (14 December 1992), with introductory note prepared by Carl Q Christol for International Legal Materials; US Adviser, Kenneth Hodgkins, Statement, in the UNGA Special Political Committee, on 28 October 1992.

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8 1990 Persian Gulf War 8.1 Iraq: the first Gulf War and the debate at the UN level On the same day of the Iraqi invasion of Kuwait, that is, 2 August 1990, with a letter addressed to the President of the UN SC, the Kuwait Representative requested an immediate meeting of the Council for the early morning of that day. The US Representative sent a similar letter.157 At the meeting, the US speaker claimed that his Government had issued a statement strongly condemning the invasion and asking for an immediate unconditional withdrawal of all Iraqi forces. Furthermore, ‘[h]e urged the Security Council, which had seldom faced a more blatant case of the use of force, to act immediately to accept its full responsibilities and support Kuwait’.158 The SC then adopted unanimously Resolution 660, demanding the immediate and unconditional withdrawal of Iraqi troops from Kuwait.159 On 6 August 1990, this was followed by Resolution 661, which imposed economic sanctions on Iraq and was ‘the Council’s response to Iraq’s aggression against Kuwait and its failure to comply with resolution 660 (1990)’.160 Then, when the SC adopted by unanimity Resolution 662 according to which ‘Iraq’s annexation of Kuwait was null and void’, the US delegate claimed that The statement by the Iraqi Revolutionary Command Council was reminiscent of the rhetoric that had been used before – about the Rhineland, the Sudetenland, the Polish corridor, Mussolini’s invasion of Ethiopia and the Marco Polo Bridge incident in China. . . . The world community had not reacted, and the result had been global conflagration. Having finally learned the grim lesson of the 1930s – that peace was indivisible – the international community would not and could not let the same thing happen again. [T]his crisis was not a regional matter alone, but one that threatened all States. . . . Iraq’s invasion of Kuwait and its large military presence on the Saudi frontier created grave risks of further aggression in the area.161 The US Representative also announced that the US ‘was in the course of informing the Council by letter of its action, taken under Article 51 of the Charter and consistently with Article 41 and resolution 661 (1990), which affrmed that

157 UNDPA, Repertoire of the Practice of the Security Council: Supplement 1989–1992 (UN Publications 2008) 568. 158 ibid 569. 159 UNSC Res 660 (2 August 1990) UN Doc S/RES/660. See also Majid Khadduri and Edmund Ghareeb, War in the Gulf, 1990–91: The Iraq-Kuwait Conflict and Its Implications (OUP 2001) 134. 160 UNSC Res 661 (6 August 1990) UN Doc S/RES/661. UNDPA (n 157) 571. See also President, William J Clinton, Report to Congress on the national emergency on 22 February 1993 in Sally J Cummins and David P Stewart (eds), US Digest of United States Practice in International Law 1991–1999 (International Law Institute 2005) 1930. 161 UNSC Res 662 (9 August 1990) UN Doc S/RES/662. UNDPA (n 157) 575–576 and 613.

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Article 51 applied to the situation’.162 On 18 August, the US Representative stated that in accordance with Article 51, he wished on behalf of his Government to report that the United States had deployed military forces to the Gulf region; that those forces had been dispatched in exercise of the inherent right of individual and collective self-defence, recognized in Article 51, in response to developments and requests from Governments in the region, including requests from Kuwait and Saudi Arabia, for assistance; and that the application of that inherent right in response to the Iraqi armed attack on Kuwait had been affirmed in resolution 661 (1990).163 A week later, the Council adopted a draft resolution which had been submitted by Canada, Côte d’Ivoire, Finland, France, Zaire, the US and the UK, which in its relevant parts read as follow. The Security Council ... 1

Calls upon those Member States co-operating with the Government of Kuwait which are deploying maritime forces to the area to use such measures commiserate to the specific circumstances as maybe necessary under the authority of the Security Council to halt all inward and outward maritime shipping, in order to inspect and verify their cargoes and destinations and to ensure strict implementation of the provisions related to such shipping laid down in resolution 661 (1990);164

Then, in October, President George H W Bush claimed that ‘America will not waver. The world will not allow Saddam Hussein’s act of aggression to stand. There can be no compromise on the territorial integrity of a neighboring nation’.165 Subsequently, he affrmed: ‘Saddam’s clear violations of international law will not stand. And that means, yes, his brutal aggression will not stand’.166 On 29 November, the UN SC adopted Resolution 678 which ‘[a]uthorizes Member States co-operating with the Government of Kuwait . . . to use all necessary means to uphold and implement resolution 660 (1990) and all subsequent

162 UNDPA (n 157) 575–576. 163 ibid 580. 164 UNSC Res 665 (25 August 1990) UN Doc S/RES/665. See also UNSC Res 670 (25 September 1990) UN Doc S/RES/670. UNSC Res 674 (29 October 1990) UN Doc S/ RES/674. 165 US President, George Bush, Remarks at a Fundraising Dinner for Gubernatorial Candidate John Rowland in Stamford on 23 October 1990. 166 US President, George Bush, Remarks at a Republican Party Fundraising Breakfast in Burlington, Massachusetts on 1 November 1990.

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relevant resolutions and to restore international peace and security in the area’.167 The US delegate and President of the Council then commented on it by stating that the lesson of the 1930s must be remembered and that aggression must not be rewarded. . . . Many unprecedented actions had been taken, resulting in a newly effective Security Council, free of the constraints of the cold war. However, Saddam Hussein had not recoiled from his aggression. . . . The resolution just adopted was very clear. It authorized the use of force.168 Indeed, a US-led coalition began war on 16 January 1991 and ended on 28 February the same year, following Saddam Hussein’s retreat from Kuwait.169 On the occasion of the adoption of Resolution 686 on 2 March 1991, the US Representative then claimed that since the end of November 1990, the Council had focused on the implementation of resolution 678 (1990). Key goals it had adopted had now been achieved: aggression had been decisively beaten and Kuwait liberated. With the resolution just adopted, the Council turned its attention from the war to the challenge of building lasting peace and security. The first priority was to secure a definitive end to hostilities. The resolution set out the measures which Iraq must take and the arrangements which must be put in place to bring that about: Iraq must make clear that it no longer harboured aggressive intent, and must take the steps needed immediately to implement the 12 preceding Security Council resolutions. Until it was clear that Iraq had complied with those requirements, the provisions of resolution 678 (1990), authorizing Kuwait and those cooperating with Kuwait to use all necessary means to ensure Iraqi compliance with the Council resolutions, clearly would remain in effect.170 Finally, by adopting Resolution 687, the Council ‘[d]ecides that Iraq shall unconditionally undertake not to use, develop, construct, or acquire’ all chemical and biological weapons and requested the Secretary General to develop a plan to monitor Iraq’s compliance with this Resolution.171 Notwithstanding the statements of some Representatives to the UN (including the one of the US), none of the relevant resolution defined the invasion of Kuwait as an act of aggression. However, as pointed out by Oscar Schachter: 167 UNSC Res 678 (29 November 1990) UN Doc S/RES/678. See also Oscar Schachter, ‘United Nations Law in the Gulf Conflict’ (1991) 85 AJIL 452, 455. 168 UNDPA (n 157) 622. 169 See President, George H Bush, Remarks on Presenting the Medal of Freedom and the Presidential Award for Exceptional Service to United Nations Officials on 12 December 1991; HJ Res 77, 102nd Cong (1991) (also known as ‘Joint Resolution to authorize the use of United States Armed Forces pursuant to United Nations Security Council Resolution 678’). 170 UNSC Res 686 (2 March 1991) UN Doc S/RES/686. UNDPA (n 157) 641 and 633. 171 UNSC Res 687 (3 April 1991) UN Doc S/RES/687.

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I would not . . . attribute any legal significance to [this] omission. . . . [It] may only have reflected the hope of some members of the Council that Iraq would be more likely to negotiate if it were not expressly condemned for the ‘supreme crime’ of aggression.172 In conclusion, At the dawn of the post-Cold War era, the international law rules for using force seemed pretty clear: one state could lawfully breach another’s territorial sovereignty only if one or more of three conditions obtained: response to aggression, self-defense, or an explicit U.N. Security council resolution. The 1991 Gulf War epitomized all three: The United States led a coalition authorized by the U.N. Security Council resolution to respond to Saddam Hussein’s aggression to come to the defense of Kuwait.173

8.2 Iraq: the debate on the idea of an international tribunal Resolution 678 was the result of an unusual agreement between the Permanent Members of the UN SC, mainly due to the end of the Cold War. Thanks to this change in the international relations, a plan to prosecute Saddam Hussein for aggression unfolded within the US Administration (and in particular the Department of the Army). Apparently, this was also discussed with the UK Prime Minister Margaret Thatcher.174 In particular, in October 1990 President Bush stated: ‘Iraq and its leaders must be held liable for these crimes of abuse and destruction’.175 Indeed, Iraq’s invasion marks an outrageous breach of the peace, a broad-faced violation of the United Nations Charter. And by its actions, the Iraqi regime has shown its contempt for the very principles on which the United Nations was founded. Saddam Hussein will be held accountable. Iraq has waged a war of aggression, plundered a peaceful neighbor, held innocents hostage, and gassed its own people. And all four of those crimes are punishable under the principles adopted by the allies in 1945 and unanimously reaffirmed by the United Nations in 1950. . . . Saddam Hussein must know the stakes are high, the cause is just and, today more than ever, the determination is real.176

172 Schachter (n 167) 453. 173 Harold H Koh, ‘On American Exceptionalism’ (2003) 55 StanLRev 1479, 1516. 174 William A Schabas, ‘United States Hostility to the International Criminal Court: It’s All About the Security Council’ (2004) 15 EJIL 701, 707. 175 US President, George H Bush, Address Before the 45th Session of the United Nations General Assembly in New York on 1 October 1990. See also US President, George H Bush, Remarks at the Hyatt Regency Hotel, Dallas on 15 October 1990. 176 US President, George H Bush, Remarks to Officers and Troops at Hickam Air Force Base in Pearl Harbor, Hawaii on 28 October 1990 [emphasis added]. See also US President,

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In the meantime, the US delegate to the Sixth Committee of the UNGA commented on the Draft Code of Crimes against the Peace and Security of mankind (agenda item 140), by affrming that International agreement existed on many of the acts covered by the draft, for example, aggression by States in violation of the Charter of the United Nations. The difficulty consisted in transforming general agreement . . . into specific criminal provisions designed to regulate the actions of individuals.177 Yet ‘[th]e international community would doubtless agree that certain acts of individuals in connection with State aggression were violations of international law; recent events in the Persian Gulf brought that out very clearly’.178 Therefore, according to Allan Gerson, former counsel for the US Ambassador to the UN: individuals who wage such wars [of aggression] – be they heads of state or generals – are not immune from punishment. That is the legacy of the Nuremberg Tribunal. That is the meaning of President Bush’s declarations . . . that this war is foremost about the creation of a new international order – which, in fact, is the reassertion of the old international order envisioned by the UN Charter – based on the rule of law. . . . The rule of law demands war crimes trials not merely for violations of the customs of warfare, but for the crime of waging aggressive war.179 Moreover, ‘[t]he UN Charter’s Article 2:4 incorporates the Nuremberg principle that the planning and launching of an aggressive war will be considered a fundamental breach of the law of nations’.180 Hence, ‘[t]he Iraq war demands it serve as the catalyst to revive the legacy of the Nuremberg Tribunal to give it its proper place alongside the UN Charter’.181 The hypothesis of a trial for Saddam Hussein was still under consideration by the end of the war.182 According to President

177 178 179

180 181 182

George Bush, Address Before a Joint Session of the Congress on the State of the Union on 29 January 1991. UN Doc. A/C.6/45/SR.36, at 51. ibid. Allan Gerson, ‘Making the Case against Saddam Hussein’ Legal Times (4 February 1991) in US Department of State, Persian Gulf: The question of war crimes: Hearing before the Committee on Foreign Relations, United States Senate, One Hundred Second Congress, first session, April 9, 1991 (US GPO 1991) 46–47. ibid. ibid. US President, George H Bush, Address Before a Joint Session of the Congress on the Cessation of the Persian Gulf Conflict on 6 March 1991. cf US Ambassador-at-Large for War Crimes Issues, David J Scheffer, Remarks at the Carnegie Endowment for International Peace on 27 October 1999; Prof Henry T King Jr, Remarks on Iraqi Crimes against Humanity at the Nuremberg Reunion on 22 March 1991 in US Department of State, Persian Gulf: The question of war crimes: Hearing before the Committee on Foreign Relations, United States Senate, One Hundred Second Congress, first session, April 9, 1991 (US GPO 1991) 40.

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Bush, Saddam Hussein had indeed offended the ‘principle of non-aggression against a neighbour’.183 However, since Saddam was not captured, this idea was progressively abandoned.184 In any case, in the early 1990s according to the US, an incumbent Head of State could be tried for waging an aggressive war, even though no definition of the crime had been adopted and a universal criminal court had not been established yet. This means that the Nuremberg precedent had established a solid rule of customary law and that this could form the basis of a legitimate proceeding. Furthermore, criminal responsibility was also linked to ‘aggression’ and to the principle envisaged in article 2(4) of the UN Charter.

9 Towards the adoption of the ICC Statute For a long time, the issues of defining aggression, drafting a Code of offences against the peace and security of mankind and establishing an international criminal court proved to be separate but intertwined concepts. Indeed, in 1954 the GA adopted Resolution 897 whereby any discussion on the Draft Code of Offences against the Peace and Security of Mankind was postponed until the Special Committee on aggression would have submitted a proposal for a definition of aggression.185 The same year, due to its interconnections with the Draft Code at issue, the debate on the international criminal jurisdiction was postponed as well.186 It was only when aggression was defined through the adoption of Resolution 3314 in 1974, that the GA decided to reinsert the item of the Draft Code in its 1979 provisional Agenda and invited governments to submit their comments.187 In 1980, the US delegate to the Sixth Committee of the UNGA advocated – without success – that the discussion on the item should have been deferred. First, the definition contained in Resolution 3314 ‘was not in any sense a definition of an offence’. Therefore, ‘[a] clear definition was still needed’. Second, ‘the question of international criminal responsibility was inextricably linked to the concept of an international criminal jurisdiction’. Interestingly, while replying to the criticisms concerning the ex post facto nature of the law applied at Nuremberg, the US stated that [t]hat was not the case, since the charters of the two Tribunals had been very carefully drafted to include only acts the illegality of which could not be doubted; and the acts of the persons prosecuted had related exclusively to the war. Moreover, the records of the Tribunals proved beyond a doubt that the persons who had committed such acts had been aware of their

183 US President, George Bush, Question-and-Answer Session With Students at the Saturn School of Tomorrow in St. Paul, Minnesota on 22 May 1991. 184 Schabas, ‘United States Hostility to the International Criminal Court’ (n 174) 707. 185 UNGA Res 897 (IX) (4 December 1954). 186 UNGA Res 898 (IX) (14 December 1954). 187 UNGA Res 33/97 (XXXIII) (16 December 1978).

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In 1981, the ILC started its work on the Draft Code of Offences against the Peace and Security of Mankind.189 Yet in 1991, the US delegate to the Sixth Committee, while commenting on the Draft adopted by the Commission at its frst reading, reiterated the criticisms on Resolution 3314 and added that ‘it was “axiomatic” that no nation had the right to threaten another with an act of aggression’; however, the US had ‘grave reservations whether the mere threat to engage in an aggressive act should be a criminal violation’.190 In October 1995, the US Representative to the Sixth Committee expressed his concern in relation to the defnition of the crime of aggression by stating as follows: The Commission had drawn from General Assembly resolution 3314 (XXIX) and Article 2, paragraph 4, of the Charter, neither of which provided a sufficient basis for drafting a criminal law definition or reflected the historical roots of the crime of waging aggressive war in the aftermath of the Second World War. . . . It was incorrect to say that any use of force against the territorial integrity or political independence of any State could be equated with an act of aggression under Article 39 of the Charter. The crime had been defined much too broadly and could encompass even minor intrusions or violations of territorial integrity. Certain intrusions without the permission of an affected State might be necessary to conduct non-combatant evacuation organizations, hostage rescue or demonstrations of navigational or overflight rights under international law. Such actions were not, and could not be rendered, criminal acts.191 In November, the US Deputy Legal Adviser, Jamison S Borek, claimed that because aggression was a crime of states, the UN SC should have kept its central role to avoid any risk of politicisation. Importantly, what was considered part of customary international law even before the establishment of the Nuremberg Tribunal in 1945, was now considered as not universally accepted. Indeed, [e]ven the limited concept of ‘waging a war of aggression’ was far from universally established. Many questions remained unanswered: what possible defences or mitigating factors was it possible to invoke? What was to be done in the case of a disputed territory? Where a conflict was settled by reference to the International Court of Justice, did the losing party automatically 188 UN Doc. A/C.6/35/SR.12. 189 UNGA Res 36/106 (XXXVI) (10 December 1981). 190 US Mission to the United Nations, Comments and observations submitted to the SecretaryGeneral on 1 February 1993 in ‘Contemporary Practice of the United States Relating to International Law’ (1993) 87 AJIL 595, 609. 191 UN Doc. A/C.6/50/SR.13, at 65–66.

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become guilty of waging a war of aggression? How should controversial concepts such as humanitarian intervention or a war of liberation be dealt with?192 In 1996, Ambassador-at-Large David Scheffer, however, stated that [t]he primary historical precedent was not aggression, but rather, waging a war of aggression, which was a narrower concept, relating to particular situations. A better approach would be to focus on defining the core crimes of genocide, crimes against humanity and war crimes, which would be difficult enough.193 A few days later, the Assistant Legal Adviser John Crook mentioned the fact that aggression was diffcult to defne as the reason why the US suggested not to include it among the crimes of the ICC’s jurisdiction.194 In 1997, Scheffer reiterated that the inclusion of the crime of aggression was ‘not realistic’, as there was no ‘broadly acceptable defnition’ of it.195 Hence, our proposal would require that no prosecution may be commenced before the ICC arising from a dispute or situation pertaining to international peace and security or an act of aggression which is being dealt with by the Security Council without the prior consent of the Security Council that such dispute or situation can be adjudicated, for purposes of individual criminal responsibility, by the ICC.196 So, the US position was that ‘it was important that initially the court’s jurisdiction should be confned to “hard core” crimes, such as genocide, war crimes and crimes against humanity’.197 It should come as no surprise, therefore, that in Rome, despite the US active role in the drafting process, the US delegation ended up calling for an unrecorded vote and voted against the adoption of the ICC Statute.198 The last day of the Conference, on 17 July 1998, Scheffer claimed: Any attempt to elaborate a definition of the crime of aggression must take into account the fact that most of the time it was not an individual act, 192 UN Doc. A/C.6/50/SR.27. 193 UN Doc. A/C.6/51/SR.28, at 61–62. See also UN Doc. A/C.6/51/SR.32, at 17. 194 US Assistant Legal Adviser at the Office of United Nations Affairs, John R Crook, Comments on the draft code before the Sixth Committee on 5 November 1996 in Cummins and Stewart (n 160) 577. 195 US Ambassador-at-Large for War Crimes Issues, David J Scheffer, Address before the Carter Center on 13 November 1997. 196 US Ambassador at Large for War Crimes Issues, David J Scheffer, Address at the Peace Palace, The Hague on 19 September 1997 in Cummins and Stewart (n 160) 617. 197 UN Doc. A/C.6/52/SR.13, at 38. 198 See Schabas, ‘United States Hostility to the International Criminal Court (n 174), 708. David J Scheffer, ‘The United States and the International Criminal Court’ (1999) 93 AJIL 12, 21.

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An indefinable aggression (1952–2002) instead wars of aggression existed. The Statute must also recognize the role of the Security Council in determining that aggression has been committed. No State party can derogate from the power of the Security Council under the United Nations Charter, which has the responsibility for the maintenance of international peace and security.199

Following the adoption of the Statute, on 23 July 1998, Scheffer stated before the Committee on Foreign Relations of the US Senate: we are disappointed with the treatment of the crime of aggression. We and others had long argued that such a crime had not been defined under customary international law for purposes of individual criminal responsibility. We also insisted, as did the International Law Commission in 1994, that there had to be a direct linkage between a prior Security Council decision that a state had committed aggression and the conduct of an individual of that state. The statute of the court now includes a crime of aggression, but leaves it to be defined by a subsequent amendment to be adopted seven years after entry into force. There is no guarantee that the vital linkage with a prior decision by the Security Council will be required by the definition that emerges, if in fact a broadly acceptable definition can be achieved. We will do all we can to ensure that such linkage survives.200 A few months later, he announced to the Sixth Committee of the UNGA that the US was not going to sign the Statute, arguing – inter alia – that the inclusion of an undefned crime of aggression was a fundamental concern for the US.201 By contrast, on 31 December 2000, President Clinton made known that the US would have signed it;202 whereas in May 2002 the Under Secretary of State, John Bolton, notifed the Secretary General of the UN of the US intention to suspend its signature of the treaty.203 Yet one might wonder which legal effect – if any! – could the practice of ‘unsigning’ an international agreement actually have.204 199 Ambassador David J Scheffer, Remarks at the Conference on the Establishment of the International Criminal Court, Rome on 17 July 1998 in Cummins and Stewart (n 160) 627. See also Ambassador-at-Large for War Crimes Issues, David J Scheffer, Statement 31 August 1998. 200 Ambassador David J Scheffer, Remarks on behalf of the Department of State before the Senate Foreign Relations Committee on 23 July 1998 in Cummins and Stewart (n 160) 632. 201 UNGA Sixth Committee (53rd Session), ‘United States Will Not Sign Statute Establishing International Criminal Court in its Present Form, Sixth Committee Told’ (21 October 1998) accessed 12 May 2019. 202 US President, William J Clinton, Statement by US President Bill Clinton, authorizing the US signing of the Rome Statute of the International Criminal Court on 31 December 2000. 203 US Under Secretary of State for Arms Control and International Security, John R Bolton, Letter to UN Secretary General Kofi Annan on 6 May 2002 in Sally J Cummins and David P Stewart (eds), Digest of United States Practice in International Law 2002 (International Law Institute 2003) 148–149. 204 Harold H Koh, The Trump Administration and International Law (OUP 2018) 41.

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Subsequent to this decision, indeed, the ICC has treated the US as a signatory state, every time they wanted to participate in the Assembly of States Parties’ meetings. For instance, in 2010 the US participated in the Kampala Review Conference as an ‘observer state’, a status reserved to signatory states pursuant to article 112 (1) ICC Statute.205 In 2002, for the last time, the US joined the other delegations in the Preparatory Commission, the body where discussions on aggression were continuing after Rome.206 On that occasion, the Assistant to the US Legal Adviser, Stephen Mathias, made it clear that: under customary international law not every use of force that is inconsistent with Article 2, paragraph 4 of the Charter would properly be found to constitute aggression. . . . Simply stated, customary international law reserves for the category of aggression a particular kind of use of force, characterized by sufficient gravity to merit that description. . . . [T]he words ‘the use of armed force to attack,’ while going in the right direction, does not bring the definition within the customary law parameters of Nuremberg and the corollary standards of the Tokyo trials. The London Charter’s reference to a ‘war of aggression’ provides guidance on the customary law threshold that we must reflect in our work here. . . . We do not agree with a number of delegations . . . that would seek to define aggression by means of an itemized list of examples of acts. Thus we would not agree that the definition should include reference to or inclusion of the list of acts set forth by the General Assembly in Article 3 of resolution 3314 (XXIX), a resolution which, as the sponsors have noted, was elaborated for purposes other than those of criminal responsibility and for other audiences.207

10 Conclusion This chapter has shown how during the Cold War, especially in the first decades, the US Administration intervened in Latin America while relying on the relevant regional treaties on collective security. Communism was indeed included among the threats for the Western Hemisphere. Moreover, the times when the US used aggression to criticise its political opponents constitute important precedents

205 See also Rule 1 of the ICC Draft Rules of Procedure of the Kampala Review Conference, or Rule 1 of the Rules of Procedure of the Assembly of States Parties. 206 US Assistant Legal Adviser for United Nations Affairs, Stephen M Mathias, Presentation concerning the crime of aggression made before the ICC Preparatory Commission on 26 September 2001 in Sally J Cummins and David P Stewart (eds), US Digest of United States Practice in International Law 2001 (International Law Institute 2002) 173. 207 ibid. See also Ambassador David J Scheffer, Address at the Twelfth Annual US Pacific Command, International Military Operations and Law Conference held in Honolulu on 23 February 1999 in Cummins and Stewart (n 160) 639–640; UN Doc. A/C.6/57/SR.14, at 12; UN Doc. A/C.6/57/SR.20, at 38.

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(e.g. the case of the 1968 Soviet invasion of Czechoslovakia which led the US to specify its view on the requirement of consent by the state of territoriality). While with the adoption of the UNGA’s Resolution 2625 the US agreed that a ‘war of aggression’ was to be considered a ‘crime against peace’, for decades the US claimed that it was impossible to define aggression and, as a consequence, any debates on an international criminal court should have been postponed. Then, when in 1974 Resolution 3314 was adopted, the US Representatives stated that it was not relevant for international criminal law purposes. However, its article 3 did not significantly differ from the definition which Jackson submitted at the 1945 London Conference. Moreover, precedents such as the discussions within the US Administration on the possibility of prosecuting Saddam Hussein for the invasion of Kuwait show that for the US Administration, a crime of aggression had crystallised in customary law and its content has been affected by the adoption of the UN Charter. It was indeed the blatant violation of the UN Charter, often linked with the Nuremberg precedent, to give rise to the individual criminal responsibility of Saddam Hussein. Notably, the US Administration did not consider the lack of any definition of aggression for criminal purposes as a sine qua non for prosecuting the Iraqi President. In Rome, however, the US opposed the insertion of aggression among the crimes over which the ICC should have had jurisdiction. They argued that no precise definition of the crime existed under customary law. This led to a tense relationship between the two actors. In particular, the US decided to ‘unsign’ the Rome Statute and to abandon the debates within the Preparatory Commission in 2002. These events marked the beginning of a US seven-year absence from negotiations.

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Ruys T., ‘Armed Attack’ and Article 51 of the UN Charter: Evolutions in Customary Law and Practice (CUP 2010) Schabas W. A., ‘United States Hostility to the International Criminal Court: It’s All About the Security Council’ (2004) 15 EJIL 701 Schachter O., ‘United Nations Law in the Gulf Conflict’ (1991) 85 AJIL 452 Scharf M. P. and Williams P. R., Shaping Foreign Policy in Times of Crisis (CUP 2010) ———, Customary International Law in Times of Fundamental Changes (CUP 2013) Scheffer D. J., ‘The United States and the International Criminal Court’ (1999) 93 AJIL 12 Schwar H. D. (ed), Foreign Relations of the United States, 1964–1968, China (US GPO 1998 vol XXX) Scott J. M., Deciding to Intervene: The Reagan Doctrine and American Foreign Policy (Duke University Press 1996) Sieg K. (ed), Foreign Relations of the United States, 1964–1968, Vietnam, 1967 (US GPO vol V) Smith L. J. (ed), Foreign Relations of the United States, 1961–1963, Cuba, January 1961 – September 1962 (US GPO 1997 vol X) ———, Foreign Relations of the United States, 1964–1968, Arab-Israeli Dispute, 1967–68 (US GPO 2001 vol XX) Sofaer A. D., ‘Terrorism and the Law’ (1985–1986) 64 Foreign Affairs 901 ———, ‘International Law and Kosovo’ (2000) 36 StanJIntlL 1 ———, ‘On the Necessity of Pre-emption’ (2003) 14 EJIL 209 Taylor T., Nuremberg and Vietnam: An American Tragedy (Quadrangle Books 1970) Tomsen P., The Wars of Afghanistan: Messianic Terrorism, Tribal Conflicts, and the Failures of Great Powers (PublicAffairs 2011) UNDPA, Repertoire of the Practice of the Security Council: Supplement 1989–1992 (UN Publications 2008) US Department of State, Press Guidance in ‘Contemporary Practice of the United States Relating to International Law’ (1990) 84 AJIL 536 ———, Persian Gulf: the question of war crimes: hearing before the Committee on Foreign Relations, United States Senate, One Hundred Second Congress, first session, April 9, 1991 (US GPO 1991) Walters V. A., Statement before the Security Council on 15 April 1986 Warren A. and Bode I., Governing the Use-of-Force in International Relations: The Post-9/11 US Challenge on International Law (Palgrave Macmillan 2014) Whiteman M. J., Digest of International Law (US GPO 1963 vol V) ———, Digest of International Law (US GPO 1971 vol XII)

5

A treaty-based crime of aggression (2003–2020)

1 Introduction Whilst for a long time the US had claimed that it was impossible to reach any agreement on a definition of aggression, the adoption of the 1974 resolution contradicted this assumption. As a consequence, the debates on the establishment of an international criminal court could start again and in 1998 this process culminated in the adoption of the Rome Statute, whose article 5 (2) enlisted the crime of aggression among the crimes over which the Court shall have jurisdiction. This made the relationship between the US and the International Criminal Court (hereinafter ‘the Court’ or ‘ICC) particularly tense: they decided not to ratify the Statute and in 2002 abandoned the debates within the Preparatory Commission. The US absence from negotiations lasted for seven years. Then, under President Obama, the US changed attitude and participated as an active observer in the 2010 Kampala Review Conference. On that occasion, states parties adopted a definition of aggression which, according to the US, does not correspond to customary international law as it makes reference to Resolution 3314. Indeed, in Nuremberg – that is the relevant international precedent – only those acts linked to the waging of an aggressive war were criminalised. At the Review Conference, the US representatives tried to influence the definition by submitting a number of Understandings, mostly dealing with two ‘grey areas’ of the jus ad bellum, that is, the issues of unilateral humanitarian intervention and pre-emptive selfdefence as it had been interpreted by the US Administration after the 2001 terrorist attacks. The US persistent opposition towards the activation of the Court’s jurisdiction over aggression and, under President Trump, towards the Court tout court, has characterised the decade following Kampala, before, as well as after, the amendment’s entry into force and the decision of the Assembly of the States Parties (hereinafter ASP) to activate the Court’s jurisdiction in 2018. This chapter focuses on the analysis of the US position in Kampala and subsequent to it. Much of the attention is paid to the Understandings annexed to Resolution RC/Res 6. It will be concluded that they cannot bar those states which apply the principle of universal jurisdiction to do so with regard to aggressions committed by US leaders who are not in office any more. Hence, the main issue is to show whether the Kampala amendment does or does not reflect customary

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law, which makes an analysis of the relevant parts of the amendment necessary. Two subsections are dedicated to a discussion of the two ‘grey areas’ of the jus ad bellum, namely unilateral humanitarian intervention and self-defence as it has been interpreted by the US over the last decades. The third last subsection deals with the legal justifications advanced by the US in relation to the 2003 Iraqi War, while two subsections concern the US position regarding cyber aggressions and self-defence in the outer space, respectively. The last section focuses on the US practice after Kampala and its attitude towards the crime of aggression.

2 The Kampala Review Conference 2.1 The US position in Kampala In the aftermath of the Rome Conference, the discussions in relation to aggression continued within the Preparatory Commission.1 Facing the impossibility to reach any agreement on a definition of the crime, in 2002 the ASP to the ICC established a Special Working Group on Aggression which submitted its definitive proposal in 2009.2 In the meantime, the tense relationship between the US and the ICC warmed up in 2005, when the US did not veto the United Nations (hereinafter ‘UN’) Security Council (hereinafter ‘SC’) resolution referring the situation in Darfur to the Court.3 Yet it was only in November 2009 that the US participated as an observer to the ASP, when Ambassador Stephen Rapp expressed US concerns about aggression, defining it an issue to be addressed ‘with extreme care’.4 A few months later, in compliance with article 123 (1) of the Rome Statute (hereinafter ‘the Statute’), states parties to the ICC convened in Kampala (Uganda) for the first Review Conference of the Statute. On that occasion, they adopted by consensus Resolution RC/Res 6, along with some amendments to the Statute (i.e. article 8bis and articles 15bis and 15ter) which were annexed to it. The US, again participating as an observer, had a very constructive approach. Since it was clear that delegates were not inclined to reopen the debate on definitional aspects, the US mainly aimed at adopting a number of Understandings which were meant to influence future interpretation of the amendments.5 The 1 ‘Final Act of the UN Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court’ (17 July 1998) UN Doc A/CONF.183/10, Resolution F, para. 7. 2 As for the establishment of the Special Working Group, see ICC Assembly of States Parties, Resolution on Continuity of Work in Respect of the Crime of Aggression adopted on 9 September 2002 by consensus (PCNICC/2002/2/Add.2). As for the 2009 definitive proposal, see ICC-ASP/7/20/Add.1. 3 UNSC Res 1593 (31 March 2005) UN Doc S/RES/1593. See also UNSC, ‘Security Council Refers Situation in Darfur, Sudan, to Prosecutor of International Criminal Court’ (31 March 2005) Press Release SC/8351. 4 US Ambassador-at-Large for War Crimes, Stephen J Rapp, Statement before the Assembly of States Parties on 19 November 2009. 5 Niels Blokker and Claus Kress, ‘A Consensus Agreement on the Crime of Aggression: Impressions from Kampala’ (2010) 23 LJIL 889, 892.

A treaty-based crime of aggression 193 risks linked to the definition were indeed described by Harold Hongju Koh, US Legal Adviser, in his address to the Conference at its plenary on 4 June 2010. First is the risk of criminalizing lawful uses of force. No one has ever before successfully prosecuted mere acts of aggression, as opposed to the ‘wars of aggression’ that were prosecuted in Nuremberg and Tokyo. Many of the acts listed in Article 8bis might be elements of an illegal ‘war of aggression’ – the crime that was actually prosecuted at Nuremberg and that is discussed in Resolution 3314 – but if committed in isolation, would not necessarily qualify as the crime of aggression. The current definition in article 8bis does not fully acknowledge, as president Obama did in his recent Nobel acceptance speech, that certain uses of force remain both lawful and necessary. If article 8bis were to be adopted as a definition, understandings would need to make clear that those who undertake efforts to prevent war crimes, crimes against humanity or genocide – the very crimes that the Rome Statute is designed to deter – do not commit ‘manifest’ violations of the UN Charter within the meaning of article 8bis. Regardless of how states may view the legality of such efforts, those who plan them are not committing the ‘crime of aggression’ and should not run the risk of prosecution. At the same time, in order for an investigation or prosecution to proceed, it must be shown that it was manifest that the action was not undertaken in self-defense, without the consent of the state in question, and without any authorization provided by the Security Council. A second risk is that adopting Article 8bis as the definition of aggression does not truly reflect customary international law. . . . Although supporters of the Article 8bis definition claim that it mirrors the provisions of General Assembly Resolution 3314, in fact the text departs from that resolution in significant ways. Resolution 3314 states that only the most serious and dangerous forms of illegal uses of force constitute aggression, with the determination whether an act of aggression has occurred requiring careful consideration of the circumstances of each particular case, including the purpose for which force was used. Unlike genocide, war crimes, and crimes against humanity – which plainly violated customary international law when the Rome Statute was adopted – as yet, no authoritative definition of aggression exists under customary international law. If the Article 8bis language is not adapted to bring it into conformity with customary international law, it should be made clear that the language is being adopted only for purposes of implementing the Rome Statute and is not intended as an authoritative statement of customary international law. . . . A third risk is that of unjustified domestic prosecutions. Too little attention has yet been paid to the question of how, if at all, the principle of complementarity would apply to the crime of aggression.6

6 US Legal Adviser of the Department of State, Harold Hongju Koh, Statement at the Review Conference of the International Criminal Court on 4 June 2010 [emphasis added]. See also US President, Barack H Obama, Nobel Lecture on 10 December 2009. For an analysis of the

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Hence, the three main arguments of the US delegates can be summarised as follows. First, there was a difference between an ‘act of aggression’ and a ‘war of aggression’, the latter was much narrower than the former and was the only one that had ever been the subject of an international criminal prosecution. Second, the defnition adopted did not mirror customary international law as it departed signifcantly from Resolution 3314, which considered aggressions only the most serious and dangerous illegal uses of force; also, the amendment failed to recognise the importance of ‘purposes’ when a state resorts to force. Notably, before an investigation could even begin, the burden should have been on the prosecution to prove that the use of force was manifestly not taken in self-defence, nor with the consent of the territorial state or with the UN SC authorisation. Third, there was a risk of unjustifed domestic prosecutions as the principle of complementarity had been overlooked. A non-Paper circulated by the US representatives on 7 June addressed these issues. It amended another non-Paper, which, as a result of the US pressures at the ASP, already contained a list of Understandings,7 but had merely focused on non-jurisdictional matters. First, according to the US non-Paper, the amendment should not have been ‘interpreted as creating any right or obligation to exercise domestic jurisdiction with respect to an act of aggression committed by another State’.8 Second, the definition should not have been ‘interpreted as constituting a statement of the definition of “crime of aggression” or “act of aggression” under customary international law’, while only the former was to be ‘considered a crime against international peace’.9 In any case, in order to determine whether an act of aggression was committed, ‘all the circumstances of each particular case, including the purpose for which force was used and the gravity of the acts concerned or their consequences’ needed to be considered.10 Also, It is understood that, for the purpose of the Statute, an act of aggression cannot be considered to be a manifest violation of the United Nations Charter unless it would be objectively evident to any State conducting itself in the matter in accordance with normal practice and in good faith, and thus an act undertaken in connection with an effort to prevent the commission of any of the core crimes contained in Articles 6, 7 or 8 of the Statute would not constitute an act of aggression.11

7

8 9 10 11

Nobel acceptance speech, and more generally, the Obama Administration’s position on unilateral use of force based on necessity and/or humanitarian grounds, see Aiden Warren and Ingvild Bode, Governing the Use-of-Force in International Relations: The post 9/11 US Challenge on International Law (Palgrave Macmillan 2014) 82–91 and 96–98. ‘Non-Paper by the Chair: Further Elements for a Solution on the Crime of Aggression’ (RC/WGCA/2) in Stefan Barriga and Claus Kreß (eds), The Travaux Préparatoires of the Crime of Aggression (CUP 2012) 743, para 4. ‘Non-Paper by the United States’ in Barriga and Kreß (eds), The Travaux Préparatoires (n 7) 751. ibid. ibid. ibid.

A treaty-based crime of aggression 195 Third, the US proposal stated: It is understood that, for the purpose of the Statute, an act cannot be considered a manifest violation of the United Nations Charter absent a showing that it was undertaken without the consent of the relevant state, was not taken in self-defence, and not within any authorization provided by the United Nations Security Council. It is understood that in determining whether an act is manifest, all three components of character, gravity, and scale must be sufficient to justify a ‘manifest’ determination. Satisfaction of one criterion could not by itself be sufficiently severe to meet the ‘manifest’ requirement.12 Two days later, the representative of Spain expressed some irritation for the fact that delegates were discussing the US Understandings at such a late stage.13 Bill Lietzau, who was representing the US then said: We have been asked, and we have agreed, not to reopen the definition. But we ask you to consider our understandings. Doing this at an Assembly of States Parties undermines the point, which is to do it before it becomes operational.14 Subsequently, Claus Kress, head of the German delegation, submitted a paper which followed a ‘minimalist approach’ and provided for the Understandings X and Y. UNDERSTANDING X It is understood that a determination whether an act of aggression has been committed requires consideration of all the circumstances of each particular case, including the purposes for which force was used and the gravity of the acts concerned and their consequences; and that only the most serious and dangerous forms of illegal use of force constitute aggression. UNDERSTANDING Y It is understood that in establishing whether an act of aggression constitutes a manifest violation of the Charter of the United Nations, each of the three components of character, gravity and scale must independently be sufficient to justify a ‘manifest’ determination.15

12 ibid. 13 William A Schabas, ‘Kampala Diary 9/6/10’ (The ICC Review Conference: Kampala 2010, 10 June 2010) http://iccreviewconference.blogspot.co.uk/2010/06/kampala-diary-9610. html accessed 17 May 2019. 14 ibid. 15 See ’2010 Focal Points’ Draft Understandings’ in ‘Non-Paper by the United States’ in Barriga and Kreß (eds), The Travaux Préparatoires (n 7) 773. [emphasis added].

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Kress eventually circulated an amended paper which met general agreement and came as a result of an unusual compromise between Iran and USA.16 Under the new Understanding X (later Understanding 6), any reference to the ‘purposes’ disappeared and the formula ‘in accordance with the Charter of the United Nations’ was inserted instead. Moreover, as it had already been the case for its previous version, the part of the US proposal referring to the humanitarian grounds was cut off as it had been rejected by the majority of states.17 As for Understanding Y (later Understanding 7), the formula ‘each of the three components’ left the way to ‘the three components’, whereas the sentence ‘no one component can be signifcant enough to satisfy the manifest standard by itself’ was added. In other words, two out of the three components could now be suffcient to meet the ‘manifest requirement’. Therefore, for example, ‘gravity’ and ‘scale’ could be serious enough to prove the existence of a ‘manifest’ violation of the UN Charter.18 Claus Kress has claimed that ‘[t] he objective requirement of manifest illegality already has the effect of excluding from the state conduct element any use of armed force that falls into the “grey area” of the prohibition on the use of force’.19 Professor Kress relied on the 2008 report of the Special Working Group on the Crime of Aggression, whose paragraph 24 stated that: ‘Delegations supporting this threshold clause noted that it would appropriately limit the Court’s jurisdiction to the most serious acts of aggression under customary international law, thus excluding cases of insufficient gravity and falling within a grey area’.20 This actually excluded just those cases of both insufficient gravity and falling within the grey area, and it only stressed the view of those who supported the insertion of the threshold clause. By contrast, the mere fact that the US tried hard – and unsuccessfully – to include an explicit reference to the purposes demonstrates that in Kampala unilateral humanitarian intervention was not implicitly excluded.21 The outcome of the Conference was, however, considered satisfactory by the US delegates. At the press briefing following the closure of the Conference, Koh stated as follows:

16 Schabas, ‘Kampala Diary’ (n 13). 17 See Claus Kress, Stefan Barriga, Leena Grover and Leonie Von Holtzendorf, ‘Negotiating the Understandings on the Crime of Aggression’ in Barriga and Kreß (eds), The Travaux Préparatoires (n 7) 93. 18 David Scheffer, ‘The Complex Crime of Aggression under the Rome Statute’ (2010) 23 LIJL 897, 900. 19 Claus Kress and Leonie Von Holtzendorf, ‘The Kampala Compromise on the Crime of Aggression’ (2010) 8 JICJ 1179, 1200. See also Carrie McDougall, The Crime of Aggression under the Rome Statute of the International Criminal Court (CUP 2013) 132. See also Claus Kress, ‘The State Conduct Element’ in Claus Kress and Stefan Barriga, The Crime of Aggression: A Commentary (CUP 2017 vol I) 509 and 535–536. 20 See ICC-ASP/6/20/Add.1, Annex II. 21 cf Claus Kress, ‘Time for decision: Some Thoughts on the Immediate Future of the Crime of Aggression: A Reply to Andreas Paulus’ (2010) 20 EJIL 1129, 1140–1141.

A treaty-based crime of aggression 197 We think that . . . the outcome protected our vital interests. The court cannot exercise jurisdiction over the crime of aggression without a further decision to take place sometime after January 1st, 2017. . . . No U.S. national can be prosecuted for aggression so long as the U.S. remains a non-state party. And if we were to become a state party, we’d still have the option to opt out from having our nationals prosecuted for aggression. . . . The United States considered the definition of aggression flawed, but a number of important safeguards were adopted. Understandings were adopted to make the definition more precise, to ensure that the crime will be applied only to the most egregious circumstances.22 While the legal value of such Understandings could still be subjected to debate, the following sections will question whether these safeguards are indeed functional to the US diplomatic goals.23

2.2 The rationale behind the US position: customary law and universal jurisdiction In Kampala, the US Administration aimed at making it clear that the definition did not codify, create or crystallise any rule of customary international law. Understandings 4 and 5 read as follows: 4.

5.

It is understood that the amendments that address the definition of the act of aggression and the crime of aggression do so for the purpose of this Statute only. The amendments shall, in accordance with article 10 of the Rome Statute, not be interpreted as limiting or prejudicing in any way existing or developing rules of international law for purposes other than this Statute. It is understood that the amendments shall not be interpreted as creating the right or obligation to exercise domestic jurisdiction with respect to an act of aggression committed by another State.24

By adopting Understanding 4, the US delegation aimed at clarifying that the amendment could not infuence the defnition of both the crime and the act of aggression under customary international law. Understanding 5, whose scope extends to any state, however, seems to contrast with the rationale behind Understanding 4. Provided that the latter would somehow reach its aims, how could the amendment infuence the practice of those states who are not parties to the Statute and lead them to initiate national proceedings for crimes under

22 John R Crook (ed), ‘Contemporary Practice of the United States Relating to International Law’ (2010) 104 AJIL 489, 513–514. 23 See Kress, Barriga, Grover and Von Holtzendorf (n 17) 83. See also Kevin J Heller, ‘The Uncertain Legal Status of the Aggression Understandings’ (2012) 10 JICJ 229. 24 ICC Assembly of States Parties, Resolution RC/Res.6, 13th plenary meeting, 11 June 2010 (adopted by consensus), Annex III.

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international customary law? The very submission of an Understanding whose main object was to exclude any effect by article 8bis on international customary law unveils that the US delegates in fact believed the former could at least have some impact on the latter.25 This fnds confrmation in the US attempt to include the Understandings concerning the so-called grey areas of the jus ad bellum. Why insist on their approval at all if the Kampala defnition could not affect customary law and, in addition, cases such as unilateral humanitarian interventions were de lege lata excluded from any criminalisation? What is true with regard to article 10 of the Statute is moreover a fortiori applicable to Understanding 4.26 As Professor William Schabas has pointed out, ‘[a] rticle 10 appears to be largely ignored by the very bodies to which it is directed, namely specialized tribunals engaged in the interpretation of international law’.27 This means that the Rome Statute ‘will inevitably influence the evolution of international law’.28 According to article 34 of the Vienna Convention on the Law of the Treaties, indeed, ‘[n]othing in articles 30 to 33 precludes a rule set forth in a treaty from becoming binding upon a third State as a customary rule of international law’.29 This is because the formation of customary international law might come as a result of a spontaneous, and at least partially involuntary, process.30 The American Law Institute, in its Restatement of International Law, affirmed that [s]ome multilateral agreements may come to be law for non-parties that do not actively dissent. That may be the effect where a multilateral agreement is designed for adherence by states generally, is widely accepted, and is not rejected by a significant number of important states.31 The ICC Statute – which has been already ratifed by more than 120 states – is for sure one of those multilateral agreements. Notably, ‘[a]n agreement may have that effect even before it enters into force’.32 It is in addition doubtful that when they sign a treaty (or adopt an amendment to it), states can decide which effects it will have on a customary rule applicable to all international legal subjects. While a subsequent treaty law can amend a

25 cf Prosecutor v. Furundzjia (Judgement) IT-95–17/1-T [227]. 26 cf ILA, Final Report on Aggression and the Use of Force (2018) 29. 27 William A Schabas, The International Criminal Court: A Commentary on the Rome Statute (OUP 2010) 271. 28 ibid. 29 Vienna Convention on the Law of Treaties (the Vienna Convention) (open to signature 23 May 1969, entered into force 27 January 1980) 1155 UNTS 331. 30 Tullio Treves, ‘Customary International Law’ (Max Planck Encyclopedia of Public International Law, 2010) 2. 31 American Law Institute, Restatement of the Law, the Foreign Relations Law of the United States (3rd ed, American Law Institute Publishers 1990) § 102, comment i. 32 American Law Institute, Restatement of the Law, the Foreign Relations Law of the United States (Students ed, 3rd ed, American Law Institute Publishers 1990 vol 1) 195.

A treaty-based crime of aggression 199 previous (i.e. already-existing) custom,33 if, as asserted by the US, the Kampala amendment is not reflecting customary law, which instead should be deemed to correspond to the narrower-in-scope precedent set in Nuremberg, it is not possible for the Understandings to establish which kind of effects article 8bis will have on previous customary norm, nor it is possible to conclude that it won’t necessarily become custom itself. When it comes to customs not yet crystallised or not even yet in nuce, states parties to a multilateral treaty cannot foresee – let alone decide – how this latter will influence their practice and opinio juris (and those of states not parties to the treaties) in the future.34 As for the act of aggression, in any case, article 25(4) of the Rome Statute prevents article 8bis from having any effects on the responsibility of states.35 Coming to Understanding 5, it was due to the US concerns in relation to the effects deriving from the application of the principle under article 17 of the Statute.36 They believed that ‘article 17 of the Rome Statute merely refers to “a State which has the jurisdiction” over crimes, but does not address the question as to when States should establish such jurisdiction’.37 Article 8bis does not provide for any exceptional regime in relation to complementarity. Yet for acts of aggression committed by nationals of states parties, whatever would be the effect of Understanding 5, with the sole – and still often questionable – exception of the state of nationality of the suspected/accused, the ICC is likely to be the only appropriate forum for aggression.38 Pursuant to article 17.2 (c) of the Statute, the Court might indeed summon any case every time the state of territoriality (which will be different from the one of active nationality) initiates a domestic prosecution. A national proceeding dealing with the crime of aggression might easily be found in violation of a fundamental defence right, namely the right to a fair and impartial trial. National judges are indeed unlikely to meet the ‘objective test’ requiring judges to be seen as offering ‘guarantees sufficient to exclude any legitimate doubt’.39 Yet states will have to exercise certain functions, including the ones relating to the enforcement measures of an arrest warrant. The political nature of the crime can in no way be an excuse for states parties not to surrender the accused or the suspected to the Court.40 It must be noted, moreover, that 33 Christopher Greenwood, ‘Sources of International Law: An Introduction’ (2008) accessed 22 February 2020. 34 States could, however, sign a regional agreement affecting a regional custom. See Antonio Cassese, International Law (2nd ed, OUP 2005) 163 ff. 35 According to article 25(2) ICC Statute: ‘No provision in this Statute relating to individual criminal responsibility shall affect the responsibility of States under international law’. 36 Koh (n 6). cf ‘Non-Paper by the Chair: Further Elements for a Solution on the Crime of Aggression’ in Barriga and Kreß (eds), The Travaux Préparatoires (n 7) 734. 37 ibid. 38 See ‘1996 ILC Draft Code of Crimes, with Commentary (excerpts)’ in Barriga and Kreß (eds), The Travaux Préparatoires (n 7) 195. 39 Padovani v. Italy (1993) Series A no 257-B, para. 25. 40 Bert Swart, ‘Arrest and Surrender’ in Antonio Cassese, Paola Gaeta and John R W D Jones (eds), The Rome Statute of the International Criminal Court: A Commentary (OUP 2002) 1682–1683.

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when in December 2017 the ASP decided to activate the Court’s jurisdiction on aggression from July 2018,41 they made clear that the Court will have jurisdiction only if the aggressor is a party to the Statute, has ratified the Kampala amendment and if the victim is another state party.42 This will inevitably have strong implications on the principle of complementarity. As for the US leaders, pursuant to article 15bis (5),43 they are at present shielded from any hypothetical proceedings before the Court. Understanding 5 could yet have some relevance in case of a future US adherence to the Statute and, most notably, it can be linked to the controversial concept of universal jurisdiction. Some legal systems allow prosecution of nationals of third countries for the commission of international crimes of a customary nature.44 In the US, for example, domestic courts can exercise jurisdiction in civil proceedings over certain offences, because they are universal crimes under customary international law.45 Already in 1820, in United States v Smith, the US Supreme Court upheld the exercise of universal jurisdiction by a US court in relation to piracy. According to the Court, ‘pirates being hostis humani generis are punishable in the tribunals of all nations’.46 In this respect, Michael Scharf has pointed out that ‘Nuremberg and its progeny provide a customary international law basis for prosecuting the crime of aggression under the universality principle’.47 It might not be a mere coincidence, therefore, that in 1999 David Scheffer asserted that ‘not all the crimes within the subject matter jurisdiction of the Court . . . enjoy universal jurisdiction under customary international law’.48 In other words, even admitting that the definition would not confer on states any new right (or duty!) to prosecute, this cannot be equal to say that article 8bis could bar a state from applying a custom if it merely codifies it. This is a fortiori 41 ICC Assembly of States Parties, ICC-ASP/16/Res.5, 13th plenary meeting, 14 December, June 2017 (adopted by consensus). 42 article 15bis (4) ICC Statute. However, see Nikolas Stürchler, ‘The Activation of the Crime of Aggression in Perspective’ (EJIL: Talk!, 26 January 2018) accessed 8 January 2019; Dapo Akande and Antonios Tzanakopoulos, ‘Treaty Law and ICC Jurisdiction over the Crime of Aggression’, 29 EJIL 3 (2018) 939. 43 According to article 15bis (5) ICC Statute, ‘[i]n respect of a State that is not a party to this Statute, the Court shall not exercise jurisdiction over the crime of aggression when committed by that States’ nationals or in its territory’. 44 See Michael P Scharf, ‘Universal Jurisdiction and the Crime of Aggression’ (2012) 53 HarvIntlLJ 358. See also Princeton Project on Universal Jurisdiction, The Princeton Principles on Universal Jurisdiction (PUP 2001). 45 US Submission to the UN Secretary General on 4 May 2010 in Elizabeth R Wilcox, Digest of United States Practice in International Law 2010 (OUP 2011) 53. See also Antonio Cassese, ‘When May Senior State Officials Be Tried for International Crimes? Some Comments on the Congo v. Belgium Case’ (2002) 13 EJIL 853, 859. 46 Michael P Scharf, Customary International Law in Times of Fundamental Changes (CUP 2013) 92. 47 ibid 105. 48 US Ambassador-at-Large for War Crimes Issues, David J Scheffer, Address at the Annual Meeting of the American Society of International Law on 26 March 1999.

A treaty-based crime of aggression 201 true in relation to non-party states. In other words, the Understandings adopted in Kampala might not prevent states from exercising universal jurisdiction and prosecuting a foreign leader (e.g. a former Head of State or other state officials) for aggression before their national courts if there exists a customary rule which corresponds (at least in its noyau dur) to the 2010 amendment. An analysis of the amendment is then necessary. In particular, the Charter of the UN, to which the amendment makes an explicit reference, might play a decisive role in clarifying whether article 8bis reflects customary law.

2.3 The Kampala amendment The adoption of a definition of the crime of aggression has been celebrated as the most important outcome of the Kampala Review Conference.49 At the very last moment, states adopted by consensus Resolution RC/Res 6, to which some amendments to the Statute (i.e. article 8bis and articles 15bis and 15ter) were annexed. Its relevant parts read as follows: ANNEX I to RC/Res. 6 Article 8bis Crime of aggression 1.

2.

For the purpose of this Statute, ‘crime of aggression’ means the planning, preparation, initiation or execution, by a person in a position effectively to exercise control over or to direct the political or military action of a State, of an act of aggression which, by its character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations. For the purpose of paragraph 1, ‘act of aggression’ means the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations. Any of the following acts, regardless of a declaration of war, shall, in accordance with United Nations General Assembly resolution 3314 (XXIX) of 14 December 1974, qualify as an act of aggression: (a) The invasion or attack by the armed forces of a State of the territory of another State, or any military occupation, however temporary, resulting from such invasion or attack, or any annexation by the use of force of the territory of another State or part thereof;

49 See Jennifer Trahan, ‘The Rome Statute’s Amendment on the Crime of Aggression: Negotiations at the Kampala Review Conference’ (2011) IntlCLR 49, 88; Gregory Gordon, ‘A View of the Aggression Amendments from Kampala’ (Opinio Juris, 15 June 2010) accessed 03 July 2020.

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A treaty-based crime of aggression (b) Bombardment by the armed forces of a State against the territory of another State or the use of any weapons by a State against the territory of another State; (c) The blockade of the ports or coasts of a State by the armed forces of another State; (d) An attack by the armed forces of a State on the land, sea or air forces, or marine and air fleets of another State; (e) The use of armed forces of one State which are within the territory of another State with the agreement of the receiving State, in contravention of the conditions provided for in the agreement or any extension of their presence in such territory beyond the termination of the agreement; (f) The action of a State in allowing its territory, which it has placed at the disposal of another State, to be used by that other State for perpetrating an act of aggression against a third State; (g) The sending by or on behalf of a State of armed bands, groups, irregulars or mercenaries, which carry out acts of armed force against another State of such gravity as to amount to the acts listed above, or its substantial involvement therein.50

The defnition makes reference to the UNGA Resolution 3314 (1974), incorporates its article 3 and provides for a formula aimed at limiting the Court’s jurisdiction to the worst forms of illegal use of force. The act of aggression must indeed constitute a manifest violation of the UN Charter by its character, gravity and scale. The most relevant provision of the UN Charter is its article 2(4) according to which, ‘[a]ll Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations’. This corresponds to an identical rule of customary international law.51 The International Law Commission (ILC) has moreover considered this principle as jus cogens,52 namely a ‘rule accepted by the international community of

50 ICC Assembly of States Parties (n 24) Annex II. 51 Case Concerning Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. United States of America) (Merits) General List 70 [1986] ICJ at 190. See also Antonio Cassese, Diritto internazionale – I I lineamenti (Paola Gaeta ed, Il Mulino 2003) 80–81; Antonio Cassese, ‘Terrorism is Also Disrupting Some Crucial Legal Categories of International Law’ (2001) 12 EJIL 993, 1000; Yoram Dinstein, War, Aggression and SelfDefence (CUP 2001) 94; Kress (n 21) 1132; Andreas Paulus, ‘Second Thoughts on the Crime of Aggression’ (2010) 20 EJIL 1117, 1118. 52 ILC, ‘Final Report on Draft Articles on the Law of the Treaties with Commentaries adopted at its 18th session’, in Yearbook of the International Law Commission 1966, vol II UN Doc. A/CN.4/SER.A/1966/Add.l, 247. See also Federal Administrative Court, Order of 21 June 2005, BVerwG 2 WD 12.04 as cited by ILC, ‘Fourth report on peremptory norms of general international law (jus cogens) by Dire Tladi, Special Rapporteur’ (2019) UN Doc. A/CN.4/727, at 66; Cassese (n 34) 202; Cassese (n 51) 1000; Olivier Corten, The Law

A treaty-based crime of aggression 203 States as a whole as one from which no derogation is permitted’.53 In 2006, the ILC Study Group on the Fragmentation of International Law included the ‘prohibition of aggressive use of force’ among the most frequently cited candidate for the status of jus cogens.54 As noted in 2019 by the Special Rapporteur on Peremptory norms of general international law (jus cogens), [t]he list in the conclusions of the Study Group, contained in the report of the Commission of 2006, is different in that, while the report refers to ‘selfdefence’, the conclusions do not. The decision to exclude self-defence probably makes sense because . . . the reference to aggressive force rather than just ‘the use of force’ already caters for the right to use force in self-defence as part of the jus cogens norm.55 In addition, while acknowledging that the ILC’s Commentary on its 2001 Draft Articles on State Responsibility made reference to the prohibition of aggression as an example of norm relevant for the purposes of article 40, the Special Rapporteur considered it consistent with the choice of the ILC in 1966, when it referred to ‘the Law of the Charter concerning the prohibition of the use of force’.56 As for the US Administration, in 1963 the US delegate to the Sixth Committee of the UNGA affirmed that the principle laid down in article 2(4) of the UN

53

54

55 56

against War: The Prohibition on the Use of Force in Contemporary International Law (Hart 2010) 201; cf ILC, ‘Draft Articles on Responsibility of States for International Wrongful Acts with Commentaries’ Yearbook of the International Law Commission 2001, vol II UN Doc. A/CN.4/SER.A/2001/Add.1 (Part 2), 85. Note that the ICJ in Barcelona Traction listed the outlawing of acts of aggression among the erga omnes obligations. Barcelona Traction, Light and Power Company (Spain v Belgium) (Merits) [1970] ICJ Rep 3 at 34, as cited by ILC, ‘Report of the International Law Commission on the Work of its 71st session’ (29 April – to 7 June and 8 July – 9 August 2019) UN Doc.A/74/10, fn 863. According to article 53 of the Vienna Convention on the Law of the Treaties (1969): ‘A treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general international law. For the purposes of the present Convention, a peremptory norm of general international law is a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character’. Jurisdictional Immunities of the State (Germany v. Italy: Greece Intervening) (Merits) General List No 143 [2012] ICJ at 94. The ICJ has affirmed the peremptory nature of the prohibition of Genocide. See Armed Activities on the Territory of the Congo (New Application: 2002) (Democratic Republic of the Congo v. Rwanda), Jurisdiction and Admissibility (Judgment) [2006] ICJ Rep 6 at 64; see also Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia) (Judgment) [2015] ICJ Rep 3 at 87–88. The ICJ has also established the peremptory nature of the prohibition of torture. Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal) (Judgment) [2012] ICJ Rep 422 at 99. The Study Group of the International Law Commission, ‘Report on Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law’ (2006) UN Doc. A/CN.4/L.682, 189. ILC (n 52) at 58. ibid at 59–60.

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Charter bound also states non-Members of the UN because it had reached the status of ‘general international law’.57 Even more, in 1976 the US delegate to the Sixth Committee of the UNGA aligned himself with the ILC’s position and stated: ‘Today that clear and direct rule (prohibition of the threat or use of force) is universally recognized as a peremptory norm of international law binding on all and not subject to derogation by unilateral declaration or bilateral agreement’.58 Later, on 29 December 1979, in a memorandum addressed to the Acting Secretary of State Warren Christopher, the Legal Adviser of the Department, Roberts B Owen, claimed that if it [the 1978 treaty between URSS and Afghanistan] actually does lend itself to support of Soviet intervention of the type in question in Afghanistan, it would be void under contemporary principles of international law, since it would conflict with what the Vienna Convention on the Law of Treaties describes as a ‘peremptory norm of general international law’ (Article 53), namely, that contained in Article 2, paragraph 4 of the Charter. While agreement on precisely what are the peremptory norms of international law is not broad, there is universal agreement that the exemplary illustration of a peremptory norm is Article 2, paragraph 4.59 In the eighties, in their Counter-memorial in Nicaragua, the US ‘found it material to quote the views of scholars that [article 2(4) UN Charter] principle is . . . a “principle of jus cogens”’.60 When it comes to the Kampala amendment, even in the absence of a clear reference to the UN Charter, it could not have violated any jus cogens norm.61 In 2001, indeed, the US Representative to the Sixth Committee of the UNGA listed ‘the jus cogens of the Charter of the United Nations, particularly with regard to the question of aggression’ among the main objections of his Government to the Rome Statute.62 57 UN Doc. A/C.6/SR.808, at 20. See also US Secretary of State, Dean Rusk, Address before the American Society of International Law on 24 April 1965 (as cited in Marjorie M Whiteman, Digest of International Law (US GPO 1971 vol XII) 280–283). 58 See Eleonor McDowell, Digest of the United States Practice in International Law (US GPO 1976) 685 (as cited by Natalino Ronzitti, ‘Use of Force, Jus Cogens and State Consent’ in Antonio Cassese (ed), The Current Legal Regulation of the use of force (Martinus Nijoff Publishers 1986) 150 [emphasis added]). See also US Representative to the Sixth Committee of the UN General Assembly, Robert Rosenstock, Statement on 22 November 1976 (fiftieth meeting) in OR of the UNGA as cited in Eleonor C McDowell (ed), Digest of United States Practice in International Law (US GPO 1976) 685. 59 Marian L Nash, ‘Contemporary Practice of the United States relating to International Law’ in (1980) 74 AJIL 419. 60 Nicaragua (n 51). 61 See American Law Institute (n 33) 28. Moreover, pursuant to article 103 UN Charter ‘[i]n the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail’. 62 UN Doc. A/C.6/56/SR.27, at 50.

A treaty-based crime of aggression 205 Article 2(4) UN Charter and the peremptory rule corresponding to it are a fortiori central to the debate about the rank of the Kampala definition among the sources of international law because the amendment contains an explicit reference to the Charter. Any crime of aggression under customary international law would certainly constitute a violation of article 2(4) UN Charter. By making reference to the UN Charter in the Kampala amendment, states parties to the ICC have made sure that any crime of aggression for the purposes of the Statute will always be a violation of article 2(4) UN Charter and of the correspondent customary rule. Arguably, this would make the Kampala definition correspond to (at least) the noyau dur of any crime of aggression under customary international law. While in the more likely case that article 8bis ICC Statute has just codified an already existing customary law, there would be no need to further discuss it, the following considerations would apply in case the Kampala amendment has resulted in the formation or has contributed to the crystallisation of a new, broader-in-scope, custom. The peremptory norm corresponding to article 2 (4), in fact, might not be fully coincident with this latter. According to the ILC, when it comes to the formation and/or crystallisation of a new customary rule, the contrary will of one state cannot hinder the formation of the norm per se, which would therefore apply vis-à-vis all states.63 While the persistent objector doctrine could be relevant;64 it ‘is without prejudice to any question concerning peremptory norms of general international law’.65 This means that the very nature of the values protected by the Rome Statute66 could make any objection – no matter how persistent and no matter how powerful the state objecting – irrelevant even if the treaty provision(s) at stake were not codifying, but rather contributed to the crystallisation of a new customary norm.67 As pointed out by the ILC, ‘peremptory norms of general international law “reflect and protect fundamental values of the international community”’.68 All examples of jus cogens norms provided in the annex of the draft conclusions adopted by the ILC in 2019 but self-determination are

63 ILC, ‘Draft conclusions on identification of customary international law, with commentaries’ (2018) UN Doc A/73/10, Conclusion. 64 ibid at 19. 65 ibid, Draft Conclusion 15 (3). 66 Applicable Law: Terrorism, Conspiracy, Homicide, Perpetration, Cumulative Charging (Interlocutory Decision) STL-11–01/I, AC (16 February 2011), § 103. As for Meron, Cassese and Pocar’s approach concerning the formation of customary international humanitarian and human rights law, see Yudan Tan, ‘The Identification of Customary Rules in International Criminal Law’, 34 Utrecht Journal of International and European Law 2 (2018) 92, 99. See also Birgit Schlütter, Developments in Customary International Law: Theory and the Practice of the International Court of Justice and the International Ad Hoc Criminal Tribunals for Rwanda and Yugoslavia (Brill 2010) 43–44. 67 Notably, ‘[a]n agreement may have that effect even before it enters into force’. See American Law Institute (n 33) 195. 68 ILC, ‘Report of its 71st session’, 151. See also Malcolm N Shaw, International Law (4th ed, CUP 1997) 544 (as cited in Sally J Cummins and David P Stewart (eds), US Digest of United States Practice in International Law 2001 (International Law Institute 2002) 312).

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furthermore norms whose violation results in an international crime. According to Antonio Cassese, international crimes can be held to embrace (1) violation of either international customary rules which are intended to protect values considered important by the whole international community and consequently bind all States and individuals, or of treaty rules that spell out, clarify, develop or elaborate upon general principles of customary rules, and are applicable in the case at issue.69 It is therefore worth noting that the US has defned the prohibition of the threat or use of force in international relations as ‘a cornerstone of the Charter’ and labelled as ‘basic principles of the Charter’ those which outlawed aggression, direct or indirect.70 Also, ‘[the principle prohibiting aggression] represents international law that all should recognize and that all should seek to enforce’.71 It follows that a violation of a basic principle of the UN Charter might give rise to individual criminal responsibility. Indeed, it might be regarded as an international customary rule which is ‘intended to protect values considered important by the whole international community’. At the same time, whilst being a violation of article 2(4), a certain conduct might not give rise to individual criminal responsibility if a significant section of the international community considers the relevant behaviours as lawful.72 Thus, not all the violations of article 2(4) UN Charter constitute a violation of jus cogens and/or give rise to individual criminal responsibility. While it is possible that a section of the international community would bar that customary norm from acquiring a peremptory status,73 however, the US alone cannot determine the nature of the ban in question. The US has nevertheless kept arguing that the Kampala amendment does not correspond to the definition of the crime of aggression under customary law. During the negotiations within the Preparatory Commission, the US representatives claimed that the 1974 UNGA Definition of Aggression was much broader than the customary one, especially for the purposes of international criminal law.74 It was believed that the resolution did not state customary law at the time 69 Cassese (n 34) 436. cf Quincy Wright, ‘The Law of the Nuremberg Trial’ (1947) 41 AJIL 38, 56 and 58. The same definition has been cited in Marjorie M Whiteman, Digest of International Law (US GPO 1968 vol XI) 836. 70 US Representative to the UN Special Committee on Principles of International Law (Friendly Relations Committee), Herbert Reis, Statement on 12 September 1968 in Stephen L Gibson (ed), ‘Practice of the United States Relating to International Law’ (1969) 63 AJIL 312, 327–328. 71 US Secretary of State, John F Dulles, Statement before the UN General Assembly on 18 September 1958. 72 Wright (n 69) 56. 73 Ronzitti (n 58) 150. 74 See US Legal Adviser, Theodor Meron, Statement to the Preparatory Commission on 6 December 2000 in Sean D Murphy (ed), ‘Contemporary Practice of the United States relating to International Law’ (2001) 95 AJIL 400.

A treaty-based crime of aggression 207 it was adopted; neither had it an unequivocal generating effect in the subsequent years. Thus, reference to the resolution in the definition of the crime had to be avoided. By contrast, in Kampala the US delegate stated that article 8bis significantly differed from Resolution 3314 – which then was seen as an authoritative statement of customary law – as it did not refer to the purpose of an act of aggression. Such a reference is however missing in Resolution 3314. Having a closer look at the relevant provision, that is its article 2, it rather relates to the UN SC’s authority to justifying a prima facie act of aggression ‘in the light of other relevant circumstances, including the fact that the acts concerned or their consequences are not of sufficient gravity’.75 During the negotiations which led to the adoption of Resolution 3314, the US gave up on the idea of an explicit reference to the purposes because they claimed that this was implicit in the word ‘circumstances’.76 In 2010, however, the US representatives felt it necessary to insert an explicit reference to it in their Understandings. Furthermore, the US Legal Adviser claimed that ‘as yet, no authoritative definition of aggression exists under customary international law’.77 Thus, one may wonder which customary law, in the US opinion, delegations should have referred to. Lastly, according to the preamble of the 1974 Definition, aggression ‘is the most serious and dangerous form of illegal use of force’. Any act of aggression described by the resolution would therefore constitute a blatant (or manifest!) violation of (article 2(4)) UN Charter. Arguably, if this latter has generated a correspondent norm of customary law, those traditional forms of aggression which are envisaged in the 1974 Definition should then be considered customary international law as well and could be relevant for the purposes of article 8bis ICC Statute.78

2.4 The ‘character’ factor in the threshold clause Among the elements of the so-called threshold clause, the ‘character’ is central to see whether, as claimed by the US, the ‘grey areas’ of international law (e.g. unilateral humanitarian intervention and preventive self-defence) are excluded from the application of article 8bis. Besides the UN Charter, the correspondent customary international law is again fundamental. This latter could also be useful to the Court, as pursuant to article 21(1)(b) of the ICC Statute, the Court shall apply the Statute, the Elements of Crime and the Rules of Procedure and Evidence, as well as the principles and rules of international law.79

75 UNGA Res 3314 (XXIX) (14 December 1974). 76 US Legal Affairs Adviser to the UN Mission, Robert Rosenstock, Statement before the United Nations Special Committee on the Question of Defining Aggression on 12 April 1974 in Arthur W Rovine (ed), ‘Contemporary Practice of the United States Relating to International Law’ (1974) 68 AJIL 720, 735. 77 Koh (n 6). 78 See in contrast McDougall (n 19) 95. 79 article 21(1) ICC Statute [emphasis added].

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2.4.1 Humanitarian intervention In 1999, the US delegate to the Sixth Committee of the UNGA argued that [t]he easier path towards an acceptable definition of aggression would have to recognize limitations imposed by the Charter, as well as practical limitations reflecting the need for the international community to respond to humanitarian and other crises without being harassed or, much worse, being charged with violations of the Statute.80 The non-Paper submitted by the US in Kampala on 7 June 2010 (in particular what later became Understanding Y) therefore aimed at refecting the ‘practical limitations’ with regard to the unilateral humanitarian intervention. Arguably, this means that the US Administration did not consider the reference to the UN Charter in article 8bis suffcient for this purpose. As it has been shown earlier in this chapter, eventually unilateral humanitarian intervention was not explicitly inserted as an exception in the Understandings, nor this limitation can be inferred from the mere threshold clause contained in article 8bis and object of Understanding 7. Hence, it must be established whether under customary law there exists such an exception to the prohibition of using force so that unilateral humanitarian intervention could be implicitly ruled out from the scope of article 8bis. Back in the 1980s, two events are relevant for this purpose: the invasion of Grenada and the US military support of contras in Nicaragua. On 23 October 1983, the US launched operation ‘Urgent Fury’ and led an international force of the Organisation of Eastern Caribbean States to restore order following the assassination of Prime Minister Maurice Bishop.81 The US delegate at the UN commented on the UNGA resolution which ‘deeply deplore[ed]’82 the armed intervention in Grenada as follows: ‘We find it sad that the UN sees fit to deplore actions taken for humanitarian reasons, to save innocent lives, and protect human rights, in full accord with the UN Charter’.83 However, in 1984 the US Legal Adviser Robinson affirmed: We did not assert that Article 2(4) had somehow fallen into disuse or been overtaken by the practice of states; we regard it as an important and enduring principle of international law. Nor did we put forward new interpretations of the language of Article 2(4). We did not assert a broad doctrine

80 UN Doc. A/C.6/54/SR.13. 81 Anthony C Arend and Robert J Beck, International Law and the Use of Force: Beyond the UN Charter Paradigm (Routledge 2014) 126–127. 82 UNGA Res 38/7 (2 November 1983) UN Doc. A/RES/38/7 [emphasis in original]. 83 See text supplied by USIS on 3 November 1983 as cited in Wil D Verwey, ‘Humanitarian Intervention’ in Antonio Cassese (ed), The Current Legal Regulation of the Use of Force (n 58) 65 [emphasis added].

A treaty-based crime of aggression 209 of ‘humanitarian intervention’. We relied instead on the narrower, wellestablished ground of protection of U.S. nationals.84 He also added that The United States, both before and after the collective action, regarded three well-established legal principles as providing a solid legal basis for the action: (1) the lawful governmental authorities of a state may invite the assistance in its territory of military forces of other states or collective organizations in dealing with internal disorder as well as external threats; (2) regional organizations have competence to take measures to maintain international peace and security, consistent with the purposes and principles of the U.N. and OAS Charters; and (3) the right of states to use force to protect their nationals. . . . I would emphasize that the United States has not taken a position as to whether any one of these grounds standing alone would have provided adequate support for the action.85 Thus, although it was not argued that this could stand alone to justify the use of force, the traditional US justifcation of the protection of US nationals abroad was still central to the US arguments. As for the US use of force in Nicaragua, the main justification was based on self-defence.86 Human rights, however, came also into relevance before the ICJ.87 The Court stated that: [w]hile the United States might form its own appraisal of the situation as to respect for human rights in Nicaragua, the use of force could not be the appropriate method to monitor or ensure such respect. . . . The Court concludes that the argument derived from the preservation of human rights in Nicaragua cannot afford a legal justification for the conduct of the United States.88 Thus, in the eighties, human rights could not be a legal justifcation for the socalled less grave forms of use of force, let alone the most grave ones (namely those

84 US Legal Adviser of the Department of State, Davis R Robinson, Letter addressed to Professor Edward Gordon, Chairman of the Committee on Grenada of the American Bar Association’s Section on International Law and Practice on 10 February 1984 in ‘Contemporary Practice of the United States Relating to International Law’ (1984) 78 AJIL 655, 664–665. cf Abraham D Sofaer, ‘International Law and Kosovo’ (2000) 36 StanJIntlL 1, 10. 85 ibid 662. 86 US President, Ronald W Reagan, Address Before a Joint Session of the Congress on Central America on 27 April 1983. See also US President, Ronald W Reagan, Address Before a Joint Session of the Congress on the State of the Union on 6 February 1985. 87 Nicaragua (n 51) at 169. 88 ibid at 268.

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constituting an armed attack).89 This was confrmed by the 1990 American Law Institute’s Restatement of International Law.90 On 31 July 1994, due to the diplomatic pressure of the Clinton Administration,91 the UN SC adopted Resolution 940 whereby it determined ‘that the situation in Haiti continues to constitute a threat to peace and security in the region’ and for the first time authorised the use of force against a member state to restore democracy.92 Indeed, [a]cting under Chapter VII of the Charter of the United Nations, [the UN SC] authorize[d] Member States to form a multinational force under unified command and control and, in this framework, to use all necessary means to facilitate the departure from Haiti of the military leadership, consistent with the Governors Island Agreement, the prompt return of the legitimately elected President and the restoration of the legitimate authorities of the Government of Haiti.93 Operation ‘Uphold Democracy’ was then planned in September, although following the mission led by former President Carter, Aristide could peacefully return to Haiti on 15 October 1995.94 As a response to the crisis in Kosovo, and in the absence of any authorisation by the UN SC, NATO members launched a series of air strikes against the Federal Republic of Yugoslavia (FRY) on 24 March 1999. In his address to the Nation, President Bill Clinton affirmed that [o]ur mission is clear – to demonstrate the seriousness of NATO’s purpose so that the Serbian leaders understand the imperative of reversing course, to deter an even bloodier offensive against innocent civilians in Kosovo and, if necessary, to seriously damage the Serbian military’s capacity to harm the people of Kosovo.95 Few days earlier, the spokesman of the US Department of State, James P Rubin, had stated: There are principles of international law and specific provisions of international law that they have violated repeatedly. In addition, there is a danger to 89 ibid at 191. 90 American Law Institute, Restatement of the Law, the Foreign Relations Law of the United States (Students ed, 3rd ed, American Law Institute Publishers 1990 vol 2) 177. 91 The US, together with Canada, France and Argentina submitted before the UN SC the draft resolution S/1994/904. 92 US Department of State, Office of the Historian, ‘Intervention in Haiti, 1994–1995’ accessed 15 July 2015. See also Philippe Girard, Clinton in Haiti: The 1994 US Invasion of Haiti (Palgrave Macmillan 2004). 93 UN SC Res 940 (31 July 1994) UN Doc. S/RES/940, at 4. 94 Office of the Historian, ‘Intervention in Haiti’ (n 92). 95 President, William J Clinton, Address to the Nation on 24 March 1999.

A treaty-based crime of aggression 211 NATO allies in the region. Which thereby brings in the NATO Charter. In addition, there is the prospect of a further humanitarian catastrophe. These three reasons, in our view, are legitimate grounds . . . to threaten and, if necessary, use force.96 President Clinton formally notifed the Congress on 26 March, asserting that the FRY had ‘failed to comply with U.N. Security Council resolutions, and its actions are in violation of its obligations under the U.N. Charter and its other international commitments’.97 The US Representative at the SC argued that the UN Charter ‘does not sanction armed assaults upon ethnic groups, or imply that the international community should turn a blind eye to a growing humanitarian disaster’.98 When the Federal Republic of Yugoslavia fled a complaint before the ICJ against ten NATO countries, including the US, the US Legal Adviser David Andrews claimed: The actions of the Members of the NATO Alliance find their justification in a number of factors. These include . . . [t]he humanitarian catastrophe that has engulfed the people of Kosovo as a brutal and unlawful campaign of ethnic cleansing [that] has forced many hundreds of thousands to flee their homes and has severely endangered their lives and well-being.99 Lastly, President Clinton, in his annual address to the UNGA, stated that ‘NATO’s actions in Kosovo helped to vindicate the principles and purposes of the Organization’s Charter’.100 Many scholars discussed the issue of the legality of humanitarian intervention.101 According to Professor Schabas, after decades in which legal doctrine insisted that there were only two exceptions to the use of force, both of them provided for in Chapter VII of the Charter itself, a breach was opened during the 1990s in the name of ‘humanitarian intervention’.102 96 James P Rubin, US Department of State Press Briefing (16 March 1999) at 8 (as cited in Sean D Murphy, United States Practice in International Law 1999–2001 (CUP 2002 vol 1) 394). cf Mary E O’Connell, ‘The Myth of Preemptive Self-Defense’ ASIL Task Force Papers (August 2000) 17. 97 Sean D Murphy (ed), ‘Contemporary Practice of the United States Relating to International Law’ (1999) 93 AJIL 628, 636. 98 ibid 631–633. 99 US Legal Adviser and agent David R Andrews, Oral submissions on 11 May 1999 in Legality of use of force (Yugoslavia v. United States) (Request for the indication of provisional measures) CR 99/24 [1999] ICJ. 100 UNGA ‘Failure of NATO to Act in Kosovo would have risked discrediting UN Principles, says U.S. President to General Assembly’ (21 September 1999) Press Release GA/9599. 101 It does not seem necessary here to distinguish between interventions by a single State and by Regional organisations (that is, NATO or AU according to article 4 of its Statute). cf Christian J Tams, ‘Prospects for Humanitarian Uses of Force’ in Antonio Cassese (ed), Realizing Utopia: The Future of International Law (OUP 2012). 102 William A Schabas, ‘The Unfinished Work of Defining Aggression: How Many Times Must the Cannonballs Fly, Before They Are Forever Banned?’ in Dominic McGoldrick Peter John

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Professor Cassese argued as follows: In the current framework of the international community, three sets of values underpin the overarching system of inter-state relations: peace, human rights and self-determination. However, any time that conflict or tension arises between two or more of these values, peace must always constitute the ultimate and prevailing factor. Under the UN Charter system, as complemented by the international standards which have emerged in the last 50 years, respect for human rights and self-determination of peoples, however important and crucial it may be, is never allowed to put peace in jeopardy. One may like or dislike this state of affairs, but so it is under lex lata. . . . However, this particular instance of breach of international law may gradually lead to the crystallization of a general rule of international law authorizing armed countermeasures for the exclusive purpose of putting an end to large-scale atrocities amounting to crimes against humanity and constituting a threat to peace.103 Thus, until the end of the century, unilateral humanitarian intervention was not legitimate, nor had the US Administration openly argued in favour of its legality. As pointed out by Christine Gray, still in 2010 the US National Security Strategy (NSS) left opened the question of the legality of the humanitarian intervention by arguing in favour of its necessity only.104 Yet one could wonder whether the scenario envisaged by Judge Cassese have later turned out real. When looking at states’ immediate reactions to the Kosovo events, the majority of states at the UN SC did not openly condemn the intervention or the humanitarian argument on which it had been based. Canada stated that ‘humanitarian considerations underpin our action’,105 Bosnia and Herzegovina,106 Albania,107 Slovenia and Bahrain supported the intervention.108 The Netherlands said the humanitarian situation demanded the intervention, notwithstanding ‘the rigid interpretation of the concept of domestic jurisdiction’ by two Permanent Members;109 France and Malaysia relied on

103

104 105 106 107 108 109

Rowe and Eric Donnelly (eds), The Permanent International Criminal Court: Legal and Policy Issues (Hart Publishing 2004) 139–40 [emphasis added]. Antonio Cassese, ‘Ex inuria ius oritur: Are We Moving towards International Legitimation of Forcible Humanitarian Countermeasures in the World Community?’ (1999) 10 EJIL 23, 24–25. See also Ian Johnstone, ‘The Plea of “Necessity” in International Legal Discourse: Humanitarian Intervention and Counter-terrorism’ (2004–2005) 43 ColumJTransnatlL 337, 387. Christine Gray, International Law and the Use of Force (4th ed, OUP 2018) 52. See also the 2015 Law of War Manual. UN Doc. S/PV.3988, 6. ibid 18. ibid. ibid 6–7. ibid 8.

A treaty-based crime of aggression 213 Serbia’s violation of obligations arising from UN SC resolutions;110 Argentina and the Gambia blamed Serbia.111 The Representative of the UK argued that ‘[t]he action being taken is legal. It is justified as an exceptional measure to prevent an overwhelming humanitarian catastrophe. Under present circumstances in Kosovo, there is convincing evidence that such a catastrophe is imminent’.112 Lastly, the German Representative speaking in his capacity as President of the Council of the EU, read a statement of this latter which provided that ‘President Milosevic must stop Serb aggression in Kosovo and sign the Rambouillet Accords’.113 Thus, one could have considered this enough to claim that an opinio necessitatis in nuce was about to develop among states.114 Yet other significant states condemned the bombings. The Serbian Representative claimed at the UN SC that Sixty-five years ago, the Emperor Haile Selassie, whose country was subjected to aggression by Fascist Italy – as the Federal Republic of Yugoslavia is today by NATO and the United States of America – entered history with his prophetic outcry that the League of Nations and international peace would be fatally wounded if the aggression did not stop. The United Nations is at the crossroads today, as the League of Nations was then. I hope that, this time, the United Nations chooses the right path.115 President Yeltsin called it ‘an open aggression’,116 while the Russian Representative to the UN SC recalled that pursuant to article 5(1) of the 1974 defnition adopted by the UNGA,117 ‘[n]o consideration of whatever nature, whether political, economic, military or otherwise, may serve as a justifcation for aggression’. The Chinese Representative labelled it as ‘a blatant violation of the United Nations Charter and of the accepted norms of international law’;118 Belarus used the expression ‘act of aggression’;119 Gabon recalled that in principle they opposed the use of force;120 Namibia stated that that military intervention could not be the solution;121 and India pointed out that No country, group of countries or regional arrangement, no matter how powerful, can arrogate to itself the right to take arbitrary and unilateral 110 111 112 113 114 115 116 117 118 119 120 121

ibid 9 and 10. ibid 7 and11. ibid 15–16. ibid 17. Antonio Cassese, ‘A Follow-up: Forcible Humanitarian Countermeasures and Opinio Necessitatis’ (1999) 10 EJIL 791, 797–798. UN Doc. S/PV.3988, 14–15. ibid 3. ibid. ibid 12. ibid 15. ibid 10. ibid 10.

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A treaty-based crime of aggression military action against others. That would be a return to anarchy, where might is right. Among the barrage of justifications that we have heard, we have been told that the attacks are meant to prevent violations of human rights. Even if that were to be so, it does not justify unprovoked military aggression. Two wrongs do not make a right.122

Proponents of humanitarian intervention usually point out that the SC voted down a Russian proposal condemning the attack as a ‘threat to international peace’ and a ‘fagrant violation’ of the UN Charter by 12 (Argentina, Bahrain, Brazil, Canada, France, Gabon, the Gambia, Malaysia, the Netherlands, Slovenia, the UK, the US) to three (Russia, China, Namibia).123 The UN Secretary General, moreover, implicitly endorsed the operation.124 A strong opposition from a substantial part of the international community, however, followed the events in Kosovo.125 Thus, there is no reason to believe that an opinio juris regarding the lawfulness of that unilateral intervention has developed among the majority of States.126 Since 1999, moreover, no significant practice has been registered and certainly no one can claim the existence of any consistent usus.127 Within the context of the ‘Responsibility to Protect’ doctrine, an armed intervention without any UN SC authorisation has never been considered.128 In 1999, the UN Secretary General stated: The Charter requires the Council to be the defender of the common interest, and unless it is seen to be so – in an era of human rights, interdependence, and globalization – there is a danger that others could seek to take its place.129 The same principle has been reaffrmed by the GA in 2005:

122 123 124 125

126 127

128

129

ibid 15. Murphy (n 97) 631–633. ibid 634. Kofi Annan, Interventions: A Life in War and Peace (Penguin 2012) 94–96. See Group of 77, ‘Declaration on the occasion of the Twenty-third Annual Ministerial Meeting of the Group of 77’ (24 September 1999), para. 69: See also Group of 77 and China, ‘Declaration of the South Summit and Havana Programme of Action’ (14 April 2000) para. 54. Tom Ruys, Olivier Corten, and Alexandra Hofer (eds), The Use of Force in International Law: A Case-Based Approach (OUP 2018) 844. See Christian Henderson, The Persistent Advocate and the Use of Force: The Impact of the United States upon the Jus ad Bellum in the Post-Cold War Era (Ashgate 2010). Annan (n 124) 124–126. cf The International Commission on Intervention and State Sovereignty (ICISS), The Responsibility to Protect: Report of the International Commission on Intervention and State Sovereignty (International Development Research Centre 2001). See UNGA ‘Secretary-General presents his Annual Report to General Assembly’ (20 September 1999) Press Release SG/MS/7136 GA9596.

A treaty-based crime of aggression 215 We reaffirm that the relevant provisions of the Charter are sufficient to address the full range of threats to international peace and security. We further reaffirm the authority of the Security Council to mandate coercive action to maintain and restore international peace and security. We stress the importance of acting in accordance with the purposes and principles of the Charter.130 The US Permanent Representative to the UN, Ambassador John Bolton, welcomed the adoption by consensus of the World Summit Outcome Document, by claiming: ‘[w]e were successful in making certain that language in the Outcome Document guaranteed a central role for the Security Council’.131 In addition, he suggested that international responsibility to protect could be defned as a ‘moral responsibility’ of the international community to ‘use appropriate . . . peaceful means, including under Chapters VI and VIII of the Charter to help protect populations from . . . atrocities’. Thus, the US stood ready to act following an authorisation of the UN SC under Chapter VII of the Charter.132 While the gross violations of human rights might therefore have broadened the scope of ‘threat to the peace’ under article 39 of the UN Charter, unilateral humanitarian interventions constitute de lege lata a violation of the principle codified in article 2(4) of the UN Charter.133 To use the words of Dinstein, ‘Knights of Humanity are out of time and out of place in the contemporary world’.134 In line with this approach, in 2008, the US criticised Russian intervention in Georgia, by considering it ‘an abuse of R2P’.135 In 2011, following the adoption of the UN SC Resolution 1973 concerning the situation in Libya,136 the US Legal Adviser Harold H Koh argued in favour of the legality 130 See UNGA ‘Integrated and coordinated implementation of and follow-up to the outcomes of the major United Nations conferences and summits in the economic, social and related fields. Follow-up to the outcome of the Millennium Summit’ (15 September 2005) UN Doc. A/60/L.1, para. 79. Still, the question of what should happen if the UN fails to fulfil its pledge was left open. 131 John R Crook (ed), ‘Contemporary Practice of the United States to International Law’ (2006) 100 AJIL 455, 463–464. ‘Yet, Bolton had previously affirmed: ‘We should not preclude the possibility of action absent authorization by the Security Council’. US Permanent Representative, John Bolton, Letter to the United Nations on 30 April 2005. 132 See Carten Stahn, ‘Responsibility to Protect: Political Rhetoric or Emerging Legal Norm?’ (2007) 101 AJIL 99, 108. 133 UN Secretary General, Report ‘Implementing the Responsibility to Protect’ (2009) UN Doc A/63/677. See also Kriangsak Kittichaisaree, ‘The NATO Military Action and the Potential Impact of the International Criminal Court’ (2000) 4 SJICL 498, 528. cf Trahan (n 49) 58. 134 Yoram Dinstein, War, Aggression and Self-Defense (5th ed, CUP 2011) 68. cf Thomas M Franck, Recourse to Force – State Action Against Threats and Armed Attacks (OUP 2002) 182. 135 Michael P Scharf, ‘Striking a Grotian Moment: How the Syria Airstrikes Changed International Law Relating to Humanitarian Intervention’ (Winter 2018 draft) 18. 136 UNSC Res 1973 (17 March 2011) UN Doc S/RES/1973, para.4. On the role played by the Obama Administration in the negotiation of this resolution at the UN SC, see Warren and Bode (n 6) 98–101.

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of the US operation, as they had acted according to the UN Charter.137 More recently, the US Administration has kept defining the Russian attempt to annex Crimea as an aggression,138 and a ‘blatant violation of international law’,139 a flagrant violation of sovereignty and territorial integrity,140 or ‘an act of aggression’.141 In 2013, however, following the then alleged use of chemical weapons against civilians by the Syrian Government,142 President Obama claimed as follows: ‘I’m comfortable going forward without the approval of a United Nations Security Council that, so far, has been completely paralyzed and unwilling to hold Assad accountable’.143 Although in the end he did not order any strike, this was the same point made later on by the US Ambassador to the UN, Nikki Haley, in relation to the 7 April 2017 and 13 April 2018 US airstrikes, which followed the then alleged use of chemical weapons by the Syrian Army.144 While they did

137 Bolton also mentioned the fact that the intervention was ‘aimed at preventing an imminent humanitarian catastrophe that directly implicates the national security and foreign policy interests of the United States’. John R Crook (ed), ‘Contemporary Practice of the United States Relating to International Law’ (2011) 105 AJIL 568, 605–607. cf John R Crook (ed), ‘Contemporary Practice of the United States Relating to International Law’ (2010) 104 AJIL 100, 127–128. 138 For example, US Under Secretary of State for Civilian Security, Democracy, and Human Rights Sarah Sewall, Remarks at the annual meeting of the American Society of International Law on the crime of aggression amendments adopted at the ICC’s 2010 Review Conference on 9 April 2015; US Permanent Representative of the United States to the Conference on Disarmament, Ambassador Robert Wood, Statement on 21 January 2019; US Special Representative for the Arctic, Robert J Papp, Statement before the US House of Representatives Committee on Foreign Affairs on 17 November 2015. 139 US Ambassador, Keith Harper, Statement on Russian aggression in Ukraine at the 30th session of the HRC on 29 September 2019. 140 US President, Barack H Obama, Statement at the UNGA on 28 September 2015. See also, for example, US Assistant Secretary, Bureau of Arms Control, Verification and Compliance, Frank A Rose, Remarks at World Affairs Council Panel: ‘Security Challenges Facing the West’ on 12 November 2015; US Permanent Representative to the UN Ambassador Samantha Power, Remarks at the October Palace in Kyiv, Ukraine on 11 June 2015. 141 Will Dunham, ‘Kerry Condemns Russia’s “Incredible Act of Aggression” in Ukraine’ Reuters (2 March 2014) accessed on 6 June 2020, as cited by Ruys, Corten, Hofer (n 126) 859. See also US Secretary of State, Michael R Pompeo, Interview with Lyazzat Shatayeva of Khabar on 2 February 2020; and Conversation with Rich Lowry at the National Review Institute’s 2019 Ideas Summit on 28 March 2019; US Assistant Secretary Bureau of European and Eurasian Affairs, A Wess Mitchell, Remarks Following Meeting with President Poroshenko on 2 May 2018. 142 Ruys, Corten, Hofer (n 126) 829. 143 US President, Barack H Obama, Statement on 31 August 2013. 144 US Permanent Representative to the UN Ambassador Nikki Haley, Remarks at an Emergency UN Security Council Meeting on Chemical Weapons in Syria on 5 April 2017; Remarks at the UN Security Council Meeting on the Situation in Syria on 7 April 2017; Statement on 14 April 2018 UN Doc S/PV8233. See also John Bellinger, ‘What Was the Legal Basis for the U.S. Air Strikes Against Syria?’ (Lawfare, 6 April 2017) accessed 18 April 2019.

A treaty-based crime of aggression 217 not submit a clear argument based on international law,145 in relation to all these events, the US did not focus on humanitarian intervention, but on the violation by the Syrian Government of international laws,146 treaties147 and the UN SC’s (failed) responsibility to determine the existence of a threat to the peace and security, including the use of chemical weapons.148 Notably, in 2013 President Obama made reference to the Chemical Weapon Convention, even when Syria was not a party yet. He claimed I didn’t set a red line; the world set a red line. The world set a red line when governments representing 98 percent of the world’s population said the use of chemical weapons are abhorrent and passed a treaty forbidding their use even when countries are engaged in war.149 In 2017, President Trump cited again the Convention when he ordered ‘targeted military strikes’ because ‘Syrian dictator Bashar al-Assad launched a horrible chemical weapons attack on innocent civilians’, but his statement did not provide a clear legal ground based on humanitarian intervention;150 nor did the US Ambassador to the UN, although she mentioned that Assad’s ‘crimes against humanity could no longer be met with empty words. It was time to say “enough,” but not only say it – it was time to act. Bashar al-Assad must never use chemical weapons again’.151 On the occasion of the 2018 series of missiles strikes, President Trump failed once again to present an adequate case based on law,152 but according to Michael

145 John Crook, ‘United States Threatens Military Strikes Against Syria, Then Joins in Diplomatic Efforts to Control Syrian Chemical Weapons’ (October 2013) 107 AJIL 899, 900. 146 The White House, News Conference by The President on 30 April 2013; US President, Barack H Obama, Address on Syria on 10 September 2013; US President, Donald J Trump, Statement on Syria on 6 April 2017, mentioning ‘the urging of the UN Security Council’. 147 See Trump (n 146), mentioning the Chemical Weapons Convention; US Permanent Representative to the UN Ambassador Nikki Haley, Remarks at a UN Security Council Briefing on the Situation in Syria on 12 April 2017, mentioning the Chemical Weapons Convention and a resolution of the UN Security Council; Remarks at an Emergency UN Security Council Meeting on Syria on 14 April 2018; Remarks at an Emergency UN Security Council Meeting on Syria and Unilateral Threats to International Peace and Security on 13 April 2018. 148 US Permanent Representative to the UN, Nikki Haley, Explanation of Vote on a Draft UN Security Council Resolution to Extend the Mandate of the Joint Investigative Mechanism on 16 November 2017; Statement on 14 April 2018 (n 144), mentioning the need for the UN SC to upload the international rule of law; Haley (n 147). 149 US President, Barack H Obama, Remarks by President Obama and Prime Minister Reinfeldt of Sweden in Joint Press Conference on 4 September 2013. Cf S.J.Res.21 – Authorization for the Use of Military Force Against the Government of Syria to Respond to Use of Chemical Weapons, 113th Congress (2013–2014). Syria signed the Chemical Weapons Convention on 14 September 2013, and it entered into force on the following month. 150 Trump (n 146). 151 Haley (n 144). 152 Harold H Koh, The Trump Administration and International Law (OUP 2018) 134.

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Scharf, the words of the US Ambassador to the UN could be seen as evidence of the US embracing the UK legal arguments.153 Ambassador Haley claimed that ‘[w]e acted to deter the future use of chemical weapons by holding the Syrian regime responsible for its atrocities against humanity’.154 She also said that [w]hat we should discuss today is the use of deadly chemical weapons to murder innocent Syrian civilians. That is one of the most blatant and grotesque violations of international law in the world today. It is a violation of all standards of morality. It violates the longstanding international consensus that chemical weapons represent a unique evil.155 As it will be shown later in this chapter,156 President Trump also justifed this action by arguing that they had the purpose of establishing ‘a strong deterrent against the production, spread and use of chemical weapons. Establishing this deterrent is a vital national security interest of the United States’.157 While in general, both the 2017 and the 2018 US military actions were characterised by a significant political support,158 at the UN SC these events met with a very limited approval. In 2017, Syria, Bolivia, Uruguay, Russia and Kazakhstan condemned the strikes, all of them referring to the UN Charter,159 while some of them also called it an ‘aggression’.160 Italy, the UK and Ukraine supported the airstrikes but did not argue they were legal,161 whereas Sweden raised doubts on their compatibility with international law.162 The remaining members (i.e. Egypt, Senegal, Japan and Ethiopia) were silent in this respect.163 In 2018,

153 154 155 156 157 158

159 160 161 162 163

Scharf (n 135) 23. Haley, Statement on 14 April 2018 (n 144). Haley (n 147). See Sec 2.4.2 (c). US President, Donald J Trump, Address from the White House on 13 April 2018 [emphasis added]. Julian Ku, ‘Almost Everyone Agrees that the U.S. Strikes Against Syria are Illegal, Except for Most Governments’ (Opiniojuris, 7 April 2017) http://opiniojuris.org/2017/04/07/ almost-everyone-agrees-that-the-u-s-strikes-against-syria-are-illegal-under-internationallaw-except-for-most-governments/ accessed on 18 April 2019; Gregor Aisch, Yonette Joseph, and Anjali Singhvi, ‘Which Countries Support and Which Oppose the U.S. Missile Strikes in Syria’ (New York Times, 9 April 2017) accessed 17 April 2019; Alonso Gurmendi Dunkelberg, Rebecca Ingber, Priya Pillai, and Elvina Pothelet, ‘Mapping States’ Reactions to the Syria Strikes of April 2018 – A Comprehensive Guide’ (Just Security, 7 May 2018) accessed on 17 April 2019. UN Doc. S/PV.7919, 3, 7, 12, 13, 18/20. See the statements by the Russian and the Syrian Representatives at UN Doc. S/PV.7919, 12 and 18/20. UN Doc. S/PV.7919, 5 and 8/20. ibid 14/20. ibid 6, 9, 10, 12/20.

A treaty-based crime of aggression 219 besides France and the UK,164 which led the airstrikes together with the US and somehow argued in favour of their legality, only the Netherlands and Poland openly supported the attacks, although never claiming these were in compliance with international law.165 Sweden, Côte d’Ivoire and Kuwait did not comment on the legality (or lack thereof) of the strikes;166 all the others openly condemned the events. Ethiopia,167 Equatorial Guinea,168 Kazakhstan,169 Bolivia and China centred their arguments on the UN Charter,170 while Peru mentioned the need for any response to be consistent with international law.171 Lastly, Russia and Syria called it an aggression.172 The former stated The United States and its allies continue to demonstrate a flagrant disregard for international law, although as permanent members of the Security Council they have a special duty to uphold the provisions of the Charter. It was a disgrace to hear an article of the United States Constitution cited as justification of this aggression. We respect the right of every State to honour its own fundamental law. But it is high time that Washington learned that it is the Charter of the United Nations that governs the international code of conduct on the use of force.173 On the same day, they submitted a draft resolution condemning the ‘US aggression’,174 which was however rejected, with eight states voting against and four abstentions.175 Some states later clarifed that this was not due to their disagreement with the content of the resolution; rather, it was related to the lack of any reference to the violations of international law concerning the use of chemical weapons.176 Even admitting that there was no clear and extensive objection to the strikes, however, this would not per se be enough to argue in favour of a modification of customary international law. While in its final Draft conclusions on identification of customary international law, the ILC has indeed affirmed that inaction could be relevant, under certain circumstances, to establish both state practice and 164 See UN Doc. S/PV.8233, 7 and 9/26. 165 ibid 11 and 13/26. 166 As for Sweden, see UN Doc. S/PV.8231, 12/22 and S/PV.8233, 13/26; as for Kuwait, see UN Doc. S/PV.8231, 15/22 and S/PV.8233, 15/26; as for Côte d’Ivoire, see UN Doc. S/PV.8231, 19/22 and S/PV.8233, 18/26. 167 UN Doc. S/PV.8233, 13/26. 168 UN Doc. S/PV.8231, 12/22 and S/PV.8233, 17/26. 169 UN Doc. S/PV.8231, 16/22 and S/PV.8233, 10/26. 170 UN Doc. S/PV.8231, 7 and 13/22 and S/PV.8233, 10 and 14/26. 171 UN Doc. S/PV.8233, 18/26. 172 UN Doc. S/PV.8233, 4–5/26 and, for example, 19/26. 173 UN Doc. S/PV.8233, 2/26. 174 UN Doc. S/2018/355. 175 UN Doc. S/PV.8233, 23/26. 176 See statements by Representatives of Ethiopia, Sweden and Equatorial Guinea; UN Doc. S/PV.8233, 23/26; and Peru 25/26.

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opinio juris,177 this latter actually requires the lack of protest by the most relevant states, that is, the injured ones (here Syria),178 while the other states should argue in favour of the lawfulness of the practice in question to justify their inaction.179 In his long statement before the UN SC on 14 April 2018, the Syrian representative claimed: we are asking the diplomats and ambassadors today who are committed to international legitimacy and the Charter to call on the United States, Britain and France to read the provisions of the United Nations Charter, in particular those pertaining to respect for the sovereignty of States and to the non-use of force in international relations. Perhaps the Governments of these three countries will realize, if only once, that their role in the Security Council is to maintain international peace and security rather than to undermine it. As I just said, I have three copies of the Charter, and I would ask the Council’s secretariat to distribute them to the three delegations so that they might enlighten or awaken themselves from their ignorance and their tyranny.180 As for the silence of the majority of states, the Syrian representative had earlier claimed that this ‘does not constitute collusion with these [three] States, but it does arise from fear of their arrogance and political blackmail, economic pressure and aggressive record’.181 To conclude, since there has been no change in the UN Charter and the relevant rules governing the use of force among states, nothing could prevent the ICC from prosecuting the leaders of those states parties for humanitarian interventions of a certain gravity or scale.182

2.4.2 Self-defence The US non-Paper submitted in Kampala also made reference to self-defence by providing as follows: It is understood that, for the purpose of the Statute, an act cannot be considered a manifest violation of the United Nations Charter absent a showing that it was undertaken without the consent of the relevant state, was

177 178 179 180 181 182

Conclusions 6(1) and 10(3). ILC, ‘Draft conclusions’ (2018) (n 63), 133 and 141–142. ILC, ‘Draft conclusions’ (2018) (n 63) 142. ibid 136, fn. 715. UN Doc. S/PV.8233, 20–21/26. UN Doc. S/PV.8231, 22/22. See ICC The Office of the Prosecutor, Response to communications received concerning Iraq on 9 February 2006.

A treaty-based crime of aggression 221 not taken in self-defence, and not within any authorization provided by the United Nations Security Council.183 While the Understandings eventually adopted in 2010 do not mention selfdefence, this explicit reference to self-defence contradicts what had been argued by the US Administration in the past. On the occasion of the drafting of the Pact of Paris and the UN Charter,184 or before the ICJ in Nicaragua,185 for instance, the US Administration had affrmed that self-defence could not be the subject of a judicial review, as it pertained to themselves, or to political organs such as the UN SC. The non-Paper by the US, moreover, placed the burden of proof on the Prosecutor to prove that the relevant act was not undertaken in self-defence, whereas normally it is on the state resorting to force to show that it has acted in accordance with the rules and principles of international law.186 Again, article 8bis’s reference to the UN Charter, and especially the ‘character’ factor of the threshold clause, makes it essential to look at the Charter’s relevant provision, namely article 51 which reads as follows: Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. The following subsection investigates the meaning of the term ‘armed attack’ within the context of the War on Terror. Then a subsection focuses on the 2003 Iraqi War as some arguments relating to self-defence were erroneously invoked on that occasion, whereas the third subsection analyses the US airstrikes in Syria 183 ‘Non-Paper by the United States’ in Barriga and Kreß (eds), The Travaux Préparatoires (n 7) 751. As for the cases which have seen the US use of force following a UN SC’s authorisation, see, for example, UNSC Res 425 (19 March 1978) UN Doc S/RES/425 and UNSC Res 426 (19 March 1978) UN Doc S/RES/426 establishing the United Nations Multilateral Force in Lebanon; UNSC Res 770 (13 August 1992) UN Doc S/ RES/770, UNSC Res 776 (14 September 1992) UN Doc S/RES/776, and UNSC Res 836 (4 June 1993) UN Doc S/RES/836 dealing with the measures taken under Chapter VII to face the humanitarian crisis in Bosnia; UNSC Res 794 (3 December 1992) UN Doc S/RES/794 which established UNITAF, led by the US. UNSC Res 1497 (1 August 2003) UN Doc S/RES/1497 establishing a Multinational Force in Liberia to support the implementation of the 2003 ceasefire agreement; UNSC Res 1529 (29 February 2004) UN Doc S/RES/1529 and UNSC Res 1542 (30 April 2004) UN Doc S/RES/1542 which, following a coup d’état that had resulted in the removal of President Aristide, declared the humanitarian crisis in Haiti to be a threat to international peace and security and established a United Nations Stabilization Mission in Haiti to face it. 184 See section 5 of Chapter II and section 3(1)(b) of Chapter III. 185 Case Concerning Military and Paramilitary Activities In and Against Nicaragua (Nicaragua v. United States of America) ICJ Pleadings (vol II) 451. See also Oscar Schachter, ‘Self-Defense and the Rule of Law’ (1989) 83 AJIL 259, 261–262. 186 Case Concerning Oil Platforms (Islamic Republic of Iran v. United States of America) (Merits) General List No 90 [2003] ICJ at 57. See also Dinstein (n 134) 194.

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and some of their legal justifcations. Lastly, two subsections are dedicated to the notion of self-defence in the cyberspace and in the outer space, respectively. 2.4.2 (A) THE NOTIONS OF ‘ARMED ATTACK’ AND PRE-EMPTIVE SELF-DEFENCE

Sofaer has argued that Shultz’s 1984 notion of pre-emptive self-defence ‘continued through the Clinton Administration and was only changed back to the way Shultz initially had wanted it in the George W. Bush Administration after 9/11’.187 On the occasion of the 1993 US cruise missile attacks in Iraq following the attempted assassination of former President Bush during his visit in Kuwait, President Clinton claimed: ‘We will combat terrorism. We will deter aggression. We will protect our people’.188 Subsequently, after the bombings by Al-Qaeda of the US embassies in Kenya and Tanzania, in August 1998 the US launched a series of cruise missile attacks against Sudan and Afghanistan.189 In a report to the Speaker of the House of Representatives and to the President of the Senate, President Clinton stated that these missile strikes were ordered on the basis of ‘convincing information from a variety of reliable sources’ that the bin Laden organisation was responsible for such bombings. Clinton made reference to article 51 of the UN Charter and claimed that ‘[t]hese strikes were a necessary and proportionate response to the imminent threat of further terrorist attacks against U.S. personnel and facilities’.190 Also, they ‘were intended to prevent and deter additional attacks by a clearly identified terrorist threat’.191 Notably, this was ‘a continuing threat to US lives’.192 In December 1998, President Clinton announced that he had ordered ‘a strong, sustained series of air strikes against Iraq. They are designed to degrade Saddam’s capacity to develop and deliver weapons of mass destruction, and to degrade his ability to threaten his neighbors’.193 Russia defined the attack as ‘an unprovoked act of force that violated principles of international law and

187 Michael P Scharf and Paul R Williams, Shaping Foreign Policy in times of Crisis (CUP 2010) 85–86. See Chapter 4.3. 188 US President, William J Clinton, Address to the Nation on the Strike on Iraqi Intelligence Headquarters on 26 June 1993. See also Henderson C., The Persistent Advocate and the Use of Force: The Impact of the United States upon the Jus ad Bellum in the Post-Cold War Era (Routledge 2016). 189 Johnstone (n 103) 372. 190 US President, William J Clinton, Report to the speaker of the House of Representatives and to the President of the Senate (as cited in Sean D Murphy, ‘Contemporary Practice of the United States Relating to International Law’ (1999) 93 AJIL 161, 162). See also UN Doc. S/1998/780. On the importance of time in ascertaining the necessity requirement, see also Case Concerning Oil Platforms (Islamic Republic of Iran v. United States of America) (Merits) General List No 90 [2003] ICJ at 73 and 74. Legality of The Threat or Use of Nuclear Weapons (Advisory Opinion) Rep 1996 [1996] ICJ at 41. 191 ibid. 192 US President, William J Clinton, Letter to Congressional Leaders Reporting on Military Action Against Terrorist Sites in Afghanistan and Sudan on 20 August 1998 [emphasis added]. 193 US President, William J Clinton, Statement on 16 December 1998.

A treaty-based crime of aggression 223 the UN Charter’.194 Then, in January 1999, the US used military force against Somalia to target senior Al-Qaeda leaders, once more in response to the 1998 terrorist attacks in Kenya and Tanzania. A small number of US special operations personnel were also present in the area, advising Somalia and Ethiopian forces.195 In 2000 the Clinton Administration issued a security document, A National Security Strategy for a Global Age, which provided as follows: [a]s long as terrorists continue to target American citizens, we reserve the right to act in self-defense by striking at their bases and those who sponsor, assist, or actively support them, as we have done over the years in different countries.196 Mary Ellen O’Connell pointed out that [t]oday states measure proportionality against attacks that have occurred or are planned. What measure can be used to assess proportionality against a possible attack? The state acting preemptively is making a subjective determination about future events and will need to make a subjective determination about how much force is needed for preemption.197 In the aftermath of the 9/11 terroristic attacks, the international community seemed to uphold what the US Administration had been claiming over the previous decades. Professor Antonio Cassese claimed that ‘[t]he events of 11 September have dramatically altered’ the legal framework related to self-defence. He defned as ‘ambiguous and contradictory’ the UN SC Resolution 1368 which condemned the 9/11 events and ‘any act of international terrorism’ as a threat to international peace and recognised the inherent right of individual and collective self-defence.198 He also recalled the NATO statement issued on the same day which relied on article 5 of the NATO Charter, and he concluded that almost all states had assimilated a terrorist attack to an ‘armed attack’ committed by a state.199 In October 2001, the US Permanent Representative to the UN notified the President of the SC that [i]n response to these attacks, and in accordance with the inherent right of individual and collective self-defence, United States armed forces have initiated actions designed to prevent and deter further attacks on the United 194 Sean D Murphy (ed), ‘Contemporary Practice of the United States Relating to International Law’ (1999) 93 AJIL 470, 476–477. 195 John R Crook (ed), ‘Contemporary Practice of the United States Relating to International Law’ (2007) 101 AJIL 478, 506. 196 Michael W Reisman and Andrea Armstrong, ‘The Past and Future of the Claim of Preemptive Self-Defense’ (2006) 100 AJIL 525, 529–530. 197 O’Connell (n 96) 19. 198 See also UNSC Res 1373 (28 September 2001) UN Doc S/RES/1373. 199 Cassese (n 51) 995–996 [emphasis in original].

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A treaty-based crime of aggression States. These actions include measures against Al-Qaeda terrorist training camps and military installations of the Taliban regime in Afghanistan.200

However, [s]ome commentators argue that Afghanistan met the Nicaragua test of effective control because Afghanistan’s Taliban regime and al Qaeda were in effect partners. Yet, the facts do not establish that al Qaeda acted as an agent or instrumentality of the Afghan state, but rather that al Qaeda pursued an independent agenda and acted autonomously within Afghanistan. Neither did the Taliban government of Afghanistan endorse the September 11 attack.201 The US has been undertaking military operations and providing support to Afghan military forces with the consent of the Afghan authorities ever since 2001.202 While the US and NATO ended combat operations and consequently withdrew combat troops in December 2014,203 on the same year the US signed a Bilateral Security Agreement with Afghanistan,204 which allows the former to assist the latter’s military forces, while using some of their bases. The Agreement also ‘acknowledge[s] that US military operations to defeat al-Qaida and its affliates may be appropriate in the common fght against terrorism’. Indeed, since 2001 the US have been in an armed confict against the Taliban, Al-Qaeda and its associated forces.205 The War on Terror, however, has been taken to extremes. According to Cassese, ‘[p]roblems arise with regard to the target of self-defence, its timing, its duration, and the admissible means’.206 Indeed,

200 US Permanent Representative to the UN, John D Negroponte, Letter to the President of the UN Security Council on 7 October 2001 UN Doc S/2001/946. 201 Scharf (n 46) 194–195. 202 The White House, ‘Report on The Legal and Policy Frameworks Guiding the United States’ Use of Military Force and Related National Security Operations’ (December 2016) 15. See also US Department of State, ‘US Relations with Afghanistan’ (state.gov, 8 July 2019) accessed on 17 January 2020. 203 NATO, ‘NATO and Afghanistan’ (NATO, 14 January 2020) accessed on 17 January 2020. 204 Security and Defense Cooperation Agreement between The Islamic Republic of Afghanistan and The United States of America, signed on 30 September 2014. 205 General Counsel at the Department of Defense Stephen W Preston, Address at the annual meeting of the American Society of International Law in Washington, DC on “The Legal Framework for the United States’ Use of Military Force Since 9/11” on 10 April 2015. On 29 February 2020, the US and its allies signed an agreement with Talibans to end their 18-year war. According to the agreement, the US and its allies would withdraw all their troops within 14 months, provided that the Talibans do not allow Al-Qaeda or any other extremists to operate in the area under their control. See BBC, ‘Afghan Conflict: US and Taliban Sign Deal to End 18-year War’ (BBC, 29 February 2020) accessed on 29 February 2020. 206 Antonio Cassese, The Human Dimension of International Law: Selected Papers of Antonio Cassese (OUP 2008) 452. cf Abraham D Sofaer, ‘On the Necessity of Pre-emption’ (2003) 14 EJIL 209, 214.

A treaty-based crime of aggression 225 We know that the entire network of terrorist cells making up the organization that allegedly masterminded and organized the attack of 11 September sprawls across as many as 60 countries. Could all these countries become the target of armed action? Definitely not, otherwise the armed conflict would lead to a third world war.207 As a matter of fact, the War on Terror is a confict which involves both non-state actors (i.e. the terrorists) and state-actors (those states which harbour or support terrorists, or simply, where terrorists are based).208 On 22 November 2002, Bush claimed that ‘from this day forward, . . . if you harbor terrorists, you are terrorists. If you train or arm a terrorist, you are a terrorist. If you feed a terrorist or fund a terrorist, you are a terrorist, and you will be held accountable by the United States and our friends’.209 Furthermore, in his 2002 NSS he stated that [w]hile the United States will constantly strive to enlist the support of the international community, we will not hesitate to act alone, if necessary, to exercise our right of selfdefense by acting preemptively against such terrorists, to prevent them from doing harm against our people and our country; and denying further sponsorship, support, and sanctuary to terrorists by convincing or compelling states to accept their sovereign responsibilities.210 Self-defence has therefore been invoked as a justifcation for ‘military action against suspected Al-Qaeda targets located in foreign countries which the United States is not at war with, and without the consent of the territorial

207 Cassese (n 51) 997 [emphasis in original]. See also Johnstone (n 103) 372. 208 cf SJ Res 23, 107th Cong (2001) (also known as ‘Authorization for Use of Military Force’) which authorised the President ‘to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons’. See Dinstein (n 134) 269; Scharf (n 46) 192; Johnstone (n 103) 367 and 370. 209 Belinda Helmke, Under Attack – Challenges to the Rules Governing the International Use of Force (Ashgate 2010) 192. cf Scharf and Williams (n 188) 83. 210 US President, George W Bush, ‘The National Security Strategy of the United States of America’ (September 2002) 6 [emphasis added]. See also US Secretary of Defense, Donald Rumsfeld, Remarks at the National Defense University, Fort McNair on 31 January 2002; US President, George W Bush, Graduation Speech at West Point on 1 June 2002; US Legal Adviser, William H Taft, Pre-emptive Force: When can it be used? Implications for Iraq and North Korea on 13 January 2003; Director of the US Department of State Policy Planning Staff, Richard N Haas, Remarks at Georgetown University on 14 January 2003 (as cited in Sean D Murphy, United States Practice in International Law (CUP 2006 vol II) 323); John C Yoo, ‘Using Force’ (2004) 71 The University of Chicago Law Review (3) 729; Helmke (n 209) 166; Scharf (n 46) 210.

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sovereign’.211 The frst use of drones outside the theatre of an ‘armed confict’ goes back to President George W Bush, who in 2001 ordered a strike in Afghanistan, and the following year decided to use drones to kill an Al-Qaeda leader in Yemen.212 Yet ‘the number of drone attacks during the frst year of the Obama administration reportedly exceeds the total conducted during the previous administration’.213 While for years senior US offcials as well as the President himself made reference to the killing of Al-Qaeda leaders in surgical operations without explicitly mentioning the use of drones, in 2013 President Obama spoke at length about this practice.214 Somalia, Syria, Yemen and Afghanistan have been victims of similar targeting attacks.215 The immediacy requirement, usually invoked when it comes to anticipatory self-defence, could not be met if these acts were still in response to the 2001 ‘armed attacks’.216 At the same time, these have been deemed to serve preemptively against a ‘continuing and imminent threat’ posed by terrorists.217 Yet ‘[a] repetition of the attack has to be expected’.218 Moreover, secrecy will always run counter to what has been affirmed by the US Legal Adviser Taft, when commenting on the ICJ’s 2003 Judgement in Oil Platforms, that is, ‘the proportionality of the measures taken in self-defense is to be judged according to the nature of the threat being addressed’.219 When acting on self-defence, it must additionally be shown that the use of force meets the requirement of necessity, namely that there is no other option to the use of force to repel the attack.220 Dinstein argues that the state(s) acting on self-defence should also prove that the territorial state is unwilling or unable to take the necessary steps to remove the threat and that it has sought the latter’s consent.221

211 John R Crook (ed), ‘Contemporary Practice of the United States Relating to International Law’ (2009) 103 AJIL 132, 161–163. 212 Warren and Bode (n 6) 109. 213 Crook (n 137) 133–134. See also US President, Barack H Obama, Remarks at the National Defense University on 23 May 2013. 214 Warren and Bode (n 6) 110–112. 215 See Crook (n 131) 488. Crook (n 211) 161–163. John R Crook (ed), ‘Contemporary Practice of the United States Relating to International Law’ (2009) 103 AJIL 741, 772. Crook (n 137) 133–134. John R Crook (ed), Senior White House Official Confirms Drone Strikes, Discusses U.S. Targeting Principles and Practices in ‘Contemporary Practice of the United States Relating to International Law’ (2012) 106 AJIL 643, 670–673. 216 See Section 2 of Chapter I. 217 For example, US President, Barack H Obama, Remarks at the National Defense University on 23 May 2013. 218 Dinstein (n 134) 275. cf UNHRC, ‘Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions’ (2010) UN Doc A/HRC/14/24/Add.6. 219 William H Taft IV, ‘Self-Defense and the Oil Platforms Decision’ (2004) 29 YaleJIntlL 295, 305–306. See Dinstein (n 134) 265. 220 Keiichiro Okimoto, The Distinction and Relationship between Jus ad Bellum and Jus in Bello (Hart Publishing 2011) 97. 221 Dinstein (n 134) 275.

A treaty-based crime of aggression 227 In this regard, the US has admitted to have used drones against Al-Qaeda and its Somalia-based associated force, al-Shabaab, against ISIL in Libya, against AQAP in Yemen, with the consent of the relevant governments as well as in furtherance of self-defence.222 According to Human Rights Watch, some of the drone strikes in Yemen came as a result of a general prior consent given by the Government to the US in an agreement concluded with former President Saleh.223 Yet one might argue that by providing a twofold legal ground for their interventions, the US Administration unveils its own doubts on the genuineness of the consent. The US targeting operations against Pakistan, in particular, shows how the issue of consent might be controversial. Indeed, ‘[p]ress reporting suggests that, while the government of Pakistan publicly criticizes the attacks, it has privately sanctioned them and allowed U.S. drones to operate from bases in Pakistan’.224 The UN Special Rapporteur on Counterterrorism and Human Rights, however, has claimed that the position of the Government of Pakistan is quite clear. . . . [T]he US drone campaign in Pakistan . . . involves the use of force on the territory of another state without its consent and is therefore a violation of Pakistan’s sovereignty.225 In addition, the US Administration has not notified the UN SC about these measures and in 2004 the high-level panel on threat, challenges and change ‘stated unequivocally: “we do not favour the rewriting or reinterpretation of Article 51”’.226 The operation conducted in Pakistan in early May 2011 resulting in the killing of Osama Bin Laden was also taken in self-defence. Pakistan, however, was only informed about the raid when US helicopters had already entered Pakistani’s airspace.227 On that occasion, the White House spokesman, Jay Carney claimed: [t]here is simply no question that this operation was lawful. Bin Laden was the head of al Qaeda, the organization that conducted the attacks of September

222 The White House, ‘Report on The Legal and Policy Frameworks’ (n 202) 17–18. 223 Human Rights Watch, as reported by the UN Special Rapporteur on the Promotion and Protection of Human Rights and Fundamental Freedoms while Countering Terrorism, Ben Emmerson, Report to the Human Rights Council (10 March 2014). UN Doc. A/ HRC/25/59, 6–7. 224 John R Crook (ed), ‘Contemporary Practice of the United States Relating to International Law’ (2009) 103 AJIL 325, 364. See US Department of Justice, White Paper made public by NBS on 4 February 2013. See also John R Crook (ed.), Attorney General Discusses Targeting of U.S. Persons in ‘Contemporary Practice of the United States’ (n 215) 675. 225 UN Special Rapporteur on human rights and counter-terrorism, Ben Emmerson, Statement on 15 March 2013. 226 Dinstein (n 134) 198. 227 Warren and Bode (n 6) 91.

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A treaty-based crime of aggression 11, 2001. And al Qaeda and bin Laden himself had continued to plot attacks against the United States. We acted in the nation’s self-defense.228

In May 2011, however, the State Department Legal Adviser, Harold Hongju Koh, affrmed the existence of an armed confict between the US and Al-Qaeda, which justifed the US targeting practice, and argued that this latter satisfed the requirements of distinction and proportionality.229 He added that ‘a state engaged in an armed confict or in legitimate self-defense’ is not required to provide targets with legal process before the state may use lethal force.230 Subsequently, Sir Daniel Bethlehem set out the criteria to assess whether an armed attack could be considered an imminent one under international law. These factors were embraced by the US Administration and included the following: the nature and immediacy of the threat; the probability of an attack; whether the anticipated attack is part of a concerted pattern of continuing armed activity; the likely scale of the attack and the injury, loss, or damage likely to result therefrom in the absence of mitigating action; and the likelihood that there will be other opportunities to undertake effective action in self-defense that may be expected to cause less serious collateral injury, loss, or damage. The absence of specific evidence of where an attack will take place or of the precise nature of an attack does not preclude a conclusion that an armed attack is imminent for purposes of the exercise of the right of self-defense, provided that there is a reasonable and objective basis for concluding that an armed attack is imminent.231 Imminence and consent came again into relevance on the occasion of the 2020 US drone strikes in Iraq, which resulted in the killing of the Iranian General Qassim Soleimani and other Iranians and Iraqis, including a senior Iraqi militia leader.232 The night of the strike, the US Department of Defense issued a press 228 The White House, Office of the Press Secretary, Press Briefing by Press Secretary Jay Carney on 5 April 2011. For the imminence of the threat, see Assistant to the President for Homeland Security and Counterterrorism, John O Brennan, Strengthening our Security by Adhering to our Values and Laws: Remarks at Harvard Law School on 16 September 2011. 229 Harold Hongju Koh, ‘The Lawfulness of the U.S. Operation Against Osama bin Laden’ (Opinio Juris, 19 May 2011) http://opiniojuris.org/2011/05/19/the-lawfulness-of-theus-operation-against-osama-bin-laden accessed 15 June 2020. See also US Legal Adviser, Harold Hongju Koh, Address at Annual Meeting of the American Society of International Law on 25 March 2010. 230 Crook (n 137) 602–605 [emphasis added]. See also Assistant to the President for Homeland Security and Counterterrorism, John O Brennan, The Ethics and Efficacy of the President’s Counterterrorism Strategy: Address at the Wilson Center on 30 April 2012; US President, Barack H Obama, Remarks at the National Defense University on 23 May 2013; Scharf (n 46) 201. 231 US State Department Legal Adviser Brian J Egan, Remarks at ASIL annual meeting on international law, legal diplomacy, and the counter-ISIL campaign on 1 April 2016. 232 Edward Wong and Megan Specia, ‘U.S. Says It Won’t Discuss Withdrawing Troops from Iraq, Defying Baghdad’s Request’ (The New York Times, 10 January 2020) accessed on 18 January 2020.

A treaty-based crime of aggression 229 release claiming that ‘[it] was aimed at deterring future Iranian attack plans’.233 President Trump claimed that General Soleimani was plotting ‘imminent and sinister attacks on American diplomats and military personnel, but we caught him in the act and terminated him’.234 He also affrmed that ‘[w]e do not seek regime change. However, the Iranian regime’s aggression in the region, including the use of proxy fghters to destabilize its neighbors, must end, and it must end now’.235 Few days later, he defned as ‘aggression’ the Iranian retaliation on Iraqi soil which took place admittedly as a response to the killing of Soleimani,236 although it did not result in any US national’s death.237 Notably, Secretary of State Mike Pompeo declared that the American people have the evidence right in front of their eyes. We don’t have to guess about what Soleimani was up to. We know what he did on December 27th. He killed an American. And we know what he’s done for years and years and years – killed hundreds of Americans.238 Answering a question about how imminent were the attacks Soleimani was plotting, he said, [i]f you’re an American in the region, days and weeks – this is not something that’s relevant. . . . And we took a bad guy off the battlefield. . . . There is less risk today to American forces in the region as a result of that attack.239 These statements were followed by President Trump’s admission that the US strike was indeed ‘a retaliation’.240 While there is no doubt that international law does not allow for any purely retaliatory use of force,241 in this case more

233 US Department of Defense, Press Released on 2 January 2020, as cited in Contemporary Practice of the United States Relating to International Law 2 (2020) 114 AJIL 313–323, 315. 234 US President, Donald J Trump, Remarks on the killing of Qassim Soleimani on 3 January 2020. 235 ibid. 236 Michael Safi, Oliver Holmes, and Ghaith Abdul-Ahad, ‘Iran Launches Missiles at Iraq Airbases Hosting US and Coalition Troops’ (The Guardian, 8 January 2020) accessed on 17 January 2020. 237 US President, Donald J Trump, Statement on Iran on 8 January 2020. See also Marko Milanovic, ‘Iran Unlawfully Retaliates Against the United States, Violating Iraqi Sovereignty in the Process’ (EJIL: Talk!, 8 January 2020) accessed on 17 January 2020. 238 US Secretary of State, Michael R Pompeo, Interview with Jake Tapper of CNN State of the Union on 5 January 2020. 239 ibid [emphasis added]. 240 US President, Donald J Trump, Remarks with PM Mitsotakis of the Hellenic Republic Before Bilateral Meeting on 7 January 2020. 241 See, mutatis mutandis, Milanovic, ‘Iran Unlawfully Retaliates’ (n 237).

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than ever ‘imminence’ appeared to be quite a nebulous concept.242 Any reference to imminence was absent in the letter by the US Representative to the UN addressed to the UN SC pursuant to article 51 of the UN Charter.243 Iraq reacted by making clear that [t]he incident amounts to an aggression against the State, Government and people of Iraq; a flagrant violation of the terms under which United States forces are present in the country. . . . The Government of the Republic of Iraq condemns in the strongest possible terms these American attacks, which violate the sovereignty of Iraq and the principles of international law. . . . [A]ny military mobilization or operations on Iraqi territory that take place without its approval and without prior coordination constitute provocative and hostile acts that violate the Charter of the United Nations.244 In the days following the US attack, the Iraqi Prime Minister, Abdul Mahdi, asked the US Secretary of State to send a delegation to Baghdad to discuss US troops’ withdrawal from Iraq. Yet President Trump said that they asked so in public, ‘but they don’t say that privately’,245 raising the issue whether consent could ever be ‘tacit’ or ‘implicit’, as it has been discussed in relation to Pakistan. The President later stated ‘[i]f they do ask us to leave, if we don’t do it in a very friendly basis, we will charge them sanctions like they’ve never seen before ever. It’ll make Iranian sanctions look somewhat tame’.246 On 29 June 2020, an Iranian prosecutor issued a warrant of arrest against President Trump and other 35 involved in the airstrikes that killed General Soleimani on charges of murder and terrorism.247

242 See, for example, Marko Milanovic, ‘The Soleimani Strike and Self-Defence Against an Imminent Armed Attack’ (EJIL: Talk!, 7 January 2020) accessed on 17 January 2020. Agnes Callamard, ‘The Targeted Killing of General Soleimani: Its Lawfulness and Why It Matters’ (Just Security, 8 January 2020) accessed on 2 July 2020. 243 US Ambassador Permanent Representative to the UN, Kelly Craft, Letter to the United Nations addressed to the President of the Security Council on 8 January 2020. 244 Mohammed Hussein Bahr Aluloom, Iraqi Ambassador Permanent Representative to the UN, Identical letters to the United Nations addressed to the President of the Security Council on 6 January 2020. 245 Wong and Specia (n 232). 246 Maggie Haberman, ‘Trump Threatens Iranian Cultural Sites, and Warns of Sanctions on Iraq’ (The New York Times, 5 January 2020) accessed on 17 January 2020. 247 Negar Mortazavi, ‘Why Did Iran Issue an Arrest Warrant for Donald Trump? Perhaps to Shine a Light on American Hypocrisy’ (Independent, 29 June 2020) accessed on 2 July 2020. See also Kevin John Heller, ‘Some (Tongue in Cheek) Advice for Iran Regarding Trump’ (Opiniojuris, 2 July 2020) accessed on 2 July 2020.

A treaty-based crime of aggression 231 2.4.2 (B) THE 2003 IRAQI WAR

On 20 March 2003, without any prior UN SC authorisation, the US led an international coalition against Iraq and subsequently occupied the country.248 The legal justifications for this conflict appeared confusing as the US Administration itself mentioned different grounds. About two weeks before the attack, President George W Bush claimed that [w]e will not wait to see what terrorists or terrorist states could do with weapons of mass destruction. We are determined to confront threats wherever they arise. I will not leave the American people at the mercy of the Iraqi dictator and his weapons.249 On 17 March 2003, Bush claimed that [t]he danger is clear: using chemical, biological or, one day, nuclear weapons, obtained with the help of Iraq, the terrorists could fulfil their stated ambitions and kill thousands or hundreds of thousands of innocent people in our country, or any other.250 It has been argued that since 2002, the US has shifted its approach towards proliferation of WMDs, so as to include pre-emptive uses of force ‘even if uncertainty remains as to the time and place of the enemy’s attack’.251 The US notifcation to the UN SC about the beginning of the attack could then be read through these lenses. The letter which the US Representative sent to the President of the UN SC, however, did not explicitly mention self-defence.252 In its relevant parts, it read as follows: The actions being taken are authorized under existing Council resolutions, including its resolutions 678 (1990) and 687 (1991). Resolution 687 (1991)

248 See HJ Res 114, 107th Cong (2002) (also known as the ‘Authorization for Use of Military Force Against Iraq Resolution of 2002’). 249 US President, George W Bush, News Conference on 6 March 2003. cf US President, George W Bush, ‘The National Security Strategy of the United States of America’ (March 2006) 23; Bush, ‘The National Security Strategy’ (2002) (n 210) 6; US President, Barack H Obama, ‘The National Security Strategy of the United States of America’ (May 2010); see Christine Gray, ‘President Obama’s 2010 United States National Security Strategy and International Law on the Use of Force’ (2011) 10 ChinJIntLaw 35, 40; Sofaer (n 206) 221 and 223. 250 US President, George W Bush, Address to the Nation on 17 March 2003. Cf. The Report of the Iraq Inquiry (Executive Summary) (6 July 2016), at 51. 251 Bush, ‘The National Security Strategy’ (March 2006) (n 249). See also Bush, ‘The National Security Strategy’ (September 2002) (n 210). Daniel H Joyner, ‘The Implications of the Proliferations of Weapons of Mass Destruction for the Prohibition of the Use of Force’ in Marc Weller (ed), The Oxford Handbook of the Use of Force in International Law (OUP 2015) 1034, 1036–1038 and 1042–1044. 252 Johnstone (n 103) 375–376.

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A treaty-based crime of aggression imposed a series of obligations on Iraq, including, most importantly, extensive disarmament obligations, that were conditions of the ceasefire established under it. It has been long recognized and understood that a material breach of these obligations removes the basis of the ceasefire and revives the authority to use force under resolution 678 (1990). This has been the basis for coalition use of force in the past and has been accepted by the Council, as evidenced, for example, by the Secretary-General’s public announcement in January 1993 following Iraq’s material breach of resolution 687 (1991) that coalition forces had received a mandate from the Council to use force according to resolution 678 (1990). Iraq continues to be in material breach of its disarmament obligations under resolution 687 (1991), as the Council affirmed in its resolution 1441 (2002). Acting under the authority of Chapter VII of the Charter of the United Nations, the Council unanimously decided that Iraq has been and remained in material breach of its obligations and recalled its repeated warnings to Iraq that it will face serious consequences as a result of its continued violations of its obligations. The resolution then provided Iraq a ‘final opportunity’ to comply, but stated specifically that violations by Iraq of its obligations under resolution 1441 (2002) to present a currently accurate, full and complete declaration of all aspects of its weapons of mass destruction programmes and to comply with and cooperate fully in the implementation of the resolution would constitute a further material breach. The Government of Iraq decided not to avail itself of its final opportunity under resolution 1441 (2002) and has clearly committed additional violations. In view of Iraq’s material breaches, the basis of the ceasefire has been removed and use of force is authorized under resolution 678 (1990).253

The US Legal Adviser Taft relied on the same legal grounds but also mentioned the inherent right of self-defence.254 However, as pointed out by Harold Koh, ‘the core US claim rests . . . on the much narrower claim that Iraq was in material breach of U.N. Security Council Resolutions 678, 687, and 1441’.255 The US and the UK had already interpreted resolution 678 (1990) as the legitimising source for their interventions every time it appeared that Iraq had not complied with the 1991 ceasefire agreement.256 In January 1993, together with France, they launched an air strike;257 in early 1998, the US Secretary of State Madeleine Albright stated that if Saddam Hussein did not allow unconditional access to international weapons inspections, the US would have led a ‘significant’ 253 UN Doc S/2003/351. 254 US Legal Adviser of the Department of State, William H Taft IV, Remarks before the National Association of Attorneys General on 20 March 2003. See Craig Forcese, Destroying the Caroline: The Frontier Raid that Reshaped the Right to War (Irwin Law Inc 2018) 226. 255 Harold H Koh, ‘On American Exceptionalism’ (2003) 55 StanLRev 1479, 1521. 256 Jules Lobel and Michael Ratner, ‘Bypassing the Security Council: Ambiguous Authorizations to Use Force, Cease-Fires and the Iraqi Inspection Regime’ (1999) 93 AJIL 124, 140. 257 ibid 151.

A treaty-based crime of aggression 233 attack against Iraq.258 The US had therefore claimed that Resolution 678 (1990) was still in force making any hypothetical military intervention legal.259 This was reiterated in 2003, when President Bush claimed: In the case of Iraq, the Security Council did act, in the early 1990s. Under Resolutions 678 and 687 – both still in effect – the United States and our allies are authorized to use force in ridding Iraq of weapons of mass destruction. This is not a question of authority, it is a question of will. . . . The United Nations Security Council has not lived up to its responsibilities, so we will rise to ours.260 The US legal argument based on the revival of the UN SC resolutions was found unpersuasive by a clear majority of scholars.261 Koh claimed that the Iraqi invasion was illegal under international law. . . . The ‘revived force’ argument relies on twelve-year-old resolutions passed by earlier Security Councils at a time when the United States demonstrably cannot muster nine votes for war in the current Security Council. Invoking that argument to justify force tells the current U.N. Members that their current votes and opinions don’t really matter. The only Security Council resolution explicitly authorizing the use of force against Iraq was resolution 678, passed in November 1990 shortly after the invasion of Kuwait. The only military action it explicitly authorized was such force as was necessary to restore Kuwait’s sovereignty and to restore peace and security to the region. . . . Similarly, the U.N. Security Council resolution 687, which declared the 1991 ceasefire to the Gulf War, required Iraq to destroy its weapons of mass destruction. But at this writing, the United States still has not demonstrated that such destruction was not finally occurring under the U.N. inspections regime in operation at the time when the United States launched its invasion. Similarly, resolution 1441 . . . by choosing the words ‘serious consequences’ . . . deliberately avoided authorizing force.262 Thomas Franck criticised the US legal arguments as even if the United States were regarded as a ‘party’ to the commitments made by Iraq in agreeing to Resolution 687, a material breach would not 258 When the UN SC adopted Resolution 1154, endorsing a Memorandum of Understandings signed by Kofi Annan and the Iraqi Deputy Prime Minister regarding inspections, the US was the only State claiming that it constituted a ‘green light’ in order to use force against Iraq. ibid. 259 UN SC Res 1154 (2 March 1998) UN Doc S/RES/1154. UN Doc S/PV.3939, 10–11. See also Lobel and Ratner (n 256). cf UN Doc S/PV.4644, 3–4. 260 Bush (n 250). 261 ILA (n 27) 9. 262 Koh (n 255) 1523–1524 [emphasis in original].

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A treaty-based crime of aggression release Washington, as the offended party, from the obligation under the Vienna Convention ‘to fulfil any obligation embodied in the treaty to which it would be subject under international law independently of the [materially breached] treaty.’ That provision, it would appear, places the United States squarely back under the obligation of Charter Article 2(4), which, in the absence of any provision in Resolution 687 to the contrary, must be regarded as an essential part of its legal context and which requires states to abstain from the use of force in the absence either of an armed attack or of prior authorization by the Security Council.263

Dinstein argued that, since the 1991 Operation Desert Storm relied also on selfdefence, there was no need to build up this theory on the revival of the UN SC resolutions. The 2003 operation could also have relied on self-defence as ‘[t]he exercise of that right could not be terminated by a cease-fre’.264 As for Resolution 1441 (2002), this came as a result of British Prime Minister Blair’s attempt to obtain a UN SC resolution which would have been functional to his case before the Parliament.265 President Bush had decided for a regime change in Iraq already at the end of 2001266 and in the summer of 2002 had asked to review the military options for this purpose.267 In August, it became apparent that the position of the US Secretary of Defense, Donald Rumsfeld, the US Vice President, Dick Cheney, and the President’s National Security Adviser, Condoleezza Rice, all very much in favour of a military intervention, would prevail over the position of the US Secretary of State, Colin Powell, ‘who was plausibly reported to be more cautiously [sic]’.268 Over the summer of 2002, however, Blair persuaded Bush to take the ‘UN route’269 and give an ultimatum to Saddam Hussein to re-admit the UN inspectors and disclose his WMDs capacity.270 In July, Lord Goldsmith had in fact advised Mr Blair that in the absence of a fresh resolution by the Security Council which would at least involve a new determination of a material and flagrant breach [by Iraq of its obligations], military action would be unlawful. Even if there were such a resolution, but one which did not explicitly authorise the use of force, it

263 Thomas M Franck, ‘What Happens Now? The United Nations After Iraq’ (2003) 97 AJIL 607, 614. 264 Dinstein (n 134) 325. 265 The Report of the Iraq Inquiry (n 250), at 93, 96, 100, 105. See also The Report of the Iraq Inquiry (Vol III) (6 July 2016), Sec. 3.8., at 101. 266 ibid at 24 and 360. 267 ibid at 62. 268 The Report of the Iraq Inquiry (Vol II) (6 July 2016), Sec. 3.4., at 86. 269 ibid at 191, 324, 327 and 429. 270 The Report of the Iraq Inquiry (n 250), at 75–76, 124–125. See the position of Dick Cheney, The Report of the Iraq Inquiry (n 268), Sec. 3.4., at 437. See also US Secretary of State, Colin Powell, at ibid at 513.

A treaty-based crime of aggression 235 would remain highly debatable whether it legitimised military action – but without it the position is, in my view, clear.271 It was against this background that President Bush addressed the UNGA on 12 September, when he made clear that ‘[t]he Security Council resolutions will be enforced – the just demands of peace and security will be met – or action will be unavoidable. And a regime that has lost its legitimacy will also lose its power’.272 On the same day, the UN Secretary General affrmed that [a]ny State, if attacked, retains the inherent right of self-defence under Article 51 of the Charter. But beyond that, when States decide to use force to deal with broader threats to international peace and security, there is no substitute for the unique legitimacy provided by the United Nations.273 According to the UK Administration, there should have been two UN resolutions, one about intrusive inspections, and one in case Saddam Hussain failed to comply with the obligations arising from the former.274 While the second resolution, as explained later, was never put to a vote,275 the former became resolution 1441 (2002). In September 2002, the US and the UK started to discuss its content.276 The most controversial issue was probably the one related to its operative paragraph 10, which originally provided that false statements or omissions in the declaration submitted by Iraq and failure by Iraq at any time to comply and co operate fully in accordance with the provisions laid out in this resolution, shall constitute a further material breach of Iraq’s obligations, and that such breach authorises Member States to use all necessary means to restore international peace and security in the area.277 As France and Russia raised their concerns that this would be equal to an automatic trigger to use force, the US agreed on editing it by removing the ‘all necessary means’ formula.278 They also conceded that the SC would consider any report of a breach, but it would not decide whether any breach had occurred.279

271 The Report of the Iraq Inquiry (n 268), Sec. 3.3., at 492. 272 US President, George W Bush, Address before the UN General Assembly on 12 September 2002. See also The Report of the Iraq Inquiry (n 268), Sec. 3.4., at 379–382. 273 UN Secretary General, Address before the UN General Assembly on 12 September 2002. 274 The Report of the Iraq Inquiry (n 268), Sec. 3.4., at 409–410; Sec 3.5, at 297 and 495. 275 The Report of the Iraq Inquiry (n 250), at 276. 276 ibid at 481. Powell made clear to the British that in their opinion the ‘by all means’ formula could already be contained in the first resolution. ibid 514. 277 On 25 September 2002, the UK and the US agreed on a draft resolution. See The Report of the Iraq Inquiry (n 268), Sec. 3.5., at 239 [emphasis added]. 278 ibid at 325 and 563. 279 ibid at 325 and 560.

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At the same time, they were not ready to give up on other key features of the draft, including the references to ‘serious consequences’ and ‘material breach’ by Iraq.280 When a revised draft was presented to the UN SC, US Ambassador Negroponte made clear that this constituted a ‘genuine effort to go through the UN and strengthen inspections – not to fnd hidden triggers’.281 Subsequently, he claimed that the US said OP4 created a distinction between an ‘automatic casus belli’ and ‘automaticity for the use of force’: ‘further failures to comply would constitute a material breach, but that material breach would result in a Council discussion’. Ambassador Negroponte clarified ‘that an omission in the declaration (required by OP3) on its own would not constitute a material breach’.282 When the resolution, co-sponsored by the US and the UK,283 was unanimously adopted by the SC, China, France and Russia issued a joint statement whereby in case of a further breach by Iraq, it would have been for the UN SC to decide which kind of measure (if any) to take.284 Ambassador Negroponte claimed this resolution contains no ‘hidden triggers’ and no ‘automaticity’ with respect to the use of force. If there is a further Iraqi breach, reported to the Council by UNMOVIC, the IAEA or a Member State, the matter will return to the Council for discussions as required in paragraph 12.285 France,286 Colombia,287 Russia,288 Mexico,289 Bulgaria,290 Ireland and Syria all underlined this aspect of the resolution,291 Syria adding that she voted in favour 280 ibid at 325 and 688. See the key elements of the second draft resolution submitted by the US and the UK to the UN SC on 23 October 2002. ibid at 701. Yet before and after the adoption of Resolution 1441, the US and the UK Administrations differed in their opinions about what constituted a ‘material breach’. The former appeared to have a zero-tolerance approach so that any failure to comply with Resolution 1441 would meet this threshold. See, for example, The Report of the Iraq Inquiry (n 265), Sec. 3.6., at 36–46. 281 Ibid at 325 and 688. See the key elements of the second draft resolution submitted by the US and the UK to the UN SC on 23 October 2002. ibid at 796. 282 Ibid at 325 and 688. See the key elements of the second draft resolution submitted by the US and the UK to the UN SC on 23 October 2002. ibid at 797. 283 UN Doc S/2002/1198. 284 The Report of the Iraq Inquiry (n 268), Sec. 3.5., at 325 and 688. See the key elements of the second draft resolution submitted by the US and the UK to the UN SC on 23 October 2002. ibid at 853. 285 UN Doc. S/PV/4644, 3. The UK Representative made a very similar statement. See ibid 5. 286 ibid 5. 287 ibid 11. 288 ibid 8. 289 ibid 6. 290 ibid 9. 291 ibid 7.

A treaty-based crime of aggression 237 only because of it.292 President Bush, however, claimed that while the US had ‘agreed to discuss any material breach with the Security Council’,293 they did not intend to jeopardise their ‘freedom of action to defend our country’.294 As for Iraq, in September 2002 the Iraqi Government had agreed on allowing the return of the UN inspectors ‘to remove any doubts that Iraq still possesses weapons of mass destruction’.295 On 13 November 2002, the Iraqi Foreign Minister sent a letter to the UN Secretary General whereby he reiterated they were not in possession, nor were they producing any WMD, and claimed they accepted the terms of Resolution 1441, although ‘[w]e . . . know that there are no true, just, or fair reasons behind the adoption of this resolution in the name of the Security Council’.296 To comply with the obligations provided by Operative Paragraph 3 of the resolution, on 7 December 2002, Iraq submitted to the UN SC a detailed written declaration of 7,000 pages concerning ballistic missile projects.297 Well before the Chairman of the UN Monitoring, Verification and Inspection Commission, Hans Blix, had reported to the UN SC, the US and UK Administrations, however, considered that Iraq had not met the requirements of the resolution.298 On 28 January 2003, President Bush addressed the Congress for his annual State of the Union and claimed that The United States will ask the U.N. Security Council to convene on February the 5th to consider the facts of Iraq’s ongoing defiance of the world. Secretary of State Powell will present information and intelligence about Iraqi’s – Iraq’s illegal weapons programs, its attempts to hide those weapons from inspectors and its links to terrorist groups. . . . We will consult, but let there be no misunderstanding: If Saddam Hussein does not fully disarm for the safety of our people, and for the peace of the world, we will lead a coalition to disarm him.299 On 31 January 2003, the Iraqi Foreign Minister sent a letter to the UN Secretary General, whereby he requested the Government of the United States, through you, to submit immediately its alleged evidence to the technical committee entrusted by the United Nations with verifying such allegations, namely UNMOVIC (if they relate to proscribed activities in the chemical, biological or missile fields) or IAEA 292 ibid 10. 293 US President, George W Bush, Remarks on the United Nations Security Council Resolution on 8 November 2002. 294 ibid 3. 295 UN Doc S/2002/1034. 296 UN Doc S/2002/1242. 297 The Report of the Iraq Inquiry (n 265), Sec. 3.6., at 233. 298 ibid at 352 and 354. 299 US President, George W Bush, State of the Union on 28 January 2003.

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A treaty-based crime of aggression (if they relate to proscribed activities in the nuclear field), so as to enable the two organizations to begin their investigations immediately and inform the Security Council and the international community of the extent to which those allegations are correct. In this connection, we caution against using the General Assembly or the Security Council as forums for spreading false accusations and fabricated evidence.300

On 5 February, Colin Powell addressed the UN SC and claimed that the Iraqi Declaration of 7 December 2003 was only issued for the purposes of giving the ‘false impression that the inspection process was working’,301 and by relying on intercepted telephone conversations and photos taken by satellites, as well as human sources, he concluded that Iraq was keeping key materials and people from the inspectors.302 Powell said that [b]y [the standard of operative paragraph 4 of Resolution 1441(2002] – I believe that Iraq is now in further material breach of its obligations. I believe that this conclusion is irrefutable and undeniable. Iraq has now placed itself in danger of the serious consequences called for in resolution 1441 (2002).303 According to Powell, there could be no doubt that Iraq had biological304 and chemical weapons,305 as well as was ‘putting in place the key missing piece from his nuclear weapons programme – the ability to produce fssile material’.306 Lastly, ‘[o]ur concern is . . . also about the way these illicit weapons can be connected to terrorists and terrorist organizations that have no compunction about using such devices against innocent people around the world’.307 In 2010, President Bush wrote that ‘[l]ater, many of the assertions in Colin’s speech would prove inaccurate. But at the time, his words refected the considered judgement of intelligence agencies at home and around the world’.308 According to Kofi Annan, ‘[h]e did not produce any evidence of the “smoking gun” variety, despite effectively claiming to possess such evidence. Worse, I was not alone in thinking that Powell himself did not appear as though he entirely believed his own case’.309 While affirming that Iraq had not ‘fully satisfied’ the UN SC about its requests of disarmament, moreover, Annan kept claiming in public that there could be no legitimate use of force without an authorisation by the UN SC.310 300 301 302 303 304 305 306 307 308 309 310

UN Doc S/2003/132. UN Doc S/PV.4701, 3. ibid 7. ibid 8. ibid 9. ibid 12. ibid 13. ibid 14. George W Bush, Decision Points (Virgin Books 2010) 245. Annan (n 125) 349–350. See Annan (n 273); and Statement at the College of William & Mary in Virginia on 8 February 2003.

A treaty-based crime of aggression 239 On 10 February, the Governments of France, Germany and Russia issued a tripartite declaration affirming there was still space for peace as the possibilities of Resolution 1441 had not been fully explored yet.311 The following day, the US and UK agreed on a new draft resolution to be submitted before the UN SC, which, however, did not include any ultimatum as the US believed this would have made it look like they needed one, as if the other states could have any sort of veto power on the decision whether the Iraqi Government had met the requests of the ultimatum.312 On 14 February, Blix reported that they had not found any WMD and pointed out that the evidence presented by Powell could be interpreted differently;313 Mohamed ElBaradei, Director General of the International Atomic Energy Agency, also reported that they ‘had found no evidence of ongoing prohibited nuclear or nuclear-related activities’.314 Yet the US was actually already ready to go to war in mid-March, even without the UN.315 On 24 February 2003, before the UN SC, the US, the UK and Spain tabled a draft resolution whose operative paragraphs simply stated that ‘Iraq has failed to take the final opportunity afforded to it by resolution 1441’; and the UN SC ‘Decides to remain seized of the matter’.316 Yet informal consultations suggested there was no much support of the resolution.317 On 28 February, UNMOVIC had reported to the UN SC that ‘Iraq had been helpful on process but there was no explicit conclusion on substance’.318 Above all, there was a general feeling that the ‘US was determined to go to war come what may’.319 Thus, on 4 March, China stated that had the resolution been put to vote, they would abstain,320 while on the following day France, Germany and Russia declared they could vote against,321 and Angola, Cameroon and Guinea were not ready to commit for a positive vote.322 The US, the UK and Spain then agreed on a revised draft resolution to be tabled on 7 March. This draft contained an explicit reference to Chapter VII and gave Iraq until 17 March to demonstrate ‘full, unconditional, immediate and active co operation in accordance with its disarmament obligations under resolution 1441 (2002)’.323 The Iraqi Representative ‘called on the Council to thwart aggression and prevent “a crime whose impact would far surpass that of any crime of the past century”’.324 On the same day, Blix affirmed that while ‘co operation

311 312 313 314 315 316 317 318 319 320 321 322 323 324

The Report of the Iraq Inquiry (n 265), Sec. 3.7., at 218. ibid at 227 and 255. ibid at 361–362. ibid at 376. See also the same findings on 7 March 2003. ibid at 1092. ibid at 231. ibid at 712. ibid at 823. ibid at 843. ibid at 846. ibid at 964. ibid at 961. ibid at 971. ibid at 1085. See also 1098 and 1110. ibid at 1148.

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can and is to be immediate, . . . disarmament and . . . verification . . . cannot be instant’. Therefore, ‘[e]ven with a pro active Iraqi attitude it would still take months to verify sites and items, analyse documents, interview relevant persons and draw conclusions’.325 Moreover, ‘after a period of somewhat reluctant co operation, there has been an acceleration of initiatives from the Iraqi side since the end of January’.326 On 11 March, it was clear that the resolution tabled by the US, the UK and Spain on 7 March, if put to vote, would not be adopted as most of the members of the UN SC did not want to provide any basis for the US military action.327 On the occasion of the Azores Summit of 16 March, President Bush, together with Blair, the Spanish Prime Minister Aznar and the Portuguese Barroso, decided that the UN route would have ended the following day.328 The evidence subsequently collected by the British Iraq Inquiry shows that the decision to withdraw the second resolution was mostly due to the US military timetable.329 At the press conference following the Azores Summit, Bush still claimed that Saddam Hussein could ‘leave the country if he’s interested in peace . . . the decision is his to make’.330 The following day, President Bush issued a 48-hour ultimatum for Saddam Hussein and his sons to leave Iraq.331 As Iraq had rejected the US ultimatum, on 18 March, the UN Secretary General decided to withdraw all UN humanitarian personnel from Iraq, UNMOVIC and IAEA inspectors, and troops and personnel of the Iraq-Kuwait Observation Mission.332 The day preceding the attack, Germany,333 France and China underlined how there still were peaceful means available,334 Syria called it a ‘war of aggression’,335 while Russia stated that no UN resolution could ever authorise a war outside the UN Charter and that they would have supported a UN action if ‘today we really had indisputable facts demonstrating that there was a direct threat from the territory of Iraq to the territory of the United States of America’.336 The Iraqi Representative claimed as follows: For the record, and for the sake of historical accuracy, as well as to reassure every State that has recently made active efforts to maintain peace and to prevent war, we would like to reiterate that Iraq no longer possesses weapons of mass destruction. . . . Iraq decided in 1991 to destroy the weapons it

325 326 327 328 329 330 331 332 333 334 335 336

ibid at 1091. ibid at 1090. The Report of the Iraq Inquiry (n 265), Sec. 3.8., at 249. ibid at 677, 697, 715. ibid at 759 and 767. ibid at 688. Bush (n 250). ibid at 744. UN Doc S/PV.4721, 4. ibid 5 and 18. ibid 9. ibid 8.

A treaty-based crime of aggression 241 had produced. . . . Proof of this fact lies in the failure by the United States and Britain to prove any allegation that Iraq has possessed such weapons in recent years, and especially during the period following the adoption of resolution 1441 (2002).337 Once the military operations started, it took one week for the UN SC to convene,338 following a request by the Non-Aligned Movement (NAM) and the League of Arab States (hereafter ‘the League’).339 The Iraqi Representative affrmed that [t]he full-scale Anglo-Saxon military invasion and the hostile, aggressive war against the Republic of Iraq constitute a blatant material breach of international law and the of United Nations Charter, particularly Article 2, paragraphs 4 and 7. It is also a material breach of the relevant Security Council resolutions. All of these resolutions, without exception, oblige United Nations Member States to respect Iraq’s sovereignty, political independence and territorial integrity. This colonial Anglo-American aggression is a blatant defiance of the will of the international community and its organizations, all of which have expressed their total rejection of the unilateral use of force, their adherence to international legal instruments and their emphasis on the essential role that the United Nations has to play in maintaining international peace and security and in suppressing acts of aggression.340 He also underlined as follows: in the past few days during the period of aggression the Council has been busy considering the humanitarian aspect rather than the act of aggression itself. Is it not strange that humanitarian questions, however important they are, are being discussed before the war and aggression, which are the main cause for the need to consider the humanitarian aspects?341 The Malaysian Representative speaking on behalf of NAM,342 the Representatives of the League of Arab States,343 Libya,344 Cuba,345 Belarus,346 Algeria,347

337 338 339 340 341 342 343 344 345 346 347

ibid 21. UN Doc S/PV.4726, 6. ibid 46. ibid 5–6. ibid. ibid 7. He recalled the Ministerial decision adopted by the Council of the League on 24 March 2003 which condemned ‘the American/British Aggression against Iraq’. ibid 8. ibid 16. ibid 21. ibid 38. They aligned with League of the ‘Arab States’. ibid 11.

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Yemen,348 Sudan,349 Indonesia350 and Lao People’s Democratic Republic351 called the US and UK-led operation an ‘aggression’ or ‘an act of aggression’. South Africa ‘regret[ted] this war;352 India considered it ‘unjustifable’;353 Iran said that the war did not meet the international standards of legitimacy;354 Lebanon affrmed that the pretext of regime change was a violation of article 2.4 UN Charter;355 Jamaica claimed there was still space for ‘viable peaceful option’;356 Venezuela,357 Brazil358 and Vietnam359 were against the intervention; and Mauritius even called upon the SC to condemn it.360 The EU and EFTA,361 Latvia,362 New Zealand,363 Switzerland,364 Argentina,365 Norway,366 Colombia,367 Guatemala,368 Georgia,369 the Former Yugoslav Republic of Macedonia,370 Japan,371 Morocco,372 Iceland,373 Tunisia,374 Turkey,375 and Egypt376 did not discuss the legality of the use of force at all. Poland,377 Singapore,378 Australia,379 Kuwait,380 the Republic of Korea381 and Albania382 spoke in favour of the intervention; Uzbekistan considered war unavoidable;383 348 349 350 351 352 353 354 355 356 357 358 359 360 361 362 363 364 365 366 367 368 369 370 371 372 373 374 375 376 377 378 379 380 381 382 383

ibid 13. ibid 31. ibid 19. ibid 47. ibid 20. ibid 28. ibid 33. ibid 35. ibid 32. ibid 45. ibid 28. ibid 32. ibid 37. ibid 19. ibid 42. ibid 23. ibid 30. ibid 37. ibid 43. ibid 40. ibid 48. ibid 41. ibid 39. ibid. ibid 44. ibid 46. ibid 36. ibid 29. ibid 12. ibid 25. ibid 26. ibid 27. ibid 15. ibid 35. ibid 45. ibid 41.

A treaty-based crime of aggression 243 and Nicaragua and Mongolia blamed Iraq and its lack of compliance with previous UN SC resolutions.384 In September 2004, the UN Secretary General affirmed that ‘from our point of view and the U.N. Charter point of view, it was illegal’.385 The US Ambassador to the UN, John Danforth, replicated by saying that ‘[i]n our view the enforcement of the 16 or 17 Security Council resolutions is clearly lawful. In fact, if Security Council resolutions are not enforced, then it seems to me that there is a real shaking of the foundation of the rule of law’.386 Few days later, before the UNGA, President Bush affirmed the following: The dictator agreed in 1991, as a condition of a cease-fire, to fully comply with all Security Council resolutions – then ignored more than a decade of those resolutions. Finally, the Security Council promised serious consequences for his defiance. And the commitments we make must have meaning. When we say ‘serious consequences’, for the sake of peace, there must be serious consequences. And so a coalition of nations enforced the just demands of the world.387 The following month, however, the Head of the US Iraq Survey Group, Charles Duelfer, released a report according to which all Iraq’s WMD capabilities had been destroyed in the 1990s and that ‘Saddam Hussein possessed the desire, but not the means, to produce weapons of mass destruction’.388

2.4.2 (C) (SELF-)DEFENCES IN SYRIA

In the summer of 2014, following a formal request by the Iraqi Government, the US launched thousands of airstrikes against ISIL, first in Iraq and then in Syria.389 While they used ‘force against ISIL in Iraq at the request and with the consent of the Government of Iraq’,390 they did not seek the Syrian Government’s consent and acted on the ground of collective self-defence.391 The Obama Administration

384 ibid 42 and 47. 385 Colum Lynch, ‘U.S., Allies Dispute Annan on Iraq War’ (Washington Post, 17 September 2004) accessed on 16 June 2020. 386 ibid. See also, Sean D Murphy (ed), ‘Contemporary Practice of the United States Relating to International Law’ (2005) 99 AJIL 253, 269. 387 US President, George W Bush, Address before the UN General Assembly on 21 September 2004. 388 Murphy (n 386) 269. See also The Report of the Iraq (n 250), at 540 and 542. 389 BBC, ‘Syria: US Begins Air Strikes on Islamic State Targets’ (23 September 2014) accessed 14 July 2020. 390 The White House, ‘Report on The Legal and Policy Frameworks’ (n 202) 16. 391 UN Doc S/2014/695. See Erika De Wet, ‘The Invocation of the Right to Self-Defence in Response to Armed Attacks Conducted by Armed Groups: Implications for Attribution’ (2019) 32 LJIL 91, 96–97.

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also mentioned individual self-defence against both ISIL and Al-Qaeda392 to justify their use of force in Syria.393 Once again, the US used force against non-state actors which happened to be within the territory of a state considered unwilling or unable to prevent them from acting.394 The situation in Syria, in particular, was deemed to be one of inability because by 2014 the Syrian Government had lost effective control over ‘much of eastern and north-eastern Syria, with much of that territory under ISIL’s control’.395 This could have important implications for the (at least temporary) statehood of ISIL,396 which may find confirmation in the US practice, discussed later in this section. As for unwillingness, this could ‘be demonstrated where, for example, a State is colluding with or harboring a terrorist organization operating from within its territory and refuses to address the threat posed by the group’.397 In 2017, under President Trump, (individual and collective) self-defence remained among the legal grounds for the US attacks, but this time individual self-defence also included measures against the ‘Syrian Government and proSyrian Government forces’.398 Yet on 6 April 2017, the US President argued that It is in this vital, national security interest of the United States to prevent and deter the spread and use of deadly chemical weapons. There can be no dispute that Syria used banned chemical weapons, violated its obligations under the Chemical Weapons Convention and ignored the urging of the U.N. Security Council.399

392 The White House, ‘Report on The Legal and Policy Frameworks’ (n 202) 16–17. 393 See, for example, Egan (n 231). 394 See, for example, General Counsel at the Department of Defense, Stephen W Preston, Address at the annual meeting of the American Society of International Law in Washington, DC on “The Legal Framework for the United States’ Use of Military Force Since 9/11” on 10 April 2015; US Secretary of State, John Kerry, Address at the United Nations Security Council during a meeting on international peace and security and countering terrorism on 30 September 2015; US Deputy Permanent Representative to the UN Michele J Sison, U.S. explanation of vote at the adoption of UN Security Council resolution 2249 on counterterrorism 20 November 2015. See also Forcese (n 254) 240–241. 395 Egan (n 231); Samantha Arrington Sliney, ‘Right to Act: United States Legal Basis Under the Law of Armed Conflict to Pursue the Islamic State in Syria’ 6 U. Miami Nat’l Security & Armed Conflict L. Rev. 1, 19–22. 396 See Michael Scharf, ‘How the War against ISIS Changed International Law’ Case Legal Studies Research Paper No. 2016–6, 6–10. 397 The White House, ‘Report on the Legal and Policy Frameworks’ (n 202). 398 Charles Faulkner, US State Department’s Bureau of Legislative Affairs, Letter to Chairman of the Senate Committee on Foreign Relations Bob Corker responding to an inquiry about the legal basis for the use of force in U.S. military actions in Syria in May and June 2017 on 2 August 2017. 399 US President, Donald J Trump, Statement about the Airstrikes in Syria on 6 April 2017 [emphasis added]. See also US President, Donald J Trump, Address to the 72nd session of the United Nations General Assembly on 19 September 2017.

A treaty-based crime of aggression 245 In 2018, on the occasion of another series of strikes against Syria, President Trump also explained as follows: The purpose of our actions tonight is to establish a strong deterrent against the production, spread, and use of chemical weapons. Establishing this deterrent is a vital national security interest of the United States.400 While the stated legal grounds for both the 2017 and 2018 series of airstrikes appear to be quite confused, so that, as previously discussed,401 some have framed them within the unilateral humanitarian interventions, the language used by the President reminds of necessity.402 Craig Forcese has argued that the meaning of the notion ‘armed attack’ has changed with the advent of the nuclear weapons so as to now allow the use of force in self-defence some steps before their actual use.403 The US has treated the counter-proliferation of chemical weapons, similarly to other WMDs,404 including – irrespective of what they had been previously submitted before the ICJ405 – nuclear weapons,406 as a necessity which demands a major discretion when it comes to the concept of imminence in a pre-emptive war scenario.407 No matter how broad the notion of armed attack, however, the Syrian scenario could be read as an ‘imminent threat’ only if there was suffcient evidence suggesting that the Assad’s regime was about to use these weapons against the US. 400 401 402 403 404

US President, Donald J Trump, Statement on Syria airstrikes on 14 April 2018. See section 2.4.1. of this Chapter. ILC, ‘Draft Articles’ (n 52) 81 and 84. Forcese (n 254) 224 and 230–231 with reference to North Korea in particular. See the 1948 definition adopted by the Commission on Conventional Armaments UN Doc. S/C/ 3/32/Rev.1. As for the US legislation, see Executive Order 12938 of 14 November 1994, which declared the proliferation of WMDs as a national emergency and has been always renewed since then (see President, Donald J Trump, Message to the Congress on the Continuation of the National Emergency with Respect to the Proliferation of Weapons of Mass Destruction on 12 November 2019); Bush, ‘The National Security Strategy’ (September 2002) (n 210) (both considering WMDs to include Nuclear, Biological and Chemical Weapons (NBC)). Notably, the US Code 18 Section 2332a does not provide for any definition of WMDs. 405 ICJ, Written Statement of the Government of the United States of America on 10 June 1994, 16–17; ICJ, Written Statement of the Government of the United States of America on 20 June 1995, 8–9. 406 See, for example, US President, Donald J Trump, Address to the 72nd session of the United Nations General Assembly on 19 September 2017; US Permanent Representative to the UN, Ambassador Nikki Haley, Remarks at an Emergency UN Security Council Meeting on North Korea on 29 November 2017, defining the test-firing of an Intercontinental ballistic missile an act of aggression; or US President, Donald J Trump, Address at the 73rd Session of the United Nations General Assembly on 25 September 2018, asking all nations to adopt sanctions against Iran so long as its ‘aggression continues’ (i.e. the possession of ‘the means to deliver a nuclear warhead’). 407 See Bush, ‘The National Security Strategy’ (March 2006) (n 249); Bush, ‘The National Security Strategy’ (September 2002) (n 210). See also Joyner (n 251) 1034, 1036–1038 and 1042–1044; Daniel H Joyner, International Law and the Proliferation of Weapons of Mass Destruction (OUP 2009) 335–337.

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Notably, while the US has always claimed to have been undertaking ‘continuing actions’ in Syria since September 2014,408 they never called it an ‘armed conflict’. At the same time, they have supported the thesis that ‘Iraq and Syria resemble other countries where . . . States can potentially find themselves in more than one armed conflict or with multiple legal bases for using force’.409 In this respect, Marko Milanović and Dapo Akdande have rightly argued that an international armed conflict arises every time a state uses force against a nonstate actor in another state’s territory without this latter’s consent.410 This finds confirmation in the well-established case law of the ICJ, whereby when an armed attack comes from a non-state actor, the state victim of the attack can exercise its inherent right to individual self-defence against the territory of another state only when it is possible to attribute that act to this latter.411 It is irrelevant whether the parties declared war, considered themselves to be at war, or which kind of armed conflict they believe they are in, nor would the intensity or duration of a conflict be determinant.412 Moreover, scholars are divided between those considering self-defence to apply to the first use of force only,413 and those claiming that this should be tested throughout the whole conflict.414 Bearing in mind Milanović and Akande’s theory, 408 See, for example, The White House, ‘Report on the Legal and Policy Frameworks’ (n 202) 17; Charles Faulkner, US State Department’s Bureau of Legislative Affairs, Letter to Chairman of the Senate Committee on Foreign Relations Bob Corker responding to an inquiry about the legal basis for the use of force in U.S. military actions in Syria in May and June 2017 on 2 August 2017. 409 The White House, ‘Report on the Legal and Policy Frameworks’ (n 202) 17. 410 Dapo Akande, ‘Classification of Armed Conflicts: Relevant Legal Concepts’ in Elizabeth Wilmshurst (ed.) International Law and the Classification of Conflicts (OUP 2012) 32, 55–67; Marko Milanović, ‘What Exactly Internationalizes an Internal Armed Conflict?’ (EJIL: Talk!, 7 May 2010) accessed on 27 February 2020. 411 Nicaragua (n 51) at 195; Case Concerning Oil Platforms (Islamic Republic of Iran v. United States Of America) (Merits) General List No 90 [2003] ICJ [51] and [55]; Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, (Advisory Opinion) 2004 [135]; Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda) (Merits) [2005] ICJ Rep 168 [146] – [147]; see also Claus Kress, ‘The International Court of Justice and the “Principle on Non-use of Force”’ in Weller (n 251) 561–604, 574. 412 Jann K Kleffner, ‘Scope of Application of International Humanitarian Law’ in Dieter Fleck, The Handbook of International Humanitarian Law (3rd ed, OUP 2013) 43, 45. 413 See, for example, Camilla Guldahl Cooper, NATO Rules of Engagement: On ROE, SelfDefence and the Use of Force during Armed Conflict (BRILL 2019) 376. 414 See, for example, Christopher Greenwood, ‘The Relationship between jus ad bellum and jus in bello’, 9 Rev Int’l Studies 4 (1983) 221, 223; Jasmine Moussa, ‘Can jus ad bellum override jus in bello? Reaffirming the Separation of the Two Bodies of Law’ 90 IRRC 872 (2008) 963, 975. Admittedly, considering those who argue that self-defence is legitimate insofar as it serves the purposes of repelling (or preventing) an attack, there could be a third category, potentially tested for longer than the first use of force, but still not throughout the whole conflict. See, for example, Roberto Ago, Special Rapporteur to the International Law Commission,

A treaty-based crime of aggression 247 the US practice of providing a new justification per each airstrike, although acting to repel the same kind of threat posed by the same actor, as well as all commentators’ interpretation of such events through the lenses of the jus ad bellum,415 including the territorial state and its allies which called the 2017 and 2018 events as ‘a blatant act of aggression’,416 could be due to one of the following reasons. First, it could be consistent with those claiming that each action within the same conflict should find a new justification under self-defence. Second, it could be due to an attempt by one of the parties to the conflict to enlarge the so-called theatre of war by acting on self-defence. Indeed, while ‘[i]n international armed conflicts, military operations may not be carried out beyond what is at times referred to as “the area of war”’,417 ‘the extent to which a belligerent today is justified in expanding the area of operations will depend upon whether it is necessary for him to do so in order to exercise his right of self-defence’.418 Third, it could be an implicit admission that the actions undertaken before April 2017 were not against Syria as such, but only against ISIL and Al-Qaeda; or, alternatively, that absent the territorial state’s consent, the US’ ‘unwilling or unable’ rule of necessity when it comes to an ongoing armed conflict with a non-state actor could in fact have some legitimising effect under a new customary international law.419 Even more, considering the 2017 airstrikes, the application of the jus ad bellum standards to the airstrikes of the following year could support the US position that do not consider the Syrian one as an ‘armed conflict’, while portraying such actions as continuing and grounded each time on a new self-defence.420 Notably,

415

416

417 418 419

420

Eighth Report on State Responsibility, (1980) ILC Yrbk, ii, I, 13, at para. 121, UN Doc A/ CN.4/318/ADD.5–7. For example, Michael Schmitt and Lt. Col. Chris Ford, ‘The Use of Force in Response to Syrian Chemical Attacks: Emergence of a New Norm?’ (Just Security, 8 April 2017) accessed 17 April 2019; Marko Milanović, ‘The Syria Strikes: Still Clearly Illegal’ (EJIL: Talk!, 15 April 2018) accessed on 17 January 2020. See UN News, ‘Syria: As US Responds Militarily to Chemical Attack, UN Urges Restraint to Avoid Escalation’ (News UN, 7 April 2017) accessed on 17 January 2020; United Nations, ‘Following Air Strikes against Suspected Chemical Weapons Sites in Syria, Security Council Rejects Proposal to Condemn Aggression’ (UN, 14 April 2018) accessed on 17 January 2020. Kleffner (n 412) 43, 56 [emphasis added]. ibid 59 [emphasis added]. On the occasion of the 2014 US intervention, some commentators had, however, argued in favour of an implicit consent given by the Syrian Government, which indeed has never openly protested against the US. See, for example, Ryan Goodman, ‘Taking the Weight off of International Law: Has Syria Consented to US Airstrikes?’ (Just Security, 23 December 2014) accessed on 28 February 2020. Self-defence is to be assessed in relation to an armed conflict as a whole, as well as in relation to every on-the-spot armed attack. See Okimoto (n 220) 76–77.

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this practice could result in possible overlaps between jus ad bellum and jus in bello arguments.421 Lastly, it is worth signalling the change of approach of the Trump Administration if compared with its predecessor: under President Obama, the US held that ‘the United States does not view its ability to use military force against a nonState actor with which it is engaged in an ongoing armed conflict as limited to “hot” battlefields’.422 Yet in 2016 the US published a report which clarified that the criteria set out by Bethlehem applied ‘[w]hen considering whether an armed attack is imminent under the jus ad bellum for purposes of the initial use of force against another State or on its territory’.423 In this respect, the Administration argued that ‘once a State has lawfully resorted to force in self-defense against a particular armed group following an actual or imminent armed attack by that group, it is not necessary as a matter of international law to reassess whether an armed attack is imminent prior to every subsequent action taken against that group, provided that hostilities have not ended’.424 2.4.2 (D) THE US, THE UN CHARTER AND THE NOTION OF ‘ATTACK’ IN THE CYBERSPACE

The issue of information security has been the subject of study of the First Committee of the UNGA since 1998.425 Since then, several Groups of Governmental Experts (GGEs) have been established and submitted the result of their work to the UN Secretary General, who reports to the GA. Two UN GGEs reports, adopted by consensus in 2013 and 2015426 and recommended by the GA through the adoption of Resolution 71/28 in 2016,427 made express reference to the centrality in this field of the UN Charter and its principles, including the prohibition for states to threaten and/or use force in their international relations.428 In 2018, the UNGA confirmed that the UN Charter ‘is applicable and essential to maintaining peace and stability and promoting an open, secure, stable, accessible and peaceful ICT environment’.429 421 Kinga Tibori-Szabó, ‘Self-Defence and United States Policy in Drone Strikes’ 20 (2015) 3 Journal of Conflict and Security Law 381, 389–390. 422 The White House, ‘Report on the Legal and Policy Frameworks’ (n 202). Tibori-Szabó (n 421) 390–391. 423 The White House, ‘Report on the Legal and Policy Frameworks’ (n 202) 9 [emphasis added]. 424 Egan (n 231). See also The White House, ‘Report on The Legal and Policy Frameworks’ (n 202) 11. 425 See, UNGA Res 53/70 (4 January 1999) UN Doc A/RES/53/70 adopted by consensus. 426 UN Doc. A/70/174 (22 July 2015) para. 26 and UN Doc. A/68/98 (24 July 2013) para. 19. 427 UNGA Res 71/28 (9 December 2016) UN Doc. Res A/RES/71/28. 428 Among the most recent publications on Cyberspace and International Law, see François Delerue, Cyber Operations and International Law (CUP 2020); Henning Lahmann, Unilateral Remedies to Cyber Operations: Self-Defence, Countermeasures, Necessity, and the Question of Attribution (CUP 2020); Nicholas Tsagourias and Russell Buchan (eds), Research Handbook on International Law and Cyberspace (Edward Elgar Publishing 2015). 429 UNGA Res 73/23 (11 December 2018) UN Doc. A/RES/73/23. See, also, G20 Leaders, Communiqué at the end of the Summit in Antalya, Turkey on 15 November 2015, para. 26.

A treaty-based crime of aggression 249 No consensus was reached, however, within the fifth GGEs, established in 2015, in respect of its 2017 report.430 According to the US Deputy Coordinator of Cyber Issues, this was due to the fact that the report did not ‘take a clear position on the applicability of [the framework of] international law to States’ use of ICTS’.431 In October 2014, the US submitted before the fourth GGEs a position paper,432 which was not, however, completely embraced by the other experts in their 2015 final report. The 2015 report noted ‘the inherent right of States to take measures consistent with international law and as recognized in the Charter’.433 The reference was clearly to the right to use force in self-defence.434 This was only implicit probably due to a political tension within the GGEs. Russia, China, Pakistan, Malaysia and Belarus strongly opposed the US proposal of making an express reference to article 51 of the UN Charter.435 Already in 2011, the US had submitted to the UN Secretary General their views, stating that under certain circumstances ‘a disruptive activity in cyberspace constitutes an armed attack triggering the right to self-defence’ and ‘ambiguities and room for disagreement do not suggest the need for a new legal framework specific to cyberspace’.436 The following year, the then Legal Adviser, Harold

430 UN Doc. A/72/327 (14 August 2017) para. 5. UN Office for Disarmament Affairs, ‘Developments in the Field of Information and Telecommunications in the Context of International Security’ (July 2019). 431 US Deputy Coordinator for Cyber Issues Office of the Coordinator for Cyber Issues, Michele G Markoff, Explanation of Position at the Conclusion of the 2016–2017 UN Group of Governmental Experts (GGE) on Developments in the Field of Information and Telecommunications in the Context of International Security on 23 June 2017. 432 On this, see Giulia Pecorella, ‘The US and Information and Telecommunications in the Context of International Security: Which Implications for the ius ad bellum?’ (An International Law Blog, 25 April 2016) accessed on 6 May 2020. 433 UNGA 70/174 (22 July 2015) UN Doc A/70/174 para. 28(c) [emphasis added]. 434 cf. US Legal Adviser Brian J Egan, Remarks on International Law and Stability in Cyberspace at Berkeley Law School on 10 November 2016. 435 US paper submitted to the 2014–15 Group of Governmental Experts on Developments in the Field of Information and Telecommunications in the Context of International Security (October 2014). 436 Report of the UN Secretary-General, Developments in the field of information and telecommunications in the context of international security (15 July 2011) UN Doc. A/66/152, 18. For earlier US practice, see, for example, Marco Roscini, Cyber Operations and the Use of Force in International Law (CUP 2014) 70. Notably, Roscini points out that in 2011 the US included among those ‘hostile acts’ which could require a US military response, any ‘significant cyber attacks’ against the economy of the country. ibid 74. Moreover, since the 2001 US Critical Infrastructure Protection Act, the Government has referred to all those infrastructures whose ‘incapacity or destruction’ would have a ‘debilitating impact on’ among others, the ‘economic national security’, as critical infrastructures, which if targeted could trigger the US inherent right to self-defence. Kriangsak Kittichaisaree, Public International Law of Cyberspace (Springer 2017) 163.

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Koh, argued that article 51 of the UN Charter applied to ‘computer network activities that amount to an armed attack or imminent threat thereof’.437 On that occasion, he claimed that the United States has for a long time taken the position that the inherent right of self-defense potentially applies against any illegal use of force. In our view, there is no threshold for a use of deadly force to qualify as an ‘armed attack’ that may warrant a forcible response.438 The 2014 US paper read as follows: States should consider the nature and extent of injury or death to persons and the destruction of, or damage to, property. Although this is necessarily a case-by-case, fact-specific inquiry, cyber activities that proximately result in death, injury, or significant destruction, or represent an imminent threat thereof, would likely be viewed as a use of force/armed attack.439 In line with the US previous practice, the 2014 position paper thus expanded the defnition of armed attack by including certain cyber activities. Such a ‘threat of an imminent armed attack in or through cyberspace is not [always] associated with a corresponding threat of imminent armed attack through kinetic means’440 and can be committed by states as well as non-state actors. Notably, the absence of any threshold could broaden the scope of the application of the notion of armed attack, and, as a consequence, that one of act of aggression.441 Lastly, regarding self-defence against non-state actors and without the consent of the territorial state, the paper reaffirmed that an alleged victim state may resort to force when the territorial state is unwilling or unable to stop or prevent the actual or imminent armed attack, including those launched in or through cyberspace. However, it was added,

437 US Legal Adviser, Harold Koh, Address at the U.S. Cyber Command Inter-Agency Legal Conference on 18 September 2012. 438 ibid [emphasis in original]. According to the Tallin Manual 2.0, since the Nicaragua case, the US has been consistently claiming that ‘there is no gravity threshold distinguishing uses of force from armed attacks’. Tallinn Manual 2.0 on the International Law Applicable to Cyber Operations (CUP 2017) 333. Notably, the Manual cited an intervention by Sofaer, then US Legal Adviser, at the 1988 ASIL annual meeting, when Sofaer actually argued in favour of a consistent practice since the adoption of the UN Charter. 439 US paper submitted to the 2014–15 Group of Governmental Experts on Developments in the Field of Information and Telecommunications in the Context of International Security (October 2014). 440 ibid. cf, however, Mary Ellen O’ Connell, ‘Self-Defence, Pernicious Doctrines, Peremptory Norms’ in Mary Ellen O’ Connell, Christian J Tams, and Dire Tladi (eds), Self-Defence Against Non-State Actors (CUP 2019 vol 1) 196–197. 441 As for the notion of armed attack as a subcategory of aggression, see, for example, Terry D Gill, ‘The Law of Armed Attack in the Context of the Nicaragua Case’ 1 (1988) HagueYIL 30, 33 and 36–37.

A treaty-based crime of aggression 251 [i]f the territorial State does not consent to the use of force on its territory because it proposes to take a reasonable alternative course of action to respond to the actual or imminent armed attack or to allow others to do so, it generally should not be treated as ‘unwilling’.442 This is because, as the US had affrmed already in 2011, States are required to take all necessary measures to ensure that their territories are not used by other States or non-State actors for purposes of armed activities, including planning, threatening, perpetrating or providing material support for armed attacks against other States and their interests.443 The reference to states’ interests might arguably broaden the scope of application so as to include issues concerning interests different from national security. The 2016 position paper submitted by the US further clarified the US position on attribution of responsibility to a state for acts, including cyber operations, perpetrated by non-state actors.444 It provided that these are attributable to a State ‘when such actors engage in operations pursuant to the State’s instructions or under the State’s direction or control, or when the State later acknowledges and adopts the operations as its own’.445 According to the US, moreover, ‘it is important to note that there is no international legal obligation to reveal evidence on which attribution is based’.446 Notably, since 2014 NATO member states have recognised that the scope of NATO’s defensive mandate includes cyberspace. The Heads of State and Government participating to the 2014 Welsh meeting affirmed that international law and the UN Charter apply to the cyberspace.447 Yet ‘a decision as to when a cyber attack would lead to the invocation of Article 5 would be taken by the North Atlantic Council on a case-by-case basis’.448 In other words, it is a strategic choice of the Alliance not to provide with a definition of what would constitute an armed attack through or in the cyberspace;449 and the decision whether to

442 ibid. 443 Report of the UN Secretary-General, Developments in the field of information and telecommunications in the context of international security (15 July 2011) UN Doc. A/66/152, 19 [emphasis added]. 444 US paper submitted to the 2016–17 Group of Governmental Experts on Developments in the Field of Information and Telecommunications in the Context of International Security (October 2016). 445 ibid. 446 ibid. 447 NATO, Wales Summit Declaration issued on 5 September 2014, para. 72. See also Gray (n 104) 35. 448 ibid. See also Gray (n 104) 35. 449 See, for example, NATO Secretary General, Jens Stoltenberg, World Economic Forum session on “The future of NATO” on 23 January 2020.

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activate article 5 is, for admission of the NATO Secretary General, fundamentally a political one.450 More recently, the Tallin Manual 2.0 made a distinction between ‘cyber operations’ and ‘cyberwar’, as the former would not imply the use of force in selfdefence.451 Furthermore, while the 2018 International Law Association’s report conceded that ‘an emerging view is that cyber operations may constitute a use of force or even an armed attack’, it also added that this could only happen ‘if their scale and effects mirror those of a traditional kinetic use of force or armed attack’.452 2.4.2 (E) THE US, THE UN CHARTER AND THE NOTION OF ‘ATTACK’ IN THE OUTER SPACE

In the aftermath of 9/11 attacks, the US Administration claimed that The commitment of the United States to the exploration and use of outer space by all nations, for peaceful purposes and for the benefit of humanity, is clear. But [this] does not rule out activities in pursuit of national security goals. The security and well being of many nations depend on the ability to operate in space, and Article 51 of the UN Charter makes it clear that all Member States have the inherent right of individual and collective self-defense.453 Also, [f]or us as for others, ‘peaceful purposes’ does of course allow for activities that support and serve national security goals. Improving our ability to support military operations worldwide, monitor and respond to military threats, and monitor arms control and non-proliferation agreements are key priorities for our national security space activities – and they help strengthen international stability and security.454 In June 2002, the US withdrew from the ABM Treaty, which had been in force since 1972 and prohibited inter alia the development, testing and deployment of space-based ABM systems or components.455 On the same day, the then Democratic 450 NATO Secretary General, Jens Stoltenberg, Speech at the Centre for Strategic Studies at Victoria University of Wellington in New Zealand on 9 August 2019. 451 Noah Weisbord, The Crime of Aggression: The Quest for Justice in an Age of Drones, Cyberattacks, Insurgents, and Autocrats (Princeton University Press 2019) 137 and 140. 452 ILA (n 27) 25. 453 US Ambassador to the Conference on Disarmament (CD), Eric M Javits, Speech at the ‘Conference on Future Security in Space’ on 28 May 2002. See also US Under Secretary of State for Arms Control and International Security, John R Bolton, Statement to the Conference on Disarmament on 24 January 2002. 454 ibid [emphasis added]. 455 Treaty on the limitation of anti-ballistic missile systems (adopted on 26 May 1972, entered into force on 13 October 1972) 944 UNTS 13, Article V. See the Acronym Institute for

A treaty-based crime of aggression 253 Chair of the Senate Foreign Relations Committee, Joseph Biden, commented: ‘they [the Bush Administration] were [also] talking about weaponizing space. God help us when that moment comes’.456 Within the Conference of Disarmament (CD), meanwhile, the G21 expressed their concerns about the development and deployment of anti-ballistic-missile systems and insisted that all states should refrain from any activity that could result in the weaponisation of the outer space.457 Presidents Obama and Trump’s approach was in line with previous practice.458 President Trump’s 2018 fact sheet on National Space Strategy went even further and argued that [w]hile the United States would prefer that the space domain remain free of conflict, we will prepare to meet and overcome any challenges that arise. . . . [T]he United States will seek to deter, counter, and defeat threats in the space domain that are hostile to the national interests of the United States and our allies.459 Pre-emptive self-defence was therefore meant to counter all those threats merely hostile to the US interests. In this respect, it should be noted that, since early 2000s, US traditional military, civil, and commercial capabilities in space have been converging, so that the notion of national interests would be defnitely broader than national security issues.460 In 2019, moreover, the Trump Administration established the United States Space Command, with the aim to ‘to deter aggression and conflict, defend U.S. and allied freedom of action, deliver space combat power for the Joint/Combined force, and develop joint warfighters to advance U.S. and allied interests in, from, and through the space domain’.461 Also, the United States Space Force (USSF) within the Department of the Air Force was created to ‘deter aggression in, from, and to space’ and ‘conduct space operations’.462 In the meantime, in 2017, the US voted against the UN resolution establishing the GGEs on further

456 457 458 459 460 461

462

Disarmament Diplomacy, US Withdrawal from ABM Treaty, December 13: Announcement & Reaction accessed on 23 May 2020. ibid. G-21, Statement on Prevention of an Arms Race in Outer Space on 6 July 2002. National Space Policy of the United States of America (25 June 2010) 3; Fact sheet, ‘President Donald J. Trump is Unveiling an America First National Space Strategy’ (23 March 2018). Fact sheet (n 459) [emphasis added]. Marco Cervino, Stefano Corradini, and Silvio Davolio, ‘Is the ‘Peaceful Use’ of Outer Space being Ruled Out?’ Space Policy 19 (2003) 231, 233. US Space Command Press Release, ‘United States Space Command Fact Sheet’ (29 August 2019) at accessed on 3 June 2020. NDDA 2020 at 952 as cited in Contemporary practice of the United States, ‘United States Creates the U.S. Space Command and the U.S. Space Force to Strengthen Military Capabilities in Space’ 114 (2020) 2 AJIL 323, 326.

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effective measures for the prevention of an arms race in outer space,463 while the UNGA has expressed ‘serious concern over the plans declared by certain States that include the placement of weapons, in particular strike combat systems, in outer space’.464 In line with the US practice, NATO have ‘declared space as [their] fifth operational domain . . . [a]longside land, air, sea, and cyber’.465 This means that article 5 of the NATO Charter could apply to any attack in/from/to the outer space, but as affirmed by the Secretary General, NATO members ‘will always consider, on a case-by-case basis, whether to trigger Article 5, and we will not give the advantage to any potential adversary that will specify exactly what is the threshold for triggering Article 5’.466 More generally, many states, including Russia and China, have affirmed that the legal framework provided by the agreements adopted during the 1960s and 1970s is not sufficient to prevent a race in the outer space involving weapons other from those of mass destruction.467 The US has constantly opposed the adoption of any relevant UNGA resolution,468 or the conclusion of any international 463 UNGA Res 72/252 (24 December 2017) UN Doc. A/RES/72/252. See also UN Doc. A/72/PV.76, 11/24. 464 UNGA Res 74/34 (12 December 2019) UN Doc. A/RES/74/34, the US voting against. On the same day, the US also voted against the adoption of UNGA Res 74/33 (12 December 2019) UN Doc. A/RES/74/33. As for the resolution on the “No first placement of weapons in Outer Space’, the US always voting against, see UNGA Res 73/31 (5 December 2018) UN Doc. A/RES/73/31; UNGA Res 72/27 (4 December 2017) UN Doc. A/ RES/72/27; UNGA Res 71/32 (5 December 2016) UN Doc. A/RES/71/32; UNGA Res 70/27 (7 December 2015) UN Doc. A/RES/70/27; UNGA Res 69/32 (2 December 2014) UN Doc. A/RES/69/32. 465 NATO Secretary General, Jens Stoltenberg, Press Conference following the meeting of the North Atlantic Council at the level of Heads of State and/or Government on 4 December 2019. 466 NATO Secretary General, Jens Stoltenberg, Press Conference ahead of the meetings of NATO Ministers of Foreign Affairs on 19 November 2019. 467 NTI, ‘Proposed Prevention of an Arms Race in Space (Paros) Treaty’ accessed on 27 May 2020. 468 In 2019, for example, the US voted against the UNGA resolution reaffirming article 3 of the 1967 Treaty through an identical formula adopted since 1996 and recalling ‘the obligation of all States to observe the provisions of the Charter of the United Nations regarding the use or threat of use of force in their international relations, including in their space activities’. UNGA Res 74/32 (12 December 2019) UN Doc. A/RES/74/32. See also, the US voting against, UNGA Res 73/30 (5 December 2018) UN Doc. A/ RES/73/30; UNGA Res 63/40 (2 December 2008) UN Doc. A/RES/63/40; UNGA Res 62/20 (5December 2007) UN Doc. A/RES/62/20; UNGA Res 61/58 (6 December 2006) UN Doc. A/RES/61/58; UNGA Res 60/54 (8 December 2005) UN Doc. A/RES/60/54; UNGA Res 44/112 (15 December 1989) UN Doc. A/RES/44/112; UNGA Res 43/70 (7 December 1988) UN Doc. A/RES/43/70; UNGA Res 42/33 (30 November 1987) UN Doc. A/RES/42/33; UNGA Res 38/70 (15 December 1983) UN Doc. A/RES/38/70. All the other times, but in 1981 and in 1982, when they voted in favour, the US abstained from the adoption of the relevant resolution. See UNGA Res 36/97 C (9 December 1981) UN Doc. A/RES/36/97 C; UNGA Res 37/99 D (13 December 1982) UN Doc. A/RES/37/99 D.

A treaty-based crime of aggression 255 agreement, like the 2008 draft treaty submitted before the CD by China and Russia.469 In 2014, Russia and China submitted a revised version of their draft treaty on the prevention of the placement of weapons in the outer space, the threat or use of force against outer space objects, which the US opposed again. In a note verbale addressed to the Acting Secretary-General of the CD in September 2014, the US Delegation transmitted the US analysis of the draft, which in its relevant parts read as follows: [T]he concept of ‘use of force’ or ‘threat of force’ is not explicitly defined under existing international law, and attempting to negotiate an agreed definition for purposes of this treaty would likely prove impossible. The United States of America would not support the attempt to define these concepts for purposes of this treaty, given that existing international law, as reflected in Article 2(4) of the United Nations Charter, already prohibits the use of force or the threat of force against another State’s outer space objects. . . . Finally, the definition of ‘use of force’ or ‘threat of force’ under Article I of the draft is limited to actions ‘intended’ to inflict damage. The United States of America does not believe an action must be specifically ‘intended’ to inflict damage in order to constitute a use of force under existing international law.470 In 2018, the US Delegation reiterated their position471 and made clear that ‘any use of force in self-defence must be limited to what is necessary and proportionate to address the imminent or actual armed attack’.472

469 CD/1839. Russia and China had submitted their outline of a draft treaty already in 2002. Michel Bourbonnière and Ricky J Lee, ‘Legality of the Deployment of Conventional Weapons in Earth Orbit: Balancing Space Law and the Law of Armed Conflict’ 18 (2008) 5 EJIL 873, 890–891. In 2011, for instance, when the UNGA adopted resolution 65/68, which established a new Group of Experts on the Outer Space, the US abstained because the resolution mentioned the draft treaty submitted in 2008 by Russia and China. Christopher Johnson, ‘The UN Group of Governmental Experts on Space TCBMs’ (Secure World Foundation, April 2014). 470 Delegation of the United States of America to the Conference on Disarmament, Note verbale addressed to the Acting Secretary-General of the Conference transmitting the United States of America analysis of the 2014 Russian-Chinese draft treaty on the prevention of the placement of weapons in outer space, the threat or use of force against outer space objects (3 September 2014) CD/1998, at 11–12. 471 Delegation of the United States of America to the Conference on Disarmament, Note verbale dated 2 August 2018 addressed to the Secretary-General of the Conference transmitting the United States response to CD/2042 (14 September 2015), titled “Letter dated 11 September 2015 from the Permanent Representative of the People’s Republic of China to the Conference on Disarmament and the Chargé d’affaires a.i. of the Russian Federation regarding the United States of America analysis of the 2014 updated Russian and Chinese texts of the draft treaty on prevention of the placement of weapons in outer space and of the threat or use of force against outer space objects (PPWT)” (16 August 2018) CD/2129, at 13. 472 ibid.

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3 The US and the crime of aggression after the Kampala Review Conference In Kampala, the activation of the ICC jurisdiction over aggression was postponed to a future decision of the ASP to be taken when at least 30 states would have ratified the amendment, and in any case no sooner than in 2017.473 In June 2016, Palestine was the thirtieth state ratifying the amendment,474 and the ICC jurisdiction over the crime of aggression was finally activated on 17 July 2018, following the adoption by consensus of the ASP Resolution ICC-ASP/16/Res.5 on 14 December 2017.475 Some were disappointed with this event,476 though, as the conditions to exercise jurisdiction adopted in 2010 in Kampala, and then further clarified in December 2017, will limit the ICC’s actual ability to investigate and prosecute most of the leaders allegedly responsible for aggression. In particular, it seems ‘confirm[ed]’ that the Court won’t have any jurisdiction over aggressions committed by nationals or on the territory of states parties that have not ratified the Kampala amendment,477 as well as by nationals of states not parties.478 This means that the leaders of all five Permanent Members of the UN SC are for now excluded from the Court’s jurisdiction. Yet the US practice in and subsequent to Kampala has shown how the American Administration believes that the definition of the crime could still have an impact on states not parties (or on those states that have not ratified the amendment). As Harold Koh and Todd F. Buchwald, both present in Kampala, have underlined: The Rome Statute might well affect the way that states and others in the international community view customary international law, as is often said to have happened with respect to the definitions of ‘war crimes’ and ‘crimes against humanity’ in the Rome Statute. [Moreover,] even if it was true that the Court might decide not to investigate or prosecute any particular act that fell within the definition of the ‘crime of aggression,’ the act would not

473 Articles 15bis(2) and (3) ICC Statute. 474 As for the status of implementation of the Kampala amendments, see http://crimeof aggression.info/the-role-of-states/status-of-ratification-and-implementation/ accessed on 6 June 2020. 475 Only states parties were allowed to participate to the ASP. Therefore, the US were not present. Weisbord (n 451) 170. 476 See, for example, Jennifer Trahan, ‘From Kampala to New York – The Final Negotiations to Activate the Jurisdiction of the International Criminal Court over the Crime of Aggression’ 18 IntCLR (2018) 2. 477 ASP, Activation of the jurisdiction of the Court over the crime of aggression, ICC-ASP/16/ Res.5, 14 Dec. 2017, para. 2 [emphasis in original]. However, see Nikolas Stürchler, ‘The Activation of the Crime of Aggression in Perspective’ (EJIL: Talk! 26 January 2018) accessed on 5 June 2020. 478 See, however, Akande and Tzanakopoulos (n 42) 939.

A treaty-based crime of aggression 257 necessarily escape attempts to investigate or prosecute elsewhere, such as in domestic courts.479 The US legal position after Kampala could be seen as an attempt to show their dissent and seek support by other states. As clarifed by the ILC in 2018,480 the objection of a group of states facing the emergence of a new norm of customary law would eventually determine its non-formation. Thus, it comes with no surprise that the US Administration has invited states parties to the ICC to show their ‘disagreement’ about the defnition of aggression; although – as discussed in previous sessions – this would have any relevance only if the norm contained in article 8bis was merely treaty law, instigating the development of a new customary norm. In April 2015, Sarah Sewall, the then US State Department’s Under Secretary for Civilian Security, Democracy, and Human Rights, called upon states parties to formally state their views on the matter on the occasion of upcoming sessions of the ASP or in written instruments.481 She also considered the option of adopting additional Understandings.482 Interestingly, on other occasions, the US has even invited states parties not to ratify the amendment.483 Notwithstanding the Understandings adopted in Kampala, therefore, in the aftermath of Kampala, the US Administration still perceived the definition of the crime of aggression as a ‘threat’ to their national interests. Even more, in 2017 the US Special Adviser Carlos Trujillo claimed before the Sixth Committee of the UNGA that with respect to the crime of aggression amendments, . . . we believe contain dangerous ambiguities regarding basic issues such as which states and what conduct would be covered by the amendments. As we have said consistently, we believe that such issues should be clarified before any decision is taken by ICC States Parties to activate the amendments.484 This statement showed consistency between the Trump and the Obama Administrations, at least in relation to the crime of aggression, as it reiterated what had been held, for instance, by Ambassador David Pressman, US Alternate

479 Harold Hongju Koh and Todd F Buchwald, ‘The Crime of Aggression: The United States Perspective’ 109 AJIL (2015) 257, 271. 480 ILC, ‘Draft conclusions’ (2018) (n 63) Commentary (2) to Conclusion 15, 152. 481 Sewall (n 138). 482 ibid. 483 UN Doc A/69/PV.35, 20/27. See also Harold H Koh, ‘International Criminal Justice 5.0’ 38 (2013) 2 YaleJIntlL 525, 539. 484 US Special Adviser Carlos Trujillo, Remarks at a meeting of the Sixth Committee on the Report of the International Criminal Court on its activities from August 2016 through July 2017 on 30 October 2017 [emphasis added]. See also UN Doc. A/72/PV.37, 18/25; Ambassador Todd Buchwald, Remarks at the Fifteenth Session of the International Criminal Court Assembly of States Parties on 17 November 2016.

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Representative to the UN for Special Political Affairs, in November 2015, who made also reference to the chilling effect that would arise in any number of situations where the imperative for action, including by our partners and allies who are parties to the Rome Statute, is overwhelming, including action aimed at stopping the very atrocities that prompted the Court’s creation.485 Thus, according to the US Administration, despite the adoption of the Understandings in Kampala, the crime of aggression was likely to have an indirect effect on the US policy as many of their allies could have refrained from participating in any military unilateral intervention for humanitarian grounds. Another recurrent point in the Administration’s statements about the crime of aggression between Kampala and the activation of the Court’s jurisdiction over the crime indeed concerned ‘the widespread uncertainty about even such basic issues as whether the Court’s jurisdiction would apply with respect to Rome Statute parties that do not ratify the amendments’.486 Finally, the argument whereby the crime as defined in Kampala could turn out to serve the ICC’s interests in prosecuting American citizens and other US allies’ nationals for politically motivated reasons was among the main points made by the then US National Security Adviser, John Bolton, when in September 2018 he launched a campaign of strong opposition against the ICC, which was considered ‘ineffective, unaccountable, and indeed, outright dangerous’.487 In particular, according to Bolton, the Court fails in its fundamental objective to deter and punish atrocity crimes. . . . The hard men of history are not deterred by fantasies of international law such as the ICC. . . . Time and again, history has proven that the only deterrent to evil and atrocity is what Franklin Roosevelt once called ‘the righteous might’ of the United States and its allies – a power that, perversely, could be threatened by the ICC’s vague definition of aggression crimes.488 In Bolton’s opinion, therefore, the defnition of the crime of aggression could become functional to politically motivated prosecutions:

485 UN Doc A/70/PV.48, 24/27. See also UN Doc A/71/PV.37, 13/28. 486 US Acting Director of the State Department’s Office of Global Criminal Justice, Jane Stromseth, Address before the Fourteenth Sessions of the International Criminal Court Assembly of States Parties on 19 November 2015. See also US Ambassador at Large for Global Criminal Justice issues, Todd Buchwald, Remarks at the annual ICC Assembly of States Parties on 17 November 2016; UN Doc A/71/PV.37, 13/28. 487 US National Security Adviser, John R Bolton, Speech to the Federalist Society on 10 September 2018. 488 ibid.

A treaty-based crime of aggression 259 Was the mission of US Navy SEALs that killed Osama bin Laden in Pakistan a crime of aggression? What about the US and coalition strikes in Syria to protect innocent children from chemical weapons? How about . . . Israel’s actions to defend itself on countless occasions?489 Few weeks later, speaking before the UNGA, President Trump claimed that As far as America is concerned, the ICC has no jurisdiction, no legitimacy, and no authority. The ICC claims near-universal jurisdiction over the citizens of every country, violating all principles of justice, fairness, and due process. We will never surrender America’s sovereignty to an unelected, unaccountable, global bureaucracy. America is governed by Americans. We reject the ideology of globalism, and we embrace the doctrine of patriotism.490 President Trump, who in this respect has signifcantly departed from the Obama Administration, has often attacked the ICC legitimacy, while claiming to protect US, as well as Israeli, nationals from prosecutions.491 This culminated in the Executive Order signed by President Trump in June 2020 whereby he declared a national emergency to deal with the ‘unusual and extraordinary threat to the national security and foreign policy of the United States’ posed by any attempt by the ICC to investigate, arrest, detain, or prosecute any United States personnel without the consent of the United States, or of personnel of countries that are United States allies and who are not parties to the Rome Statute or have not otherwise consented to ICC jurisdiction.492 The Order authorised travel-ban measures and economic sanctions against any ICC personnel and their family. On 2 September 2020, the Secretary of State, Mike Pompeo, announced the Administration’s decision to adopt sanctions

489 ibid. 490 US President, Trump (n 406). 491 See, for example, US President, Donald J Trump, Statement on 12 April 2019; US Deputy Permanent Representative to the UN, Ambassador Jonathan Cohen, Remarks at the UN Security Council on 13 December 2018; Remarks at the UN Security Council on 14 December 2018; Deputy US Representative to ECOSOC, Courtney Nemroff, Remarks on 14 December 2018; US Political Coordinator to the US Mission to the UN, Rodney Hunter, Explanation of Vote at the Adoption of UN Security Council Resolution 2463 on 29 March 2019. US Acting Permanent Representative to the US Mission to the UN, Ambassador Jonathan Cohen, Remarks at the UN Security Council on 8 May 2019; US Secretary of State, Michael R Pompeo, Remarks to the Press on 15 March 2019; and Press Statement on 9 October 2019; Press Statement on 20 December 2019; Press Statement on 5 March 2020; Press Statement on 17 March 2020; Press Statement on 15 May 2020; and Interview via teleconference on 29 May 2020. As for the debates before the UNGA, see UN Doc A/74/PV.26, 26/28 (the US dissociating from the consensus in the adoption of resolution 74/6); UN Doc A/73/PV.28, 27/31. 492 US President, Donald J Trump, Executive Order adopted on 11 June 2020.

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against the ICC Prosecutor, Fatou Bensouda, and ICC’s Head of Jurisdiction, Complementarity, and Cooperation Division Phakiso Mochochoko.493

4 Conclusion This chapter has mainly examined the US position on aggression following the establishment of the ICC, with a focus on the 2010 Kampala Review Conference and the US subsequent practice. In Kampala, the US claimed that the amendment adopted did not correspond to the definition of aggression under customary law. However, this chapter has attempted to demonstrate that it might well be argued that the amendment has just codified or contributed to crystallise a correspondent customary norm. Also, the Understandings submitted by the US Representatives have been compared with the ones eventually adopted by states parties so as to show that the US has not reached its original goals. The US subsequent practice only confirms that in the Administration’s opinion, the definition adopted in Kampala, no matter the jurisdictional limitations before the Court, could affect customary international law and open the door to domestic prosecutions based on universal jurisdiction. Furthermore, this chapter has discussed the so-called grey areas of the jus ad bellum, namely both unilateral humanitarian intervention and pre-emptive self-defence as it has been interpreted by the US over the last decades. With reference to the latter, it has been concluded that the theory of accumulation of events conceived during the Vietnam War, which was based on an ongoing series of actual attacks, has developed so as to comprise the notion of pre-emptive self-defence against terrorists. It is applied with no limits in space and time and is justified by the existence of a ‘continuing and imminent threat’. The practice subsequent to the 2001 attacks has just taken to extremes what had been put in practice already by Ronald Reagan and especially by William Clinton. More recently, the US Administration has also been centring its legal justifications on the unwilling or unable test, in order to justify their use of force against the territory of a state they are not at war with and which has not given their prior and express consent to the military operations. As for the effects on international law, the international community has only partially aligned itself with what had been claimed by the US. In other words, for the purposes of article 51 of the UN Charter, an attack from a terrorist organisation is now equal to an ‘armed attack’ by a state. However, there is no sufficient evidence to show that they share the US interpretation of self-defence as applied during its war on terror since 2001. This practice violates article 51 of the UN Charter and does not meet other requirements pertaining to the law of selfdefence. Imminent self-defence is a notion that has recently become of relevance also within the context of cyberspace and the outer space.

493 US Secretary of State, Mike Pompeo, Remarks to the Press on 2 September 2020.

A treaty-based crime of aggression 261 When it comes to the notion of unilateral humanitarian intervention, states have not shown any homogeneous and univocal practice (or even an opinio juris ac necessitatis) which could support the idea of a change of the customary rules governing the jus ad bellum that are reflected in the relevant provisions of the UN Charter. Nor has the Kampala amendment added anything new in this respect. Lastly, if all US leaders are currently shielded from the ICC jurisdiction on aggression as the US is not a party to the Statute and is a Permanent Member at the UN SC, this does not automatically secure former US leaders from national proceedings in those countries which provide for universal jurisdiction in relation to international crimes of a customary nature. In this respect, the Understandings adopted in Kampala could not achieve the diplomatic goals of the US, and the US practice subsequent to the 2010 Review Conference only confirms this.

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A treaty-based crime of aggression 263 Vienna Convention on the Law of Treaties (the Vienna Convention) (open to signature 23 May 1969, entered into force 27 January 1980) 1155 UNTS 331

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Conclusion

This book has traced the US position on aggression from the Declaration of Independence (1776) to the Trump Administration (2020). While for the US aggression is a crime under customary international law, their view has changed over time. For a long period, they simply did not show any interest towards aggression as an international crime. Then, from 1918 to 1944, the US kept opposing any international motion aiming at criminalising aggression. In early January 1945, however, Roosevelt embraced an idea that had been unfolding within both the Departments of War and of State. This event inaugurated a brief but very intense period lasting until 1952 wherein the US became the main supporter of the criminalisation of aggression. Subsequently, during the Cold War and until 2002, the US claimed that a definition was not feasible, but it was at the same time indispensable for their consent on a code of offenses against mankind and the establishment of an international criminal court. Finally, in Kampala the US delegates argued that the contours of this crime under customary international law were not sufficiently clear, opposed the definition adopted in 2010 and for seven years tried to boycott it by arguing that it did not reflect customary international law. For a very long period, the US largely contributed to the ‘progressive development of international law’. They actively participated in the Hague Peace Conferences and had a leading role in the drafting of both the Covenant of the League of Nations and the Briand-Kellogg Pact. This notwithstanding, they opposed the idea of a trial against the German Kaiser which was advanced within the Commission for the Responsibility of the Authors of the War after the First World War, as the Kaiser had violated international morality but had not violated any law. Two decades later, this was the same position the US adopted for long within the United Nations War Crimes Commission. Then, the US approach changed again as they became the main supporter of the criminality of aggression. At the 1945 London Conference, the US Representative, Robert Jackson, made it clear that in the future the crimes enlisted in the IMT Charter had to be considered also applicable to the nations sitting in judgement. Moreover, the lack of a legal precedent as well as the absence of an internationally codified crime did not violate the principle of legality as aggression was a crime at the moment the Second World War broke out (and even

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earlier!). In London, Jackson submitted a proposal for a definition of aggression which was not upheld by the other delegates. This definition – with the sole exception of the act of bombing – did not differ from the wording of what later would become article 3 of the UNGA Resolution 3314 (1974). Moreover, the US Prosecutors made reference to ‘act of aggression’, ‘war of aggression’ or ‘armed attack’ as they were interchangeable. The relevant tribunals recognised individual criminal responsibility for acts of aggression as well. Moreover, mainly as a result of the US prosecutorial strategy, the judgements of the IMT and IMTFE, as well as those of the American tribunals at Nuremberg, considered aggression as ‘the supreme international crime’. That aggression was the gravest international crime under customary law found a confirmation in important resolutions adopted by the UNGA, once again under the US initiative. Thus, by resorting to concepts mostly rooted in natural law, the US gave a huge contribution to the ‘progressive development of international law’. Due to the Cold War, however, this positive relation between the US position on the crime of aggression and customary law ended abruptly. Although they never denied the value of the Nuremberg precedent, for a very long time the US did not contribute to reaffirming or clarifying it. This culminated in the US opposing to the adoption of the Kampala definition as in their opinion it did not reflect customary law. The discussions related to the possibility to charge Saddam Hussein for aggression after the Iraqi invasion of Kuwait, however, confirm that the US still considers aggression punishable under customary international criminal law. Also, while the US Administration has claimed that the definition adopted in 1974 is not relevant for criminal-law purposes, that definition is not significantly different from the one submitted by Jackson at the 1945 London Conference. Yet even admitting that the customary law crime might be not perfectly coincident with the definition adopted in Kampala, the adoption by consensus of a definition on the occasion of a multilateral conference could have contributed to the progressive development of international law by codifying or crystallising customary law. This is even truer if one considers that the definition makes reference to the UN Charter, whose relevant provisions, according to the US Administration, have a peremptory nature. Likewise, the insertion of a threshold clause makes it unlikely for the crime defined in Kampala to depart from customary law. The very US practice in and after Kampala, including their struggle to see their Understandings adopted, confirms that the Kampala amendment could in fact be deemed to reflect customary international law. Leaving aside any consideration on the actual legal value of these Understandings, the last chapter has attempted to prove that they might not bar the development of international law. In other words, US nationals are safe from prosecution before the ICC as the US is not a party to the Statute, has not accepted the Court’s jurisdiction in case of aggression and is a Permanent Member of the UN SC that could always veto any resolution aimed at triggering the Court’s jurisdiction when some US nationals are allegedly involved in the commission of the crime of aggression. However, this cannot shield former political or military leaders from prosecution before

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the national courts of those countries which exercise universal jurisdiction over international crimes of a customary nature. This is a fortiori applicable for those ‘grey cases’ of the jus ad bellum such as the unilateral humanitarian intervention and the preventive self-defence as it has been interpreted by the US Administration in the last decades. Being the prohibition to resort to force a custom of a peremptory nature, it can only be modified by a majority of states representing all geographic areas of the world. With respect to both cases in question, the US is still encountering a significant opposition from the international community which leads one to conclude that the rule set out by article 2(4) of the UN Charter has not been modified and no new exception has been established yet. Thus, being the provisions adopted in Kampala silent in this regard, there is no reason to believe that the Court could not exercise its jurisdiction over those leaders which have committed an act of aggression of a sufficient gravity (or scale) by using force without any prior UN SC authorisation or grounded in a kind of self-defence different from the one provided under international customary law. Lastly, the interpretation the US has given of the notions of armed attack in the cyberspace and in the outer space are very controversial as well. The words used by Robert Jackson during his Opening Statement before the IMT have turned out to be prophetic: ‘We must never forget that the record on which we judge these defendants today is the record on which history will judge us tomorrow’.1

1 Representative and Chief Counsel for the United States of America, Robert H Jackson, Opening Statement for the United States of America at the Palace of Justice, Nürnberg on 21 November 1945 in Trials of the Majors War Criminals before the International Military Tribunal Nuremberg, 14 November 1945–1 October 1946 (International Military Tribunal 1947 vol II) 101.

Index

9/11 attacks 252 Acheson, D. 5, 139–140 Act of Chapultepec 85, 89, 94, 142 Afghanistan 100, 224 aggression: act of 3, 6, 61, 78, 108; as an instrument of propaganda 161–163; as an international wrongful act 35; criminalisation of 4–32; defined 56–58, 60, 90, 94, 99, 102, 134, 165; disarmament and 57–59; indefinable 146–186; international crime of 85–142; international delict of 35–80; principle of nonintervention 53–57; during Second World War 73–80; treatybased crime of 191–261; see also specific types Aguinaldo, E. 21 Akande, D. 246 Albania 242 Alderman, S. 108–110 Algeria 241 Algiers 10 Al-Qaeda 3, 222, 224, 226–228 American Civil War 11–12 American colonies 5–6 American Hemisphere 11, 13, 56, 146, 149 American Military Tribunals 2 animus aggressionis 13, 172 Annan, K. 233n258, 238 Anti-War treaty 60, 71 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia) (Judgment) [2015] ICJ Rep 3 at 87–88 203n53 Arab States 241 Argentina 242

Armas, C. C. 147 Armed Activities on the Territory of the Congo (New Application: 2002) (Democratic Republic of the Congo v. Rwanda), Jurisdiction and Admissibility (Judgment) [2006] ICJ Rep 6 at 64 203n53, 246n411 armed aggression 72, 79, 151, 159–161 armed attack 156, 226; actual 141, 157; aggression and 141; aggression different from 137–138, 148–149, 153; aggression equal to 153; Cold War 142; imminent 228, 248; in cyberspace 248–250; in Europe 139–140; in North Atlantic Treaty 140, 152; North Vietnamese 157; notion of 245; pre-emptive selfdefence 222; right of self-defence 92n39; terrorist attack/s to 158, 160, 223; in UN Charter 152; unprovoked 138 armed neutrality 30 Assembly of the States Parties (ASP) 191–192, 194, 200, 256–257 Atlantic Charter 73 Australia 153, 242 Belarus 241 Belgium 37, 51, 65 Bensouda, F. 260 Bethlehem, D. 228 Biden, J. 253 Blaine, J. G. 12–13 Blaire, A. 234, 240 Blix, H. 237, 239 Bolivia 53, 56, 67, 219 Bolton, J. 215 Borah, W. 49 Boxer Protocol 56 Brazil 242

Index Briand, A. 48–50 Briand-Kellogg Pact 51, 59–60, 63–64, 267 Buchwald, T. F. 256 Bush, G. H. W. 158, 160, 179, 181 Bush, G. J. W. 222, 225–226, 231, 233–235, 237–238, 240, 243 Canada 9 Caperton, W. B. 25 Caracas Declaration 147 Caroline 8–9, 32 Case Concerning Military and Paramilitary Activities In and Against Nicaragua (Nicaragua v. United States of America) (Merits) General List No 70 [1986] ICJ 158n67, 202n51, 221n185 Case Concerning Oil Platforms (Islamic Republic of Iran v. United States of America) (Merits) General List No 90 [2003] ICJ at 57 221n186, 222n190, 246n411 Cash-and-Carry Act 70 Cash-and-Carry clause 69 Cassese, A. 131, 172, 206, 212, 223–224 Chaco War 67 Chamoun, C. 152 Chanler, W. 78–79, 86 Chemical Weapon Convention 217 Cheney, D. 234 Chile 11, 12, 61 China 45, 56–57, 66, 69, 73, 219 Choate, J. H. 18 Clinton, W. 184, 210–211, 222–223, 260 collective defence 136–141 collective security, UN Charter 93–94 collective self-defence 147 Colombia 167, 242 Commission of Neutrals 53 Commission on the Responsibility of the Authors of the War and on Enforcement of Penalties 36–41 communism 146–147 complementarity 193–194, 199–200 condemnation of war 53 Congo 167 contraband of war 8–9, 26 Convention for the Definition of Aggression 100 Convention for the Pacific Settlement of International Disputes 14 Convention on the Consolidation of American Peace Agreements 56

271

Convention on the Rights and Duties of States 54 Coolidge, C. 48 Cooper, J. S. 168 Corfu Channel 159 criminalisation of aggression 4–32; declaration of independence 5–12; First World War 26–31; international conferences 12–19; justifications 20–26; neutrality doctrine 5–12; overview 4; selfdefence 5–12 Cuba 20–23, 26, 147–148, 241 Customary international law 40, 131, 158, 181–182, 184–186, 191, 193, 194, 196–202, 205–208, 219, 247, 256–257, 260–261 Cyprus 167 Czechoslovakia 69 Danforth, J. 243 Davis, N. H. 58, 60 Declaration of American Principles 56, 56n127 Declaration of Independence 1–2, 5–12 Declarations of Caracas and San José 148 Democratic People’s Republic of Korea (DPRK) 132 Denmark 65 de Vattel E. 6, 9 Dinstein, Y. 215, 226, 234 direct aggression 141, 149 disarmament 57–59 Dominican Republic 17, 23, 25 domino theory 153 Draft Convention Coordinating the Existing Treaties 55 Draft Treaty of Mutual Assistance 45, 111 Drago, L. M. 16, 19 Drago doctrine 15n56, 16, 16n59, 19 drones 226–227 Ečer, B. 76 Ecuador 167 Egypt 242 Eisenhower, D. D. 147, 151–153 ElBaradei, M. 239 Erga omnes 42, 74, 203n52 Equatorial Guinea 219 Estonia 100 Ethiopia 61–63, 68, 219 Federal Republic of Yugoslavia (FRY) 210 Ferencz, B. 172

272

Index

Fifth International Conference of the American States 46 First Seminole War 10 First World War 2, 4, 26–31, 35, 45, 48 Florida 10 France 39, 41, 48–49, 51, 65, 69, 153, 214, 219, 235–236; aggressive war against 120; draft resolution by 133n306; Free 71; Germany and 8, 48; Italian attack on 65; Quasi-War with 10; territorial integrity of 65; tripartite declaration by Germany, Russia and 239 Franck, T. 233 General Assembly (UNGA or GA) 91, 132, 137, 142, 146, 158, 161, 163–165, 172, 175, 181, 184, 203–204, 208, 211, 235, 243, 248, 254, 259, 268 General Convention of Inter-American Conciliation 53 General Disarmament Conference 68 General Treaty of Peace and Amity 47 Geneva Conference 60 Geneva Prisoners of War Convention 87 Geneva Protocol 87, 111 genocide 183, 193 Georgia 242 Germany 51–52, 98, 125; after First World War 48; alliance with Mexico 31; France and 8, 15, 48, 51, 239; Italy and 71; minorities within 98; Munich Agreement 64; Nazi 97; neutral rights 30; non-aggression Pact 109; Paris Peace Conference 36; rearmament of 128; treaties signed by 112; uses of submarines 29; war in 1917 29; wars of aggression 114 Ghana 167 Goldsmith, L. 234 Grant, U. S. 8 Great Britain 10, 15, 51, 66, 70, 73 Greece 69 Groups of Governmental Experts (GGEs) 248–249, 253 Guatemala 242 Guyana 167 Hague Conference (1907) (Holland) 18n65, 18n66 Hague Convention (1899) 15, 87, 96, 101, 111, 119, 123 Haiti 23, 25

Havana Convention on Maritime Neutrality 67 Hawaii 21 Hay, J. 18 Henderson, J. B. 13 Herter, C. A. 147 Hispaniola 25 Hodgson, L.-C. 76 Holland, T. E. 18n65 Holls, F. W. 14–15 Hoover, H. 44, 51 hostis humani generis 200 Hughes, C. E. 44, 46, 48 humanitarian intervention 208–220 humanity 6–7; atrocities against 218; crimes against 152; dictates of 122; interests of 20, 26; principles of 41, 63 Hurts-Miller plan 42 Hussein, Saddam 181, 234, 237, 240; for aggression 3, 146, 268; hypothesis of a trial 180; individual criminal responsibility of 186; prosecute 179 ICC Statute 1, 181–185, 198 Iceland 242 indefinable aggression 146–186; as an instrument of propaganda 161–163; ICC Statute 181–185; interventions in Latin America 146–151; Persian Gulf War (1990) 176–181; Resolution 2625 163–164; Resolution 3314 164–172; selfdefence 151–160; US and outer space 172–175 India 242 indirect aggression 136–137, 141, 169; see also direct aggression individual defence 136–141 Indonesia 167, 242 instrument of propaganda, aggression 161–163 Insular Cases 21 Inter-American Conference for the Maintenance of Peace 55 interests of humanity 20, 26 International Conference of American States on Conciliation and Arbitration 53 International Court of Justice (ICJ) 158–159, 164, 209, 211, 221, 226, 245–246 international crimes 35; of aggression 85–142; changes 86–89; collective defence 136–141; Germans

Index responsible for 36; individual defence 136–141; London 95–104; Nuremberg 104–117; Nuremberg principles 129–136; regional vs. universal aggression 89–95; Subsequent Nuremberg Trials 125–129; Tokyo 117–125 International Criminal Court (ICC) 1–2, 146, 191 international delict of aggression 35–80; conferences 44–47, 53–59; interpositions of temporary character 47–48; multilateral agreements 44–47, 53–59; neutrality 66–72; overview 35–36; Pact of Paris 48–53, 59–66; Paris Peace Conference 36–44; Second World War 73–80; self-defence 66–72; US practice 47–48 international law: pillar of 9; principles and rules of 207; principles of 28 International Law Association 61 International Law Commission (ILC) 1n1, 132, 134, 182, 202–204, 220, 257 International Military Tribunal (IMT) 2–3, 80, 85, 96, 104, 108, 112, 118, 123, 124, 127–129, 131, 141–142, 268–269 International Military Tribunal for the Far East (IMTFE) 2, 118, 121, 123, 131, 142, 268 international organisation for the maintenance of peace 73–74 international police 4, 21, 25–26, 30–32 interventions in Latin America 146–151 Iran 167, 242 Iraq 176–181, 228, 233, 243 Iraq-Kuwait Observation Mission 240 Island 20 Italian Somaliland 62 Italy 15, 52, 61, 68 Jackson, R. H. 2–3, 70, 85, 89, 94–96, 98–106, 112, 115–116, 123, 135, 186, 267–269 Jamaica 242 Japan 21, 61–62, 67, 69, 242 Jefferson, T. 5, 7–8 Jersey v Delaware 122 Johnson, L. B. 154 Joint Resolution 1145 154 Jurisdictional Immunities of the State (Germany v. Italy: Greece Intervening) (Merits) General List No 143 [2012] ICJ at 94 203n53

273

jus ad bellum 3, 4–5, 12, 45, 191–192 jus cogens 202–206 jus in bello 248 Kampala amendment 1, 3, 191, 199–200, 201–207, 256, 261, 268 Kampala Review Conference 1, 3, 192–255; ‘character’ factor in threshold clause 207–255; Kampala amendment 201–207; US and crime of aggression after 256–260; US position, rationale 197–201; US position in Kampala 192–197 Kazakhstan 219 Kellogg, F. B. 46, 50–52 Kellogg-Briand Pact 48–53, 59, 87–88 Kennedy, J. F. 147–150, 153 Khrushchev, N. 147–149 Knox, P. C. 23 Koh, H. H. 193, 215, 228, 233, 256 Korean War 85 Kress, C. 195–196 Kuwait 242 Laden, O. B. 222, 227–228, 259 Lansing, R. 37–38 Latin America 18, 22, 35, 47, 146–151 Latvia 100, 242 Law of Nations 7n10, 10, 26, 36–37, 39, 49, 54, 95, 97, 180 laws of nature 5–6 Legality of use of force (Yugoslavia v. United States) (Request for the indication of provisional measures) CR 99/24 [1999] ICJ 211n99 League of Nations (LoNs) 35, 36; Committee of Jurists of 45; Covenant of 42–44, 63–64, 71; Eighth Assembly of 87 Lend-Lease Act 70–71 Levinson, S. O. 49 Libya 241 Lincoln, A. 12 Locarno Treaty 51–52, 88 Lodge amendment 44 London 95–104 London Agreement 85, 102–104, 110, 117, 125, 130, 172 London Conference 2, 85, 97, 186, 267–268 Low, S. 14 Luxembourg 65, 113, 139 Luxemburg 37, 39, 109 Lytton report 62

274

Index

MacDonald, R. 51 Macedonia 242 Madison, J. 11, 159 McCloy, J. J. 78 McKinley, W. 20 McLeod, A. 9–10 McNair, A. 76, 79 Meeker, L. C. 156 Mexican-American War 11n34 Mexico 11, 31, 167 Milanović, M. 246 Miller D. H. 42 Mochochoko, P. 260 Mongolia 243 Monroe, J. 10–12, 15, 21, 24, 43 Monroe Doctrine 11–12, 15–16, 21–24, 32, 43, 92, 140, 147 Morocco 242 Moscow 73, 76 Mussolini 62 Napoleonic war 7 National Security Council (NSC) 139 national security interest 218 National Security Strategy for a Global Age, A 223 Naval Conference 48 Netherlands 40, 65 neutrality: armed 30; of Belgium 37; concept of 8; governmental policy of 10; of Luxemburg 37; self-defence and 66–72 Neutrality Act 68–69, 71, 123 neutrality doctrine 5–12 New Zealand 90, 153, 242 Nicaragua 23–24, 47–48, 243 Nine-Power Conference 64 Nine-Power Treaty 45, 62 Non-Aligned Movement (NAM) 241 Norway 65, 242 Nuremberg 104–117 Nuremberg Charter 104, 126–127, 131–132 Nuremberg principles 129–136 Obama, B 191, 193, 216–217, 226, 243, 248, 253, 257, 259 O’Connell, M. E. 223 Olney, R. 19 Pacific War 12 Pact of Brussels 139 Pact of Paris (1879–1883) x, 35, 48–53, 59–66

Padovani v. Italy (1993) Series A no 257-B 199n39 Pakistan 153, 227 Palestine Liberation Organization (PLO) 158 Panama 22, 90 Panama Canal 25 Panama Conference 65 Pan-American Conference (VI) 48 Paraguay 53, 67 Paris Peace Conference 35, 36–44 Peremptory norms 62n156, 203–205 Persia 100 Persian Gulf War (1990) 176–181 Peru 12 Philippines 153 Philippine war 21 Pierce, F. 8 Poland 100, 242 Polk, J. K. 11 Pompeo, M. 229 Porter, H. 18 Potsdam Declaration 117, 117n203 Powell, C. 234, 238 Preliminary Peace Conference 36–37, 42 Preparatory Commission 2, 185–186, 191–192, 206 principles and rules of international law 1, 207 principles of humanity 41 Prize Cases 12 Proclamation of Neutrality (Washington) 6, 7n11, 26 Proclamation of Neutrality Act 26 Prosecutor v. Furundzjia (Judgement) IT-95–17/1-T 198n25, Prosecutor v. Kupreskic, Judgment, Case No: IT-95-16-A, ICTY Trial Chamber, January 14, 2000 75n34, 131n299 Protocol for the Pacific Settlement of International Disputes 45, 46n64, 111 Quasi-War 10 Reagan, R. 160–163 regional vs. universal aggression 89–95 ‘Repeal of the Neutrality Act’ (1942) (Wright) 6n6, 72n230 Republic of Korea (ROK) 132, 242 Restatement of International Law 210 Responsibility to Protect 214–215 Rice, C. 234 Rio Conference 17

Index Rio Treaty of Non-Aggression and Conciliation 55 Romania 100 Rome Statute x–xii, 1–2, 146, 186, 191–193, 198–199, 256 Roosevelt, F. D. 54, 54n113, 57, 57n130, 59, 59n139, 63–64, 64n164, 65, 69–70, 72 Roosevelt, T. 16–18, 21–23, 57, 57n130, 59n139, 64n164, 65n174–n179, 66n181–n182, 68n195, 69, 69n204–n209, 70n213, 74–75, 86 Root, E. 44 Rules of Procedure and Evidence 1, 185n205, 207 Rumsfeld, D. 234 Russia 21, 219, 239 San José Declaration 147 Santo Domingo Improvement 21 Schabas, W. 104, 198, 211 Scharf, M. 131, 200, 218 Scheffer, D. 183–184, 200 Scott, J. B. 37, 42 Second Hague Conference 17–18 Second International Conference of American States 15 Second Peace Conference 17, 19 Second World War 2, 35, 65, 73–80 self-defence 5–12, 19, 100, 220–255; anticipatory 9; collective 147; indefinable aggression 151–160; necessity of 9; neutrality and 66–72 Seventh Pan-American Conference 54 Seward, W. H. 12 Shotwell, J. T. 45, 48 Singapore 242 Sixth International Conference of the American States 46 Sixth Pan American Conference 87 Soleimani, Q. 228 South Africa 242 Southeast Asia Collective Defense Treaty (Manila Pact) 152–153 Soviet Union 73 Spain 11, 21, 167 Spanish-American War 4, 20–21, 32 Special Working Group on Aggression 192, 196 Statute, the xi, 1, 99, 184, 191–192, 194–195, 197–201, 205, 207, 220, 261, 268 Stevenson, A. 147

275

Stimson, H. L. 44–45, 51, 59–62, 67, 71, 77–78, 87–88, 112, 116 Stimson doctrine 61n153, 62 St James’s Declaration 74–75 Subsequent Nuremberg Trials 125–129 Sudan 242 supreme international crime 104 Sussex (ferry) 29 Switzerland 242 Syria 219, 243–248 Taft, W. H. 23–24, 232 Taliban 224 Taylor, C. 107 Taylor, T. 126 Tenth Pan-American Conference 147 Texas 11 Thailand 153 Thatcher, M. 179 Third International Conference of American States 17 Thirteen-Power draft 167–168 Tokyo 117–125 treaty-based crime of aggression 191–261; Kampala Review Conference 192–255; US and crime of aggression after Kampala Review Conference 256–260 Treaty of Arbitration 13 Treaty of Mutual Assistance 50 Treaty of Paris 21 Treaty on the Manufacture of and Traffic in Arms 59 Tripoli 10 Trump, D. 3, 191, 217–218, 229–230, 244–245, 253, 259 Trump Administration 1, 248, 253, 267 Tunis 10 Tunisia 242 Turkey 100, 242 Tyler, J. 9–10 Uganda 167 UN Charter 5–6; armed attack 152–153; article 2(4) of 90–91, 140, 153, 173, 180–181, 202, 204–207, 215, 242; article 51 of 91–93; 137–138, 141, 149, 157, 172–173, 222, 230, 249–250, 252, 260; in article 8 bis 3, 192–193, 198–201, 205, 207–208, 221, 257; article 2(7) of 5–6; article 39 of 90, 93, 215; articles 53 of 149–150; collective security 93–94; flagrant violation of

276

Index

158; principles and purposes of 164; in San Francisco 94; violation of 193, 196, 202, 214 United Nations (Organisation of) 85 United Nations War Crimes Commission (UNWCC) 35–36, 74, 76, 80, 103–104, 117n203, 267 United Nations General Assembly (UNGA) 2–3, 146, 172; Resolution 34/68 175, 255n469; Resolution 36/27 158; Resolution 181(II) 137; Resolution 2625 3, 164, 186; Resolution 3314 2, 146, 164–172, 201–202 United Nations War Crimes Commission (UNWCC) 35, 74–80 United States of America vs. Alfred Krupp, et al. (The Krupp Case) US Military Tribunal Nuremberg, Case No X (8 December 1947-31 July 1948) 125n260 United States of America vs. Carl Krauch, et al. (The IG Farben Case) US Military Tribunal Nuremberg, Case No VI (27 August 1947-30 July 1948) 125n259 United States of America vs. Ernst von Weizsäcker, et al. (The Ministries Case) US Military Tribunal Nuremberg, Case No XI (6 January 1948-13 April 1949) 125n262 United States of America vs. Wilhelm von Leeb, et al. (The High Command Case) US Military Tribunal Nuremberg, Case No XII (30 December 1947-28 October 1948) 125n261, 128n276 United States Space Force (USSF) 253 United States v. Hudson 41 United States v Smith 200 Universal jurisdiction 3, 191, 197, 200–201, 259–261, 269 universal vs. regional aggression 89–95 unlimited national emergency 72 UN Security Council (SC) 1, 149n15, 154n44, 192, 217n146, 217n147, 259n491; Resolution 487 158; Resolution 678 232; Resolution 687 231–232; Resolution 1368 223; Resolution 1441 232–234, 238; Resolution 1973 215 Uphold Democracy 210 Uruguay 167

US and Others v. Araki and Others 53n108, 122n234, 122n237, 123n245, 123n247 US: armed forces 48, 151; doctrine of neutrality 5, 66; forces in Haiti 25; policies on war crimes 87; position in Kampala 192–197; regionalism 48; role as international police 30; ship Maine, sinking of 20 US-France Treaty of Alliance (1778) 8 US, Great Britain and 59; US and 49; willingness to prohibit supplies 7 US National Security Strategy (NSS) 212 US Senate Committee on Foreign Relations 51 US State-War-Navy Coordinating Committee 117–118 Uzbekistan 242 Venezuela 15, 22, 242 Versailles Treaty 38–39, 43 Vienna Convention on the Law of Treaties 198n29, 204, 263 Vietnam 151, 242 Vietnam War 152 Walters, A. V. 158 war: condemnation of 53; contraband of 8–9, 26; defined 17; as ultima ratio 30 war crimes 77, 87, 102, 106, 119, 132–133, 180 war of aggression 66, 95, 99–100; act of aggression and 194; as an act 38; an immoral thing 79; commission of 39; as common crime 17; condemnation of 138; crimes against peace 3, 164, 171, 186; criminal per se 97; declared/undeclared 118; defined 124; European 108; initiating/waging of 102, 116, 119, 125, 182–183; initiation of 40; as instrument of national policy 111; international crime 46, 49; Iraq 179; launching of 86, 97–100, 102; licit 44; London Charter 185; Nazi conspiracy 88; Pact of Paris 112; planning and preparing 119; planning and waging of 110; planning or knowingly participating in 127; premeditation of 38; propaganda in favour of 164; supreme crime 130; Syria 240; US Prosecutors 268 War on Terror 221, 224, 225, 260

Index Washington, G. 6–7 Washington Conference 45 Webster, D. 8–9 Wechsler, H. 79 Wheeler, E. G. 150 White, A. D. 13–14 Wilson, W. 6, 12, 24, 26, 29–31, 33, 36, 39–40, 42–44

277

World Summit Outcome Document 215 Wright, L. 122 Wright, Q. 39, 72 Yemen 242 Yugoslavia 167 Zelaya, M. 23–24