Summaries of the Work of the International Law Commission
Question of defining aggression
The General Assembly, in resolution 378 (V) of 17 November 1950, decided to refer to the Commission a proposal made by the Union of Soviet Socialist Republics in connection with the agenda item “Duties of States in the event of the outbreak of hostilities” and all the records of the First (Political and Security) Committee of the Assembly dealing with the question, so that the Commission might take them into consideration and formulate its conclusions as soon as possible. The Soviet proposal provided that the General Assembly, “considering it necessary ... to define the concept of aggression as accurately as possible”, declares, inter alia, that “in an international conflict that State shall be declared the attacker which first commits” one of the acts enumerated in the proposal.1
At its third session, in 1951, the Commission considered the question whether it should enumerate aggressive acts or try to draft a definition of aggression in general terms.2 The sense of the Commission was that it was undesirable to define aggression by a detailed enumeration of aggressive acts, since no enumeration could be exhaustive. It also considered it inadvisable unduly to limit the freedom of judgement of the competent organs of the United Nations by a rigid and necessarily incomplete list of acts constituting aggression. It was therefore decided that the only practical course was to aim at a general and abstract definition. But the Commission’s efforts to draw up a general definition were not successful.
During the same session, however, the matter was reconsidered in connection with the preparation of the draft Code of Offences against the Peace and Security of Mankind. The Commission then decided to include among the offences defined in the draft Code any act of aggression and any threat of aggression.3
At its sixth session, the General Assembly examined the question of defining aggression and concluded, in resolution 599 (VI) of 31 January 1952, that it was both “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”. At the Assembly’s request, the Secretary-General submitted a detailed report to the Assembly at its seventh session covering all aspects of the question.4
On 20 December 1952, the Assembly, in resolution 688 (VII), established a fifteen-member special committee which was requested to submit to the Assembly’s ninth session, in 1954, “draft definitions of aggression or draft statements of the notion of aggression”. The special committee met at United Nations Headquarters from 24 August to 21 September 1953. Several different texts aimed at defining aggression were presented. The committee, however, decided unanimously not to put the texts to a vote but to transmit them to the General Assembly and to Member States for comments.5 Comments were received from eleven Member States.
By resolution 895 (IX) of 4 December 1954, the General Assembly established another special committee, consisting of nineteen members, and requested it to report to the eleventh session of the General Assembly, in 1956. The nineteen-member committee met at United Nations Headquarters from 8 October to 9 November 1956. It did not adopt a definition but decided to transmit its report to the Assembly, summarizing the views expressed on the various aspects of the matter, together with the draft definitions previously submitted to it.6
At its twelfth session, in 1957, the General Assembly, in resolution 1181 (XII) of 29 November 1957, took note of the special committee’s report. By the same resolution, the Assembly decided to invite the views of twenty-two States admitted to the United Nations since 14 December 1955, and to renew the request for comments of other Member States. It also decided to refer the replies of Governments to a new committee, composed of the Member States which had served on the General Committee of the Assembly at its most recent regular session, and entrusted the committee with the procedural task of studying the replies “for the purpose of determining when it shall be appropriate for the General Assembly to consider again the question of defining aggression”.
The committee, which met at the United Nations Headquarters from 14 to 24 April 1959, decided that the fourteen replies received did not indicate any change of attitude and agreed to postpone further consideration of the question until April 1962, unless an absolute majority of its members favoured an earlier meeting in the light of new developments. The committee met again at United Nations Headquarters in 1962, 1965 and 1967, but on each occasion found itself unable to determine any particular time as appropriate for the Assembly to resume consideration of the question of defining aggression. The activities of this committee came to an end in 1967, when the General Assembly decided to undertake again substantive consideration of the question of the definition of aggression.7
Recognizing “that there is a widespread conviction of the need to expedite the definition of aggression”, the General Assembly, by resolution 2330 (XXII) of 18 December 1967, established a Special Committee on the Question of Defining Aggression, composed of thirty-five Member States, “to consider all aspects of the question so that an adequate definition of aggression may be prepared”. The Special Committee held seven sessions, one every year from 1968 to 1974. At its 1974 session, the Special Committee adopted by consensus a draft definition of aggression and recommended it to the General Assembly for adoption.8 On 14 December 1974, the Assembly adopted by consensus the Definition of Aggression as recommended by the Special Committee. The Assembly also called the attention of the Security Council to the Definition and recommended that the Security Council should, as appropriate, take account of that Definition as guidance in determining, in accordance with the Charter, the existence of an act of aggression.9
Crime of aggression
Article 5 of the Rome Statute of the International Criminal Court provides that the Court shall exercise jurisdiction over the crime of aggression once a provision has been adopted defining the crime and setting out the conditions for the exercise of jurisdiction with respect to this crime. Such a provision must be consistent with the Charter of the United Nations.10
The Rome Conference, which adopted the Statute, also adopted resolution F on the establishment of the Preparatory Commission for the International Criminal Court, which was annexed to the Final Act of the Conference.11 The Preparatory Commission was entrusted with the preparation of proposals for a provision on aggression, including the definition and the elements of the crime of aggression as well as the conditions under which the International Criminal Court will exercise its jurisdiction with regard to this crime. The proposals are to be submitted to the Assembly of States Parties of the Court at a review conference, with a view to arriving at an acceptable provision on the crime of aggression for inclusion in the Statute. The provisions relating to the crime of aggression will enter into force for the States Parties in accordance with the relevant provisions of the Statute.12
The Preparatory Commission considered the crime of aggression at its second to tenth sessions held from 1999 to 2002.13 At its second session, in 1999, the Preparatory Commission agreed to establish the Working Group on the Crime of Aggression at its next session.14 At its tenth session, the Preparatory Commission agreed to include in its report to the Assembly of States Parties the discussion paper15 on the definition and elements of the crime of aggression prepared by the Coordinator of the Working Group, together with a list of all proposals and related documents on the crime of aggression issued by the Preparatory Commission as well as the historical review of developments relating to aggression16 prepared by the Secretariat for transmission to the Assembly of States Parties.17
The General Assembly, in resolutions 55/155 of 12 December 2000 and 56/85 of 12 December 2001, noted the importance of the growing participation in the work of the Working Group on the Crime of Aggression.
At its first session, in September 2002, the Assembly of States Parties adopted a resolution on the continuity of work in respect of the crime of aggression, by which it took the following decisions: (1) a special working group on the crime of aggression shall be established, open on an equal footing to all States Members of the United Nations or members of specialized agencies or of the International Atomic Energy Agency, for the purpose of elaborating the proposals for a provision on aggression in accordance with the Rome Statute (article 5, paragraph 2) and Resolution F (paragraph 7); (2) the special working group shall submit such proposals to the Assembly for consideration at a Review Conference; and (3) the special working group shall meet during the regular sessions of the Assembly or at any other time that the Assembly deems appropriate and feasible.18 The Assembly subsequently decided that the Special Working Group on the Crime of Aggression should meet during annual sessions of the Assembly, while leaving open the possibility of informal inter-sessional meetings depending upon the availability of funding for such a meeting by any Government wishing to do so.19
At its second session, in 2003, the Assembly of States Parties took note of the oral report of the Chairman of the Special Working Group on the Crime of Aggression and decided, as recommended by the Chairman, to annex to its report the discussion paper on the definition and elements of the crime of aggression prepared by the Coordinator of the Working Group on the Crime of Aggression during the Preparatory Commission.20(see the web site of the International Criminal Court)
2 The Commission considered the question on the basis of chapter II of the second report of the Special Rapporteur for the draft code of offences against the peace and security of mankind entitled “The Possibility and Desirability of a Definition of Aggression” (see Yearbook of the International Law Commission, 1951, vol. II, document A/CN.4/44) as well as memoranda and proposals presented by other members of the Commission (see ibid., documents A/CN.4/L. 6–8, 10–12 and 19).
3 See Yearbook of the International Law Commission, 1951, vol. II, document A/1858, para. 53. (see Analytical Guide)
9 The text of the Definition of Aggression is contained in General Assembly resolution 3314 (XXIX), annex. See also Official Records of the General Assembly, Twenty-ninth Session, Annexes, agenda item 86, document A/9890.
10 See Official Records of the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Rome, 15 June–17 July 1998, vol. I, Final documents (United Nations publication, Sales No. 02.I.5), document A/CONF.183/9, article 5.
11 See Official Records of the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Rome, 15 June–17 July 1998, vol. I, Final documents (United Nations publication, Sales No. 02.I.5), document A/CONF.183/10, Annex I, F.
12 Rome Statute, articles 121 and 123.
13 See Proceedings of the Preparatory Commission at its first, second and third sessions (16–26 February, 26 July–13 August and 29 November–17 December 1999) (document PCNICC/1999/L.5/Rev.1, paras. 12, 15, 16 and 20); Proceedings of the Preparatory Commission at its fourth session (13–31 March 2000) (document PCNICC/2000/L.1/Rev.1, paras. 9 and 11); Proceedings of the Preparatory Commission at its fifth session (12–30 June 2000) (document PCNICC/2000/L.3/Rev.1, paras. 9 and 12); Proceedings of the Preparatory Commission at its sixth session (27 November–8 December 2000) (document PCNICC/2000/L.4/Rev.1, paras. 10 and 11); Proceedings of the Preparatory Commission at its seventh session (26 February–9 March 2001) (document PCNICC/2001/L.1/Rev.1, paras. 9, 11 and 14); Proceedings of the Preparatory Commission at its eighth session (24 September–5 October 2001) (document PCNICC/2001/L.3/Rev.1, paras. 10, 11 and 14); Proceedings of the Preparatory Commission at its ninth session (8–19 April 2002) (document PCNICC/2002/L.1/Rev.1, para. 14); Proceedings of the Preparatory Commission at its tenth session (1–12 July 2002) (document PCNICC/2002/L.4/Rev.1, paras. 9, 10 and 16); and Report of the Preparatory Commission for the International Criminal Court (document PCNICC/2002/2, paras. 8 and 9 as well as document PCNICC/2002/2/Add.2).
14 See Proceedings of the Preparatory Commission at its first, second and third sessions (16–26 February, 26 July–13 August and 29 November–17 December 1999) (document PCNICC/1999/L.5/Rev.1), para. 16.
18 Resolution ICC-ASP/1/Res.1 of 9 September 2002. See Official Records of the Assembly of States Parties to the Rome Statute of the International Criminal Court, First Session, New York, 3–10 September 2002 (ICC-ASP/1/3, United Nations publication, Sales No. 03.V.2), p. 328.
19 See Official Records of the Assembly of States Parties to the Rome Statute of the International Criminal Court, First Session (First and Second Resumptions), New York, 3–7 February and 21–23 April 2003 (ICC-ASP/1/3/Add.1, United Nations publication, Sales No. 03.V.8), paras. 37 and 38.
20 See Official Records of the Assembly of States Parties to the Rome Statute of the International Criminal Court, Second Session, New York, 8–12 September 2003 (ICC-ASP/2/10, United Nations publication, Sales No. 03.V.13), para. 44.