CHAPTER 47

Aggresslon
Aggression' is an illegal act. The Security Council has beer
take
collectiveaction under Chapter VII of the Charter against a powered to
State which
commits it, after having determincd it in accordance with
Article 39. On
occasions, the Council has failed to determine the aggression nany
the term has not been dcfined under the Charter. A few carlier primarily beca
treaties snon
by the League of Nations such as the Draft Treaty of Mutual
under Article 1 and the Geneva Protocol for the Pacific
Assistance of 1923
Intermational Disputes under Article 10 though prohibited aggression,
Settlement of
define it. It was therefore, a difficult task to identify the they failed
aggressor in an arme
conflict in view of the fact that no universally acknowledged
aggression has been laid down.
definition of
The task for defining aggression was entrusted to the
International
Commission by the General Assembly in 1950 on the proposal of the Law
Union. The Commission did not furnish the definition of the term Soviet
itself, but it
decided to include acts of aggression in the Draft Code of Offences
and Security of Mankind which was in the course of
Against Peace
preparation under its
auspices. Its report of 1951 stated that the concept of aggression is a 'natural' one,
which was not susceptible to definition. However, the General
Assembly
considered that a satisfactory definition of the term is 'possible and desirable'
with a view to ensuring international peace and security. In 1952, the Assemby
establisheda Special Committee for
defining aggression.' After a long exchange
of views and deliberations, the Committee approved a definition by consensus
and was referred to the General Assembly. The Assembly thereapon adopted a
resolution Definition of Aggression' on December 14, 19743 The purpose of
defining the term aggression is to recommend to the Security Council to take
account of the definition as guidance in determining, in accordance with the
Charter, the existence of an act of aggression so that it may recommend or decide
as to what measures shall be taken by it in accordance with Articles 41 and 42,
to maintain or restore international peace and security.

Definition of Aggression:
The resolution defines under Article 1 that 'aggression is the use of armeu
force by a State against the sovereignty, territorial integrity or politct
independence of another State, or in any other manner inconsistent Win e
1. For detailed study of the topic see H.O. Agarwal 'Aggression in International Law N
submitted at the annual seminar of the International Law Association (Indian Brancn
eminar
Delhi on March 31, 1979. The paper was published in the Proceedings ofthe Annual
of the International Law Association, 1979, p. 15.
2. General Assembly Resolution 599 (V1), January 31, 1952.
3. General Assembly Resolution 3314 (XXIX) December 14, 1974.
 AHgresslon 683

he Unitcd Nations' The above provision has been laid down as per

of Para 4 of ticle
2 of the Charter of the United Nations which
al rule
C h a t

members shall refrain iin their international rclations from the

t h eg c n e r a

hat 'all
l a y sd o w

use of
force against the
territorial integrity or political independence of
or
threat
ar in any
other manner inconsistent with the purposcs of the United
here is one striking point of differencc bctween the two
anyState,

However,
Para 4 of the Charter uscs the words 'use of force
Whilc Article 2,
Nations'

'usc of armed forcc'. It shows that the

of aggression provides
provisions.

definition wherc forces othcr than 'armed force' arc

the
docs not
cover thosc cases
tion cconomic or political measurcs which
aved, for instance, coercive,
of the United Nations of 'political
ifutcs
constitutes the breach of the principles
the
domestic affairs
'sovereign cquality' and non-interference in the
sometimes branded as forms of indirect
n d e p e n d e n c e ' ,

measures, which are

ates. Suchexcluded from the perview of the definition of aggression.
ofgression a r e exo
of armed force
asserted under Article 2 that 'the first use
The definition has
constitute prima facie evidence of
in contravention of the Charter shall
State it may have,
It means that if a State, whatever grievance
hv a

n aCt of aggression. of priority

an
armed force, shall be deemed aggressor. Thus, the concept
es the been regarded as a test for
an objective criterion, has
uses

(irst use
of force),
The requirement that the first
the act of aggression and the aggressor.
determining contravention of the Charter' seemed to imply
that
1se of
force should be "in of the
be a legit1mate first use
of force which was not in contravention
there could It is to be noted that
the former has been regarded as aggression.
Charter. Only manner is not a sure
of being first to use armed force in a given
the circumstances international conflict. The
determination of aggressor in an
Criterion for the armed forces first upon another
compel a State to use the
circumstances may which compelled a
Under Article 2 the 'other relevant circumstances',
State. shall be determined by
forces first, under the definition,
State to use the armed view of the 'other relevant
Council. If the Council considers that in
the Security even the first user
shall not
of force was not unjustified,
circumstances' first use
of the
It implies that the presumption that the first user
be regarded as aggressor. Council finds
would prevail unless the Security
armed force would be aggressor
it to the contrary.

Acts Qualifying Aggression: enumerated certain 'acts' which,

if they are
Article 3 of the definition has
as aggression 'regardless
of a declaration of war'.
committed would be regarded in the
which had been a recognized concept
It implies that the declaration of war,
no longer be a pre-requisite for the
classical International Law would that it has lost
determination that aggression had
taken place in view of the fact
are as follows-
ts value. Acts which 'qualify as an act of aggression'

(a) Invasion or Attack: the territory of

of State on
by the armed forces
a
The invasion or attack
provided under Para (1)
list of clearly aggressive acts
as
another State heads the
however temporary, resulting from such
o Article 3. Military occupation, and are regarded as
annexation are also added
nvasion or attack, or any
aggression.
 684 International Law and Human Rights

(b) Bombardment and the Use of Weapons

Para (b). Article 3 stipulates two different acts as aggressive acts: firstly, the
bombardment by the armed forccs of a State against the territory of another State,
and secondly, the use of any weapons, by a State against the territory of another
State. The expression 'any weapons' includes not only the use of nuclear,
bacteriological and chemical weapons but also any other weapons of mass
destructioon.

(Blockade :
Blockade of the 'ports or coasts' of a State by the forces of another State has
been regarded as an aggressive act.
Attack on Land, Sea or Air Forces or Marine or Air Fleets:
(d)
An attack by the armed forces of a State on the land, sea or air forces or
marine or air-fleets of another State also constitute an act of aggression under
Para (d) of Article 3. It implies that attack on vessels or aircraft would be
aggression regardless of the fact as to whether they are military or civilian.
(e) The Use of Armed Forces in Contravention of Conditions provided
inthe Agreement:
Para (e) of Article 3 indicates that a State having its troops within the
territory of another State where they have been lawfuly stationed might be guilty
of aggression if they use the forces in contravention of the conditions provided in
the agreement between the sending State and the receiving State, or if they did
not evacuate those troops beyond the termination of the agreement.

(f) Perpetration of an Act of Aggression:

The action of a State which has placed its territory at the disposal of another
State shall be deemed aggression under Para (f) of the Article 3 if the latter uses
this territory for perpetrating an act of aggression against a third State with the
acquiescence or agreement of the former.
(Sending of Armed Bands, Groups, Irregulars or Mercenaries
Para (g) of Article 3 provides that the sending by a State or on behalf of it,
to another State or armed bands, groups, irregulars or mercenaries which carry
out gave acts or armed forces against another State would be deemed as
aggression. The gravity and the substantial involvement of the armed bands, and
whether their acts amount to aggression or not, would be considered by the
Security Council after taking all the circumstances into account
The above acts enumerated under Article 3 are not exhaustive. The Security
Council may determine 'other acts' also as an act of aggression under the
provisions of the Charter.' Thus, the definition does not curtail or fetter the
discretionary power of the Security Council as provided under Article 39 of the
Charter to determine the act of aggression. It was done so perhaps because of the
fact that the Security Council has a primary responsibility for the maintenance of
international peace and security as provided under Article 24 of the Charter
Rome Statute establishing the Intermational Criminal Court under Article

1. See Article 4.
 685
Aggression
under the Court's
listed the crime of aggression as one of the core crime the
to exercise jurisdiction over
jurisdiction. However, the Court remained unable the crime of aggression. Later,
crime of aggression as the Statute did not define
the Review Conference of the Rome Statute held in Kampala
(Uganda) in 2010
amendments to the Rome Statute
which included a
adopted by consensus
Statute of the ICC. Article
definition of the crime of aggression by amending the
force by one State against
8 defines an act of aggression as the use of armed the
or authorization by
another State without the justification of self defence
as well as the actions
Security Council. The definition of the act of aggression,
the amendments, i.e., invasion by
qualifying as acts of aggression contained in influenced
armed forces, bombardment and blockade are by the acts qualifying
Resolution 3314 of 14th
aggression contained in the U.N. General AssemblyICC would not be allowed
that the
December, 1974. The amendment specified unless the
to commence the jurisdiction of the
crime of aggression against a State
amendment has entered into force for 30 States
Parties and on or after January 1,
2017. As of November 29, 2017, 34 States
have ratified or acceded to the
Court.
amendments to the Rome Statute of the International Criminal
Self-determination and the Use of Force:
constitutes a serious
The subjection of the peoples to alien domination
and security. Article 7 in
impediment to the maintenance of international peace
the people's right who have
the Definition of Aggression was included to save
use the force to secure it. The
been forcibly deprived of that right may legitimately
use of force by them shall not be
deemed aggression. It implies that the definition
to self-determination.' Article 7
has recognized the inherent right of the peoples
of such States 'to seek and
of the definition further gives a right to the peoples
receive support' from other States to 'struggle to
that end'. The above provision
of International Law
is in consonance with the Declaration on Principles
States in accordance
concerning Friendly Relations and Co-operation among
with the Charter of the United Nations which provides:
are entitled to seek and to
receive support in
Such peoples
accordance with the purposes and principles of the Charter.

LEGAL CONSEQUENCES OF AGGRESSION:

Aggression has been recognized as aagainst international peace
crime
has therefore a
under Article 5 of the definition. A State committing aggression
The nature of responsibility is not
responsibility under International Law.
United Kingdom* at the time of
mentioned therein. The representative of the
not go any further than
discussion had stated that the responsibility does
and the
International Law had already gone. His view was supported by Japan
that the Security Council
United States. In the absence of any clarity, it appears
into considerations of all the
would decide the nature of responsibility after taking
of International Criminal Law
relevant circumstances. The further development
Article 5 lays down
isurgently
another
required to deal with such issues. The third para of
consequence of the aggression, i.e., 'no territorial acquisition of special
from are or shall be recognized as lawful'. 'The
aggression
advantage resulting
1. See Chapter United Nations Organisation.
2. U.N. Doc. A/9619.
686 International Law and Human Rights

principle that the fruits of aggression should not be recognized had long been
acknowledged in international legal theory, even if ignored in international
practice. The definition simply reaflirms the above

The Effect of the Definition of Aggression:

The Preamble of the resolution lays down the usefulness and the
significance of defining aggression. The definition is in the form of
recommendation to the Security Council which determines the act of aggression
under Article 39 of the Charter of the United Nations. The Preamble lays down
that the definition would simplify the determination of acts of aggression and
act of aggression. For
would serve as guidance in determining the existence of an
laid down in the definition,
this purpose alone, the 'basic principles' have been
has been committed or not
although the question whether an act of aggression in each
would be decided in the light of all the circumstances particular case.
General Assembly has reaffirmed
The definition has a varied impact. The
several international declarations such
the consensus definition of aggression in
International Detene of 1977 Declaration
of Societies for Life
as Declaration on
Declaration on the Non-use of Force
of 1988." Further, the
in Peace of 1978 and
be
International Court of justice has held
that Article 3 (g) of the definition may
reflect international law." The dissenting opinion of judge
taken to customary
was significant and
could not be ignored. But
Schwebal noted that the definition cases in
Council appears to be different. In the few
the attitude of the Security had
the Security Council that an act of aggression
which it was determined by Iraq's attack
no reference
made to the definition. For instance,
was
occurred, the Security Council as an invasion
condemned by
against Kuwait in 1990
was the
made to Article 3 (9) of
but no reference was
and illegal occupation', outlawed such invasion
and
which specifically
definition of aggression
annexation.
members of the United Nations
conference of all the
It is submitted that a The conclusion of a convention
is
multilateral treaty.
be convened to conclude a International Court of
Justice
international organizations including conventions.
desirable as treaties and
priority to international
while applying law give highest there must be scepticism
about the
code is not enacted, hard to bring
As long as any legal those who worked so
of the definition of aggression and dreamers' who
usefulness as 'utopian
shape will be characterized
the term in the present of the World in which they
live.
the realities
failedto recognize