The Geneva Protocol, by David Hunter Miller

CHAPTER X. 39
The view of the Report to the Assembly[5] in this matter is that such acts of violence are included in the
expression. I am {56} inclined to agree with this view, though as a mere matter of language an argument to
the contrary is possible.
Suppose, however, that there is an actual state of war; how is it to be determined which one of the two[6]
belligerents is the aggressor?
The Protocol attempts to meet this difficulty by laying down two different methods of determining the
aggressor. One is by creating certain presumptions, which I shall discuss later; the other is for the case in
which none of the presumptions is applicable.
In this case, that is to say, in the absence of the presumptions, it is for the Council to determine the aggressor
and, in order to come to such a determination, the Council must act unanimously under the general rule of
Article 5 of the Covenant.
I have no doubt of this conclusion, which is the conclusion of the Report to the Assembly. It is true that the
language of Article 10 of the Protocol is not as clear as it might be, since the duty and power of the Council to
determine the aggressor are not directly stated, but rather to be inferred from the language.
What Article 10 of the Protocol says as to this in its last paragraph but two[7] is that, apart from the cases
when there is a presumption,
"if the Council does not at once succeed in determining the aggressor, it shall be bound to enjoin upon the
belligerents an armistice, and shall fix the terms, acting, if need be, by a two-thirds majority and shall
supervise its execution."
{57}
So that in those cases where the presumptions hereafter considered do not arise, it is the duty of the Council to
determine the aggressor; it must act unanimously in coming to such a determination; as the Report to the
Assembly says,
"Where there is no presumption, the Council has to declare the fact of aggression; a decision is necessary and
must be taken unanimously";
and, if the Council is not unanimous, it must enjoin an armistice upon the belligerents.
Before coming to the procedure before the Council, I now enumerate those cases in which, because of the
existence of certain facts, a State is "presumed" to be an aggressor; any such presumption can be upset only by
the unanimous decision of the Council to the contrary. These cases are as follows:
1. If hostilities have broken out and a State has refused to submit the dispute to the procedure for pacific
settlement contemplated by the Protocol.
2. If hostilities have broken out and a State has refused to comply with a decision, award, etc.
3. If hostilities have broken out and a State has disregarded a determination that the matter in dispute is a
domestic matter and has not submitted the question for discussion by the Council or Assembly under Article
11 of the Covenant.
4. If hostilities have broken out and a State has violated the provisional measures against mobilization, etc.,
contemplated by Article 7 of the Protocol (and which will be mentioned later).