The Geneva Protocol, by David Hunter Miller

CHAPTER X. 41
Here again, however, there would unquestionably be disputed facts; that is to say, unless one of the parties
said that it was the aggressor, it would require an elaborate investigation to {60} determine under the
language of Article 10 of the Protocol whether a State had resorted to war in violation of its undertaking, or
had violated the rules laid down for a demilitarized zone. It is utterly impossible to suppose that the Council
could ever immediately determine the aggressor under such circumstances by unanimous vote; and such
determination must be immediate. The language of the text is: "at once"; and in the French: "dans le plus bref
délai."
Let us look at the matter concretely and take up the question of procedure, supposing an actual case before the
Council. There is a crisis; hostilities have or are supposed to have broken out; there are two States which
either are or are thought to be at war; the Council meets. Not only under the realities of the situation, but
under the express language of the Protocol, the Council must act instantly; the peace of the world is at stake.
Now, under those circumstances, there could be only two situations. One would be when some Great Power,
either by open and announced defiance or by its refusal even to meet with the Council, proclaimed itself an
aggressor. In that case of course neither the language of Article 10 nor any other language would make any
difference. The other situation would be that the two States were there before the Council, each claiming that
the other was in the wrong, each disputing the allegations of fact made by the other's representative. In such
case clearly no presumption could arise and in such case the Council could not ever immediately determine
the aggressor by unanimous vote. The mere fact that it would require time to examine into the truth of the
respective allegations would prevent this. So the Council, by the compelling facts of the situation and indeed
in accordance with the strictest construction of the Protocol, would be constrained to declare and would
declare an armistice.
Any dispute as to what State was guilty of aggression prior to that time would be put over for subsequent
adjustment; the armistice would be laid down and would be obeyed. Of course, in theory, it could be violated
and the violator of the armistice {61} would become the aggressor; but a State that was going to refuse or
violate the armistice, knowing the procedure, would doubtless not go to the Council at all.
So, to my mind, the vital part of the procedure laid down by Article 10 for determining an aggressor is found
in the provision giving the Council the power immediately to declare an armistice; and, under the procedure,
this, in my judgment, is the only power that the Council would ever exercise, except in the case suggested, in
which a State itself denounced itself as an aggressor.
I am aware that the framers of the Protocol are not in accord with these views. In their opinion, the
presumptions of Article 10 establish "an automatic procedure which would not necessarily be based on a
decision of the Council." They say that where a presumption has arisen and is not unanimously rejected by the
Council, "the facts themselves decide who is an aggressor" and otherwise that "the Council has to declare the
fact of aggression."
I can only say that their conclusions, while perhaps admissible as a mere matter of language and nothing but
language, take no account of the inevitable certainty that there will always be at least two views of what the
facts are; to put it from a legalistic viewpoint, tribunals do not deal with facts; they deal with what lawyers
call facts, but which are merely conclusions based on such evidence as is available. This sort of a "fact" is
arrived at only after a hearing or a trial of some kind; and to suppose that the Council could ever conduct such
a hearing, and at the same time come to a unanimous and immediate conclusion is to suppose a contradiction
in terms.[12]
So while from the language of Article 10 of the Protocol difficulty may arise in determining an aggressor
under its provisions (for there might in any case be a disputed or doubtful question of fact; and the Council
under the provisions of the Covenant would in general have to act unanimously) the Protocol provides a
solution of any such difficulty by saying that if the Council does not immediately determine the aggressor, it