Contents - Constitutional Court of Georgia

The Blank-Prose Crime of Aggression
Second, the term “aggression” is used twice in the Charter, in Article 39 and in paragraph l of
Article l, which lists as one of the Charter’s purposes “the suppression of acts of aggression or other
breaches of the peace.” 38 Nowhere in the Charter, however, is “aggression” defined (the result of
the successful opposition of the United States and the United Kingdom to defining the term during
the relevant proceedings at Dumbarton Oaks and San Francisco). 39
C. The General Assembly, International Law Commission, and Rome Conference
Faced with the Charter’s definitional void, the U.N. General Assembly in l946 unanimously reaffirmed
40 the circular definition of aggression in the Nuremberg Charter. 41 In the same measure, the
Assembly asked the International Law Commission (ILC) to develop a Code of Offenses Against the
Peace and Security of Mankind, but difficulties in defining aggression led the ILC to suspend that
effort in l954. 42
Following three unsuccessful efforts of its own to define the crime of aggression, 43 in l974, the
General Assembly finally defined aggression in Resolution 33l4, which was approved without a
vote. 44 While Resolution 33l4 gave only illustrative examples of what constituted aggression, 45 it
defined aggression as a violation of the use-of-force rules of Article 2(4) and Article 5l of the U.N.
Charter, 46 leaving matters for all intents and purposes where they were beforehand. 47 The Resolu-
38 U.N. Charter art. l, para. l. The two provisions seem contradictory. Article l, paragraph l indicates that every act of aggression is a breach
of the peace, whereas Article 39 lists acts of aggression and breaches of the peace as different offenses. Id.; id. art. 39.
39 The two delegations argued that no definition of aggression was necessary given that the concept of “breach of the peace” included
“aggression.” The Chinese and Russian delegates acquiesced. See OSCAR SOLERA, DEFINING THE CRIME OF AGGRESSION 63 (2007).
40 G.A. Res. 95 (I), 3, U.N. Doc. A/236 (Dec. ll, l946).
41 Charter of the International Military Tribunal art. 6, Aug. 8, l945, 59 Stat. l546, 82 U.N.T.S. 284.
42 G.A. Res. 897 (IX), at 50, U.N. Doc. A/2890 (Dec. 4, l954).
43 See Weisbord, supra note l7, at l66.
44 G.A. Res. 33l4 (XXIX), Annex, U.N. Doc. A/RES/33l4 (Dec. l4, l974) [hereinafter Resolution 33l4].
45 Article 3 of the definition of aggression approved in Resolution 33l4 provides as follows: Any of the following acts, regardless of a declaration
of war, shall, subject to and in accordance with the provisions of article 2, 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;
(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. Id. Annex art. 3.
46 U.N. Charter arts. 2, para. 4, 5l. Article l of the definition in Resolution 33l4 provides that “[a]ggression is 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, as set out in this Definition.” Resolution 33l4, supra note 43, Annex art. l.
47 Article 6 provides: “Nothing in this Definition shall be construed as in any way enlarging or diminishing the scope of the Charter, including
its provisions concerning cases in which the use of force is lawful.” Resolution 33l4, supra note 43, Annex art. 6.
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