ABSTRACT
In the last chapter it was demonstrated that the General Assembly established various special committees over a long period of time to define state aggression, based on the faulty characterisation of aggression as a problem in need of legal solution. From the advent of the UN organisation, however, defining state aggression was only one of the legal solutions sought by the General Assembly. Thus, in the late 1940s to early 1950s, around the same time that the first special committees were debating a definition of aggression, the General Assembly tasked the International Law Commission with developing proposals for an international criminal code and an international criminal court. On the basis of the Nuremberg precedent, such a code was inevitably going to include the crime of aggression. However, unlike at Nuremberg, the main focus of ILC efforts was not on individual criminal responsibility but on establishing the crime of state aggression. As already shown, the assumption that the problem of state aggression could be addressed simply by reaching a consensually agreed definition which would then bring the force of law to bear on any proscribed acts within the definition was misguided at best. To go further than this and assert that aggression was not just a breach of the law of nations but in fact a stand-alone crime committed by states was an even greater flight of fancy as regards what international law could achieve in relation to intransigent political constraints. Despite the ILC recognising as early as 1953 the uselessness of attempting to define aggression, its efforts to criminalise state aggression were nonetheless postponed pending definition of state aggression by the General Assembly’s special committee on that topic. By linking formally ILC efforts to criminalise state aggression and the General Assembly Definition of Aggression, when the ILC finally resumed its work in 1981, it remained preoccupied with reconciling the idea of state and individual criminal responsibility for aggression, desperately trying to find some use for the General Assembly Definition of Aggression in an international criminal law context. This preoccupation continued until the mid-1990s, when individual criminal responsibility once again took centre stage, as it had done originally at Nuremberg. The ILC’s work towards criminalising state aggression had once again shown that approaching the problem of state aggression as just a question of law – whether as a breach of international law requiring more precise
definition, or as a more serious, international criminal act – was erroneous, and that no attempt to frame the issues legally would overcome the political disagreements the problem provoked. Rather, the political tensions over aggression would simply be played out by states in legal form.
