Becoming more and more aware
of the ominous consequences of war within international life, the peoples
of the world have pronounced and are still pronouncing themselves for
classifying war of aggression as being unlawful and for the punishment
of those liable for having violated the norms and principles of international
law. In this respect, their effort has materialized in the elaboration
and adoption of certain regulations that condemn and forbid manifestly
war of aggression by specifying that threat and use of force as well
as resort to military means and war, are not durable solution as regards
conflicts and international litigations.
§ 1. A Moment of Choice in Outlawing
War of Aggression
After World War II, while humanity endeavoured by joint
constructive effort to do away with the painful consequences of the
devastating conflagration, it appears more and more prominently the
need to trace some most precise norms to outlaw war of aggression. An
extremely significant moment in this direction is considered to be the
elaboration and adoption of the Pact of the Society of Nations.
Within this important international document it is sanctioned the will
of member States of not making recourse to war for finding solutions
to the possible litigations existing between them. "AH the Members
of the League agree that if there should arise between them any dispute
likely to lead to a rupture, they will submit the matter either to arbitration
or to inquiry by the Council" and they agree in no case to resort
to war until three months after the award by the arbitrators or the
report by the Council (art. 12). First of all it is noteworthy that
the Member States of the Society of Nations committed themselves to
avoid recourse to war for solving a conflict between them but they chose
resort to peaceful methods, such as arbitration or the Council of the
Society of Nations. However, should the conflicting parties not accept
the arbiters' decision or the Council's report, the Pact of the Society
of Nations accepted war after a three months' deadline, hi this respect,
the elaboration and adoption of the Pact did not constitute but a moment
- a truly significant one, indeed - in the continuous struggle of peoples
and progressive forces for the prohibition of war of aggression and
its removal from international relations. Regulations sanctioned by
this important international document play a remarkable role in underlining
the priority of peaceful means to find solutions for any dispute.
"likely to lead to a rupture" (art. 12); that
is to say, a conflict or tensional state between two or more States,
which represents a contribution to rethinking and re-establishing international
relations on the solid foundations of peace.
§ 2. Condemning Recourse to War for
the Settlement of International Disputes
The adoption of the General Treaty on renouncing to
war as a means of national policy,
at Paris, on 27th of August 1928, represented, undoubtedly,
a crossroads in the evolution of International Law with regard to the
constitution of the Law of Peace. By this Treaty, the High Contracting
Parties solemnly declared that "in the names of their respective
peoples they condemn recourse to war for the solution of international
controversies, and renounce it, as an instrument of national policy
in their relations with one another" (art.1). Furthermore, the
High Contracting Parties "agree that the settlement or solution
of all disputes or conflicts of whatever nature or of whatever origin
they may be, which may arise among them, shall never be sought except
by pacific means" (art.2)
The literature of specialty has rightfully consigned that the negotiation
and adoption of such treaty constituted a decisive step taken forward
in the development of International Law, as in its rules war of aggression
is placed outside the protection of the law by stipulating the need
to resort to pacific means for finding solutions to litigations.
How widely spread this point of view was, results from
the fact that until 1939 – namely during 10 years - 63 States
became forming parts of the Treaty said. These States – condemning
solemnly war of aggression-engaged to renounce to it in their reciprocal
relations of cooperation, fact that has had a particular significance
in the settlement of certain cooperation relations within a peaceful
climate and international security. As Nicolae Titulescu has asserted,
under a legal aspect, the Treaty means the transposition of three things
into the department of international law, "all of them, mainly,
of practical nature:
a. the suppression, as far as the Members of the
Society of Nations are concerned, of war in the four cases in which
the 1919 Pact did not succeed in stemming the legal right to war;
b. the extension regarding the renunciation to
the legal right to conduct war for States that are not Members of
the Society of Nations
c. the obligation of not opposing now on to sanctions
that the Society of Nations would give in order to stop war - because,
as long as there is a legal solidarity organized with regard to
action foreseen in art. 16 of the Pact, there is at least a legal
solidarity from the part of all signatory nations of the Kellogg
Pact of not opposing the former one which represents actually the
application of the latter",
It is also remarkable that the Treaty of Paris does not include
any limitation in time or any regulations with view to its withdrawal
or denunciation by the Party States. This spotlights the conception
that governed the elaboration of this important international treaty,
namely that the option of States to renounce to war as an instrument
of national policy in their relations with one another gives expression
not to a conjectural attitude but to durable conduct, unlimited
in time and not submitted to change. "The present Treaty shall,
when it has come into effect as prescribed in the preceding paragraph,
remain open as long as may be necessary for adherence by all the
other Powers of the world. Every instrument evidencing the adherence
of a Power shall be deposited at Washington and the Treaty shall
immediately upon such deposit become effective as; between the Power
this adhering and the other Powers, parties hereto", (al.2
By giving voice to their trust as for the ratification
of the Treaty mad by all the States in the world, the Signatories consigned
in its preamble: "hopeful that, encouraged by their example, all
the other nations of the world will join in this humane endeavour and
by adhering to the present Treaty as soon as it comes into force bring
their peoples within the scope of its beneficent provisions, thus uniting
the civilized nations of the world in a common renunciation of war as
an instrument of their national policy".
The condemnation of the war of aggression and placing it
outside the protection of the law raises the problem of defining aggression
and understanding its consequences within international relations.
§ 3. War of Aggression - a Crime Against
Considering that several States - forming part in the Treaty
of Paris -committed themselves to renounce to war as an instrument of
national policy in their relations with one another, and as a consequence
to the appearance of a powerful trend against acts of aggression, there
can be easily inferred the conclusion that it is for the benefit of
general security and peace that aggression be defined.
An important place in the process of defining aggression
is held by the Conventions of London (3-4* of July 1933), which specifies
what aggression means and who is to be considered an aggressor. Thus,
the elaborated texts stipulate that a State is considered to be an aggressor
if it becomes liable for perpetrations, such as "invasions by the
means of armed forces, even without any previous declaration of war,
made against other States' territories, vessels and aircrafts; the naval
blockade of other States' coasts and harbours; support given to armed
bands, formed on the territory of one State and invading another State's
territory; a State's refusal - despite all requests made by the invaded
State - to overtake to its own territory, all the measures in its power,
to deprive the armed bands formed on this territory of any assistance
or protection. Furthermore,
it is sanctioned that "no consideration of political, military,
economic or of any other nature, shall serve as an excuse or justification
for an act of aggression", as defined in the texts of the Convention.
Later on, after World War II, there arose the problem of
establishing some more precise criteria in order to determine accurately
the concrete situations presenting acts of aggression as well as aggressor
State, taking into account the fact that, quite often, in trying to
justify its aggression, the aggressor State invokes different reasons
by which it declares the other State as being its aggressor. By giving
course to these requirements, the U.N. General Assembly
adopted the definition of aggression
specifying all actions belonging to this grave form of illegal recourse
to force. The Special U.N. Committee aiming to define aggression, took
over valuable previous contributions – inclusively the defining
elements presented in the 1933 London Conventions –, concluding
that aggression consisted in a State's recourse to armed force against
other State's sovereignty, territorial integrity or political independence,
or any other way, incompatible with the Charter of the United Nations.
In the light of this document, an act of aggression implies: a. invasion
or attack made by one States* armed forces on the territory of another
State, or any other military or temporary occupation, resulting from
such an invasion or attack, or any annexation, by force, of a territory
or part of territory belonging to another State; b. bombardment made
by the armed force of one State on the territory of another, or the
use of any weapons of a State against another State's territory; c.
naval blockade of the coasts or ports of another State; d. attack by
the armed forces of one State against the land, naval or air forces
or the naval and civil air forces of another State; e. the use of the
armed forces of a State which are stationed on the territory of another
State with the approval of the host State, contrary to the conditions
stipulated in the agreement, or any extension regarding their presence
on the given territory after the expiry of their agreement; f. the action
of a State to agree that its territory, available to another State,
be used by the latter to commit certain acts of aggression; g. the act
of sending by a State or on its behalf, armed bands or groups, of irregular
forces or mercenaries to commit acts of armed forces against another
State, of a gravity that is tantamount to the results of the above-mentioned
acts, or the very fact of engaging itself substantially in such an action
(art. 3). ft is specified as plainly as possible – in the text
adopted by the United Nations General Assembly, as well
– that no reason, regardless its nature (political, economic, military
or any other), cannot justify an act of aggression (art.5).
Moreover, of special significance is the sanction made
by the World Forum's General Assembly with regard to the tact that no
territorial acquisition or special advantage resulting from an act of
aggression is legal and they should not be recognized as being so (art.5).
Meanwhile, it is asserted that none of the elaborated texts could affect,
no matter what, peoples' right to self-determination, freedom and independence
(art.7), as it results
from the UN Charter. As it has been emphasized in the literature of
specialty, this definition was liable to improvements and completions
so that it might comprise all forms of aggression and facilitate the
adoption of the necessary measures for the prevention and elimination
of all acts of aggression.
Prohibiting war of aggression requires placing outside
the protection of law all acts qualified as aggressive. There is no
doubt that their precise settlement facilitates the determination of
aggressive acts and taking measures for their suppression as well as
punishment applied to those liable for having committed them. Thus,
it has also been attempted the deterrence of some possible aggressors.
The General Assembly defined war of aggression as being
a "crime against international peace" (art. 5), sanctioning
the principle according to which "aggression generates international
§ 4. Condemning War Propaganda
On the grounds of a multilateral analysis made on both
world conflagrations and the outbreak of armed conflicts in different
areas of the world, the UN General Assembly firmly condemned war propaganda,
qualifying it as a serious peril addressed to peace and international
security. Soon after
World War II, in November 1947, on the occasion of the third ordinary
session, the UN General Assembly adopted a resolution by which it condemned
war propaganda "regardless its form or the country it occurs in,
should it aim at, represent or enhance a threat to peace, its violation
or an act of aggression".
War propaganda has been defined as an act of ideological preparation
to war, of a particular gravity, inciting to aggressive actions and
generating a warrior psychosis, favourable to violent confron-tation,
use of armed force and other means of mass-destruction.
On account of the serious consequences to war propaganda,
it has appeared the preoccupation for its incrimination, condemnation
and elimination from international life. Thus, within the conferences
concerning the unification of criminal legislation held in Warsaw (1927),
and in Brussels (1930) it has been approached, in all details, the problem
or" liability in the case or" undertaking warlike propaganda
activities. In 1933, during the debates of the Legal Committee of the
League of Nations, it has been stressed the need to sanction war propaganda,
all actions undertaken to spread information which could lead to the
deterioration of interstate relations or harm the international climate.
The legal Committee found it mandatory that States adopt reprehensive
measures against all acts of disseminating information of calumnious
nature that might bring about the deterioration of international relations.
Over the years following World War H, within several European
debates, it has been pointed out the request to condemn and punish war
propaganda, consigning - in the Final Act of the Conference on Security
and Co-operation in Europe - the obligation of all participating States
"to promote, by all the means they would consider appropriate,
a climate of trust and respect among peoples. Accordingly they will
refrain from any action inconsistent with the purposes and principles
of the Charter of the United Nations against the territorial integrity,
political independence or the unity of any participating State, and
in particular from any such action constituting a threat or use of force".
Furthermore, war propaganda has been incriminated within
the internal legislation of several countries. Thus, English criminal
legislation foresees sanctions against any person trying to humiliate
or insult the head of a foreign State, an ambassador or other dignitary
in order to undermine the pacific and friendly relations that the United
Kingdom has with the State the offended persons belong to. Similar relations
are to be found in the Legislation of the United States of America,
France and other countries.
In Romania, criminal legislation incriminates and punishes
war propaganda by including it among crimes committed against peace
and the entire humanity.
A careful analysis on the phenomena of our contemporary
world leads to the conclusion that war propaganda should be considered
only the direct incitements to war of aggression and all manifestations
that prepare such a climate. It was the case of the dissemination of
fascist ideology* of the irredentist conceptions etc.
For several years, the UN Commission on International Law
focused on the elaboration of the bill of crimes committed against peace
and humanity by incriminating and qualifying war propaganda as a crime
against peace and humanity. As an expression of the consistence proved
by Member States in condemning war propaganda, it is in the Declaration
on Principles of International Law Regarding Relations of Friendship
and Co-operation between States that war propaganda is incriminated
and it is also sanctioned the compliance of States to "restrain
from all propaganda favouring war of aggression".
§ 5. Preparations for War - a Grave
Peril Addressed to Peace
In terms of advanced technology, the diversification and
development of arms of ail sorts, the production and modernization of
thermonuclear, chemical and bacteriological weapons or the production
of the bomb with neutrons, preparations for war represent a serious
threat addressed to peace.
For this very reason, it has been recently developed a
powerful trend of opinion against war preparations or any actions that
might bring about the deterioration of interstate relations, the accentuation
of strain in international relations. In important international documents
it is sanctioned the commitment of States not undertaking actions of
war preparation and the avoidance of such actions. Thus, in the Treaty
Banning Nuclear Weapon Tests in the Atmosphere, in Outer Space and Under
Water, it is stipulated
the obligation of each State Party "to refrain, furthermore, from
causing, encouraging, or in any way participating in the carrying out
of any nuclear weapon test explosion or any other nuclear explosion
at any place under its jurisdiction or control" (al.2 art. 1).
In the reports made by the UN Secretary General regarding
the economic and social consequences of arms race and its profoundly
harming effects on peace and world security
as well as in the resolutions adopted by the UN General Assembly it
has been emphasized the need to adopt some urgent and effective measures
against war preparations, for the cessation of arms race and the achievement
of concrete progress towards disarmament, mainly nuclear disarmament.
Putting an end to arms race and the adoption of some real measures in
order to accomplish disarmament would represent a concrete contribution
to the maintenance and promotion of peace and international security.
It becomes obvious that all action taken to enhance the development,
production and qualitative improvement of different types of weapons,
especially nuclear arms, represent a huge peril to world peace. Preparations
for war imply actions that run counter to the norms and principles of
international law, to co-operation and understanding among peoples;
consequently, they become vehemently condemned by worldwide public opinion.
Therefore, the Statute of the International Military Tribunal of
August 8th, 1945, qualifies the planning, preparation, initiation
and waging of "a war of aggression, or a war in violation of international
treaties, agreements or assurances, or participation in a common plan
or conspiracy for the accomplishment of any of the foregoing" (art.6)
as being crimes against peace within the jurisdiction of the Tribunal
for which there shall be individual liability.
All these represent the expression of the undeterred determination of
all peoples and progressive forces in the world to put an end to all
warlike actions or deeds likely to endanger peace and international
The Pact of The Society of Nations, Versailles, 15/28 June,
part of the Treaty on the 21st of March 1929 by ratification
(see M of Nr. 30/1929). Known under the denomination of Briand-Kellogg
Pact, this Treaty gives voice to the major reasons that determined its
elaboration and adoption: "persuaded that the time has come when
a frank renunciation of war as an instrument of national policy should
be made to the end that the peaceful and friendly relations now existing
between their peoples may be perpetuated" (al.3. Preamble).
The reasons leading
signatory States adopt this position are to be found in the Preamble
of the Treaty said: "Convinced that all changes in their relations
with one another should be sought only by pacific means and be the result
of a peaceful and orderly process, and that any signatory Power which
shall hereafter seek to promote its national interest by resort to war
should be denied the benefits furnished by this Treaty" (al. 4,
See Nicolae Titulescu,
Diplomatic Documents, Edit Politică, Bucharest, 1967, p. 293.841
and next; Donnedieu de Vabres, Le Proces de Nuremberg, Paris,
p. 59 and next.
cit. work, p. 293.
It is about article
3 that states that the Treaty "shall be ratified by the High Contracting
Parties named in the Preamble (Germany, U.S.A., Belgium, France, Great
Britain, India, Italy, Japan, Poland, Czechoslovakia. Mote) in
accordance with their respective constitutional requirements, and shall
take effect as between them as soon as all their several instruments
of ratification shall have been deposited at Washington".
The Signatory Powers
of the 4th of July 1933 Convention (Romania, Czechoslovakia,
Turkey, U.S.S.R. and Yugoslavia) have specified their reasons for signing
such a convention: "mindful of the that the Briand-Kellogg Pact
of which they are Signatories, prohibits all aggression", deeming
it necessary in the interests of die general security, to define aggression
as specifically as possible in order to obviate any pretext whereby
it might be justified" (al. 3-4, Convention for the Definition
of Aggression, London, 4th of July 1933).
See art. 2, The Convention
of London (3th of July 1933). The Annex, to this article
gives voice to the Signatories desiring, subject to the express reservation
that "the absolute validity of the rule laid down in Article Convention
shall be in no way restricted", by furnishing certain indications
for determining the aggressor: " declare that no act of aggression
within the meaning of Article Q of that Convention can be justified
by the following grounds, among others:
A. The internal condition of a State:
E.g., its political, economic or social structure; alleged defects in
its administration; disturbances caused by strikes, revolutions, counter-revolutions,
or civil war.
B. The international conduct of a State:
E.g., the violation or the threatened violation of the material or moral
rights or interests of a foreign State or its nationals; the rupture
of diplomatic or economic relations, economic or financial boycotts;
disputes regarding economic, financial or other obligations towards
foreign States; frontier incidents not forming any of the aggression
specified in Article 2".
art3. The article makes reference to the Annex concerning art. II
in which some of these considerations are enunciated.
 Doc. A/XXIX/3314
- 14th of December 1974.
 The definitive
project of the definition of aggression has been elaborated by a special
Committee of the United Nations, made up of 35 States, including Romania
as well.Following its long debates – during which the significant
historical experiences and future possible situations have been evaluated
– there have been elaborated both the defining elememts of aggression
and the criteria required fort the definiton made to the aggressor.
The definitive project met the unanimity of the special Committee’s
 This text takes
over almost integrally art.3 of London Convention (3rd of
 The document stipulates
these people’s right to fight against foreign domination and to
request and obtain assistance in accordance with the principles of the
Charter and the Declaration on the principles of International Law,
especially regarding peoples under collonial or rasists regimes, or
other forms of foreign domination.
 See Aurel Preda
– Mătăsaru, Non-aggression and negotiation: an equation
of peace, Edit. Politică, Bucharest, 1981, p. 27 and next.
 Even from its early
days, the United Nations Organization strived for peace maintenance
and international security, considering that war propaganda was an action
undertaken against these major objectives of mankind (see doc. A/III/110
– 3rd of November 1947).
 See doc. A/III/110
– 3rd of November 1947.
 110 / III Resolution
(3rd of November 1947).
 It is known, for
instance, the part played by war propaganda in the preparation and outbreak
of World War II. Launching the absurde idea of rasial superiority and
stirring warior instincts represented the priority objectives of military
propaganda in Nazi Germany.
on Principles Guiding Relations between Participating States, Conference
on Security and Co-operation in Europe, Final Act, Helsinki, 1975.
Art.356, Title XI,
Part.II, The Penal Code of Romania.
 Doc. A/XXV/1970.
The text of this declaratoin has been elaborated by a Special Committee
constituted in 1974, comprising 31 Participating States, among which
Romania, as well.
 The Treaty has
been ratified in our country by Decree nr.686 (1963) in B. Of Nr.20
– 31st of October 1963.
These reports have
been issued by experts coming from different contries, onclusively ours.
This problem has been approached within the U.N.O. at an initiative
made by Romania.
 See Resolution
nr. 2667/XXV, 7th of December 1970.
See also Resolution
nr. 3 (I) - 13th of February 1946 and nr.95 (I) -11th
of December 1946.