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 a.s.sembly. 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 a.s.sembly 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 a.s.sembly 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).
Certainly the theory of the first three of the four instances above mentioned is the theory stated by Herriot in his speech before the a.s.sembly that the State that refuses arbitration is an aggressor.[8]
In other words, law is subst.i.tuted for force.
Now it is to be observed that in each of the four foregoing {58} cases _hostilities must have broken out_ and in each one of them at least one additional fact must have occurred.
In other words, given certain facts, there is a presumption as to the aggressor; but who is to say, how it is to be determined, whether or not at any particular moment these facts exist? It is not sufficient to say that the facts will be open and notorious, for they might not be. Indeed, if we look critically at each one of what I may call the required facts, we find that doubt might arise.
Take the primary fact, which is always required for any presumption to arise; this fact is that hostilities shall have broken out. One"s first impression might be that this could never be a matter of doubt; but this is not so. Take the case of Corfu, for example. Italian officers had been murdered in Greece by somebody; various individuals had been killed at Corfu by a bombardment of the Italian fleet. Had or had not hostilities broken out within the meaning of Article 10 of the Protocol? Surely the point is at least debatable.
Take the next required fact, that a State has refused to submit a dispute to the procedure for pacific settlement. It is very easy to suppose cases where there would be a difference of view as to this. A State might claim, for example, that the matter was a domestic question which it did not have to submit to the procedure for pacific settlement. There might be a difference of opinion as to whether or not the matter had been actually decided by the tribunal. It is not at all uncommon in munic.i.p.al law for parties to disagree as to whether a particular question is or is not _res judicata_; there have been many litigations over this very point; and there have been international arbitrations in which it was raised.[9]
Similarly, difference of opinion might exist as to whether or not a State had disregarded a determination that the matter in dispute was domestic or as to whether or not a State had {59} submitted a question for discussion under Article 11 of the Covenant. Such differences of opinion could easily arise because of the non-formulation in precise terms of just what the dispute was. Parties do not always agree as to what it is they are differing about and they may in fact be at the same time differing as to more than one question. As to whether or not a State had violated the provisional measures against mobilization contemplated by Article 7 of the Protocol, that doc.u.ment itself recognizes that such a question would require investigation, and in such case and in such case only the Protocol gives the Council the power to determine the question of fact, acting by a two-thirds majority.
So we come back to the situation that a presumption as to the aggressor can exist only if certain facts exist; and that the existence of one or more of these facts may very likely be in doubt or dispute and that, with one exception, there is no procedure for determining such questions of fact so as to be able to say with certainty that the presumption _does_ exist.
What is the answer to this difficulty? If we look at the matter technically, we must conclude that none of the presumptions created by Article 10 of the Protocol can ever arise unless the facts[10] were admitted by the two[11] disputants. Such an admission would mean, in other words, that one of the parties openly admitted that it was an aggressor.
If the facts were in dispute or, in other words, if the existence of the presumption was in dispute, the Council could not determine the aggressor on the basis of a presumption requiring the unanimous vote of the Council to upset it; but would be required to determine the aggressor under the general provision which was first mentioned, under which no presumption exists and when the Council is required by affirmative unanimous vote to determine the aggressor.
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 circ.u.mstances 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 delai."
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 circ.u.mstances, 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 _must_ {62} (the language is mandatory) proceed to enjoin an armistice, to fix its terms and to supervise its execution, acting for these purposes by two-thirds majority. Then the Protocol provides that any belligerent which refuses the armistice or violates it shall be the aggressor.
These provisions regarding an armistice seem to me to meet any possible objection that might be raised to the absence of a more complete and detailed system of determining in fact and in law what State is an aggressor.
No matter what the presumptions were or even what procedure was laid down, it is clear that, after hostilities in any given case had actually commenced, there would be enormous difficulty for any tribunal whatever in laying down conclusively which State was the aggressor.
After all, the vital thing is to prevent war; and the opening of hostilities, to be immediately followed by an armistice, would not be very much of a war. So I regard these provisions as to an armistice as the most ingenious [Transcriber"s note: ingenuous?] and, except its statements of principle, the most important of all the provisions of Article 10 of the Protocol.
The power given to the Council to formulate an armistice would be the power exercised if hostilities broke out rather than the power of adjudging the aggressor; unless the aggression was openly admitted, which would mean that one of the parties to the Protocol really defied the others; and, in that case, of course, it would defy the terms of an armistice as well as any other terms. But in any other case a new consideration would immediately arise. The Council would formulate an armistice and in the absence of an open defiance by one State, or possibly by a group of States, of all the others, the armistice would introduce a new situation, a situation in which hostilities were _not_ going on; and human experience shows that, given an armistice, the recommencement of hostilities on the old grounds is a real impossibility.
In the view that I take, the Sanctions of the Protocol become less important in the light of its provisions as to the determination of an aggressor, for it is only against an aggressor that the {63} main Sanctions of the Protocol can be brought into play; and these provisions for determining the aggressor really mean that an aggressor is a State or a combination of States which has finally and deliberately determined to begin war and to carry it on regardless of its most solemn engagements to the contrary. In other words, there could be no war as between the parties to the Protocol without a wilful, wanton and wicked disregard of its provisions.
[1] p. 50, _et seq._
[2] First paragraph.
[3] Annex C, p. 156 at p. 186.
[4] I use the word here in its largest sense.
[5] Annex C, p. 156 at p. 187.
[6] Of course there may be more than two.
[7] The reason why I have used in regard to Article 10 of the Protocol this uncouth language, "its last paragraph but two," is that in the English text of Article 10 there is a textual error which is extremely confusing. Article 10 really consists of five paragraphs, and the second of these five paragraphs has two sub-heads or sub-paragraphs numbered 1 and 2. The third paragraph of Article 10, in referring to these two sub-heads of the second paragraph calls them "paragraphs 1 and 2." In other words, the first words of what is here referred to as the third paragraph of Article 10 (the paragraph which I call "the last paragraph but two") read as follows: "Apart from the cases dealt with in paragraphs 1 and 2 of the present Article." They should read something like this: "Apart from the cases dealt with in sub-heads 1 and 2 of the second paragraph of the present article." Compare the French text which is perfectly clear: "Hors les hypotheses visees aux numeros 1 et 2 du present article." See the English and French Texts of Article 10 in full, _infra_, pp. 144, 145.
[8] September 5, 1924.
[9] _e. g._, the Pious Fund case reported in the Hague Arbitration Cases, p. 1, and the Interest Case between Russia and Turkey, _op.
cit._, p. 260. These two cases are also in Stowell and Munro"s International Cases, Vol. I, p. 58, _et seq._
[10] I mean the facts from which the presumption as to the aggressor would arise.
[11] I a.s.sume only two, for convenience.