Aggression

Aggression (pronounced uh-gresh-uhn)

(1) The action of a state in violating by force the rights of another state, particularly its territorial rights; an unprovoked offensive, attack, invasion, or the like.

(2) Any offensive action, attack, or procedure; an inroad or encroachment.

(3) The practice of making assaults or attacks; offensive action in general.

(4) In clinical psychiatry, overt or suppressed hostility, either innate or resulting from continued frustration and directed outward or against oneself.

(5) In the study of animal behavior and zoology, behavior intended to intimidate or injure an animal of the same species or of a competing species but is not predatory.  Aggression may be displayed during mating rituals or to defend territory, as by the erection of fins by fish and feathers by birds.

1605–1615: English borrowed the word directly from the French aggression, derived from the Latin aggressionem (nominative aggressio (a going to, an attack)), a noun of action from past participle stem of aggredi (to approach; attack) a construct of ad (to) + gradi (past participle gressus (to step)) from gradus (a step).  The Classical Latin aggressiōn (stem of aggressiō), was equivalent to aggress(us) + iōn derived from aggrēdi (to attack).  Psychological sense of "hostile or destructive behavior" had its origin in early psychiatry, first noted in English in 1912 in a translation of Freud.  Related forms are antiaggression (adjective), counteraggression and preaggression (nouns); most frequently used derived form is aggressor (noun).

Aggression and International Jurisprudence, Locarno, Kellogg–Briand and the Nuremberg Trial

For centuries, philosophers, moral theologians and other peripheral players had written of the ways and means of outlawing wars of aggression but in the twentieth century, in the aftermath of the carnage of World War I (1914-1918), serious attempts were made to achieve exactly that, the first of which was the Locarno Pact.

Gustav Stresemann, Austen Chamberlain & Aristide Briand, Locarno, 1926.

Although usually referred to as the Locarno Pact, technically the pact consisted of seven treaties, the name derived from the Swiss city of Locarno at which the agreements negotiated between 5-16 October, 1925 although the documents were formally signed in London on 1 December.  Cynically, it can be said the Locarno Pact was a device by the western European powers to ensure they’d not again be the victims of German aggression which, if and when if were to happen, would be directed against those countries on its eastern border.  Of the seven treaties, it was the first which mattered most, a guarantee of the existing frontiers of Belgium, France, and Germany, underwritten by the UK and Italy.  Of the other agreements, two were intended to reassure the recently created Czechoslovakia and the recreated Poland, both of which, presciently as it turned out, felt some threat from Germany.

Whatever the implications, the intent was clear and about as pure as anything in politics can be: an attempt to ensure European states would never again need to resort to war.  Although the structural imbalances appear, in retrospect, obvious, at the time there were expectations of continued peaceful settlements and there arose, for a while, what was called the "spirit of Locarno": Germany was admitted to the League of Nations in September 1926, with a permanent seat on its council and Nobel Peace Prizes were awarded to the lead negotiators of the treaty, Sir Austen Chamberlain (1863-1937; UK foreign secretary 1924-1929), Aristide Briand (1862-1932; French foreign minister 1926-1932) and Gustav Stresemann (1878-1929; German foreign minister 1923-1929).

Members of the Cabinet, Senate, and House are seen gathered in the East Room of the White House, after President Coolidge and Secretary of State Kellogg signed the Kellogg-Briand Pact.

The spirit of Locarno proved infectious and inspired the noble notion it might be possible for men to gather around tables and sign papers which for all time would outlaw war and the Kellogg–Briand Pact (known also as the Pact of Paris and technically the General Treaty for Renunciation of War as an Instrument of National Policy) was a product of this optimism.  Signed in 1928 and named after the two main authors, Briand and Frank Kellogg (1856-1937; US Secretary of State 1925-1929), it was soon ratified by dozens of countries, all the signatory states promising not to use war to resolve "disputes or conflicts of whatever nature or of whatever origin they may be, which may arise among them".  It gained Kellogg his Nobel Peace Prize but peace proved elusive and in little more than a decade, the world was at war.  Another point cynics note is that the real consequence of the pact was not the prevention of war but the unfashionability of declaring war; wars continuing with a thin veneer of legal high-gloss.  Anthony Eden (1897-1977; UK prime-minister 1955-1957) during the Suez Crisis (1956), noting no declaration had been made, distinguished between being “at war” and being in “a state of armed conflict” although those on the battlefield doubtless noticed no difference.  Because the pact was concluded outside the League of Nations, it remains afoot and the influence lingers; although hardly militarily inactive since 1945, the last declaration of war by the United States was in 1942.

Defendants at the International Military Tribunal for the Far East (IMTFE), popularly known as the Tokyo War Crimes Tribunal.

Kellogg–Briand thus failed but was a vitally important twentieth century instrument.  It was from Kellogg-Briand the prosecutors at the Nuremberg Trial in 1945-1946 were able to find the concept of a crime against peace as pre-existing law that was of such importance in establishing the legal validity of the incitements, both there and at the subsequent Tokyo Tribunal.  Without that legal framework from the 1920s, the construction of the legal basis for the concept of crimes against peace (the first two of the four articles of indictment at Nuremberg), may not have been possible.

At Nuremburg, the indictments served by the International Military Tribunals were:

(1) Conspiracy to plan the waging of wars of aggression.

(2) Planning, initiating and waging wars of aggression.

(3) War crimes.

(4) Crimes against humanity.

It’s always been the fourth which has attracted most attention because the crimes committed were of such enormity and on such as scale, the word genocide had to be invented.  However, the greater effect on international law was the creation of the notion that those who plan wars of aggression can be punished for that very act, punishments wholly unrelated to the mechanics or consequences of how the wars may be fought.  Form this point can be traced the end of the centuries-old legal doctrine of sovereign immunity for those waging wars of aggression.

So, after Nuremberg, the long tradition of the preemptive and preventative war as an instrument of political policy was no longer the convenient option it had for thousands of years been.  With section 4 of the United Nations (UN) Charter prohibiting all members from exercising "the threat or use of force against the territorial integrity or political independence of any state", there was obvious interest in the charter's phrase phrase of exculpation: "armed attack" which effectively limited the parameters of the circumstances in which the use of military force might be legitimate under international law.  Stretching things as far as even the most accommodating of impartial lawyers were prepared to reach, if no armed attack has been suffered, for an act of preemptive self-defense to be lawful, (1) a threat must be demonstratively real and not merely a perception of the possible and (2), the force applied in self-defense must be proportional to the harm threatened.  All this is why General Colin Powell's (1937–2021; US Secretary of State 2001-2005) statement of justification to the Security Council seeking authority to invade Iraq in 2003 took the tortured form it did.

Mr Putin.

The state of international law is why President Vladimir Putin (b 1952; prime-minister or president of Russia since 1999) has resorted to some unusual terminology and some impressive, if not entirely convincing, intellectual gymnastics in his explanations of geography and history.  While hardly the direct and unambiguous speech used by some of his predecessors in the Kremlin, it's certainly kept the Kremlinologists and their readers interested.  As early as December 2020, Mr Putin was already using the phrase "military-technical measures" should NATO (again) approach Russia's borders and the charm of that presumably was that having no precise meaning, it could at any time mean what Mr Putin wanted it to mean at that moment.  Mr Putin also claimed the government in the Ukraine is committing genocide against ethnic Russians within the territory and, in an echo of similar claims from the troubled 1930s "seemed to believe his own atrocity stories", later doubling-down, calling the Ukranian government a "Nazi regime" and said he was seeking a process of "de-Nazification" (an actual structured and large-scale programme run in post-war Germany by the occupying forces aimed at removing the worst elements of the Third Reich from public life).  

Most interestingly, Mr Putin said Ukraine wasn’t a real country, a significant point if true because it's only foreign countries which can be invaded.  If a government moves troops into parts of their own territory, it's not an invasion; it might be a police action, a counter-insurgency or a military exercise or any number of things but it can't be an invasion.  Technically of course, that applies also to renegade provinces.  It seemed an adventurous argument to run given Ukraine has for decades been a member of the UN and recognized by just about every country (including Russia) as a sovereign state.  To clarify, Mr Putin added the odd nuance, claiming Ukraine was "...not a real country..." and had "...never had its own authentic statehood."  "There has never been a sustainable statehood in Ukraine.”  The basis of that was his assertion that Ukraine was created by the Soviet Union's first leader, Vladimir Lenin (1870–1924; Leader of Soviet Russia 1917-1924 & the USSR 1922-1924) as either a sort of administrative zone or just as a mistake depending on interpretation.  Ignoring the wealth of historical material documenting the pre-Soviet history of the Ukraine, Mr Putin insisted it was part of Russia, an "...integral part of our own history, culture, spiritual space.”

Having established his case the Ukraine was no foreign country but just another piece of Russia, Mr Putin turned his thoughts to the nature of the threat the obviously renegade province posed.  Although after the collapse of the USSR, the Ukraine voluntarily (and gratefully) gave up the nuclear weapons in its territory in exchange for a security guarantees issued by the US, UK, and Russia, Mr Putin expressed concern the neo-Nazi regime there had both the knowledge and the desire to obtain nuclear weapons and delivery systems, adding: “If Ukraine acquires weapons of mass destruction, the situation in the world and in Europe will drastically change, especially for us, for Russia... we cannot but react to this real danger, all the more so since, let me repeat, Ukraine’s Western patrons may help it acquire these weapons to create yet another threat to our country.”

The internal logic of this was perfect to satisfy international law: (1) The territory which on maps is called Ukraine is not a country and just a part of Russia and (2), the illegal administration running the renegade province of Ukraine is plotting to acquire weapons of mass-destruction.  Under those conditions, military action by Moscow would be valid under international law but just to make sure, Mr Putin recognized Donetsk and Luhansk (two separatist regions in the Donbas), and deployed Russian troops as "peacekeepers".  Around the world, just about everybody except the usual suspects called it an invasion.

Many also discussed the legal position, perhaps not a great consolation to the citizens of Ukraine and the limitations of international law had anyway long been understood by those who were most hopeful of their civilizing power.  In his report to President Truman (1884–1972; US president 1945-1953) at the conclusion of the Nuremberg trial (1945-1946), Justice Robert Jackson (1892–1954; sometime justice of the US Supreme Court, US solicitor general & attorney general and chief US prosecutor at the Nuremberg trials), noted the judgment had "...for the first time made explicit and unambiguous what was theretofore, as the Tribunal has declared, implicit in International Law, namely, that to prepare, incite, or wage a war of aggression, or to conspire with others to do so, is a crime against international society, and that to persecute, oppress, or do violence to individuals or minorities on political, racial, or religious grounds in connection with such a war, or to exterminate, enslave, or deport civilian populations, is an international crime, and that for the commission of such crimes individuals are responsible. This agreement also won the adherence of nineteen additional nations and represents the combined judgments of the overwhelming majority of civilized people. It is a basic charter in the International Law of the future."  However, his idealism tempered by what he knew to be the nature of men, he conceded it would be "... extravagant to claim that agreements or trials of this character can make aggressive war or persecution of minorities impossible." although he did add that there was no doubt "they strengthen the bulwarks of peace and tolerance."  One of the US judges at Nuremburg had, whatever the theoretical legal position, reached an even more gloomy conclusion, Francis Biddle (1886–1968; US solicitor general 1940-1941 & attorney general 1941-1945 and primary US judge at the Nuremberg Trials) writing to the president that the judgements he'd helped deliver couldn't prevent war but might help men to "... learn a little better to detest it."  "Aggressive war was once romantic, now it is criminal."

Biddle was a realist who understood the forces which operated within legal systems and nation states.  Even the long-serving liberal judge William O Douglas (1898–1980; associate justice of the US Supreme Court 1939-1975) couldn’t bring himself to accept that the aggression which led to World War II (1939-1945) in which as many a sixty millions died was not reason enough to overcome his aversion to ex post facto law (the construct being the Latin ex (from) + post (after) + facto, ablative of factum (deed), (that which retrospectively changes the legal consequences of actions from what would have applied prior to the application of the law).  Douglas deplored the way the IMT had not only convicted but imposed capital sentences of those indicted for conduct which has at time been legal under metropolitan and international law:

“No matter how many books are written or briefs filed, no matter how finely the lawyers analyzed it, the crime for which the Nazis were tried had never been formalized as a crime with the definiteness required by our legal standards, nor outlawed with a death penalty by the international community. By our standards that crime arose under ex post facto law. Goering et al. deserved severe punishment. But their guilt did not justify us in substituting power for principle.”

Developments since in international law have seen progress.  The United Nations Charter, adopted in 1945, prohibits the use of force by one state against another, except in cases of self-defense or when authorized by the UN Security Council for the purpose of maintaining or restoring international peace and security, Article 2(4) of the UN Charter stating “all Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state."  That works in conjunction with the Nuremberg Principles which declared the planning, preparation, initiation, or execution of a war of aggression is a crime against peace and a violation of international law, a more concrete underpinning of customary international law than the Kellogg-Briand Pact which was in the same vein but always was of limited practical application because there existed no mechanism of enforcement or codification of penalties.  Despite that, the core concept of just what does constitute the crime of “aggressive war” has never been generally agreed and although the UN’s 1974 statement: “Aggression 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.” seems compelling, the debate continues.