The Geneva Protocol — John Stuart Mill — John Shaqi
The Geneva Protocol
John Stuart Mill · en
64. Article 10, which contains the definition of an aggressor, provided
one of the most difficult tasks of the First Committee. By the 23rd
September a number of drafts had been considered but no satisfactory
text had been found. The original idea was that it should be the duty
of the Council to determine the aggressor, but the question then arose
as to whether, in making this decision, the Council should act
unanimously or by majority vote. Adherence to the unanimity rule would
have made it possible for one State to prevent a decision being
reached. Procedure by a majority vote might have resulted in a State
being obliged to apply sanctions against its own judgment. The only
way out of this difficulty was to avoid a decision by the Council at
all, and to make the test of aggression automatic, when once certain
conditions had been found to obtain. This is achieved by establishing
a presumption which is to hold good until the Council has made a
unanimous decision to the contrary. If the presumption stands it is
considered sufficient to justify the application of sanctions. Even
then it was thought that there would have to be something in the nature
of a {245} "declaration of aggression" in order to initiate the
enforcement of sanctions, and that this declaration would have to be
made by unanimity. Objections were raised to this, but these
objections were finally satisfied by the insertion of paragraph 3,
according to which the Council, if it cannot at once determine the
aggressor is bound, as a matter of course, to enjoin an armistice upon
the belligerents.
65. The Japanese Delegation were opposed to any presumption of
aggression arising against a state which was involved in a dispute
covered by paragraph 8 of article 15 of the Covenant, and found as the
result that, though it had submitted the dispute to the Council, the
Council were unable to make any recommendations on the subject. To
meet this view, the amendment previously referred to was made to
article 5, and the words "nevertheless in the last case the State shall
only be presumed to be an aggressor if it has not previously submitted
the question to the Council or the Assembly in accordance with article
11 of the Covenant" were added to paragraph 2 (1) of article 10. In
the opinion of the British Delegation, this amendment does not affect
paragraph 3 of article 10. If a resort to war occurs, and the Council
cannot determine the aggressor, it is still bound to impose an
armistice upon the belligerents.