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 Assembly 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 Assembly 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 Assembly that the State that refuses arbitration is an aggressor.[[8]] In other words, law is substituted for force.
Now it is to be observed that in each of the four foregoing cases hostilities must have broken out and in each one of them at least one additional fact must have occurred.