The Geneva Protocol

by David Hunter Miller

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 municipal 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 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 document 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 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 circumstances 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 délai."

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 circumstances, 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.