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Countries have rarely applied sanctions with such speed and depth in response to breaches of international law as they have done to rebuke Russia’s flagrant violation of the prohibition on aggression. The irony – and part of the underlying legitimacy of this global effort – is that the definition of aggression being used to condemn Russia originates in a treaty drafted by Russian revolutionary and Soviet statesman, Maxim Litvinov: the Litvinov Treaty of 1933.
Early efforts to abolish war in the interwar period failed to define aggression. Even the U.N. Charter following WWII did not contain a substantive definition of aggression. The absence of an agreed upon definition of aggression had allowed states to interpret their obligations under international law flexibly, undermining the purpose and effectiveness of jus ad bellum. But that gap began to be filled, in the first instance, by the definition of aggression in the Litvinov Treaty, a definition that has developed through the 20th and 21st centuries into a robust body of law. Despite this history, Russian President Vladimir Putin has tried to reinterpret the prohibition on aggression to permit his attack on Ukraine – hoping perhaps that the world has forgotten almost a century of more precise law-making set in motion by Litvinov’s treaty.
Defining Aggression
The Litvinov Treaty was the first treaty to define state aggression in comprehensive form. Following the Japanese invasion of Manchuria in 1931, the Soviet Union (USSR) turned its diplomatic efforts toward defining the act of aggression. These efforts culminated in three treaties signed in London in 1933: the Conventions for the Definition of Aggression, collectively known as the Litvinov Treaty, named for the Soviet Commissar for Foreign Affairs under Stalin who had long championed the prohibition on aggression.
Under the Litvinov treaty, the aggressor in an international conflict is the first state to do any of the following: declare war against another state; invade the territory of another state; attack another state by land, air, or sea; blockade another state’s ports; or provide aid to armed bands attacking another state, wherever those bands are located, or refuse to take “all the measures in its power to deprive those bands of all assistance or protection.” The Treaty was open to all states for ratification, but Litvinov focused his diplomacy on the countries bordering the USSR. The treaty was eventually ratified by 12 states: Afghanistan, Czechoslovakia, Estonia, Finland, Latvia, Lithuania, Persia, Poland, Romania, Turkey, the USSR, and Yugoslavia.
Litvinov’s definition of aggression was comprehensive, prohibiting not only overt attacks or blockades, but also covert aid to armed bands attacking another state, and failing to take measures to deprive such bands of assistance. The USSR had experienced a civil war from 1918 to 1921 between the new Bolshevik government and the White Russians (supported by foreign powers, including the British), and thus sought to ban such support. Stalin was deeply concerned about foreign intervention and supported Litvinov’s efforts to define the prohibition on aggression. This comprehensive definition has become even more relevant today than it was in 1933. Almost ninety years later, the Litvinov treaty clearly would ban Russia’s overt 2022 invasion of Ukraine, as well as Russia’s ongoing support since 2014 of armed bands in Crimea and Eastern Ukraine.
The Litvinov treaty of 1933 was part of a set of legal efforts in the interwar period, most famously the 1928 Kellogg-Briand Pact, (also called the Paris Peace Pact) which imposed a binding legal obligation to “renounce war as an instrument of national policy.” But the Kellogg-Briand Pact did not mention aggression, much less define it, and the great powers had excluded the revolutionary Soviet government from the Paris ceremony where the Pact was signed. Despite this exclusion, Litvinov arranged for a special Protocol for the immediate entry into force of the Paris Peace Pact signed at Moscow with neighboring states in 1929.
Another lesser-known legal effort in this period was the Saavedra Lamas Pact, also known as the Anti-war Treaty of Non-aggression and Conciliation of 1933, named after the Argentine foreign minister who proposed and championed it. The Saavedra Lamas Pact did not prohibit all war, only aggressive war, and called for third-party dispute resolution as an alternative. However, this Pact also failed to define aggressive war. The Litvinov treaty helped fill these gaps with its first comprehensive definition of aggression.
But the Litvinov treaty was almost forgotten until 1974. Although the Nuremburg Tribunals prosecuted crimes against peace, they did so without a clear, detailed definition of aggression. Some countries attempted to incorporate an international agreement on the meaning of aggression into the U.N. Charter during the negotiations in San Francisco in 1945, but they failed. Eventually, the U.N. Charter essentially prohibited aggression (and other unlawful uses of force), but provided more of a procedural regulatory system rather than a substantive one, policed in the main by the U.N. Security Council. This legal architecture left a gaping hole regarding aggression by the permanent five members of the U.N. Security Council and their closest allies.
The Legacy of the Litvinov Treaty
In 1950, the USSR proposed a definition of aggression similar to the Litvinov Treaty of 1933 to the U.N. General Assembly. The Soviet proposal was then referred to the International Law Commission (ILC). But the ILC would not come to an agreement about a comprehensive definition during this period, and it took four separate committees and another 24 years before the U.N. General Assembly defined aggression in a 1974 resolution. The 1974 resolution drew in unmistakable and important ways on the Litvinov treaty, as is clear from a comparative analysis of the treaty texts. Article III of the 1974 U.N. General Assembly resolution defines almost the same acts constituting aggression as the Litvinov treaty, including the support of armed bands to “carry out acts of armed force against another State.”
The 1974 definition was scarcely ever used to guide the U.N. Security Council deliberations, but it took on new life as a source for the definition of the individual crime of aggression in the Rome Statute of the International Criminal Court (ICC). The crime of aggression was included in the 1998 Rome Statue, but despite the 1974 General Assembly definition of aggression, delegates to the Rome conference could not agree on a definition to include in the Statute. As a result of this impasse, the final Rome Statute punted the decision, declaring, “The Court shall exercise jurisdiction over the crime of aggression once a provision is adopted…defining the crime and setting out the conditions under which the Court shall exercise jurisdiction with respect to this crime.”
The Litvinov Treaty’s Influence Today
Eventually, delegates to a Review Conference of the Rome Statute in Kampala in 2010 agreed upon a definition of the crime of aggression. The Kampala Amendment definition incorporates the 1974 U.N. General Assembly resolution definition entirely as defining “acts of aggression.” As such, we can trace the influence of the 1933 Litvinov treaty into the Kampala Amendment via the 1974 Resolution. But the Kampala Amendment requires a higher threshold for the “crime of aggression” prosecutable by the ICC: the prosecutable offense must involve a manifest violation of the U.N. Charter, measured by the character, gravity, and scale of the offense. The Kampala Amendment does not provide any further elaboration of how character, gravity, or scale is to be evaluated, so the crime of aggression is still not completely clear. Russian’s invasion of Ukraine, however, would appear to be a textbook example.
Despite the Soviet Union’s historical legal contributions to the definition of aggression and the clear-cut gravity of the current case, however, the ICC’s open investigation will not be able to consider the crime of aggression against Ukraine. That would require both Russia and Ukraine to be States Parties to the ICC, and both to have ratified the Kampala Amendment – neither have done either, though Ukraine has granted the court jurisdiction over other Rome Statute crimes committed on its territory. Another option in theory would be for the U.N. Security Council to refer the case of aggression to the ICC. Needless to say, the Russian veto will prevent the Council from referring the case of Russian aggression. The only plausible way forward at the ICC was recently proposed by Shane Darcy in these pages: revising the Rome Statute to give the U.N. General Assembly power to refer cases, including cases of aggression, to the ICC. Other pathways outside of the ICC remain open, however, since the crime of aggression is part of the penal code and available jurisdiction in Ukraine and several other countries, not to mention diplomatic efforts underway to establish a special tribunal in one form or another.
What Does the Response to Russian Aggression Tell Us about International Law and Norms?
This history of the Litvinov Treaty and the crime of aggression allows for an informed discussion of international norms and law – including Russia’s disregard for them, and global efforts to push back. Some pundits say that Russia’s invasion of Ukraine has so brazenly disregarded international norms and law as to damage them beyond repair. As international relations theorists like John Ruggie reminded us, however, we recognize the strength of international norms not only by compliance, but also by the responses of other actors when they are broken, and the justifications given by actors for their non-compliance. The rapid, wide, and deep condemnation of Russia’s invasion reveals the strength of the law and international norms and the clarity of a manifest violation of the Charter. Russia’s justifications for its behavior also reveal how aware it is of norms and law on this issue. Russia used an absurd justification that the Ukrainians are engaged in genocide against Russian speakers exactly because the strength of the prohibition on aggressive war is so profound today that the only possible justification is a humanitarian one, albeit far-fetched.
Exactly what qualifies as a crime of aggression is still not completely clear, but no one witnessing the Russian invasion and the ongoing war in Ukraine can doubt that this is an example right before our eyes. We do not need the Kampala Amendment to know it. Anyone reading the Litvinov treaty of 1933 would have no trouble recognizing the Russian actions in Ukraine as unambiguously fitting Litvinov’s definition of aggression, a definition that is now firmly embedded in international law and norms. The tragedy is that the Ukrainian people are paying the price of Putin’s cynical disregard of Litvinov’s legacy and the world’s long overdue recognition of the need to enforce the law.