CYIL Vol. 6, 2015

JAN LHOTSKÝ CYIL 6 ȍ2015Ȏ against the territorial integrity or political independence of any state, or in any other manner inconsistent with the purposes of the United Nations . The prohibition of the use of force thus applies as a general rule. Nevertheless, the UN Charter also provides for exemptions. First, States have the right to self- defence according to Art. 51 of the UN Charter. Second, the UN Security Council can authorize military intervention in accordance with Art. 42 of the UN Charter. These situations seem to be clear, at least on paper. However, a third area ought to be mentioned which includes situations that do not easily fit the two boxes, but where reasonable legal arguments can be developed to argue that they are not illegal. These situations represent a so-called grey area . Surprisingly, until today the only situation inwhich criminal liability of an individual for ordering an invasion of another State has been dealt with before an international court was during the international military tribunals after the Second World War in Nuremberg and Tokyo. Therefore, after long decades and the establishment of the International Criminal Court, it is most welcome that the Court’s jurisdiction is going to be extended to cover a crime of aggression. 2. The Kampala Definition In 1998 the Rome Statute of the International Criminal Court was signed that entered into force in 2002 when the Court’s jurisdiction was activated with regard to genocide, crimes against humanity and war crimes. In 2010 a review conference took place in Kampala, Uganda, where the delegates agreed on the definition of a crime of aggression (Art. 8 bis) and relatively complicated conditions that regulate the exercise of the Court’s jurisdiction with regard to this crime (Art. 15 bis and Art. 15 ter). 1 According to the rules accepted, the Court will be able to exercise jurisdiction with regard to the new crime once 30 States ratify the amendment and the Assembly of States Parties decides to activate the jurisdiction by its decision that will take place after 1 January 2017. 2.1 Crime of Aggression The new Art. 8 bis para 1 states the following: For the purpose of this Statute, ‘crime of aggression’ means the planning, preparation, initiation or execution, by a person in a position effectively to exercise control over or to direct the political or military action of a State, of an act of aggression which, by its character, gravity and scale , constitutes a manifest violation of the Charter of the United Nations . The definition of the term ‘act of aggression’ is explained in para 2 and refers to the UN General Assembly Resolution 3314 (XXIX) of 1974. In order to identify a crime of aggression two steps will have to be taken. First, an assessment needs to be

1 Resolution RC/Res.6, adopted at the 13th plenary meeting, on 11 June 2010, by consensus.

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