CYIL Vol. 6, 2015

JAN LHOTSKÝ CYIL 6 ȍ2015Ȏ It will therefore be a big challenge for the Court to develop criteria for specifying the term ‘manifest violation’. By that the judges will have to assess different cases of the grey area and apply such criteria to the general definition. Simply put, the Court can interpret the term in two ways. The strict interpretation would be that only minor cases will be excluded, 9 whereas the restrained interpretation would exclude the whole grey area. Scholarly discussion supports rather the latter. 10 In reality, it will be up to the Court’s judges to use their – in this case large – discretionary judicial power. 11 6. Excursion: Back to the Future In order to bring the topic of this article from theory closer to reality, it is practical to shortly discuss several cases from the past and suggest how they could be assessed with regard to the definition in question if such (or similar) cases happened in the future after the jurisdiction of the Court with regard to the crime of aggression is activated. It must be stressed that it is not the purpose of this section to provide comprehensive legal assessments of the cases, which the extent of the article does not allow. Its purpose is to show the variety of the use of force in real-life situations and outline some arguments on which the Court’s judges could base their decisions. 6.1 Falklands 1982 The Falklands War was an armed conflict between Argentina and the United Kingdom that took place in 1982 and lasted for ten weeks. Although Argentina claimed sovereignty over the islands in the long-term, the territory had been a British colony since 1841. Both the Falkland Islands and South Georgia and the South Sandwich Islands where the conflict took place were British overseas territories in 1982. 9 See O’CONNEL, Mary Ellen – NIYAZMATOV, Mirakmal. What is Aggression? Comparing the Jus ad Bellum and the ICC Statute. Journal of International Criminal Justice , vol. 10, 2012, p. 201. 10 See TRAHAN, Jennifer. The Rome Statute’s Amendment on the Crime of Aggression: Negotiations at the Kampala Review Conference. International Criminal Law Review , vol. 11, 2011, p. 58; PAULUS, Andreas. Second Thoughts on the Crime of Aggression. European Journal of International Law , vol. 20, no. 4, p. 1124; McDOUGHAL, Carrie. The Crime of Aggression of the Rome Statute of the International Criminal Court. 2. ed., Cambridge University Press, 2015, p. 162. 11 For further views on the interpretation see VYVER, Johan D. van der. Prosecuting the Crime of Aggression in the International Criminal Court. Miami National Security & Armed Conflict Law Review , vol. 1, 2010–2011, p. 25; MURPHY, Sean D. The Crime of Aggression at the ICC. In Oxford Handbook on the Use of Force , ed. Marc Weller, Oxford University Press, 2013, 1376 p. Available also at: http://scholarship.law.gwu.edu/ cgi/viewcontent.cgi?article=1907&context=faculty_publications, p. 33-36; AKANDE, Dapo. What Exactly was Agreed in Kampala on the Crime of Aggression? [online] EJIL: Talk!, 2010 [15-08-2015]. Available at: http://www.ejiltalk.org/what-exactly-was-agreed-in-kampala-on-the- crime-of-aggression.

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