CYIL 2015

MANIFEST VIOLATION OF THE UN CHARTER

A second ‘incident’ occurred in November 2010. At the end of the Korean War,

the UN created a so-called Northern Limit Line determining the sea border between

the countries. Nevertheless, North Korea later unilaterally set their own line. After a

South Korean military exercise, the North accused South Korea that it shelled into

what it regarded as North Korean territorial waters. Following that, North Korea

initiated a bombardment of the South Korean island of Yeonpyeong. A military base

was hit on the island, as well as several civilian areas. As a result, two marines and two

civilians were killed, and several others wounded.

If North Korea was responsible for both attacks, would either of them amount to

a crime of aggression in terms of the new definition?

The first question that would have to be answered is whether considerations about

aggression are relevant with regard to North and South Korea at all. As mentioned

above, the Korean War was not concluded by a peace agreement, only an armistice.

One could therefore argue that the countries are still formally in a state of war and,

based on that, any armed act would amount to a continuation of the war and could

not be regarded as an act of aggression. On the other hand, the factual state could be

supported because there was

de facto

no armed conflict when the incidents occurred.

If the second interpretation was given priority, then the legality of these attacks

would have to be analysed. In both ways the only reasonable outcome would be that

the attacks were illegal under international law. However, as a second step, it would

have to be examined whether either of the attacks by their character, gravity and scale

constituted a manifest violation of the UN Charter. With regard to this threshold it

would be likely to conclude that especially the components of gravity and scale were

not met. Therefore, the attacks would not constitute a crime of aggression.

6.7 Libya 2011

A civil war in Libya that led to the fall of the long lasting government of Muammar

Gaddafi was triggered by peaceful demonstrations in support of a democratic change

that took place in the country in February 2011. The government answered by

violent crackdowns against the protesters. Later, armed opposition was established.

The actions of the government against the peaceful protesters included killings

and torture and therefore significant international opposition against the Libyan

regime was created. In March 2011, the UN Security Council resolution 1973 (2011)

was passed that approved taking

all necessary measures

to protect civilians and civilian

populated areas under threat of attack

and enforcing a no-fly zone over Libya.

Based on the resolution, an international coalition including France, the UK and

the US initiated military action which was later taken over by NATO. Several Arab

countries also participated in the operations. Legally, the military intervention was

Para 4, UNSCR 1973 (2011).

Para 8, UNSCR 1973 (2011).