CYIL 2015

MANIFEST VIOLATION OF THE UN CHARTER

a manifest violation of the UN Charter. Therefore, it should be suggested that it

would amount to a crime of aggression.

Third, with regard to the Russian involvement in the armed conflict in eastern

Ukraine, its character, gravity and scale would have to be analysed in order to conclude

whether such intervention amounts to a manifest violation of the UN Charter.

7. Conclusions

The Kampala conference provided us with a new definition of a crime of aggression

that poses many legal questions, one of them being the requirement of an act of

aggression to constitute by its character, gravity and scale a ‘manifest violation’ of the

UN Charter. As Marko Milanovic of the University of Nottingham School of Law

aptly commented,

the vagueness of these terms is, well, manifest

Because the majority of real-life cases of the use of force range within the grey

area, the biggest challenge for the Court will be to develop some criteria for assessing

cases that are legally controversial. One such example is humanitarian intervention

– the Court will have to assess whether the grounds for such an intervention were

sufficient.

The threshold for considering humanitarian intervention not illegal should be

rather high, in order to avoid states misusing it for their particular purposes.Therefore,

it should be suggested that humanitarian intervention should not be regarded illegal

only if

directly aimed at putting an end to unbearable suffering and life-danger of people

It is suggested that this would be fulfilled in the cases of crimes against humanity or

genocide. Any use of force against another state under the auspices of ‘humanitarian

intervention’ that does not meet such a threshold should be regarded as illegal and

therefore be able to amount to a crime of aggression.

With regard to the definition, several disadvantages of having such vague terms are

to be mentioned, with the argument of juristocracy in the first place. In fact, a handful

of experts without a democratic mandate from the people will by their interpretation

create law. Another problem is that by extending the Court’s jurisdiction for such

a politically sensitive issue the Court will be politicised, or rather it will be very

difficult for the judges to decide purely legally without considerations of political

consequences. Third, the foreseeability of law is negatively affected by the uncertain

definition, which is a considerable problem in particular in criminal law.

Nevertheless, one important advantage of having such a general definition also

needs to be stressed. The real cases of the use of force in international law are very

varied and they cannot be assessed in a robot-like way. Therefore, the fact that they

need to be considered with all the relevant circumstances of each particular case by

See MILANOVIC, Marko. Aggression and Legality: Custom in Kampala.

Journal of International

Criminal Justice

, vol. 10, 2012, p. 170.