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THE KAMPALA AGREEMENT ON CRIME OF AGGRESSION …
or political independence of another State, or in any other manner inconsistent with the
Charter of the United Nations, as required by paragraph 2 of Article 8 bis.
3.3 An act of aggression
Article 8 bis of the amending resolution attempts to give an answer for the question
of what an act of aggression is, in its second paragraph. The second paragraph reads as
follows: “For the purpose of paragraph 1, ‘act of aggression’ means the use of armed force
by a State against the sovereignty, territorial integrity or political independence of another
State, or in any other manner inconsistent with the Charter of the United Nations. Any
of the following acts, regardless of a declaration of war, shall, in accordance with United
Nations General Assembly resolution 3314 (XXIX) of 14 December 1974, qualify as an
act of aggression:…”
The element of the use of armed force resembles the general prohibition of the
use of force in Article 2 (4) of the United Nations Charter (‘Charter’). However the
definition of aggression seems to be narrower than the Charter provision by adding
the word “armed” to “force”. Gillet thus claims that a kinetic force directed against
an opponent through military weaponry or blockades backed up by such weaponry
are the necessary elements of the act of aggression and disqualifies non-kinetic
attacks, such as economic embargoes or cyber warfare.41 His view is based on the
interpretation of the term “armed attack” by the International Court of Justice in the
Nicaragua case.42 Admittedly, although the International Court of Justice (‘ICJ’) has
never declared commitment of an act of aggression by any state, its judgments on the
topic of self-defence and its elaboration of the term ‘armed attack’ might be helpful
for understanding of the term “an act of aggression” in the Kampala resolution. Also
Akande and Tzanakopoulos, by a comparison of the Kampala definition of aggression
and ICJ judgments such as Nicaragua, or Oil Platform43 conclude that the term ‘armed
attack’ and ‘act of aggression’ (at least in the ICJ jurisprudence) are very closely related,
since both of them require the use of force of a certain gravity, opposed to ‘mere’ use
of force; and they also point to the fact that the ICJ relied on the 1974 General
Assembly Resolution 3314 on Definition of Aggression in order to determine what
constitutes an armed attack in the Nicaragua case.44 There are no objections against
that conclusion, since, as was addressed above, the Kampala amendment also requires
an act of aggression of certain gravity, scale and character, together with manifest
41 GILLET, M., The Anatomy of an International Crime: Aggression at the International Criminal
Court, International Criminal Law Review , vol. 13, 2013, 829 – 864,p. 837.
42 International Court of Justice, Judgment of 27 June 1986, Nicaragua v. United States of America.
43 International Court of Justice, Judgment of 6 November 2003, The case concerning the Oil Platforms,
Islamic Republic of Iran v. United States of America.
44 AKANDE, D., TZANAKOPOULOS, A., The International Court of Justice and the Concept of Aggression
In KRESS, C., BARRIGA, S., The Crime of Aggression – A Commentary, Cambridge University Press,
Forthcoming, available on on 1 July 2015.