127 / 464
113
THE KAMPALA AGREEMENT ON CRIME OF AGGRESSION …
its Article 4 expressly declares the list of acts as not exhaustive and gives the United
Nations Security Council the power to determine acts other than listed as acts of
aggression. Nonetheless, the explicit declaration of the openness of the listed acts is
missing in the Kampala agreement.
The natural question therefore is whether cyber-attacks could be qualified as
some of the listed acts and, if not, whether the list of acts in the Kampala amendment
is exhaustive, or open? Proposals to make an analogy between cyber-attacks and some
of the listed acts, such as the blocking of the Georgian governmental webpages with
the listed act of a blockade of ports
47
and coast, cannot be accepted. Such extensive
attempts of interpretation would go against the
principle nullum crimen sine lege
expressed in Article 22 (2) of the Rome Statute, which prohibits the extension of
the definition of a crime by analogy.
48
Ambos further claims that, considering the
principle of
legality,
the list of acts in Article 8 bis paragraph 2 must be regarded as
exhaustive, since the opposite approach would impermissibly stretch the construction
of the definition of crime.
49
However, the drafting history shows, that the state parties and the SWGA
preferred the open-listed option and considered the list of acts to be exemplary.
50
The conclusion of an open list is also supported by comparison of Articles 8 and
8 bis wording. It is the first sentence of paragraph 2 Article 8 bis which defines
what an act of aggression is by using exactly the same wording as Article 8 (
“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
”, similarly to
“war crimes means…”
in Article 8).
Hence, the definition is provided by the first sentence, and an act which satisfies these
requirements may be regarded as an act of aggression. The list of acts enumerated
by the second sentence may only provide non-exhaustive examples of acts of
aggression.
51
Kre
ß
believes that such a view “
does not contradict the principle of legal
certainty under international law because the general definition ensures a sufficient degree
of legal certainty
”
52
47
MILLER, K., The Kampala Compromise and cyberattacks: can there be an international crime of
cyber-aggression?
Southern California Interdisciplinary Law Journal,
2014, vol. 23, 217 -260, p. 222.
48
Article 22 (2) Rome Statute of the International Criminal Court.
49
AMBOS, K. The crime of aggression after Kampala, G
erman Yearbook of International Law,
vol. 53,
2010, 463-509, p. 478 and 479, p. 482.
50
Report of the Special Working Group on the Crime of Aggression of June 2008
,
ICC-ASP/6/SWGCA/1,
para. 34.
51
See also GILLET, M., The Anatomy of an International Crime: Aggression at the International Criminal
Court,
International Criminal Law Review
, vol. 13, 2013, 829-864, p. 842.
52
KRESS, C., The ICC Review Conference at Kampala: Mission Accomplished or Unfulfilled Promise?
Journal of International Criminal Justice, vol. 8,
2011, 1179-1217, p. 1191, In: GILLET, M.,
supra
note,
p. 842.