CYIL 2015

JAN LHOTSKÝ

CYIL 6 ȍ2015Ȏ

against the territorial integrity or political independence of any state, or in any other

manner inconsistent with the purposes of the United Nations

The prohibition of the use of force thus applies as a general rule. Nevertheless,

the UN Charter also provides for exemptions. First, States have the right to self-

defence according to Art. 51 of the UN Charter. Second, the UN Security Council

can authorize military intervention in accordance with Art. 42 of the UN Charter.

These situations seem to be clear, at least on paper. However, a third area ought to be

mentioned which includes situations that do not easily fit the two boxes, but where

reasonable legal arguments can be developed to argue that they are not illegal. These

situations represent a so-called

grey area

Surprisingly, until today the only situation inwhich criminal liability of an individual

for ordering an invasion of another State has been dealt with before an international

court was during the international military tribunals after the Second World War in

Nuremberg and Tokyo. Therefore, after long decades and the establishment of the

International Criminal Court, it is most welcome that the Court’s jurisdiction is going

to be extended to cover a crime of aggression.

2. The Kampala Definition

In 1998 the Rome Statute of the International Criminal Court was signed that

entered into force in 2002 when the Court’s jurisdiction was activated with regard to

genocide, crimes against humanity and war crimes. In 2010 a review conference took

place in Kampala, Uganda, where the delegates agreed on the definition of a crime of

aggression (Art. 8 bis) and relatively complicated conditions that regulate the exercise

of the Court’s jurisdiction with regard to this crime (Art. 15 bis and Art. 15 ter).

According to the rules accepted, the Court will be able to exercise jurisdiction

with regard to the new crime once 30 States ratify the amendment and the Assembly

of States Parties decides to activate the jurisdiction by its decision that will take place

after 1 January 2017.

2.1 Crime of Aggression

The new Art. 8 bis para 1 states the following:

For the purpose of this Statute,

‘crime of aggression’ means the planning, preparation, initiation or execution, by a person

in a position effectively to exercise control over or to direct the political or military action

of a State, of an

act of aggression

which, by its

character, gravity and scale

, constitutes

manifest violation

of the Charter of the United Nations

The definition of the term ‘act of aggression’ is explained in para 2 and refers to

the UN General Assembly Resolution 3314 (XXIX) of 1974. In order to identify a

crime of aggression two steps will have to be taken. First, an assessment needs to be

Resolution RC/Res.6, adopted at the 13th plenary meeting, on 11 June 2010, by consensus.