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79
MANIFEST VIOLATION OF THE UN CHARTER
made as to whether an act of aggression has taken place. Second, it requires that any
such act meets the other criteria of paragraph 1.
With regard to the latter, it is necessary to highlight the fact that only such an act of
aggression can amount to a crime of aggression which by its
character, gravity and scale
constitutes a
manifest violation
of the UN Charter. Therefore, not any violation of the
UN Charter caused by use of armed force will fit the definition. Such a violation has
to be ‘manifest’. But how should we understand this vague term?
2.2 Understandings
Several parts of the newly agreed definition are relatively complicated and therefore
allow for different interpretation. Therefore, the Kampala amendment is accompanied
by so-calledUnderstandings.Two of themare particularly relevant for the area discussed.
In relation to determining an act of aggression, Understanding no. 6 states: …
determination whether an act of aggression has been committed requires consideration of
all the circumstances of each particular case, including the gravity of the acts concerned
and their consequences
…With regard to the term ‘manifest violation’, Understanding
no. 7 states: …
the three components of character, gravity and scale must be sufficient to
justify a ‘manifest’ determination. No one component can be significant enough to satisfy
the manifest standard by itself
.
Unfortunately, there is a slight contradiction within the two sentences of
Understanding 7. The first sentence suggests that all three components (character,
gravity and scale) must amount to a ‘manifest violation’. Nevertheless, the last
sentence reads that two components might be sufficient.
2
The interpretation of this
wording will therefore depend on the judges of the Court.
It is worth mentioning that the Understandings did not shed any light onto the
vagueness of the term ‘manifest violation’. As a matter of fact, their purpose was not
to clarify the definition, but rather to make it more difficult for the Court to find a
manifest violation.
3
3. Grey Area
In real life the lines between ‘legal’ and ‘illegal’ in international law are often a
bit blurred. It can be argued that customary international law or even the wording of
the UN Charter
4
do not consider several kinds of use of force illegal. Any case falling
2
See AKANDE, Dapo.
What Exactly was Agreed in Kampala on the Crime of Aggression?
[online] EJIL:
Talk!
, 2010 [15-08-2015]. Available at:
http://www.ejiltalk.org/what-exactly-was-agreed-in-kampala-on-the-crime-of-aggression.
3
See HELLER, Kevin Jon. The Uncertain Legal Status of the Aggression Understandings.
Journal of
International Criminal Justice
, vol. 10, 2012, p. 232, 246.
4
With regard to Art. 2 para 4 of the UN Charter it can be argued that some use of force such as e.g.
humanitarian intervention is not directed against the territorial integrity or political independence
of any state.