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CYIL 7 ȍ2016Ȏ PROBLEMS WITH THE INCLUSION OF AGGRESSION…
But the relevant provision concerning necessary armed forces (Art. 43) as
well as the stipulation regarding the Military Staff Committee to advise and assist
the Security Council on all questions relating to the Security Council’s military
requirements (Art. 47) have never been implemented. This owing to the so-called
Cold War, which lasted until the dissolution of the Soviet Union (1991).31
At the end of the above mentioned “cold-war period” there was also the sole
occurrence of coercion of an aggressor. This concerns Iraq because of its invasion to
Kuwait (2– 4 August 1990).32 There the relevant resolution of the Security Council
authorizing Member States to use all necessary means to restore international
peace and security in the area has been accepted.33 The (first) Gulf War began on
2 August 1990 and ended on 28 February 1991. The military operation was carried
out in modified form, as a coalition of willing States led by the United States.34
This occurrence must be distinguished from the second Iraq war, which began
on 20 March 2003. This because Iraq did not respect the cease-fire conditions of
the first war as determined in S/RES/687 (1991). That second intervention passed
without authorization of the Security Council.35 But by Resolution 1483 (adopted
on 22 May 2003) and others the Security Council took care of the defeated Iraq.
The Security Council, by this resolution, requalified the Iraqi belligerent
occupation as an international transitional administration, the official appellation of
which was the Coalition Provisional Authority, CPA. The Council was the organ
empowered to determine whether aggression had occurred and what to do about it.
This organ also asserted the constitution of the Supreme Iraqi Criminal Tribunal
(formerly Iraqi Special Tribunal) to try Iraqi nationals or residents accused of crimes
under international law before this domestic court.36
Hoping that the process of the Court’s jurisdiction respecting crimes of aggression
(after 1 January 2017) will be successful, mainly that the ratification of 30 States
Parties will be achieved, a new problem will emerge. Actually that of UN Charter
priority, its Article 103.37 The issue is that any Rome Statute provision granting the
ICC jurisdiction to determine aggression would conflict with Articles 24, which
outlines the Council’s powers in respect of international peace and security, and 39,
31 See also
32 See S/RES/660 (1990); see also
33 See S/RES/678 (1990) of 29 November 1990, para 2.
34 See Article 48(1) of the UN Charter: “The action required to carry out the decisions of the Security
Council for the maintenance of international peace and security shall be taken by all the Members of
the United Nations or by some of them (italics added) as the Security Council may determine.”
35 See
36 S/RES/1483 (2003) “Affirming the need for accountability for crimes and atrocities committed by the
previous Iraqi régime.” See also
37 Article 103 – “In the event of a conflict between the obligations of the Members of the United Nations
under the present Charter and their obligations under any other international agreement, their
obligations under the present Charter shall prevail.”