CYIL vol. 7 (2016)

CYIL 7 ȍ2016Ȏ SOME CRITICAL REFLECTIONS ON THE EXTENDED USE OF MILITARY FORCE…

decide, or if position of states also should be taken into consideration with regard

to the occurrence of an act of aggression. The relationship between “armed attack”

and “act of aggression” has so far reached no clear clarification. The views expressed

on this were and still are rather diverging.

The discussion on

animus aggressionis

maybe traced as early as in League of

Nations. Already the Six-Power draft contained the element of “aggressive intent”.

But

animus aggressionis

is not always easy to prove. The burden of proof in such

a case ought to be placed on the victim and proof of aggressive intent might even be

impossible to establish. The general notions of character, gravity, scale or manifest

violation may lead in some cases to different, rather subjective interpretations of these

terms. The ILA Report also raised another question as a controversial issue: whether

hostile intent must be displayed. The 1974 Definition of Aggression supports the

idea that

mens rea

is a relevant element to determine whether an armed attack has

occurred. The Report offers “the better view”, stating that while hostile intent is

not an essential element of an armed attack, “the existence of mistake or accident is

highly relevant in deciding whether the use of force in self-defence is necessary.”

With regard to the distinctions between the Kampala definition (the crime of

aggression) and the 1974 GA Definition (an act of aggression), the ILA Report

noted that only an act of aggression “by its character, gravity and scale, constitutes

a manifest violation” of the UN Charter and provides so “the essential distinction”

between the “crime of aggression”, on one hand, and state aggression under the

use

ad bellum

on the other. Nevertheless, it was acknowledged that there are “two

competing definition of aggression”.

The Report nevertheless noted optimistically

(not introducing arguments) that the threshold of “manifest violations” is relevant

only to the crime of aggression and “should not lead to a diminished appreciation of

the

ius ad bellum

constraints on states.”

During the Nuremberg Trial the main American prosecutor, R. H. Jackson, e.g.

proclaimed: “To initiate a war of aggression therefore is not only an international

crime, it is the supreme international crime…” The IMT stressed that “resort to a war

of aggression is not merely illegal, but is criminal.” It seems that in Nuremberg there

was no clear distinction between “act of aggression” and “crimes of aggression”. The

IMT at Nuremberg and Tokyo were acting without having an exact definition of

aggression. Among the crimes against peace were namely “planning, preparation,

initiation or waging of war of aggression” or “war in violation of international

treaties”…

Supra note 1, p. 6.

Ibid

., p. 7, See also O’CONNELL M.E., NIYZMATOV, M. What is aggression? Comparing the ius

ad bellum and the ICC statute.

IntCrimJust

, 2012, Vol. 10, p. 204.

Supra note 1, p. 9.