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JOSEF MRÁZEK
CYIL 7 ȍ2016Ȏ
It seems that the notion of “crimes against peace” disappeared somewhat from
the vocabulary of international law. The term “first use” of armed force evidently
lost its illegal and criminal connotations. Originally, the ILC considered in the
framework of the Draft Code of Crimes against Peace and Security of Mankind
notions such as “aggression”, “annexation”, “the sending of armed bands”, and
“intervention in the internal or external affairs of a state”. It seems that interests of
“human rights” and “democracy” may temporarily prevail over the primary value
of preservation of existing peace. Is international peace then still the highest value?
4.2 Armed attack
Armed attack according to Art. 51 of the UN Charter shall constitute a threshold
that provides the trigger for the right of self-defence. Not every recourse to armed
force represents an armed attack. No definition of armed attack is contained in
the UN Charter. An understanding of which armed acts constitute an armed
attack, enabling the exercise of the right of self-defence, may therefore differ. In
the Nicaragua case, the ICJ distinguished the most grave forms of the use of force,
constituting an armed attack and the less grave forms.
57
The ICJ saw differences
between “armed attacks” and less grave forms of the use of force mainly in their
scale and effect. Exclusion of “mere frontier incidents” by the ICJ from the concept
of an armed attack has given rise to controversy and criticism. The ILA Report also
raised the question of whether a number of incidents which alone might not be
armed attacks may be seen together as an armed attack. This approach is described
in literature as the so-called accumulation of events theory. The Report sees some,
“not entirely consistent, evidence in support of this theory, which “has not been
widely accepted.”
58
This approach to an armed attack, relating to the right of self-
defence has no clear support in international law, including the UN Charter. It
shall enable the extension of the right to self-defence in response to a series of minor
incidents, far from reaching a threshold of an armed attack. This “accumulation
of events” theory might serve for illusory justification of robust armed actions of
powerful states or international organizations if minor frontier accidents or other
minor forcible violence occur. Particularly, the “accumulation of events” theory
applied to non-state actors may substantially weaken and reduce prohibition of
the use of force in contemporary international law. The ILA Report has also raised
the question of whether attacks against state interests or nationals abroad can be
considered as armed attack against this state. The Report’s reply was that attacks
e.g. on embassies, warships and in some circumstances on merchant vessels may
constitute armed attacks for the purpose of self-defence.
59
In this way, the Report
57
See supra note 30.
58
Supra note 1, p. 6.
59
Ibid
., p. 6.