368 / 532
352
CAROLLANN BRAUM
CYIL 5 ȍ2014Ȏ
be allowed jurisdiction over the crime of aggression in 2017, the situation in Ukraine
may very well be redefining how States view their obligations to avoid aggression and,
in fact, what even constitutes an act of aggression. We may be witnessing customary
international law in the making.
Article 3(g) of Resolution 3314, which is found identically in Article 2 (2) (g)
of the 2010 Kampala Amendment to the Rome Statute, which defines aggression
for the ICC, is significant for the purposes of analyzing the situation in Ukraine and
aggression.
45
These articles involve “[t]he sending by or on behalf of a State of armed
bands, groups, irregulars or mercenaries, which carry out acts of armed forces against
another State of such gravity as to amount to the acts listed above, or
its substantial
involvement therein
.”
46
The ‘acts listed above’ are relatively straightforward, basically
involving the sending of troops or
other forces
into another State or misusing power
for purposes of aggressive war or acts. Furthermore, Article 5(1) of Resolution 3314
makes it clear that the motive is irrelevant: “No consideration of whatever nature,
whether political, economic, military or otherwise, may serve as a justification for
aggression.”
47
Interestingly, the International Court of Justice has found that Article 3
(g) reflects customary international law through various decisions, including
Military
and Paramilitary Activities in and against Nicaragua (Nicaragua
v.
United States of
America), Merits, Judgment, I.C.J. Reports 1986
, p. 14, para. 3; and
Armed Activities
on the Territory of the Congo (Democratic Republic of the Congo
v.
Uganda),
Judgment
of 19 December 2005, para. 146).
48
Under this definition, there is little doubt that
Russia committed an act of aggression in Crimea.
A. Nicaragua v. United States of America
In arguably the most pertinent, and often very confusing and controverted, case
on point,
Nicaragua v. United States of America
,
49
the International Court of Justice
(ICJ) provided a detailed analysis of the law building up to the crime of aggression
by States. This case dealt with the situation where the United States allegedly funded,
trained, and supported the Contras in Nicaragua with an aim at attacking the
current Nicaraguan government – a state of affairs not dramatically different from
the recent events involving Russian activities in the Crimean Peninsula and those
allegedly occurring in eastern Ukraine, as well as allegations made against the United
States’ involvement in the various events in Ukraine. According to the Court in the
Nicaragua
case, the restriction on acts of aggression, found in the United Nations
45
G.A. Res. 3314, UNGAOR, 29th Sess., Definition of Aggression, U.N. Doc. A/Res./3314 (XXIX),
14 December 1974;
Amendments to Article 8 of the Rome Statute
, Resolution RC/Res.6, The Crime of
Aggression, 11 June 2010, Annex I, art. 2(2).
46
Ibid
at art. 3; Paust,
supra
note 40.
47
Ibid
at art. 5(1); Paust,
supra
note 40.
48
Ibid.
49
International Court of Justice,
Military and Paramilitary Activities in and against Nicaragua (Nicaragua
v.
United States of America), Merits, Judgment, I.C.J. Reports 1986
.