370 / 532
354
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CYIL 5 ȍ2014Ȏ
direction or control
over the Contras.
59
This decision provides a helpful roadmap for what
might be considered when determining whether the presence of PMSCs, paramilitaries
or mercenaries in Ukraine might be considered acts of aggression. It also adds the
consideration that such a “sending” or “supporting” State would not be responsible for
human rights violations, but rather that responsibility would be left to the individuals.
B. Armed Activities on the Territory of the Congo
Similar to the
Nicaragua
case, the 2005
Armed Activities on the Territory of the
Congo
60
is a more recent example of the International Court of Justice holding that
financing, training and supporting an opposition group in one country violates
the prohibition against the use of force. The Court explained that “Uganda has
acknowledged giving training and military support and there is evidence to that
effect,” and although there was no evidence that Uganda controlled, or could control,
the manner in which” Jeane-Pierre Bemba, the President and Commander-in-chief of
the rebel group and political party, Mouvement de libération du Congo (Movement
for the Liberation of Congo or MLC), “put such assistance to use” in the DRC, “the
training and military support given by Uganda to the ALC, the military wing of the
MLC, violates certain obligations of international law.”
61
Consequently, the Court further explained that its reasoning was in line with
the
Nicaragua
case because Uganda’s assistance to the MLC, which was directly or
indirectly supporting “an internal armed opposition in another State,” constituted “a
breach of the principle of non-use of force in international relations”
62
and equally an
“interference in the internal affairs of the DRC and in the civil war there raging.”
63
In
arguably the most important provision for purposes of this paper and understanding
the requirements of the new definition of the crime of aggression, the Court then
found that “the unlawful military intervention by Uganda was of such a magnitude
and duration that the Court considers it to be a grave violation of the prohibition
on the use of force expressed in Article 2, paragraph 4, of the Charter.”
64
This could
be useful for understanding the liability for any ties of another country to PMSCs
or other fighters.
However, considering the recent actions of Russia in the Crimean Peninsula and
the allegations of Western and Russian meddling in both Kiev and eastern Ukraine,
the world’s dominant powers could be redefining what constitutes aggression by
paying no heed to the international law of the past as set forth by the ICJ and
the United Nations. There is little question that Russian activities in the Crimean
Peninsula amounted to acts of aggression under this analysis and, if reliable links
59
Ibid.
at para. 292.
60
International Court of Justice,
Armed Activities on the Territory of the Congo (Democratic Republic of the
Congo
v.
Uganda), Judgment, I.C.J. Reports 2005,
p. 168.
61
Ibid.
at para. 160-161.
62
Ibid.
at para. 164 (see Nicaragua,
I.C.J. Reports 1986
, at paras. 206 and 209).
63
Ibid.
at para. 160-161.
64
Ibid.
at para. 160-161