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THE DEFINITION OF AGGRESSION AND THE USE OF FORCE
the notion “act of aggression” in the Kampala definition differs from the
jus ad
bellum
1974 Definition of Aggression and in what way the Kampala definition of the
crime of aggression departs from the
jus ad bellum
concept, including international
customary law, and which implications it has or will have in the future. It is clear
that prohibition of the “use of force” is a much broader subject than prohibition of
“aggression” only. The definition of aggression is of course closely related to armed
attack and self-defense. The focus of this work has been on aggression as an unlawful
use of force and not on international criminal responsibility of individuals for crimes
of aggression. Nevertheless the 2010 Kampala definition of the crime of aggression is
important not only for the ICC but also for
jus ad bellum
. The related issues include
the right of self-defense according to Art. 51 of the UN Charter and its relationship
with the rules of customary international law. Such items as self-defense, including
so called anticipatory or pre-emptive self-defense or so called accumulation-of-events
doctrine, have been the subject of the Committee research too. The Committee has
been dealing practically with all violations of Art. 2 (4) of the UNCharter prohibiting
the use of force. Art. 2 (4) and Art. 51 as well have become the subject of permanent
controversial interpretations and even misinterpretations. Art. 2 (4) is still a
jus
of cogens
norm, despite frequent violations of it. In this connection various forms of
military interventions (humanitarian intervention, intervention on invitation or with
consent), Security Council (SC) authorization, and forcible protection of nationals
abroad, environmental protection and the use of force in cyber operations are on the
agenda of the Committee. This study does not go into the details of these problems
and does not discuss the questions of domestic criminalization of aggression and
implementation of the Kampala definition in domestic law, including the principle
of complementarities.
Article 2 (4) of the UN Charter is the basis of any definition of aggression.
Not every unlawful use of armed force, of course, necessarily equates to an “act of
aggression”. However, in the author’s view, it is rather difficult to determine any “act
of aggression” which for responsible does not constitute at the same time a “crime
of aggression” or “criminal act of aggression”. “Great Powers” will consider probably
any armed use of force not only against their land territory but also against their
ships, planes, forces etc. as a “crime of aggression”. It might be also be complicated
to credibly recognize which acts of aggression have “serious” or “substantial” impact
on violation of Art. 2 (4). The problem of the definition was and still is a matter of
great controversy (even after Kampala). Attempts at defining aggression with the aim
of prohibiting acts of aggression go back to the League of Nations and to the idea
of a collective security system in Europe. The concept of “aggression” has been used
together with the concepts of “force” and “armed attack”. The relationship between
aggression and armed attack has never been clear enough. The legal meaning of
aggression in the post-Charter era has got a new connotation. It is clear that there
exists mutual interdependence between the notions aggression and armed attack.
The term “aggression” had been considered to be too controversial even during the