CYIL Vol. 5, 2014

THE DEFINITION OF AGGRESSION AND THE USE OF FORCE by law when a grave threat to the power of a state or to its way of life was perceived by that state. He supported the view that the preservation of the state has precedence over positive law and that it must be left to each state to decide what is necessary for its own self-defense. 71 The 1970 Declaration on Principles of International Law confirmed that an “armed intervention” means a “violation of international law”, that wars of aggression constitute a crime against peace for which there is responsibility under international law. Very often “armed interventions” are “equated” with “aggression”. There are, however, some forms of intervention which are certainly unlawful but are not necessarily synonymous with aggression. The notion “armed intervention” is not necessarily synonymous with “armed attack”. The Declaration of Non-Intervention therefore did not equate armed intervention with “armed attack”. The Inter-AmericanTreaty of Reciprocal Assistance of September 1947 in Art. 6 mentioned that “aggression which is not armed attack” might nevertheless affect the inviolability or the integrity of the territory or the sovereignty or political independence of any American State. The already mentioned Thirteen Powers draft of the definition of aggression initially equated “armed attack” with “armed aggression” and later, like the Soviet draft, suggested that this form of aggression should be defined. Unlike the Soviet and the Six Power drafts, it did not include indirect uses of armed force, which occur very often at the present time. The 1970 Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States holds that “every state has the duty to refrain from organizing or encouraging the organization of irregular forces or armed bands, including mercenaries, for incursion into the territory of another state”. Every state also has the duty “to refrain from organizing, instigation, assisting or participating in acts of civil strife or acquiescing in organized activities within its territories directed towards the commission of such acts, when the acts referred to in the present paragraph involve a threat or use of force”. The are no doubts that the term of aggression embraces also the use of force by indirect means. 4. The Kampala definition of Aggression in the Rome Statute On 17July 1998 the ICC Statute was adopted in Rome, which entered into force in July 2002. 72 During the Rome conference the delegates were not able to define “the crime of aggression”. Therefore it was decided that the ICC would not have jurisdiction over the crime of aggression until the definition was adopted. 73 The Rome Statute came into force after the sixtieth ratification on 1 July 2002. Thirty state parties were required to ratify or accept the aggression amendments. Art. 5(2) of the Statute provided that the ICC should exercise jurisdiction over the crime of aggression once a provision was adopted in accordance with Art. 121 and 123 of 71 See Henkin L., supra note 8, p. 25. 72 The Rome Statute of the International Criminal Court, July 17, 1998, 2187 U.N.T.S. 73 Art. 5 (2) of the ICC Statute, Available at: http://www.icc-cpi.int/nr/rdonlyres/ea9aeff7-5752-4f84- be94-0a655eb30e16/0/rome_statute_english.pdf.

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