CYIL 2014

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 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 Russia committed an act of aggression in Crimea. A. Nicaragua v. United States of America 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 .

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