CYIL Vol. 5, 2014

JOSEF MRÁZEK CYIL 5 ȍ2014Ȏ UN Charter negotiations at the San Francisco Conference in 1945 and was replaced, therefore, with the more “neutral concept” of “armed attack”, demarcating the scope of the right of self-defense. Probably the main practical and theoretical question is the relationship between the jus ad bellum of the 1974 Definition of Aggression and the crime of aggression (the 2010 Kampala definition). The Kampala definition is elsewhere described as a “compromise” and even as an “historic agreement” defining the crime of aggression. Non-state parties were excluded from the ICC jurisdiction for crimes of aggression. Jurisdiction will be triggered through state parties and the ICC prosecutor, as well as by UNSC referrals. On the other hand, there is criticism that this definition is too vague, including the retroactivity principle, ignoring travaux prepatoires etc. The ICC jurisdiction is not compulsory, but it is based on parties’ consent. The Kampala definition was elaborated “for the purpose of this ICC Statute”. This expression probably does not mean that the definition relates to the jurisdiction of the ICC only, without possible impact on any further considerations of aggression in jus ad bellum . The possibility and desirability of defining aggression was in the past a subject of extraordinary controversy. 1 2. History of Defining Aggression – The League of Nations The problems of the legal definition of aggression go back to the League of Nations (LN). 2 The term “aggression” itself has an even longer history and appeared as the casus foederic in many treaties of defensive alliances in the nineteenth century. Art. 10 of the Covenant of the LN, called “Guaranties against aggression”, stipulated: “The Members of the League undertake to respect and preserve as against external aggression the territorial integrity and existing political independence of all Members of the League”. Art.16 provided: “Should any Member of the League resort to war in disregard of covenants…, it shall ipso facto be deemed to have committed an act of war against all other Members of the League, which hereby undertake immediately to subject it to the severance of all trade or financial relations, the prohibitions of all intercourse between their nationals and the national of the covenant-breaking State, and the nationals of any other State, and the nationals of any other State, whether a Member of the League or not”. 3 The Council was not charged to determine an act 1 Brownlie, I., International Law and the Use of Force by States , Oxford 1963; Ferencz, B. B., Defining International Aggression: The Search for World Peace (2 vols.) , New York 1975; Gray, CH., International Law and Use of Force , Oxford 2004; Dinstein, Y., War, Aggression and Self -Defence , Cambridge 2011; Pompe, C.A,. The AggressiveWar: An International Crime , The Hague, 1953; Schwebel, S.M., Aggression, Intervention and Self-Defence in Modern International Law, in: Justice in International Law , Selected, Cambridge 1994 (first published in Recueil des Cours 1972 II, p. 136); Stone, J., Aggression and World Order , London 1958; Waldock, C. H. M., The Regulation of the Use of Force by Individual States in International Law , Recuil des Cours, 1952 – II, p. 450; Žourek, J., La definition de l’agression et le droit international développements récents de la question, Recueil des Cours 1957 II, pp. 759-860. 2 See e.g. Brownlie, I., supra note 1, pp. 352-358; Stone, J., supra note 1, pp. 27-38. 3 The Covenant of the League of Nations 1919 – available at: http://www.refworld.org/docid/3dd8b9854. html.

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