CYIL Vol. 5, 2014

JOSEF MRÁZEK CYIL 5 ȍ2014Ȏ excludes, contrary to Art. 2 (4) of the UN Charter, the threat of force. It was the Soviet Union who submitted a definition of “armed aggression” as the first use by a State of armed force against another state contrary to the purposes, principles and provisions of the UN Charter. 46 The 1974 Definition enables the UNSC to exclude minor incidents, including frontier incidents, from the category of aggression when the consequences are not serious and grave. In any case the decision of the UNSC under Chapter VII covers not only all acts of aggression but in general “ a breach of the peace or a threat to the peace.” In fact the UNSC as a rule has been not willing to indentify illegal uses of force as acts of aggression. Mostly they term them a breach of peace or a threat to peace. There are traditional questions about the relationship of the terms “act of aggression” and “armed attack”. Surely not every minor “armed incident” (e.g. a frontier incident) will amount to an armed attack allowing self-defense. The concepts of “armed attack”, “act of aggression”, “crime of aggression”, or generally the “notion of aggression” are closely interlinked. A number of examples of aggressive acts are shown in Art. 3. The element of “gravity” is mentioned in Art. 3 (g); Art. 5 stipulates: “A war of aggression is a crime against international peace. Aggression gives rise to international responsibility”. There is again a close connection between the prohibition on aggression by states and the crime of aggression. Art 5.(2) of the Definition directly relates to “war of aggression” and stipulates that a war of aggression is a “crime” against international peace and that “aggression” gives rise to international responsibility. Also the 1970 Declaration on Friendly Relations in the non-use of force principle provides: “A war of aggression constitutes a crime against the peace, for which there is responsibility under international law”. The 1974 Definition of Aggression does not mention the penal responsibility of individuals. The legitimite question therefore arises as to what is the relationship among “war of aggression”, “aggression”, “acts of aggression”, “crime of aggression” and ,,crimes against (or under) international law”? The concept of the “crime of aggression” is surely a narrower one in comparison to an “act aggression”. Is it then to conceive that an act of aggression is a broader term in comparison to the notion of “war of aggression” or “armed conflict” in modern international law terminology? The legal notion “conflict of aggression” or “aggressive conflict” does not exist. It is sometimes rather difficult and artificial to differentiate notions as “aggression”, “act of aggression” or “war of aggression”. The 1974 Definition in fact avoided reference to the Nuremberg Charter’s provision which related to “a war of aggression” as a part of crimes against the peace. In 1957 H. Lauterpacht maintained that “the State and those acting on its behalf, bear criminal responsibility for such violations of international law as by reason of their gravity, their ruthlessness, and their contempt of human life place them within the category of criminal acts as generally understood in the law of civilized countries”. 47 In the 1970 Declaration on Principles of International Law concerning Friendly Relations among States was included a sentence “a war

46 UN Doc. A/AC. 134/L.12 (and Corr.1). 47 Lauterpacht, H., supra note 6, p. 321.

80