CYIL Vol. 5, 2014

THE DEFINITION OF AGGRESSION AND THE USE OF FORCE of aggression constitutes a crime against peace for which there is responsibility under international law”. The reference to “crime against international peace” is also contained in Art. 5 (2) of the 1974 Definition. Both these stipulations were consistent with the former Art. 19 of the Articles on State Responsibility. 48 In the final version of the Articles on State Responsibility the reference to “crimes” of states was deleted. The ILC finally came to the conclusion that a “crime of aggression” is a penal matter not relevant to state responsibility. The IMT in Nuremberg declared “aggression” as the “supreme international crime”, without any special definition of the crime of aggression. It is clear that not all illegal use of force amounts to aggression. According to Mary E. O’Connell 49 only a “significant or serious” armed attack may trigger the right of self-defense”. In her view not all acts of aggression amount to a “significant and serious armed attack” or represent at the same time “a war of aggression”. With regard to the Kampala definition it is obvious that all acts of aggression do constitute “crimes of aggression” or “war of aggression”. A. Cassese maintained that the 1974 Definition was left deliberately incomplete, not exhaustive and leaving to the UNSC a broad area of discretion. 50 In the Nicaragua case the ICJ held that an armed attack must be understood as including ,,the sending by or on behalf of a State of armed bands, groups, irregulars or mercenaries, which carry out acts of armed force against another state of such gravity as amount ( inter alia ) to… an actual armed attack conducted by regular forces.” This stipulation, contained in Art. 3 (g) of the Definition, may be, according to the ICJ, taken to reflect “customary international law” and may be classified as ,,an armed attack” rather than as a mere frontier incident. The ICJ expressed its belief that the concept of “armed attack” includes assistance to rebels in the form of the provision of weapons or logistical or other support. 51 Judge Schwebel and Judge Jennings criticised in their dissenting opinions the ICJ definition of “armed attack as excessively narrow.” 52 The stipulation on “substantial involvement” is rather unclear as to whether it also covers the case when a state supplying weapons to armed bands which launch attacks from the territory of another state against a third state. The term “substantial involvement” relates clearly to the case when a state permits an armed band to use its territory for launching attacks against another state… The term “indirect aggression” was not included in the definition of aggression adopted by the UNGA. The report of the Secretary General on the Question of Defining Aggression from 1952 included an extended discussion of indirect 48 ILC Report 1985, p.42. 49 O’Connell, Mary E., Niyazmatov, M., What is Aggression? Journal of International Criminal Justice 10 (2012), p.193. 50 Cassese, A., International Criminal Law, in Evans M.D., International Law , Oxford 2003, p. 747 51 ICJ Reports, 103-4. 52 ICJ Reports of the Judgments, Case Concerning Military and Paramilitary Activities in and Against Nicaragua, Merits Judgement of 27 June 1986, pp. 331-47, 348-50, 543-4.

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