CYIL 2015

THE KAMPALA AGREEMENT ON CRIME OF AGGRESSION … or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations , as required by paragraph 2 of Article 8 bis. 3.3 An act of aggression Article 8 bis of the amending resolution attempts to give an answer for the question of what an act of aggression is, in its second paragraph. The second paragraph reads as follows: “ For the purpose of paragraph 1, ‘act of aggression’ means the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations. Any of the following acts, regardless of a declaration of war, shall, in accordance with United Nations General Assembly resolution 3314 (XXIX) of 14 December 1974, qualify as an act of aggression :…” The element of the use of armed force resembles the general prohibition of the use of force in Article 2 (4) of the United Nations Charter (‘Charter’). However the definition of aggression seems to be narrower than the Charter provision by adding the word “armed” to “force”. Gillet thus claims that a kinetic force directed against an opponent through military weaponry or blockades backed up by such weaponry are the necessary elements of the act of aggression and disqualifies non-kinetic attacks, such as economic embargoes or cyber warfare. 41 His view is based on the interpretation of the term “armed attack” by the International Court of Justice in the Nicaragua case. 42 Admittedly, although the International Court of Justice (‘ICJ’) has never declared commitment of an act of aggression by any state, its judgments on the topic of self-defence and its elaboration of the term ‘armed attack’ might be helpful for understanding of the term “an act of aggression” in the Kampala resolution. Also Akande and Tzanakopoulos, by a comparison of the Kampala definition of aggression and ICJ judgments such as Nicaragua , or Oil Platform 43 conclude that the term ‘armed attack’ and ‘act of aggression’ (at least in the ICJ jurisprudence) are very closely related, since both of them require the use of force of a certain gravity, opposed to ‘mere’ use of force; and they also point to the fact that the ICJ relied on the 1974 General Assembly Resolution 3314 on Definition of Aggression in order to determine what constitutes an armed attack in the Nicaragua case. 44 There are no objections against that conclusion, since, as was addressed above, the Kampala amendment also requires an act of aggression of certain gravity, scale and character, together with manifest 41 GILLET, M., The Anatomy of an International Crime: Aggression at the International Criminal Court, International Criminal Law Review , vol. 13, 2013, 829 – 864,p. 837. 42 International Court of Justice, Judgment of 27 June 1986, Nicaragua v. United States of America . 43 International Court of Justice, Judgment of 6 November 2003, The case concerning the Oil Platforms, Islamic Republic of Iran v. United States of America . 44 AKANDE, D., TZANAKOPOULOS, A., The International Court of Justice and the Concept of Aggression In KRESS, C., BARRIGA, S., The Crime of Aggression – A Commentary , Cambridge University Press, Forthcoming, available on http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2587722 on 1 July 2015 .

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