CYIL 2015

MANIFEST VIOLATION OF THE UN CHARTER made as to whether an act of aggression has taken place. Second, it requires that any such act meets the other criteria of paragraph 1. With regard to the latter, it is necessary to highlight the fact that only such an act of aggression can amount to a crime of aggression which by its character, gravity and scale constitutes a manifest violation of the UN Charter. Therefore, not any violation of the UN Charter caused by use of armed force will fit the definition. Such a violation has to be ‘manifest’. But how should we understand this vague term? 2.2 Understandings Several parts of the newly agreed definition are relatively complicated and therefore allow for different interpretation. Therefore, the Kampala amendment is accompanied by so-calledUnderstandings.Two of themare particularly relevant for the area discussed. In relation to determining an act of aggression, Understanding no. 6 states: … determination whether an act of aggression has been committed requires consideration of all the circumstances of each particular case, including the gravity of the acts concerned and their consequences …With regard to the term ‘manifest violation’, Understanding no. 7 states: … the three components of character, gravity and scale must be sufficient to justify a ‘manifest’ determination. No one component can be significant enough to satisfy the manifest standard by itself . Unfortunately, there is a slight contradiction within the two sentences of Understanding 7. The first sentence suggests that all three components (character, gravity and scale) must amount to a ‘manifest violation’. Nevertheless, the last sentence reads that two components might be sufficient. 2 The interpretation of this wording will therefore depend on the judges of the Court. It is worth mentioning that the Understandings did not shed any light onto the vagueness of the term ‘manifest violation’. As a matter of fact, their purpose was not to clarify the definition, but rather to make it more difficult for the Court to find a manifest violation. 3 3. Grey Area In real life the lines between ‘legal’ and ‘illegal’ in international law are often a bit blurred. It can be argued that customary international law or even the wording of the UN Charter 4 do not consider several kinds of use of force illegal. Any case falling 2 See AKANDE, Dapo. What Exactly was Agreed in Kampala on the Crime of Aggression? [online] EJIL: Talk! , 2010 [15-08-2015]. Available at: http://www.ejiltalk.org/what-exactly-was-agreed-in-kampala on-the-crime-of-aggression. 3 See HELLER, Kevin Jon. The Uncertain Legal Status of the Aggression Understandings. Journal of International Criminal Justice , vol. 10, 2012, p. 232, 246. 4 With regard to Art. 2 para 4 of the UN Charter it can be argued that some use of force such as e.g. humanitarian intervention is not directed against the territorial integrity or political independence of any state.

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