CYIL 2015

MANIFEST VIOLATION OF THE UN CHARTER A second ‘incident’ occurred in November 2010. At the end of the Korean War, the UN created a so-called Northern Limit Line determining the sea border between the countries. Nevertheless, North Korea later unilaterally set their own line. After a South Korean military exercise, the North accused South Korea that it shelled into what it regarded as North Korean territorial waters. Following that, North Korea initiated a bombardment of the South Korean island of Yeonpyeong. A military base was hit on the island, as well as several civilian areas. As a result, two marines and two civilians were killed, and several others wounded. If North Korea was responsible for both attacks, would either of them amount to a crime of aggression in terms of the new definition? The first question that would have to be answered is whether considerations about aggression are relevant with regard to North and South Korea at all. As mentioned above, the Korean War was not concluded by a peace agreement, only an armistice. One could therefore argue that the countries are still formally in a state of war and, based on that, any armed act would amount to a continuation of the war and could not be regarded as an act of aggression. On the other hand, the factual state could be supported because there was de facto no armed conflict when the incidents occurred. If the second interpretation was given priority, then the legality of these attacks would have to be analysed. In both ways the only reasonable outcome would be that the attacks were illegal under international law. However, as a second step, it would have to be examined whether either of the attacks by their character, gravity and scale constituted a manifest violation of the UN Charter. With regard to this threshold it would be likely to conclude that especially the components of gravity and scale were not met. Therefore, the attacks would not constitute a crime of aggression. 6.7 Libya 2011 A civil war in Libya that led to the fall of the long lasting government of Muammar Gaddafi was triggered by peaceful demonstrations in support of a democratic change that took place in the country in February 2011. The government answered by violent crackdowns against the protesters. Later, armed opposition was established. The actions of the government against the peaceful protesters included killings and torture and therefore significant international opposition against the Libyan regime was created. In March 2011, the UN Security Council resolution 1973 (2011) was passed that approved taking all necessary measures to protect civilians and civilian populated areas under threat of attack 14 and enforcing a no-fly zone over Libya. 15 Based on the resolution, an international coalition including France, the UK and the US initiated military action which was later taken over by NATO. Several Arab countries also participated in the operations. Legally, the military intervention was

14 Para 4, UNSCR 1973 (2011). 15 Para 8, UNSCR 1973 (2011).

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