CYIL vol. 13 (2022)

JAKUB SPÁČIL CYIL 13 ȍ2022Ȏ authors 16 and is also supported by, among others, the majority of experts involved in the Tallinn Manual 2.0. Yet, it is not correct and should be rejected for the reasons given below. 17 The main argument against inclusion of the intent to the assessment is that “it is impossible to establish the aggressor’s precise intention”. 18 One can agree with the conclusion that determining the exact intent of the attacker may be problematic, but not so much as to prevent the conventional attack from being classified as an armed attack. The key is to evaluate the question of whether the attacker’s intent was to carry out an armed attack at all. And the manner of execution itself, coupled with the context in which such an attack was carried out, is often sufficient to make such a conclusion. In the case of a conventional attack, such a consideration should not pose a major problem (indeed, this is why the question of animus aggressionis has not received much attention), but in the case of cyber operations the situation is considerably more complex (see below). The intent of the attacker to carry out an armed attack, the so-called subjective element, is the defining feature of an armed attack. If the subjective element is not fulfilled, the act cannot be considered an armed attack and the injured State has no right to use force in self defense. This conclusion has been demonstrated by Tom Ruys in his thorough analysis of animus aggressionis . 19 His analysis treats the issue in the context of conventional attacks and it is appropriate to summarize his arguments here, as we will draw on them below. The first argument is based on the preparatory work that preceded the adoption of Article 2 of the Definition of Aggression, and since every armed attack is aggression within the meaning of that resolution, these conclusions can be applied to armed attack as well. 20 Article 2 provides: His first use of armed force by a State in contravention of the Charter shall constitute prima facie evidence of an act of aggression although the Security Council may, in conformity with the Charter, conclude that a determination that an act of aggression has been committed would not be justified in the light of other relevant circumstances , including the fact that the acts concerned or their consequences are not of sufficient gravity.” 21 It is then clear from the preparatory work for the article that those “other relevant circumstances” also include the absence of animus aggressionis . 22 Example of such a situation would be an accident or mistake. Canada gave the example of a situation where an emergency aboard an military aircraft requires bombs to be dropped and they accidentally damage a ship in international waters or an oil station in territorial waters, and States generally agreed that such a situation would not fall within the definition of aggression, which implies that it would neither be an armed attack nor would it give rise to a right of self-defense. 23 However, the state practice confirming 16 CONSTANTINOU, A. The Right of Self-defence Under Customary International Law and Article 51 of the United Nations Charter. Brussels: Bruylant, 2000, p. 62; GREEN, J. A. Self-defence: a state of mind for States? Netherlands International Law Review , 2008, vol. 55, no. 1, p. 194. 17 SCHMITT, 2017, p. 344, see supra note 3. 18 RUYS, T. Armed Attack and Article 51 of the UN Charter . 1st ed. Cambridge: Cambridge University Press, 2011, pp. 158–168. 19 RUYS, 2011, p. 158, see supra note 18. See also CONSTANTINOU, 2000, p. 62, see supra note 16; GREEN, 2008, p. 194, see supra note 16. 20 ROSCINI, 2016, p. 76, see supra note 4; KRISCH, N. In SIMMA, B. et al. (eds). The Charter of the United Nations: A Commentary . 3rd ed. New York: Oxford University Press, 2013, p. 1293 (Article 39). 21 United Nations Security Council. Resolution 3314 (XXIX) adopted on 14 December 1974. 22 RUYS, 2011, p. 160, see supra note 18. 23 United Nations. Special Committee on the Question of Defining Aggression, 3rd session. summary records of the 52nd to 66th meetings, held at the Palais des Nations, Geneva, from 13 to 29 July 1970 Volume 1 [online].

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