CYIL vol. 13 (2022)

CYIL 13 ȍ2022Ȏ ANIMUS AGGRESSIONIS: THE ROLE OF INTENT IN THE ANALYSIS OF ARMED … the necessity of animus aggressionis need not be sought only in fictional scenarios. In 1999, there was a mistake in the targeting of the bombing and NATO allied forces, namely US bombers, bombed the Chinese embassy in Belgrade. As a result of this attack, four Chinese diplomats were killed and twenty others were injured. Both NATO and the US immediately informed China that there had been a mistake. Although this situation had an impact on the intergovernmental relations between the two countries and provoked mass protests in China, China gave no indication that it considered the bombing to be an armed attack within the meaning of Article 51 of the UN Charter or that it was considering action in self-defense. 24 Ruys also refers to several military operations where their premediated, offensive or deliberate character was emphasized (Harib Ford 1964, Six Day War 1967, Israel/Lebanon conflict 1968, India/China border clashes 1976, Israeli bombing of Syrian 1993), from which the necessity of a subjective element of armed attack can also be inferred. 25 Ruys also finds support for his argument on relevance of animus aggressionis in the jurisprudence of the ICJ. The Court stated in the Nicaragua case, in relation to cross-border incursions into the territory of Honduras and Costa Rica, that it was difficult to assess whether an armed attack was involved, as the Court had, inter alia, very little information relating to the “possible motivations” of these incursions. 26 In the Oil Platforms case, it then stated that it had not been proved that “mine … was laid with the specific intention of harming that ship”. 27 Although this conclusion of the ICJ has been subject to some criticism (because the ICJ spoke of an intention to damage a specific ship), according to Ruys it can at least be inferred that “the subjective element is relevant for determining the existence of an armed attack”. 28 Ruys is certainly not alone in the scholarly debate with this conclusion. 29 UN Doc. A/AC.134/SR.52-66. 19 October 1970 [accessed 14 March 2022], pp. 27, 36, 41. Available at < https://digitallibrary.un.org/record/802027?ln=en>; United Nations. Special Committee on the Question of Defining Aggression, 3rd session. summary records of the 67th to 68th meetings, held at the Palais des Nations, Geneva, from 30 July to 14 August 1970 Volume 2 [online]. UN Doc. A/AC.134/SR.67-78. 19 October 1970 [accessed 14 March 2022], p. 20. Available at < https://digitallibrary.un.org/record/711073?ln=en>. 24 RUYS, 2011, p. 165, see supra note 18. It should be pointed out that this example of state practice is referred to in the context of term “armed attack” in the ius ad bellum, not in the context of term “attack” in the ius in bello, where the meaning is different. 25 Ibid, p. 164. 26 Nicaragua v. United States, para. 231. 27 ICJ, Judgment of 6 November 2003, Oil Platforms (Islamic Republic of Iran v. United States of America) , p. 34, para. 64 (hereinafter “Oil Platforms”). 28 RUYS, 2011, p. 163, see supra note 18. 29 For example, Ricardo J. Alfaro, a former ICJ judge, was quite clear on this point: “On the question of ‘intention’, it cannot be denied, of course, that it is a natural element of aggression. There can be no aggression unless there has been an intention to commit it.”, see Question of defining aggression: Memorandum submitted by Mr. Ricardo J. Alfaro. Yearbook of the International Law Commission , 1951, vol. II, p. 39, para. 59 (UN Doc. A/ CN.4/L.8). See also SHARP, W. G. Cyberspace and the use of force . 1st ed. Falls Church: Ageis Research Corp, 1999, pp. 88–91; ROSCINI, 2016, p. 77, see supra note 4; SIMMONS, 2014, pp. 81-82, see supra note 4; LOTRIONTE, C. Reconsidering the Consequences for State-Sponsored Hostile Cyber Operations Under International Law. The Cyber Defense Review , 2018, vol. 3, no. 2, p. 79; DINSTEIN, Y. War, Aggression and Self-defence . 4th ed. Cambridge: Cambridge University Press, 2012, p. 209; WILMSHURST, E. Principles of International Law on the Use of Force by States in Self-Defence [online]. Chathamhouse.org, October 2005 [accessed 14 March 2022], p. 6. Available at < https://www.chathamhouse.org/2005/10/principles-international-law-use force-states-self-defence>.

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