CYIL Vol. 7, 2016

CYIL 7 ȍ2016Ȏ SOME CRITICAL REFLECTIONS ON THE EXTENDED USE OF MILITARY FORCE… the substance of the present international law governing the use of force (see various doctrines and practice of states)? Is the prohibition of military force still a peremptory norm of international law? Is a latin proverb for the use of force “ex iniuria non ius oritur” or the proverb “ex iniuria ius oritur” valid? How to satisfy the legitime demands of “democracy” and human rights with a prohibition on the use of force? What differences exist between customary prohibition of the use of force and the prohibition in the UN Charter and relevant international treaties? Do the customary rules and treaty rules on the use of force have the same content, or what is the difference? In which way have international customs so far “modified” Art 2 (4) and Art. 51 of the UN Charter? What impact, on the other hand, did prohibition of the use of force embodied in Art 2 (4) and Art. 51 of the UN Charter have on international customary law? What about priority obligations under Art. 103 of the UN Charter? What is the relationship between “legality” and “legitimacy” of the use of force? Is “legitimacy” of ultimately “pre-emptive” unilateral armed actions the reason for and way for later “legal” justification of these action? Who ultimately decides about legitimacy or lack of legitimacy? There are various doctrines and theories which maintain that the stipulations of Art. 2 (4) and 51 of the UN Charter are no longer tenable in the face of new security threats and risks in the contemporary world. Is it realistic nowadays to expect modification or change of the stipulation on the use of force embodied in the UN Charter? Which risks in international law, if any, bring the new conception of an armed attack launched by non-state actors on the territory of state which shelters them? In the light of political developments in the world during the last decades and especially now, it seems that prohibition on the use of force is losing its strength and legal meaning in favour of a policy oriented approach(?!). The definition of “aggression” is at the heart of the mandate of the ILA Use of Force Committee. There are nearly 100 years of efforts to define “aggression“, starting with attempts in the League of Nations (LN) and finishing with the ICC 2010 Kampala definition of the crime of aggression. The definition of aggression is closely related to armed attack and self-defence. The notion “act of aggression“ in the Kampala definition differs from the ius ad bellum 1974. The question may be what impact this “dichotomy“ of both definitions will have on the ius ad bellum definition of aggression in the future? The concern about the future impact of the Kampala definition on the ius ad bellum definition of aggression seems to be justified. In fact, we now have two somewhat dissimilar definitions of “aggression“ in public international law… Art. 2(4) of the UN Charter is the basis of any definition of aggression. Not every unlawful use of armed force necessarily equates to an “act of aggression“. However, it is rather difficult to determine any “act of aggression“ which for an attacked state does not constitute at the same time a “crime of aggression” or “criminal act of aggression“. The Great Powers will probably consider any armed


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