CYIL Vol. 7, 2016

JOSEF MRÁZEK CYIL 7 ȍ2016Ȏ It seems that the notion of “crimes against peace” disappeared somewhat from the vocabulary of international law. The term “first use” of armed force evidently lost its illegal and criminal connotations. Originally, the ILC considered in the framework of the Draft Code of Crimes against Peace and Security of Mankind notions such as “aggression”, “annexation”, “the sending of armed bands”, and “intervention in the internal or external affairs of a state”. It seems that interests of “human rights” and “democracy” may temporarily prevail over the primary value of preservation of existing peace. Is international peace then still the highest value? 4.2 Armed attack Armed attack according to Art. 51 of the UN Charter shall constitute a threshold that provides the trigger for the right of self-defence. Not every recourse to armed force represents an armed attack. No definition of armed attack is contained in the UN Charter. An understanding of which armed acts constitute an armed attack, enabling the exercise of the right of self-defence, may therefore differ. In the Nicaragua case, the ICJ distinguished the most grave forms of the use of force, constituting an armed attack and the less grave forms. 57 The ICJ saw differences between “armed attacks” and less grave forms of the use of force mainly in their scale and effect. Exclusion of “mere frontier incidents” by the ICJ from the concept of an armed attack has given rise to controversy and criticism. The ILA Report also raised the question of whether a number of incidents which alone might not be armed attacks may be seen together as an armed attack. This approach is described in literature as the so-called accumulation of events theory. The Report sees some, “not entirely consistent, evidence in support of this theory, which “has not been widely accepted.” 58 This approach to an armed attack, relating to the right of self- defence has no clear support in international law, including the UN Charter. It shall enable the extension of the right to self-defence in response to a series of minor incidents, far from reaching a threshold of an armed attack. This “accumulation of events” theory might serve for illusory justification of robust armed actions of powerful states or international organizations if minor frontier accidents or other minor forcible violence occur. Particularly, the “accumulation of events” theory applied to non-state actors may substantially weaken and reduce prohibition of the use of force in contemporary international law. The ILA Report has also raised the question of whether attacks against state interests or nationals abroad can be considered as armed attack against this state. The Report’s reply was that attacks e.g. on embassies, warships and in some circumstances on merchant vessels may constitute armed attacks for the purpose of self-defence. 59 In this way, the Report

57 See supra note 30. 58 Supra note 1, p. 6. 59 Ibid ., p. 6.

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