Aggression (war crime)
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- For other uses, see Aggression.
The Definition of Aggression was a definition of the term "aggression" adopted by the United Nations General Assembly on December 14, 1974. The definition was adopted without a vote during the General Assembly's 2319th plenary meeting and attached as an annex to General Assembly Resolution 3314 (XXIX). Although often cited in opposition to military actions, it has no binding force in international law. Perpetrating an act of aggression remains uncriminalised, though it is intended that the International Criminal Court will exercise jurisdiction in this area in future.
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[edit] The definition defined
The adoption of the definition was the culmination of a long process begun in 1923 under the auspices of the League of Nations. On December 18, 1967, the UN General Assembly adopted Resolution 2330/XXII, which established a Special Committee on the Question of Defining Aggression. This body was comprised of 35 member states: Algeria, Australia, Bulgaria, Canada, Colombia, the Democratic Republic of the Congo, Cyprus, Czechoslovakia, Ecuador, Finland, France, Ghana, Guyana, Haiti, Indonesia, Iran, Italy, Japan, Jordan, Madagascar, Mexico, Norway, Romania, Sierra Leone, Spain, Sudan, Syria, Turkey, Uganda, the USSR, the United Arab Republic (Egypt), the United Kingdom, the United States, Uruguay and Yugoslavia. After seven years of work, it reported back to the General Assembly with draft proposals that formed the basis of the final Definition of Aggression.
The definition makes a distinction between aggression (which "gives rise to international responsibility") and war of aggression (which is "a crime against international peace". Acts of aggression are defined as armed invasions or attacks, bombardments, blockades, armed violations of territory, permitting other states to use one's own territory to perpetrate acts of aggression and the employment of armed irregulars or mercenaries to carry out acts of aggression. A war of aggression is a series of acts committed with a sustained intent. The definition's distinction between an act of aggression and a war of aggression make it clear that not every act of aggression would constitute a crime against peace; only war of aggression does. States would nonetheless be held responsible for acts of aggression.
[edit] Criticisms of the definition
The wording of the definition has been criticised by many commentators. Its clauses on the use of armed irregulars are notably vague, as it is unclear what level of "involvement" would entail state responsibility. It is also highly state-centric, in that it deems states to be the only actors liable for acts of aggression. Domestic or transnational insurgent groups, such as those that took part in the Sierra Leone Civil War and the Yugoslav Wars, were key players in their respective conflicts despite being non-state parties; they would not have come within the scope of the definition.
The Definition of Aggression also does not cover acts by international organisations. The two key military alliances at the time of the definition's adoption, NATO and the Warsaw Pact, were non-state parties and thus were outside the scope of the definition. <ref>Ingrid Detter Delupis, The Law of War, pp. 69-70. Cambridge University Press, 2000</ref> Moreover, the definition does not deal with the responsibilities of individuals for acts of aggression. It is widely perceived as an insufficient basis on which to ground individual criminal prosecutions. <ref> L.F. Damrosch, "Enforcing International Law through Non-forcible Measures", p. 202. Recueil De Cours/Collected Courses, Académie de Droit International de La Haye, 1998</ref>
Although the Definition of Aggression has often been cited by opponents of conflicts such as the 1999 Kosovo War and the 2003 Iraq War, it has no binding force in international law. The doctrine of Nulla poena sine lege means that, in the absence of binding international law on the subject of aggression, no penalty exists for committing acts in contravention of the definition. It is only recently that heads of state have been indicted over acts committed in wartime, in the cases of Slobodan Milošević of Serbia and Charles Taylor of Liberia. However, both were charged with war crimes, i.e. violations of the laws of war, rather than with the broader offence of "a crime against international peace" as envisaged by the Definition of Aggression.
The definition is not binding on the Security Council. The United Nations Charter empowers the General Assembly to make recommendations to the United Nations Security Council but the Assembly may not dictate to the Council. The resolution accompanying the definition states that it is intended to provide guidance to the Security Council to aid it "in determining, in accordance with the Charter, the existence of an act of aggression". <ref>Yoram Dinstein, War, Aggression and Self-Defence, p. 118. Cambridge University Press, 2003</ref> The Security Council may apply or disregard this guidance as it sees fit. Legal commentators argue that the Definition of Aggression has had "no visible impact" on the deliberations of the Security Council. <ref> M.C. Bassiouni and B.B. Ferencz, "The Crime against Peace", International Criminal Law, I, 313, 334 (M.C. Bassiouni ed., 2nd ed., 1999)</ref>
[edit] The definition and the International Criminal Court
The project to define the meaning of aggression in international relations was a crucial factor in the creation of the International Criminal Court. The establishment of the court was first proposed in 1949 by the International Law Commission at the request of the UN General Assembly, but the consideration of a draft statute was proposed pending the adoption of a Definition of Aggression. It took another 25 years for the definition to be adopted, but the project was then further postponed. When the Rome Statute of the International Criminal Court was finally agreed in 1998, the crime of aggression was included in Article 5 of the Statute. However, the 1974 Definition of Aggression was not used as the basis for that offence, due to disagreements over the definition's usefulness and scope. The Rome Statute states instead that "The Court shall exercise jurisdiction over the crime of aggression once a provision is adopted in accordance with articles 121 and 123 defining the crime and setting out the conditions under which the Court shall exercise jurisdiction with respect to this crime". <ref>Rome Statute of the International Criminal Court. Part 2: Jurisdiction, Admissibility and Applicable Law, Article 5.</ref>
[edit] References
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