This article has been written by Ms. Shubhi Singh a third year of NMIMS School of Law, Navi Mumbai.

 

ABSTRACT

Aggression is currently recognized as the utmost dangerous category of unlawful usage of force. Hostility seems to be the highest-level criminal activity that can be committed within the framework of the global framework that has existed since the execution of the Treaty of Westphalia, which was signed in 1648, and the assertion of State dominion. It undermines the State’s very existence, its sovereignty over territory, and, consequently, the fundamental tenets of international law. An act or program of enlargement implemented by one government at the cost of another by an unjustified martial outbreak is known as aggression in international relations. International law defines aggression as any use of force of arms in international relations that is not acceptable by military obligation, global authority, or the permission of the nation using force, with the aim of restitution or punishment following hostilities. Since World War I, several treaties and formal declarations have attempted to promote collective security among states by outlawing acts of aggression, such as the International Covenant of the League of States (Article 10) and the Charter of the United Nations (Article 39). Since the First World War, the majority of governments have acknowledged their duty to abstain from using force, which has frequently required international forums to address the issue of aggression in wars that have broken out. In these situations, the United Nations and the International League of Nations have often ordered a halt to hostilities and have only deemed a country to be an aggressor if it has disobeyed the order.

KEYWORDS– aggression, force, criminal, treaty of Westphalia, sovereignty, hostilities, World War I, charter of United Nations

 

INTRODUCTION

With the atrocities steadfast during the First World War, World War II, and the following decade, there was a growing agreement in favor of producing an international criminal court. court.1 The world community was increasingly conscious of the fact that conflict and friction on an international level are invariably caused by conflicting wants, beliefs, and goals.2 The determination to make an ongoing international criminal court was glimmered by the necessity to halt the committing of the most monstrous criminalities of international significance over time and the need to eradicate the exemption of those who obligate these wrongdoings.3. On the twentieth of July the year 1998, 120 countries ratified the Rome Statute, which established the International Justice Court (or “ICC”), following protracted discussions.4

“The Rome Statute’s adoption is a gift of desire for future generations,” claims Kofi Annan. and a significant advancement in the fight for the supremacy of law and fundamental human rights. 5. As a result, the ICC’s founding is widely regarded as a significant development in international law.

One of the four chief international crimes that fall under the horizon of the International Criminal Court (ICC) is aggression, which includes the personal responsibility for waging an unlawful war. Six Aggression is “the ultimate crime against humanity, distinguishing only from other forms of warfare in that it holds within itself the cumulative evil of the whole,” according to the Nuremberg Tribunal, although the parties to the Agreement were not made aware of this until the 2010 Kampala Review Colloquium on the Rome Statute. The Kampala interpretation is already considered a major advancement in international criminal law, even if the hostility reconsiderations won’t take result until after January 1, 2017.8

Therefore, a person acting on their own without assistance from the state or from the state itself cannot commit an aggressive offense that falls under the purview of the ICC. 11 This state-centered strategy, it may be argued, does not adequately capture the realities of fortified battle today. Mary Kaldor discovers in New and Ancient Wars, and Organized Aggression in a Transnational Era that there According to Kaldor’s new war theory, there has been a blurring of the lines between organized crime, war, and human rights breaches over the later decades of the 20th century. These modern conflicts are mostly focused on civilian targets for violence, including networks of both state and non-state players. The existing state-centric meaning of the wrongdoing of aggression may be out of date and counterproductive to efforts to prosecute violence if Kaldor’s theory adequately captures these developments. The Rome Statute’s meaning of the corruption of aggression makes it more difficult for the International Criminal Court to put an end to impunity and stop future crimes. This essay examines how the crime of aggression came to be and how it is currently defined while taking Kaldor’s theory and its ramifications into account. Additionally, it examines the constraints of the In examining the present definition’s shortcomings, particularly its inclusion of non-state actors, it also concludes that the ICC’s jurisdiction has not been adequately expanded in its efforts to combat impunity and deter future acts of aggression.

 

HISTORICAL DEVELOPMENT

Early in the 20th century, the right to wage war was gradually curtailed, as seen by the 1919 League of Nations Covenant and the 1928 Kellogg-Briand Pact, limiting its use to instances of self-defence against aggression. The Nuremberg Tribunal’s 1945 Charter established the act of organizing, preparing, starting, or conducting a warfare of violence as a crime against harmony under Article 6(b), enforcing the criminal responsibility of those who commit it. This was done by drawing on the philosophies of international law, specifically principle 6.

In addition, hostility and the usage of force in regional relations are banned under the 1945 United Nations (UN) Charter, with the omission of self-defence. The UN Charter establishes a framework for A system of collective security is established under the UN Charter, with the Security Council having ultimate authority over it. Aggression is not defined precisely in the Charter. The mandate of the United Nations Security Council (UNSC) is framed around the broader concept of a danger to international concord and safety. The UNSC is authorized to use collective force as necessary in these situations. The UN didn’t establish a definition of an act of aggression until 1974. In addition, the International Court of Justice and regional intergovernmental bodies like the Organization of American States and the African Union have refined and expanded the definition of aggression in a number of their judgements. The duty of the State before international or regional legal organizations, as well as the right to self-defence and international systems of shared security, were both framed and organized by these developments.

 

Acts of hostility were once again included under the purview of international criminal law in 1998 during the writing of the International Criminal Court’s Statute. But for a very long period, the Court has Unfortunately, because States Parties could not reach an agreement on the meaning of the crime, the Court was left with only theoretical authority over the wrongdoing of aggression for a considerable amount of time. Throughout the 2010 Kampala Review Conference of the Rome Statute, States Parties lastly settled upon an explanation of the crime of aggression.

 

DEFINITIONS OF AGGRESSIONS

ICJ- INTERNATIONAL COURT OF JUSTICE

In several instances, the International Court of Justice (ICJ) has defined “aggression” in different ways. The International Court of Justice (ICJ) ruled in Nicaragua v. United States of America that an armed attack cannot be equated with financial backing, training, the facility of armaments, intelligence, or logistical provision. This is because such assistance violates the precepts of refraining from using force and interfering with a state’s domestic affairs. The Court further stated that for an act of indirect violence to fall under the purview of General Assembly Resolution 3314, it must involve the deployment of armed groups, assemblies, irregulars, or mercenaries to commit items of force in contradiction of another State that is serious enough to qualify as an actual armed attack by regular forces or their considerable participation. This explanation is under customary law, which permits the sending of a State of armed gangs into the terrain of another State to be prohibited as a fortified outbreak if the operation would have been considered an armed attack rather than a simple border even if it had been passed out by even armed forces.

In the case of the Russian Federation’s aggression against Ukraine, the International Court of Justice (ICJ) held that States had an obligation to prevent and punish in a way that complies with international law and good faith, while also considering other provisions of the Convention that allow for action before the ICJ or within the outline of the United Nations.

 

UN- UNITED NATIONS

Determining whether their actions are of aggression, fissures of the peace, or intimidations to the harmony is the responsibility of the UN General Assembly (UNGA). However, during the UN General Assembly’s (UNGA) inaugural working sessions, there was no agreement on what constitutes aggression. The UN International Law Commission (ILC) was tasked with addressing the matter; however, they were unable to come to a consensus about a definition. The United Nations did not agree upon a definition of aggression until 1974. Aggression is defined by the UNGA in Resolution 3314 (XXIX) as “the use of armed force by a State against the sovereignty, territorial integrity, or political independence of another State, or any other manner inconsistent with the Charter of the United Nations.”For an act to be taken into “aggression,” it needs to be carried out by a State, including the use of force, and be severe enough. The definition does not include economic or ideological aggressions, nor does it allow for the likelihood that non-state actors may be responsible for these crimes.

 

The UNGA has referred to the Russian Federation’s invasion of Ukraine in 2014 and its annexation of Crimea in 2022 as “aggression” in resolutions. To express moral opposition to the invasion and pose possible political and legal repercussions for Russia and its leaders, the UNGA acted in 2022 under the patronages of a “Uniting for Peace” resolution. The UNGA resolution from November 3, 1950, proposed the idea of a “Uniting for Peace” determination. Subsequent UNGA decisions have expanded on the legal obligation sparked by the Russian Federation’s aggression against Ukraine, acknowledging Russia’s responsibility for its deeds and the necessity of making amends for harm caused by its breaches of international law.

 

ICC- INTERNATIONAL CRIMINAL COURT

Since the UNSC was the only entity with the authority to establish the existence of the crime of aggression, the Rome Statute of the International Criminal Court (ICC) did not initially define it. It did, however, include a clause outlining the offense’s definition and the parameters of the court’s jurisdiction. Defining the crime of aggression and establishing the jurisdiction of the Court, the Assembly of State Parties approved a resolution during the first Rome Statute Review Conference in Uganda in 2010.

 

Aggression is distinct under the Rome Statute as the organizing, preparing, initiating, or carrying out of an act of aggression that violates the United Nations Charter. It includes actions like air force, land, and sea attacks, blockades of ports, invasions, bombings, and using military troops within the borders of another state, permitting the use of land for aggression against a third state, deploying armed gangs, organizations, irregulars, or band of soldiers, and possessing both marine and aviation fleets.

 

Several other elements of competence apply to the crime of violence, and these circumstances only apply when a State or the Prosecutor initiates the reference—the UNSC does not make the referral directly. Even in cases when the state being attacked is a State Party, the Court lacks dominion over the aggressor, which is a State that is not a party to the ICC. Since the relevant States have not sanctioned the modification of the crime of aggression and/or have chosen to forego prosecution of this offense, this limitation is further narrowed. If the UNSC has not formally determined that an act of aggression has occurred, the prosecutor may only move forward with an investigation after first determining whether the UNSC has determined the existence of an act of aggression or after the Pre-Trial Division of the Court has approved the start of an examination. The revised article 8bis of the Statute places restrictions on the ICC’s authority to deal with aggression.

 

AFRICAN UNION

Compared to previous international agreements, the meaning of aggression in the Non-Aggression and Common Defence Pact, which was ratified by African Union member states in 2005, is more inclusive. It includes assaults on the state’s political sovereignty or populace in addition to acts against the state’s land. In addition, a wider range of players than those suggested by the UN, the International Criminal Court (ICJ), and the International Criminal Court (ICC) may be held accountable for hostile conduct under the terms of the Pact. In addition to state-sponsored backing for mercenaries, armed organizations, or other organized transnational criminal groups, aggression can also be committed on state territory by terrorist or armed groups.

 

The use of force or any other hostile act by a State, group of states, or other entity is characterized as aggression. against the dominion, political freedom, regional veracity, and human safety of a State Party to this Pact, which are unharmonious with the United Nations Charter or the African Union Constitutive Act, of States, organization of States, or non-State actor(s).

 

Aggression encompasses various actions such as employing force against a Member State’s sovereignty, territorial integrity, and political liberation; invading or attacking the state with force; bombarding the area; closing off ports, coastlines, and airspace; attacking land, sea, air forces, marines, and navies; using force inside the borders of another Member State; espionage; providing technological support; and inciting terrorist attacks and other fierce transnational prepared delinquencies against a Member State.

 

CONCLUSION

The International Criminal Court (ICC) was founded in 1998 by the Rome Statute to stop impunity and prevent severe crimes of international significance. The crime of aggression, which was seen as the ultimate international criminal following World Wars I and II, is one of the four crimes that fall within the purview of the ICC. Unfortunately, defining the crime of aggression is extremely challenging; in fact, it took the state parties until the 2010 Kampala Review Conference on the Rome Statute to agree upon a precise definition.

 

The present definition of the crime of aggression is drawn from earlier sources, all of which stipulate that an act of aggression must involve the actions of a state or an entity with characteristics like a state. However, non-state actors—whose nature and traits situate them outside the most commonly recognized notion of the state—are increasingly responsible for modern violence. Following Kaldor’s new theory of war, the number of “new wars” is rising while the number of conflicts involving just states and fighting as the pivotal encounter is declining. Three things set modern wars apart from traditional interstate and civil conflicts: (i) they are driven by identity politics; (ii) the mode of warfare aims to incite terror to mobilize radical politics based on fear and hatred, and (iii) the funding of new wars comes from a variety of illicit sources as well as outside assistance. Consequently, an antiquated and retrograde definition would be harmful to the goals and operations of the International Criminal Court (ICC) since it would not adequately account for the devastating assaults that are unleashed in modern armed conflicts and allow those who commit “contemporary” acts of aggression to escape ICC prosecution.

 

Ultimately, the continued applicability of the crime of violence is called into doubt in the absence of a new definition. To keep the crime of aggression from becoming obsolete, experts and States Parties to the Rome Statute should think of fresh definitions for it when new conflicts gain prominence.

 

REFERENCES

This article was originally published on the ICC website, the link for the same is herein.https://www.icc-cpi.int/sites/default/files/Publications/Elements-of-Crimes.pdf

 

This article was originally published on the ICC website, the link for the same is herein.https://www.icc-cpi.int/about/how-the-court-works

 

This article was originally written by Anouk t bous, the link for the same is herein https://www.internationalcrimesdatabase.org/upload/documents/20141020T170547-ICD%20Brief%201%20-%20Boas.pdf

 

This article was originally published in Practical Guide to Humanitarian Law, the link for the same is herein https://guide-humanitarian-law.org/content/article/3/aggression/#:~:text=Resolution%203314%20(XXIX)%20of%20the,independence%20of%20another%20State%2C%20or

this article was originally published in Cornell, the link for the same is herein 

https://scholarship.law.cornell.edu/lps_papers/19/

 

this article was originally published in the Britannica website, the link for the same is herein,https://www.britannica.com/topic/aggression

 

this article was originally published on the jstor website the link for the same is provided herein.https://www.jstor.org/stable/2198724

 

this article was originally published on the University of Minnesota’s Human Rights Library, website the link for the same is provided herein http://hrlibrary.umn.edu/instree/GAres3314.html#:~:text=Aggression%20is%20the%20use%20of,set%20out%20in%20this%20Definition.

 

this article was originally published on the Cambridge University Press website the link for the same is provided herein https://www.cambridge.org/core/books/abs/crime-of-aggression/international-court-of-justice-and-the-concept-of-aggression/72E928B5A05E4798F71782ED4BB66402

 

this article was originally published on the mondaq website the link for the same is provided herein https://www.mondaq.com/crime/787914/a-global-perspective-on-the-crimes-of-aggression

 

this article was originally written by Oksana Voloschuk on the ResearchGate website the link for the same is provided herein.https://www.researchgate.net/publication/330456972_The_crime_of_aggression_in_international_law_problems_of_the_development_of_a_universal_definition