Vorlesung Völkerrecht Gewaltverbot

1. Vorlesung VölkerrechtGewaltverbot Prof. Dr. Andreas Zimmermann, LL.M. (Harvard)

2. Völkerbundsatzung (1919) Art. 12 The Members of the League agree that, if there should arise between them any dispute likely to lead to a rupture they will submit the matter either to arbitration or judicial settlement or to enquiry by the Council, and they agree in no case to resort to war until three months after the award by the arbitrators or the judicial decision, or the report by the Council. […]

3. Briand-Kellogg-Pakt (1928) Art. 1 The High Contracting Parties solemnly declare in the names of their respective peoples that they condemn recourse to war for the solution of international controversies, and renounce it, as an instrument of national policy in their relations with one another.

4. UN-Charta (1945) Art. 2 Ziff. 4 UN-Charta All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.

5. UN-Charta Art. 51 UN-Charta Nothing in the present Charter shall impair the inherent right of individual or collective self‐defense if an armed attack occurs against a Member of the UN, until the SC has taken the measures necessary to maintain international peace and security. Measures taken by Members [...] shall not in any way affect the authority and responsibility of the SC [...] to take at any time such action as it deems necessary in order to maintain or restore international peace and security.

6. Friendly Relations Declaration Resolution 2625 (XXV) Every State has the duty to refrain from organizing or encouraging the organization of irregular forces or armed bands, including mercenaries, for incursion into the territory of another State. Every State has the duty to refrain from organizing, instigating, assisting or participating in acts of civil strife or terrorist acts in another State or acquiescing in organized activities within its territory directed towards the commission of such acts, when the acts referred to in the present paragraph involve a threat or use of force.

7. UNGA Res. Res. 3314 (XXIX) (14. Dezember 1974) Definition Aggression Aggression is the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations, as set out in this Definition.

8. IGH, Nicaragua-Fall ICJ Reports 1986, 13, para. 228 According to that resolution 2625 (XXV) [Friendly Relations Declaration], participation of this kind is contrary to the principle of the prohibition of the use of force when the acts of civil strife referred to “involve a threat or use of force”. [...] while the arming and training of the contras can certainly be said to involve the threat or use of force against Nicaragua, this is not necessarily so in respect of all the assistance given by the US Government. [...] the mere supply of funds to the contras [...] does not in itself amount to a use of force.

9. IGH, Nicaragua-Fall ICJ Reports 1986, 13, para. 228 [...] in customary law, the prohibition of armed attacks may apply to the sending by a State of armed bands to the territory of another State, if such an operation, because of its scale and effects, would have been classified as an armed attack rather than as a mere frontier incident had it been carried out by regular forces.

10. SR Resolution zu Afghanistan SC Res. 1368 vom 12. September 2001 Recognizing the inherent right of individual or collective self-defence in accordance with the Charter […] SC Res. 1368 vom 28. September 2001 Reaffirming the inherent right of individual or collective self-defence as recognized by the Charter of the UN as reiterated in resolution 1368 (2001) […]

11. IGH, Mauer-Gutachten ICJ Reports 2004, p. 136, para. 139 Article 51 of the Charter thus recognizes the existence of an inherent right of self-defence in the case of armed attack by one State against another State. However, Israel does not claim that the attacks against it are imputable to a foreign State. [...] Israel exercises control in the Occupied Palestinian Territory and [...] the threat [...] originates within, and not outside, that territory. The situation is thus different from that contemplated by SC resolutions 1368 (2001) and 1373 (2001), and therefore Israel could not in any event invoke those resolutions in support of its claim to be exercising a right of self-defence.

12. Sep. Opinion Judge Kooijmans Mauerguachten, ICJ Reports 2004, p. 230, para. 35 Article 51 merely conditions the exercise of the inherent right of self-defence on a previous armed attack without saying that this armed attack must come from another State. Armed Activities on the Territory of the Congo, ICJ Reports 2005, para. 28f. […] if the attacks by the irregulars would, because of their scale and effects, have had to be classified as an armed attack had they been carried out by regular armed forces, there is nothing in the language of Article 51 of the Charter that prevents the victim State from exercising its inherent right of self-defence.

13. Amendment to the Rome Statute Article 8 bis; Crime of aggression (Part 1) 1. For the purpose of this Statute, “crime of aggression” means the planning, preparation, initiation or execution, by a person in a position effectively to exercise control over or to direct the political or military action of a State, of an act of aggression which, by its character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations. 2. For the purpose of paragraph 1, “act of aggression” means the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations. Any of the following acts, regardless of a declaration of war, shall, in accordance with United Nations General Assembly resolution 3314 (XXIX) of 14 December 1974, qualify as an act of aggression:

14. Amendment to the Rome Statute Article 8 bis; Crime of aggression (Part 2) (a) The invasion or attack by the armed forces of a State of the territory of another State, or any military occupation, however temporary, resulting from such invasion or attack, or any annexation by the use of force of the territory of another State or part thereof; (b) Bombardment by the armed forces of a State against the territory of another State or the use of any weapons by a State against the territory of another State; (c) The blockade of the ports or coasts of a State by the armed forces of another State; (d) An attack by the armed forces of a State on the land, sea or air forces, or marine and air fleets of another State; (e) The use of armed forces of one State which are within the territory of another State with the agreement of the receiving State, in contravention of the conditions provided for in the agreement or any extension of their presence in such territory beyond the termination of the agreement; (f) The action of a State in allowing its territory, which it has placed at the disposal of another State, to be used by that other State for perpetrating an act of aggression against a third State; (g) The sending by or on behalf of a State of armed bands, groups, irregulars or mercenaries, which carry out acts of armed force against another State of such gravity as to amount to the acts listed above, or its substantial involvement therein.

15. Understandings on the Crime of Aggression Doc. RC/10/Add.1 Annex III (Part I) Referrals by the Security Council 1. It is understood that the Court may exercise jurisdiction on the basis of a Security Council referral in accordance with article 13, paragraph (b), of the Statute only with respect to crimes of aggression committed after a decision in accordance with article 15 ter, paragraph 3, is taken, and one year after the ratification or acceptance of the amendments by thirty States Parties, whichever is later. 2. It is understood that the Court shall exercise jurisdiction over the crime of aggression on the basis of a Security Council referral in accordance with article 13, paragraph (b), of the Statute irrespective of whether the State concerned has accepted the Court’s jurisdiction in this regard. Jurisdiction ratione temporis 3. It is understood that in case of article 13, paragraph (a) or (c), the Court may exercise its jurisdiction only with respect to crimes of aggression committed after a decision in accordance with article 15 bis, paragraph 3, is taken, and one year after the ratification or acceptance of the amendments by thirty States Parties, whichever is later. Domestic jurisdiction over the crime of aggression

16. Understandings on the Crime of Aggression Doc. RC/10/Add.1 Annex III (Part II) Domestic jurisdiction over the crime of aggression 4. It is understood that the amendments that address the definition of the act of aggression and the crime of aggression do so for the purpose of this Statute only. The amendments shall, in accordance with article 10 of the Rome Statute, not be interpreted as limiting or prejudicing in any way existing or developing rules of international law for purposes other than this Statute. 5. It is understood that the amendments shall not be interpreted as creating the right or obligation to exercise domestic jurisdiction with respect to an act of aggression committed by another State. Other understandings 6. It is understood that aggression is the most serious and dangerous form of the illegal use of force; and that a determination whether an act of aggression has been committed requires consideration of all the circumstances of each particular case, including the gravity of the acts concerned and their consequences, in accordance with the Charter of the United Nations. 7. It is understood that in establishing whether an act of aggression constitutes a manifest violation of the Charter of the United Nations, the three components of character, gravity and scale must be sufficient to justify a “manifest” determination. No one component can be significant enough to satisfy the manifest standard by itself.