Article 2(4) of the UN Charter prohibits the use of force between States. In so doing, it addresses itself to a strictly interstate context and does not speak to the phenomenon of uses of force by non-state actors (NSAs). The question examined in this chapter is whether the exception to that prohibition—the right to use force in self-defence—is nevertheless responsive to the war-making capacity of NSAs. Otherwise put, is the definition of ‘armed attack’ in Article 51 of the UN Charter (and related customary international law) conditioned on the attacker being a state? In exploring this question, the chapter considers whether attribution is a necessary condition (in ratione personae terms) for the applicability of Article 51 by assessing the language of the Charter (including its travaux préparatoires), jurisprudence of the International Court of Justice, and state practice.
Sean D. Murphy
This chapter focuses on the International Criminal Court’s jurisdiction over the crime of aggression. The discussion provides background to the crime of aggression and the resulting criminal accountability of the guilty party, paying particular attention to UN General Assembly’s adoption in 1974 of a resolution addressing aggression by states rather than the crimes of individuals and is designed as guidance for the Security Council when considering whether an act is one of ‘aggression’. The chapter examines the amendments to the ICC Rome Statute defining ‘act of aggression’ and ‘crime of aggression’ adopted at the ICC Review Conference in Kampala, Uganda, in 2010. It also discusses the uncertainties and ambiguities in the process for activating ICC jurisdiction over the crime of aggression. It considers the possible institutional effects of such jurisdiction on the UN Security Council and the ICC itself, as well as its long-term consequences for the jus ad bellum.
This chapter begins with discussions of the necessity of a counter-piracy legal regime; forms of contemporary piracy; and the applicable legal framework and its historical roots. It then analyzes the scope of counter-piracy enforcement powers and the legal regime governing the criminal prosecution of alleged pirates, which assumes a holistic approach that goes beyond the law of the sea.