The article is a critique of the proposal for the codification of the crime of aggression by the Special Working Group on the Crime of Aggression. It concentrates on four main pointsthe inherent indeterminacy of the definition of aggression, its uncertain application to recent cases concerning the use of force, the involvement of the Security Council in the exercise of jurisdiction, and, finally, the danger of concentrating issues of jus in bello and jus contra bellum in one single court or tribunal. The contribution concludes that the time is not ripe for a codification of the crime of aggression at a time at which the Court is still struggling to establish itself.
When we were invited to contribute a positivist perspective to the present symposium, we did not know whether to regard this invitation as flattering or as an insult: does positivism not represent old-fashioned, conservative, continental European nineteenthcentury views—naive ideas of dead white males on the possibility of objectivity in law and morals? There is little we can do about being male and white, but we have certainly not seen ourselves as positivists of that kind. From the range of methodologies that the editors assembled, we could associate ourselves with several approaches just as much as with positivism. But in reflecting on our day-to-day legal work, we realized that, for better or for worse, we indeed employ the tools developed by the “positivist” tradition.
States across the globe are increasingly involved in violent conflicts with non-state groups both within and across borders. This new situation challenges the classic distinction in international humanitarian law between international and non-international armed conflicts. However, the changing face of warfare does not diminish the importance of IHL. The essence of this body of law – to protect civilians and persons hors de combat and to lessen unnecessary harm during armed conflict – remains the same. The applicability of IHL must therefore be determined according to objective criteria and must not be left to the discretion of the warring parties. This article seeks to conceptualize the notion of armed conflict and examines the extent to which the existing body of humanitarian law applies to the new asymmetrical conflicts. It finds that the definition given by the ICTY Appeals Chamber in its Tadić Decision on Jurisdiction, which was taken up by Article 8(2)(f) of the Rome Statute, is a useful starting point for an analysis of the ‘triggering mechanism’ of international humanitarian law in asymmetrical conflicts.
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