War World I – Unsuccessful case of the German Keiser
The international community sought to find a definition of aggression in the international law since the foundation of League of Nations. Treaty of Versailles, Article 228-230 discusses the trial against German warriors who violated the law and war traditions. Kaiser Wilhelm II, a German ruler who forged World War I, was formally charged in the Versailles Treaty for violating the sanctity of treaties and offending international morality.
He couldn’t be trialled in Germany as he had fled and taken refuge in Holland where the Dutch Government didn’t give permission to exceed the legal proceedings giving the claim that allegations on Kaiser were retaliating acts of violence therefore continuing the proceedings would violate the international law as well as the Dutch Constitution.
This unsuccessful attempt to hold Kaiser accountable for his crime of aggression in a war situation forced the international community to criminalize aggression. These efforts were nevertheless worthwhile especially in the General Assembly Resolution 3314 and with the referral to the crime of aggression in the Rome Statue of the ICC. But in spite of all the year long heated debate the definition of crime of aggression has failed to emerge as nations failed to learn lessons from the past. Current progress in this regard is simply a makeshift of what has been discussed in the history on various occasions.
- The Kellogg-Briand Pact (1928)
General Treaty for Renunciation of War was approved by several states on 27th August, 1928, Paris serving as a tool for National policy normally referred to as the Kellog Briand Pact. Until 1939, sixty three countries of the world agreed to ratify it thus making it a universal. The pact comprised of three articles, it declared the abandonment of wars as a remedy for most of the international controversies and gave guidelines to solve all issues in a pacific way. But this pact failed to give any specification for individual criminal accountability. It couldn’t prevent the occurrence of World War II as nations ignored to abide by the rules of the International Law. Kellogg- Briand Pact had its discrepancies similar to the League of Nations as the treaty did not limit the criteria for the nations’ right to self defence and thus lost its stature in the International Community.
Nuremberg and Tokyo Tribunals (1945-1948)
In Moscow Conference held in October 1943, victors of World War II showed their support for the two enterprises that according to them could properly highlight aggression as an international crime. The first enterprise comprised of the Nuremberg and Tokyo trials intended to carryout tribunals to punish war criminals of aggression belonging to Germany and Japan.
The next aim was to establish the United Nations, an international organisation that would put forward efforts to restore world peace and prevent any future wars.
Despite the implementation of Kellogg Briand Pact and the solutions that it offered to prevent war, nations were soon involved in the mist of another war situation. Without the presence of a proper definition of aggression, the founders of IMT (International Military Tribunal) couldn’t draft a legal basis to punish aggression. The main hindrance in drafting proper Charter for IMT was whether to list in mens rea together with actus rea of the accused or abscond it for the judges to decide.
Although state members like the U.S., France and Soviet Union differed in their assumptions of the draft they all agreed that the procedure must be efficient and just.
Chief Prosecutor of the United States at Nuremberg Trials, Robert Jackson suggested at trial’s opening statement that they should never forget the significance of these decisions as the judgments of the defendants would serve as a basis on which history would be remembered in future. “To pass these defendants a poisoned chalice is to put our own lips as well”  Jackson was not satisfied with the tribunal proceedings. He was of the view that warfare is not the end to a nation’s grievances.
Trial of the Major War Criminals came into being in October 1945 in which twenty two leaders of the Nazi regime were trialled in the Court of Nuremberg. The successful allies of the World War II put forward combined effort in approving the Charter of the IMT. This was strongly condemned by the defence with the same allegation as Holland put in case of Kaiser Wilhelm II.i.e. violating the law of nullem crimen nulla poena sine lege
International states criticized the involvement of only four states forming the law; entire international community was not referred. Nuremberg Military Tribunal was created but with its execution two major problems surfaced. First was that only municipal law could govern individuals for the trial and no other jurisdiction could be applied over the state’s nationals without its consent. The next issue under debate was that the crime must be addressed in the context of law at the time of taking legal action against the defendants. Contrary to that the ‘juridical postulate nullem crimen sine lege, nulla poena sine lege’ abducting the rule to punish crimes not present in the existing law would be desecrated. This ensures the autonomy of all states respecting their territorial integrity with no coercion from other states. The tribunal in its defence posed the points that crime of aggression was present in the international law before the start of World War II as a customary law as its precedent the Kellogg Briand Pact was also made to bring about peace by prohibiting crime.
The Charter of IMT laid the foundation for the Charter of Military Tribunal for the Far East (the Tokyo tribunal). This charter further stressed that the war of aggression could be practised even without a declaration clarifying the false perception that Japanese were not technically involved in World War II. Tokyo tribunal charged allegations against twenty eight defendants who breached the crime against peace Tribunal made divisions for the crime against peace including preparing for wars of aggression and conspiring murders as crimes to be punished
Most of the accused in trials were later proven to be guilty, the tribunal suffered criticism like biased prosecution and political involvement in judgment but despite all these arguments tribunals of Nuremberg and Tokyo did lay ground for setting legal standards for the crime of aggression
- Nuremberg Principle and Customary International Law
Those aspects of the International Law that emerged from common principles of law, customs and treaties and are considered valid by the ICJ, state members and the United Nations. e.g. under customary law those laws concerned with war came before they were formalised in the advanced conventions and treaties. Customary International Law maintains the sovereignty of states by not directly intervening in their state matters.
[Customary international law appears to consider the following as an international crime: the planning, or organizing, or preparing, or participating in, the first use of armed force by a state or a non-state organization or other organized entity against the territorial integrity and political independence of another state in contravention of the UN Charter, provided the acts of aggression concerned are large-scale and produce serious consequences].
When UN general assembly approved the Nuremberg principles, accountability for individual in crimes against peace were also amended in the law standards.
The definition of crime against peace was first seen in the Article 6 of Nuremberg principles where it stands with other crimes of international significance e.g. war crimes and crime against humanity.
After the war situation came to an end, UN Charter laid emphasis on the prohibition of aggression. Considering past demeanours the Charter tried to redefine the concept of war. The Charter in its Article 2(4) prevents the forceful attempt against the “territorial dignity or political independence of any state, or in any other manner inconsistent with the purposes of the United Nations”.
Article 103 of the Charter indicates that the authority of the Charter over member nations shall prevail regardless of nations’ obligations with other internationally signed treaties. The UN Charter did not have a proper description of aggression, considering all these measures taken to eliminate aggression.
The General Assembly Resolution 3314 (1974) – Accepted Definition
In spite of tireless efforts in terms of the Nuremberg Charter and the International Law Commission (ILC) the UN General Assembly was not able to formulate a proper definition of aggression until 1974 in the Resolution 3314 that was ratified by most States without voting. It defined aggression as a ‘violation of the use of force rules of Article 2(4) and 51 of the UN Charter leaving matters for all intents and purposes where they were beforehand.
However the Resolution didn’t consult the Chapter VII of the UN Charter regarding the criteria for self defense. Under this resolution act of force might be exerted if the crime of aggression has been committed first by the opposing armed force. But the sole definition provided is not binding for the Security Council. “For example, it is silent on whether it includes indirect aggression such as fomenting civil unrest in another country. Furthermore what is still open is whether armed force is a requirement for aggression. Economic coercion such as boycott, trade restrictions, tariffs, quotas, blacklisting, or navicerts could arguably be considered aggression, and the definition does not include or exclude such questions.”As the General Assembly only had the authority to make amendments in the UN Charter, the resolution 3314 only provided instructions to the Security Council while evaluating whether a particular act comes under the category of aggression. Other reasons included that the resolution’s nature was purely political not legal.
Under it the definition of crime of aggression falls under the jurisdiction of the International Criminal Law, therefore it needed to respect the law of “nullum crimen, nulla poena sina previa lege penale” as the principle of law requires rule to have a clear explanation that such crime is legally unethical internationally. The argument was discussed in 1996 in a PremCom meeting, where delegates were unable to agree on the General Assembly’s definition of crime of aggression with the reason that the resolution had mentioned no criteria for the criminal proceedings.
ILC’s Draft Code on Crimes against Peace and Mankind (1996) – Rejected Definition
Restoring its efforts to give a proper definition of aggression, the International Law Commission (ILC) drew a Draft Code of Crimes against the Peace and Security of Mankind in the year 1990 and rejected the prior definition constituted by the Resolution 3314 with the assumption that it was too vague to form the basis for its prosecution.
The State members of United States and UK expressed their concerns in terms of resolution 3314 definition of aggression. Right after its implementation it became evident that it was only intended to serve as a political guide not as the accountability of the crime. It also failed to provide further illustrations regarding individual criminal responsibility but still the key areas elucidated by this resolution acted as a foundation stone for the SWGCA’s definition of aggression.
ILC couldn’t produce effective results after which Working Group on the Crime of Aggression (WGCA) succeeded by SWGCA, carried out appraisal on how to incorporate Resolution 3314 all together or either some sections of it in forming the new definition of the crime of aggression. If aggression is to be termed as a ‘supreme crime’ then there should be a clear distinction in the kind of force to be used in such case. Therefore in order to testify, how much magnitude of force would make an act termed aggressive, Germany gave a suggestion in 1998 PremCom meeting before the release of the Rome Statute. The aggression was defined as:
[An armed attack directed by a State against the territorial integrity or political Independence of another State when this armed attack was undertaken in [manifest] contravention of the Charter of the United Nations [with the object or result of establishing a [military] occupation of, or annexing, the territory of such other State or part thereof by armed forces of the attacking State.]
- Article 5 of the Rome Statute of the International Criminal Court – ICC (1998) – Aggression Undefined and ICC Lacking Jurisdiction
The issue was again raised during formation of the Rome Statue in 1998 that laid the basis of the International Criminal Court. In this statute aggression was listed in Article 5 as one of the four major acts of violation:
[The Court has jurisdiction in accordance with this Statute with respect to the following crimes: (a) The crime of genocide ;(b) Crimes against humanity;(c) War crimes;(d) The crime of aggression].
But still no proper definition of aggression was evolved. The statute stated that ICC could not impose its jurisdiction on the crime of aggression unless the members of the states agree on a proposal for its execution. However the problem couldn’t bring a drastic change therefore all hopes got focused on the first Review Conference of the ICC. Professor M. Cheriff Bassiouni and David Schaffer also discussed there expectations from the First review conference of the ICC hoping for further amendments to be authorised relating to crime of aggression. Donald Ferencz regarded brief description of crime of aggression as a loophole in the Rome Statue.
ICC Meeting in Kampala Consensus on the Definition – Amended Article 8bis Reached but Still Lacking Jurisdiction (June 2010)
International Criminal Court held its first review conference in Kampala, Uganda in June 2010. After two weeks of on going argument and years of preparation the crime of aggression was discussed in the broad sense but debate could not be resolved through negotiations among state members therefore jurisdictions against the crime of aggression could not be implemented before 2017.
Concluding Observations & Introduction to Part II.
Whether it is an unwilling approval of a humanitarian law or the matter of self defence States have shown doubts regarding their current security measures, with the intuition that they need to be prepared for wars if it is in the interest of their national agenda.
SWGCA through diplomatic means has managed to make states participate in the adoption of crime of aggression in the International Criminal Court. But the war situation prevalent in Iraq and Afghanistan challenges the very nature of SWGCA as the developed countries were so much intended to comprise a proper definition of aggression yet they did not respect the advancements made by the SWGCA.
Review Conference of the ICC, 2010 was thought as a ray of hope to define aggression but even the Review Conference of the ICC couldn’t make convincing results. Benjamin Ferencz has rightly advocated that we should have made this opportunity useful as there might not be another chance granted to us. Now the decisions are still pending till the year 2017.
Acts of Aggression
In order to find that the definitions of act of aggression and crime of aggression as provided by the SWGCA are according to the criteria of legal standards of clarity we can apply its definitions to the few instances in which force has been practiced after the approval of the UN Charter. Many of the instances include prior acceptance by the Security Council with the claim of self defence e.g. attack of Iraq on Kuwait in 1990 falls in the category of crime of aggression as it was not justified by proof of self defence or permission by the UN Council.
The definition of aggression has always been an issue. The history for search of this definition describes how the implication of the law has been overshadowed by political power. This has been a challenge for the international negotiators for decades.
According to Yorum Dinstein, General Assembly’s definition of aggression is very broad in a sense that Article 5(2) distinguishes the terms” aggression (which gives rise to international responsibility) and war of aggression (which is a “crime against international peace)”(p.125)This clearly indicates that every act of aggression is not a threat to world peace, only war of aggression constitute upheavals.
Article 3 of General Assembly’s Resolution defines acts of aggression as invasions, bombardments, territorial violations, blockades, making other states permissible to commit acts of aggression on ones own territory etc.
- What Acts Can Lead to Crime of Aggression in International Law?
This fact cannot be negated that states are interdependent on each other. If individuality is practised relations between persons is made possible, in the same manner relations between states can be brought about by practicing state sovereignty. In international law any forced attack by another state without any justification of self defence is aggression.
- Individual and the Crime of Aggression
For the positive applicability of the International Law, an act of aggression committed even by an individual of the state is liable to be punished.
According to Dinstein an individual is liable for a trial if he plans, prepares, initiates or directly wages a war of aggression as article 6(a) of the GA Resolution clearly states the distinction between these terms.
- Use of Force in International Law
According to Ian Brownlee an armed attack seems like a trespass, it is doubtful whether any service provided to the revolutionary or rebellious groups permit a state to charge action against them. In the UN Charter, Article 2 paragraph 4, use of force is complementary to the terms of war of aggression, attack or invasion but it is mostly neglected. Although it is linked with an organised armed attack by the state’s naval, mititary or air forcebut it also include the role of other governmental agencies like the police, militia etc.
- Difference Between Lawful and Unlawful Use of Force
Under the term collective self defence, Security Council approves that the states are permissible to support the victim of aggression by the use of force if the council is unable to deal with the situation under Chapter VII of the UN Charter. But conditions apply as the states have to legally identify the belligerent state as well as prove that the victim state is short of means to defend themselves
- Distinguishing Between Aggression and Self Defence
In order to properly differentiate the two, the SWGCA have delegated this responsibility to the judges to avoid biasness in procedures. This has been done by the provisions provided by the Rome Statute and the customary International Law. It is an initial step of historical transfiguration from the political to a lawful regime.
- Individual and Collective Self Defence
When an attack is initiated by a foreign state or the territory of a foreign state is used to launch attack, state is allowed to handle this armed force by “lawful counter force i.e. self defence. Yorum Dinstein in his assessment of self defence reveals that it could be of two types. The unit self defence i.e. immediate reaction to a small scale invasion by a foreign country by defending personnel of a particular vicinity and national self defence (carried out on a massive scale) but according to international law self defence exercised by a state is not judged by its magnitude therefore comes entirely under the category of national self defence.
Much of the fervour related to the term anticipatory self defence is associated with the Caroline affair, an incident that took place in 1837. Many research before and after this case considered self defence as an instance of self preservation.
A US steamboat named Caroline was attacked at midnight, put on fire and tipped over Niagara Falls by British militants who entered through Canada into American waters. Rebels from Upper Canada (a province of Dominion of Great Britain, now Ontario) were using that boat on Navy Island a little further from Niagara Falls to prepare for an attack. The incident resulted in death of almost thirty three people including Americans who were sympathising rebels for the cause. Britain received massive criticism throughout the US and Canada until Webster Ashburton Treaty was formalized in 1842 that resolved the territorial and interstate disputes. After which it became evident that the principle of anticipatory self defence in the international law can only be practised if there is no alternative of negotiations left.
Theoretical Framework of ‘Just’ and ‘Unjust War’ (Grotius theoretical concepts)
The theoretical foundation of jus ad bellum or just war can be retrieved back till ancient Rome. Fetial law was what the Romans followed with the assumption that in order to break out a war they need to please their Gods. Priests were called fetiales who were responsible to conclude that the war is waged on just ground. As Cicero has stated that a war was considered just when the initiator or aggressor set an official deadline for response and properly announces his intentions.
Christian theorists believed that Christians had to fight for the sake of God. St. Augustine in his book the city of God discussed the basics that wars are to be lamented but just wars should be practised in order to bring fairness to victims. St. Thomas Aquinas proposed three conditions for a war to be termed as just which include that a prince should authorize war, a valid reason to wage war and lastly with the intention to promote good and eradicate evil. He was of the view that violence cannot be justified unless it is meant for greater good for the community at large.
After World War I came to an end, theorists formulated the jus ad bellum theory. It was that time that individuals for crime against peace were pointed out. The founders of the International Law have struggled to formulate some universal principles whose applicability would be in benefit for the entire humanity. “Grotius (1583- 1645) remained attached to the scholastic doctrine of just war, he formed international law based on positive law, thus preparing the law for the adoption of the laws and customs of war which remain in force to this day”. 
Being a jurist and a theologian he gave concepts of just and unjust wars. Vattel proclaimed that war cannot be just on both sides. One is always guilty at carrying out acts of destruction, subordinating the rights of others, but on the contrary it is also true that both parties might have fought for good faith not knowing which one is actually right. As nations are independent entities, having equal rights war can be justified once the cause is decided.
But with the passage of time war was not considered a means for crowning a dogma or satisfying God. States only aimed to weaken the opposing army.
UN Charter and Threat to Peace
Self defence of the state against the opposing army has been given a marked limitation in the Article 51 of the UN Charter. However Chapter VII reveals that only Security Council has the jurisdiction to permit the use of force with respect to the degree of possible threats to peace, ‘breach of peace or act of aggression’ and then finalize as to what measures should be taken into account with respect to Article 41 of the UN Charter which encompass the partial boycott of diplomatic relations or other means of communication.
However if such measures were unable to resolve the conflict then members of the UN are allowed under Article 42 to forge attack by sea, air or land. Breaching of article 2(4) of the United Nation Charter by implying force in the territory or the air space for the purpose of intervening into states sovereignty is also threat to peace.
Article 51 of the United Nations recognized the right of individual self defence in case of an armed attack in accordance with the jurisdiction of the Security Council to restore peace. The right for collective self defence is also granted on the same conditions.
UN Security Council Unauthorised Humanitarian Intervention
Although UN claims to be the representative of all nations but for most of the developed countries its jurisdiction seems minimal. During Kosovo war, NATO carried out a military operation against Yugoslavia that lasted from March to June, 1999. The bombing was made justifiable in front of the united nations by giving explanations that the purpose of such massive attacks was to terminate violence, withdrew all the military hostages, ensure safe return of all refugees and carry out a peace making mission. The bombing instead of bringing the war to an end seemed to escalate humanitarian crisis. NATO didn’t wish to lose its militants therefore the strategy included carrying out air campaign. Bombing resulted in huge damage to the infrastructure of Kosovo, yet no one was held accountable for such aggression. Russia brought the matter in front of United Nations but instead of China, Russia and Namibia all nations voted against it therefore legal proceedings could not be carried out.
- UN Security Council has Remained Silent to Many Atrocities
Antonio Cassesse proposed that Cold war pursued the state members to abstain from violating the rules for the crime of aggression in the international law. But there was a general air of hesitation by all state parties to elaborate the definition of aggression with the assumed fear of lessening their self defence rights; therefore the definition still remains in abyss. Whenever states commit crime of aggression they shelter themselves under the protective coating of Self Defence provided by the Security Council, thus getting free from accountability issues.p.844
- Act of Aggression Committed by the United States of America
Yoram Dinstein has analysed international law according to the jus ad bellum(right to wage a just war), jus in bello (law of justice in war) and international humanitarian rights. Interestingly these are the particular areas where United States’ adherence to the International law is questionary.
Seven kinds of military action are mentioned in the SWCGA’s definition of aggression in paragraph two in clauses a to g. Let us take into account few of the military actions taken by the United States since 1945.
[The invasion or attack by the armed forces of a State of the territory of another State” comprise the act of aggression as mentioned in paragraph 2(a)]
Invading armies of U.S entering Iraq in 2003 could be regarded as aggression. A number of other countries also send their troops for US support but US claimed that the act was carried out with the acceptance from Security Council”. Giving the reasons that they want to get rid of all the atomic weapons from Iraq that are subjected to mass violence and also to finish the terrorist regime of Saddam Hussain, US. Surpassed the non acceptance of the Secutiry council and committed acts of aggression.
- Blockade in Crime of Aggression
Blocking the coastal areas or harbours of a state by the armed allies of another state also comes under the crime of aggression.
When states aggravate or threaten other states. In 2001 the war induced on Afghanistan would also have come under the category of aggression but it was justified with the proof that the war is in response to the terrorist act committed by Al Qaeda on the World Trade Center.
The attack on Dominion Republic of Congo by United States, in 1965 also fulfils the criteria for aggression. Thousands of military troops invaded DRC to evacuate their citizens from Santo Domingo the capital of DRC. An official statement was issued prior to the action that all this is being done to protect foreign visitors but in reality Lyndon Johnson the then president was willing to occupy the area as the defence of the opposing army was no match.
Occupation and Annexation of Territory
Intervening another state by attacking the territorial grounds, breaching air space or marine fleets without permission is a crime of aggression. When asked by the United Nations General Assembly in 2004, International Court of Justice (ICJ) gave its advisory opinion in relation to the security barrier being created in the occupied Palestinian territories. The court gave its decision after five months that the construction of such wall is a violation to the international law and that Israel should be held accountable for its consequences. If the wall would have been completed, approximately 400,000 Palestinians had to survive in enclaves. Permit system to enter the wall was also against customary international law.
Direct Attack: (Democratic Republic of Congo v others)
The case filed by the Democratic Republic of Congo raised allegations against Burundi, Rwanda and Uganda for occupying its boundaries without the state’s consent and also due to commission of mass violence of International Humanitarian Law.
- The Democratic Republic of Congo v Uganda
On 23 June 1999 DRC submitted an appeal in the International Court of Justice to initiate legal proceedings against Uganda due to their armed aggressive attack on the territorial boundaries of the DRC, elucidating it as a violation of the UN Charter as well as of the Charter of the Organization of the African Community.
Legal trials considered the issues of Uganda’s participation in the civil war and state conflict faced by the Dominion Republic of Congo during 1998 till 2003. DRC proclaimed that Uganda surpassed the inter alia violation of the integrity and territorial independence of the DRC together with International Law violations.
The ICJ declared its judgment on 19 December 2005 revealing that Uganda had indeed breached the obligations of Article 2(4) of the UN Charter as well as the international human rights law. But still Uganda was not penalised due to the court’s counter claim that DRC also violated obligations relating to the Vienna Convention of Diplomatic Relations.
In case of Rwanda International Court for Justice was consulted on 28th May 2002. The charges included unauthorized concentration of population in Rwanda camps for making a Tutsi land as well as acts of atrocity. Rwanda denied all allegations and gave the justification that soldiers were appointed for the security of their own land from rebellious groups supported by the DRC. Burundi gave no response for the charges put forward against it. 
Indirect Aggression: Nicaragua Paramilitary Case
Indirect aggression encompass the large scale use of another state’s armed forces with a mutual agreement between both state parties but in turn violating the agreement, e.g. staying of armed forces in the other state’s territory for more duration than the other state demands.
- United States v Nicaragua
On 9 April 1984 a case was filed in the International court of Justice by the Ambassador of Republic of Nicaragua against the United States in which Nicaragua won and ICJ announced compensation for the people of the state. After the tribunal the ICJ decided that United States in its financial and armed support of Contra guerrillas and by laying mines in the harbours of Nicaragua had violated the International Law by Article 18 and 20 of the Charter of the Organization of American States Article 2(4) of the UN Charter. United States contradicted the allegations by stating that its aim was to benefit El Salvador who asked for aid for a collective self defence and to strengthen it to respond to the military attack by Nicaragua.
The Court referred to Article 94 of the United Charter when United States gave the fourth ground of inadmissibility. The United States was of the opinion that allegations filed in Nicaragua’s application were not sufficient to change the verdict. When the argument of the United States was cancelled by the court, it adopted the policy of questioning the court’s jurisdiction. Through UN Security council, United Nation challenged the judgement and prevented Nicaragua from being provided by reparation of any sort. Government of Nicaragua withdrew the case in 1991 from ICJ due to the cancellation of the law demanding the country to obtain reparation.
The matter was resolved but the court accused United States for violating the customary international law i.e. prohibition of the use of force against another state, not to intervene in other country’s matters thus respecting its sovereignty. The court considers the army intervention by United States as a violation of the Treaty of Friendship, Commerce and Navigation (Managua, 1956) under Article XIX signed between various states. Sixteen judgments were made in the court of which the court voted. Nicaragua turned the matter to the Security Council as well as the general assembly but the U.S together with El Salvador and Israel vetoed the resolution.
Modern Warfare Analysis
Professor Jordan J. Paust suggests that there exists disillusionment in terms of state’s idea of “armed attack. How imminent the threat to self defence should be? Is it necessary to warn the non state parties or to take consent from the state from where drones would be targeted? Some even question the applicability of UN charter article 51 with the assumption that self defence can only be allowed against a state who’s challenging the country’s sovereignty.
In case of the non state actors like FARQ and Al Qaeda who are directly in conflict with the U.S. military troops in Afghanistan, use of armed forces is allowed according to the Article 51 of the UN Charter as “permissible acts of self defence”. They are not considered assassinations in the context of laws of war that would otherwise be considered crimes of aggression with in the human rights law. Armed attack can also occur at the time of peace if the non state actors continue to destabilize the integrity of a nation. Same is the case in Pakistan, the country is not at war, yet the prevailing conditions led the U.S. to pursue drone attacks in the region in order to target Al Qaeda militants who are a threat to world peace.
However in recent attacks innocent population who have no belongings to the non state parties have also suffered. This resulted in a violation of the UN charter and international humanitarian law. Professor Laila Saadat proposed that states must be aware of the “permissible and non permissible uses of drones”. Almost fifty civilian deaths result with one targeted drone attack. Under the UN Charter, collective defence is permissible by the consent of the state needing self defence. Not only this, the country like Pakistan has to suffer from the consequences of these attacks as collateral damage is done on a vast magnitude.
The foreign community confronts the biggest problem in the terms of a legal definition of crime of aggression has been mainly due to political unwillingness of certain State members who do not wish to limit their power to wage war if the need arise. If their might be a sound definition then they would have to abide by the constitution therefore they take little interest in its implementation and formation. Why did the UN, the International Law Commission (ILC) failed to properly define the crime of aggression?
Mr. G.G. Fitzmaurice, the Representative of the United Kingdom at the General Assembly in 1952 said that the ILC failed to reach a proper definition for the crime of aggression, not because of lack of efforts or goodwill but because the concept is one which is inherently incapable of precise definition due to its political and legal nature.