Unilateral Armed Attack Against the Islamic State as a Crime of Aggression

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Unilateral Armed Attack Against

The Islamic State as a Crime of

Aggression

Gitta Astari Adipurwanto

Student ID:

Master Track Public International Law

Supervisor: Prof. mr. dr. H.G. van der Wilt

Submission date: 26 July 2016

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Abstract

Looking at the escalation of violence and human rights violation occurring in the middle east, States are likely to engage in unilateral armed attacks against the Islamic State, especially since such violence are slowly leaking to the West. In a world where sovereignty is key, it is almost certain that such a military mission will infringe the sovereignty or territorial integrity of a State. Under international law, the use of armed force against the sovereignty, territorial integrity, or political independence of a State can constitute a crime of aggression; a crime that is under the jurisdiction of the International Criminal Court. Art. 8 of the Rome Statute stipulates that a State is responsible for the crime of aggression when it engages in the use of force against another State. However, since a State as an entity cannot be prosecuted, the provision attaches individual criminal responsibility, in particular to those in a position to effectively control the military or political action of the State.

At first blush, an attack against the Islamic State would constitute such a crime. However, this thesis will discuss in depth whether such statement is true. The discussion will start with the historical development of the Islamic State and what its status is under international law. The status of the Islamic State under international law is a key point in this discussion, as it may affect the applicability of Art. 8 of the Rome Statute, in which the research finds that the Islamic State does not constitute a State under the definition provided by the Montevideo Convention. Therefore, Art. 8 of the Rome Statute Shall not be applicable. However, since the territory under the control of the Islamic State is legally part of other States, such as Iraq and Syria, an attack against that territory might infringe the territorial integrity of such States. The discussion will then continue with an in depth analysis of the elements of Art. 8, i.e. the crime of aggression.

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This thesis finds that such attack does not constitute a crime of aggression. However, that conclusion is drawn from a strictly theoretical approach. Meaning that the assessment of the event when it actually occurs might result in a different outcome that it is now. Therefore, this thesis provided a brief analysis on humanitarian intervention and how it could serve as a justification should the act constitute a crime of aggression.

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Introduction

The issue surrounding the Islamic State is nothing foreign, especially for those in the legal field. There have been many debates regarding ways to tackle the constant occurrence of violence. Many shift their focus towards the human rights aspect, trying to figure out ways to ensure the protection of civilians and eventual cessation of the human rights violations. Others focus on the humanitarian aspect, i.e; whether a countermeasure can be legally invoked according to the law of wars. Many States, such as the United States and United Kingdom, have expressed its interest in engaging in a unilateral (collective) armed response against the Islamic State, which inspired me to conduct this research.

Art. 5 of the Rome Statute gives jurisdiction to the International Criminal Court to entertain cases of crimes of aggression.1_{However, unlike the other three core crimes, namely crimes of}

genocide, crimes against humanity, and war crimes, the Statute provides neither a definition of the crime nor jurisdictional conditions. Not until 2010 when amendments of Art. 8 of the Rome Statute were adopted. The amendments include the definition of crimes of aggression and the conditions in which the Court can exercise its jurisdiction over the crimes. The amendments further elaborate that crime of aggression shall mean the planning, preparation, initiation, or execution of an act of aggression, by a person in a leadership position, in which the character, gravity, and scale of the act constitute a manifest violation of the Charter of the United Nations.2_{The “act of aggression” in itself shall mean the use of armed forces by a}

State against another State.3

1 Art. 5 of the Rome Statute of the International Criminal Court (adopted 17 July 1998, last amended 2010 A/CONF.183/9

2 Amendments to the Elements of the Crimes, Resolution RC/Res.6, Adopted at the 13th_{plenary meeting, on 11}

June 2010, by consensus, annex II

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At first glance, should the United States or the United Kingdom proceed with their proposal, it would constitute a crime of aggression under international law. However, according the elements of the crime prescribed by the provision, that may not in fact be the case. Like any other crime, there are a number of elements that must be fulfilled for a specific event to constitute a crime of aggression. Therefore, this paper will analyze in depth whether those elements are fulfilled, thus whether a unilateral armed attack against the Islamic State would constitute a crime of aggression. The research will commence with a factual background of the Islamic State and the efforts that have been taken by the international community to tackle the issue. It will be followed by a historical overview on the criminalization of aggression under international law and an in depth analysis of the elements of the crime of Art. 8 bis Rome Statute. The next section of the paper will try to answer the most important question of this research: whether the Islamic State is a state, and if so, whether the other elements of the crime are fulfilled. Lastly, the paper will analyze whether a justification could be invoked, such as humanitarian intervention.

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I Factual Background

I.I. The Islamic State: an Overview

The issue surrounding the Islamic State is hardly unfamiliar to anyone. With the population ranging between 2.8 and 8 million people as of late last year,4_{the threat to peace and security}

that comes with it is undeniable. The Islamic State first garnered international attention after publishing videos of beheadings of both soldiers and civilians back in 2014. The United Nations holds the Islamic State responsible for human rights abuses and war crimes. Amnesty International has also charged the group with ethnic cleansing on a ‘historic scale’ in northern Iraq.5_{However, the foundation of the Islamic State can be traced back as early as 1999 when}

a Jordanian jihadist by the name of Abu Musab al-Zarqawi and his militant group achieved notoriety for their suicide attacks during the early stages of the Iraqi insurgency. In 2004 the groups pledged allegiance to Osama bin Laden’s Qaeda network, adapting the name to al-Qaeda Iraq (AQI).6_{The atrocities committed by the group continued to expand, and in}

January 2006 it joined with a number of smaller Iraqi insurgent groups under an organization called the Mujahideen Shura Council (MSC). In June 2006 al-Zarqawi was killed during a US airstrike, and he was succeeded by an Egyptian militant by the name of Abu Ayyub al-Masri. Four months later MSC joined with three smaller groups and six Sunni Islamic tribes to form the Mutayibeen Coalition, which is later declared as the Islamic State of Iraq (ISI) with Abu Omar al-Bahgdadi as its leader.

4 Sarah Birke, ‘How ISIS Rules’ The New York Review (New York, 5 February 2015), at

http://www.nybooks.com/articles/2015/02/05/how-isis-rules/ accessed 22 April 2016; Eli Berman and Jacob

Shapiro, ‘Why ISIL Will Fail on Its Own’ Politico Magazine (29 November 2015), at

http://www.politico.com/magazine/story/2015/11/why-isil-will-fail-on-its-own-213401 accessed 22 April 2016

5 Amnesty International, ‘Ethnic Cleansing on a Historic Scale: Islamic State’s Systematic Targeting of Minorities in Northern Iraq’ [2014] at

https://www.es.amnesty.org/uploads/media/Iraq_ethnic_cleansing_final_formatted.pdf accessed 22 April 2016

6 Jeffrey Pool, ‘Zarqawi’s Pledge of Allegiance to al-Qaeda: From Mu’askar al-Battar’, [2004] vol. 2, Issue 24, Terrorism Monitor, The Jamestown Foundation, at http://www.jamestown.org/single/?tx_ttnews%5Btt_news

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In 2007, the ISI planned to seize power in the western areas of Iraq and turn it into a Sunni caliphate, and at its height the group enjoyed a significant presence in several of Iraqi governorates, or provinces, and claiming Baqubah as its capital city.7_{However, the Iraq War}

troop surge of 2007 supplied the United States military with significant manpower that resulted in dozens of high-level AQI members being captured or killed. It also led to AQI losing its secure military bases in Al Anbar province and Baghdad. By 2008 the ISI declared itself as being in a state of extraordinary crisis since its attempts to govern the territory received a backlash from Sunni Arab Iraqis and other insurgent groups, which led to a temporary decline of the ISI.8_{In April 2010, two of the top leaders of ISI, Abu Ayyub}

al-Masri and Abu Omar al-Baghdadi, were killed in a joint US-Iraqi raid.9_{Soon after, Abu Bakr}

al-Baghdadi was appointed as the new leader of the ISI, who, in just two short years, had replenished the group, returning it to its former strength. Violence started to escalate in June 2012 with car bomb attacks, and by July 2013 monthly fatalities exceeded 1.000.10

In March 2011, a protest erupted in Syria against the Syrian government of Bashar al-Assad. Violence between demonstrators and security forces eventually led to a militarization of the conflict.11_{In August, al-Baghdadi started sending Syrian and Iraqi members of ISI to}

establish an organization in Syria, led by Abu Muhammad al-Julani. The group began recruiting fighters, and by January 2012 it announced its institution as the al-Nusra Front. The

7 Thomas E. Ricks, ‘Situation Called Dire in West Iraq’ The Washington Post (Washington, 11 September 2006) at http://www.washingtonpost.com/wp-dyn/content/article/2006/09/10/AR2006091001204.html?

nav=rss_email/components accessed 22 April 2016

8 Colin H. Kahl, ‘Walk Before Running’ [2004] Vol. 87, No. 4 Foreign Affairs 151

9 Tim Arango, ‘Top Qaeda Leaders in Iraq Reported Killed in Raid’ The New York Times (New York, 19 April 2010) at http://www.nytimes.com/2010/04/20/world/middleeast/20baghdad.html accessed 22 April 2016

10 Jessica D. Lewis, ‘Middle East Security Report 14: Al-Qaeda in Iraq Resurgent’, [2013] Institute for the Study of War 8

11 Rania Abouzeid, ‘Syria: The story of the conlifct’ BBC News (11 March 2016) at

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group expanded rapidly with popular support among Syrians opposed to the Assad government.12

In 2013 al-Baghdadi released a statement that al-Nusra Front had been established, financed, and supported by the ISI and that the two groups were merging to be the ‘Islamic State of Iraq and Al-Sham.’ However, it was denied by al-Julani. This created a tension between the al-Nusra Front and ISIL. In January 2014, rebels associated with the Front and the US-trained Free Syrian Army launched an attack against ISIL in and around the city of Aleppo.13_After

continuous strain, part of the Front located in the Syrian town of Al-Bukamal pledged allegiance to ISIL. This was followed by ISIL capturing the Trabil crossing, the only border crossing between Jordan and Syria.14_{This resulted in ISIL gaining some public support in}

Jordan. Soon after, ISIL started a recruitment drive in Saudi Arabia.

In June 2014, the group proclaimed itself to be a worldwide caliphate under the name ad-Dawlah Islamiyah, or what we commonly know as the Islamic State, with Abu Bakr al-Baghdadi as its caliph. As a caliphate, the Islamic State claims religious, political, and military authority over all Muslims worldwide.15_{In July 2014, the group has recruited more}

than 6.300 fighters and soon after gained control over Derna, Libya, making it the first city outside of Iraq and Syria to be a part of the IS. By January 2015 the IS has extended its influence to Yemen and Afghanistan, and has also infiltrated the European Union through 12 Rania Abouzeid, ‘The Jihad Next Door’ Politico Magazine (23 June 2014) at

http://www.politico.com/magazine/story/2014/06/al-qaeda-iraq-syria-108214_full.html#.VyyLaWR96lk

accessed 24 April 2016

13 Mary Casey-Baker and Joshua Haber, ‘Rebel Factions Continue Fight Against ISIL in Northern Syria’

Foreign Policy (7 January 2014) at

http://foreignpolicy.com/2014/01/07/rebel-factions-continue-fight-against-isil-in-northern-syria/ accessed 25 April 2016

14 Nicole Gaouette, Kadhim Ajrash, and Zaid Abah, ‘ISIL Seizes Iraq-Jordan Border as Kerry Visits Baghdad’

Bloomberg News (24 June 20014) at

http://www.bloomberg.com/news/articles/2014-06-23/militants-seize-iraqi-town-near-border-with-jordan accessed 25 April 2016

15 Cole Bunzel, ‘From Paper State to Caliphate: The Ideology of the Islamic State’ [2015] 19 The Brookings Project on US Relations with the Islamic World 31

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fighters disguising as refugees. An Islamic State representative claimed that it has successfully smuggled up to 4,000 fighters to Europe. However, experts have dismissed this statement as being ‘exaggerated’ in an attempt to spread fear in the western countries.

Currently the Islamic State has established a foothold in Iraq, Syria, Libya, Nigeria, Chad, Uzbekistan, and Cameroon among others. Its ever-growing presence has undoubtedly created a threat for the rest of the world. In recent years, the Islamic State has claimed responsibility for a number of terrorist attacks outside Iraq and Syria, including the bombings in Ankara, the bombings in Beirut, the Bataclan attack in Paris, and more recently the Brussels bombings.16

Aside from the global coalitions, many interventions have been launched in other areas outside of Syria. In August 2014, the United States led an intervention in Iraq.

I.II. International Efforts in Tackling the Islamic State

Many efforts and intervention have been deployed in an attempt to tackle the Islamic State. The first of those was launched by the United States in August 2014. Motivated by the thousands of stranded Yazidis, the threat of genocide to them, and the desire to protect US citizens in Iraq fighting against the Islamic State, the United States started the 2014 intervention in Iraq, which initiated an aerial bombing campaign on 8 August 2014. At the NATO summit held in Wales on 5 September 2014, US Secretary of State John Kerry invited Ministers of the United Kingdom, Canada, France, Australia, Turkey, Germany, Denmark, 16 Hannah al-Othman, ‘Paris Attacks: Islamic State Claims Responsibility as French President Francois Hollande Promises “Merciless” Revenge’ Evening Standard (14 November 2015) at

http://www.standard.co.uk/news/world/paris-attacks-french-president-francois-hollande-says-shootings-were-an-act-of-war-by-islamic-state-a3114476.html accessed 25 April 2016; Jennifer Ranking and Jon Henley,

‘Islamic State Claims Attacks at Brussels Airport and Metro Station’ The Guardian (22 March 2016) at

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and Italy for a meeting in which he pressed the leaders to financially and militarily support the fight against the Islamic State.17_{On 3 December 2014, 59 countries, including those that}

attended the NATO Summit in Wales, gathered in the NATO headquarters in Brussels where they established the ‘Global Coalition to Counter the Islamic State of Iraq and the Levant.’18

Strategies adopted by the coalition include cutting off ISIL’s access to financing and funding, addressing associated humanitarian relief and crises, and exposing ISIL’s true nature or ideological de-legitimization.19_{Since then, fourteen countries have also executed airstrikes}

against the Islamic State on the territory of Iraq and Syria under the coalition led by the United States.

On September 2015 France also led a coalition to fight against the Islamic State. During the ‘International Conference on Peace and Security in Iraq’ held by French President François Hollande in Paris, 26 countries agreed to support the Iraqi government with military assistance in its fight against the Islamic State.20_{The countries also reaffirmed their}

commitment to the United Nations Security Council Resolution 2170 condemning all trade with the Islamic State and urging to prevent all financial donations and all payments of ransoms to the Islamic State.21_{On November 2015, in retaliation of the Paris attacks, the}

French Air Force significantly increased airstrikes against the Islamic State, targeting, among others, the city of Ar-Raqqah, Syria, the de facto capital of the Islamic State.

17 ‘Wales Summit Declaration: Issued by the Heads of State and Government participating in the North Atlantic Council in Wales’ (5 September 2014) Press Release 120, at

http://www.nato.int/cps/en/natohq/official_texts_112964.htm accessed 25 April 2016

18 European Parliament, ‘The International Coalition to Counter ISIL/Da’esh (the ‘Islamic State’)’, Briefing of 17 March 2015, at

http://www.europarl.europa.eu/RegData/etudes/BRIE/2015/551330/EPRS_BRI(2015)551330_EN.pdf accessed

25 April 2015, p. 6

19 id.

20 ‘International Conference on Peace and Security in Iraq’, France Diplomatie Website, 15 September 2015,

at http://www.diplomatie.gouv.fr/en/country-files/iraq/events/article/international-conference-on-peace accessed

1May 2016

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Around the same time France established its coalition, Russia, Iraq, Iran, and Syria set up a ‘joint information center’ in Baghdad. The information is aimed to gather, process, and analyze available information about the situation in the Middle East, primarily focused on fighting the Islamic State.22_{However, on 14 March 2016, Russian President Vladimir Putin}

ordered the Russian military force to partially retreat from the Syrian territory, stating the commencement of the peace negotiation as the reason.23

Many interventions were also deployed in Iraq, Syria, Libya, Afghanistan, and Cameroon. These interventions included not only airstrikes, but also humanitarian efforts, hostage rescue attempt, and arming and training surveillance. Unfortunately, all these efforts have not fully eliminated the Islamic State and the violence that comes with it.

22 ‘Russia, Iran, Iraq & Syria setting up ‘joint information center’ to coordinate anti-ISIS operations’ RT (27 September 2015) at https://www.rt.com/news/316592-russia-syria-islamic-state/ accessed 1 May 2016

23 Alexey Ermenko and Corky Siemasko, ‘Vladimir Putin Orders Russian Military Pullout from Syria’ NBC

News (14 March 2016) at

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II Crime of Aggression under International Law

This chapter will discuss how the current provision penalizing crime of aggression came to be. The effort to criminalize the crime of aggression dates back to the First World War, and this long process results in Art. 8 bis being adopted almost a century later. This discussion will then be followed by an in depth analysis of the elements of the crime of aggression.

II.I. Historical Background of Article 8 bis

As stated before, the effort to penalize States for engaging in acts of aggression against another State date back to post World War I, and it has since been considered an internationally wrongful act. This is reflected by Art. 10 of the League of Nations Covenant, stating that

“[t]he Members of the League undertake to respect and preserve against external aggression the territorial integrity and existing political independence of all Members of the League.”24

However, the Covenant did not define aggression nor does it attach State liability to aggression. It also did not outlaw the use of force of a State against another State.

Another effort taken to penalize aggression is reflected in the Kellogg Briand Peace Pact of 1928. Art. 1 of which holds that contracting parties ‘condemn recourse to war for the solution of international controversies, and denounce it as an instrument of national policy in their relations with one another.’25_{Although the term aggression was not explicitly used nor was it}

24 Art. 10 of the Covenant of the League of Nations (adopted 28 April 1919)

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defined, the Pact is the first prohibition for States to engage in aggression.26_{However, while}

it restricted State conduct, it did not impose criminal liability on the specific individuals affiliated with the conduct.

It was not until Nazi leaders were prosecuted before the International Military Tribunal at Nuremberg that individuals could be held criminally liable for acts of aggression.27_{Art. 6(a)}

of the London Charter, the Charter that established the International Military Tribunal, imposed individual criminal responsibility for crimes against peace, in which it is defined as the

“planning, preparation, initiation, or waging of a war of aggression, or a war in violation of international treaties, agreements, or assurances, or participation in a common plan or conspiracy for the accomplishment of any of the foregoing.”28

This was the first provision that considered aggression as an international crime that could trigger individual criminal responsibility. Nazi leaders were convicted on the charge of conspiracy to engage in war of aggression on the basis that crimes against peace are collective crimes that are, by definition, conspiratorial in nature.29_{However, the provision did}

not elaborate on the level of participation required. Thus, the definition used by the International Military Tribunal does limit the criminal liability to only high-ranking officials. In principle, low or middle-ranking soldiers were also capable of committing the crime of planning, preparing, initiating, or waging a war of aggression. This is one of the key 26 Michael J. Glennon, The Fog of Law: Pragmatism, Security, and International Law (Stanford University Press, 2010) p. 73

27 N. R. Bakkenes, The Crime of Aggression: Individual criminal liability for the crime of aggression in the

parliamentary democracies (Celsus juridische uitgeverij, 2011) p. 4

28 Art. 6(a) of the Charter of the International Military Tribunal – Annex to the Agreement for the prosecution and punishment of the major war criminals of the European Axis (“London Agreement”) (adopted 8 August 1945)

29 Jens Ohlin, ‘Aggression’ in Antonio Cassese (ed), The Oxford Companion to International Criminal Justice (Oxford University Press 2009) p. 237

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differences with the definition adopted under Art. 8 bis of the Rome Statute which limits criminal responsibility to a person of leadership position.

Although the war of aggression was included in the London Charter, there was not yet a consensus definition of aggression. A colossal effort to define aggression was taken with the adoption of the General Assembly Resolution 3314. Art. 3 of the Annex to the Resolution lists seven acts that can be qualified as acts of aggression. This definition was given a customary international law status by the International Court of Justice in the Nicaragua Case.30_{The definition adopted in the Art. 8 bis of the Rome Statute is based on the definition}

of Resolution 3314. However, the inclusion of aggression in the jurisdiction of the International Criminal Court sparked some debate. Some States argued that aggression is essentially a State crime and not an individual crime, that it is too political, and that it would erode the role of the Security Council in the area of peace and security.31_{Furthermore, it was}

deemed difficult to formulate a definition of aggression that is precise enough to be able to serve as a basis for individual criminal liability.32

Nevertheless, aggression was eventually included in the jurisdiction of the International Criminal Court through Art. 8 of the Rome Statute. Prior to the adoption of Art. 8 bis, Art. 5 of the Rome Statute already gave jurisdiction to the Court to entertain cases of crimes of aggression. However, unlike the other three core crimes, i.e. crimes of genocide, crimes against humanity, and war crimes, the Statute provides neither a definition of the crime nor jurisdictional conditions under which the Court will have legal authority to prosecute 30 International Court of Justice, Reports of Judgments, Advisory Opinions and Orders, Case concerning the military and paramilitary activities in and against Nicaragua, (Nicaragua v. United States of America), Judgment of 27 June 1986, para. 195

31 Gerhard Kemp, Individual Criminal Liability for the International Crime of Aggression (Intersentia 2010) p. 194

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offenders for such crimes. Only after years of preparatory work, the amendments of the Rome Statute were adopted by consensus on 11 June 2010 at the 13th_{plenary meeting held between}

31 May and 11 June in Kampala, Uganda.33_{The amendments were adopted under the 2010}

Resolution on the Crime of Aggression.34

Art. 8(1) bis reads:

“’crime of aggression’ means the planning, preparation, initiation, or execution, by a person in a position to effectively 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.”35

Art. 8(2) bis then elaborates on the ‘act of aggression’ which shall mean “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.”36

The provision will enter into force on 1 January 2017.37_{The provision further lists seven acts,}

adopted pursuant to the General Assembly 3314 that would qualify as an act of aggression, regardless of a declaration of war. Those acts being:

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;

33 Amendments to the Rome Statute, supra note. 2

34 id.

35 Art. 8 bis (1) of the Rome Statute, supra note. 1

37 Sean D. Murphy, ‘The Crime of Aggression at the ICC’ in Marc Weller (ed), Oxford Handbook on the Use of Force (Oxford University Press 2013)

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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 or 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.

II.II. Elements of the Crime

Under Art. 8(1) bis of the Rome Statute, the “crime of aggression” shall mean 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, or scale constitutes a manifest violation of the Charter of the United Nations.38_{From the wording of the provision, several elements can be deducted. Pursuant to}

Annex II to the 2010 Resolution, there are 6 elements of the crime of aggression.39

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Firstly, the perpetrator planned, prepared, initiated or executed an “act of aggression”. No express mens rea is provided in the first element. Thus, in accordance with Art. 30(2) of the Rome Statute, intent is required here in the sense that the perpetrator must have meant to engage in the conduct.40_{Furthermore, this first element implies a degree of causation between}

the conduct of the perpetrator and the occurrence of the State act of aggression.41_{However, it}

need not be a ‘but-for’ causation in the sense of it being a condition sine qua non.42_{One could}

be criminally liable if their conduct substantially contributed to the commission of the crime, without being condition sine qua non. This is certainly the most logical solution to ensure criminal responsibility since co-decision making and separation of power makes it nearly impossible for one particular individual to be conditio sine qua non considering the degree of dependence on numerous factors, governmental bodies, and the persons involved.

Secondly, the perpetrator shall be a person in a leadership position. That is to say that the person has the authority to effectively exercise control over or to direct the political or military action of the State which committed the act of aggression. Since no mens rea is expressly provided in this element, Art. 30 of the Rome Statute again applies. Because this element is a circumstantial one, Art. 30 requires that the perpetrator must have been aware that this circumstance existed. That is to say that the perpetrator must have been aware of his position in the hierarchy and of the fact that he was in a position to effectively exercise control over or to direct the political or military action of the State that committed the act of aggression.43

40 Bakkenes, supra note. 27, p. 23

41 ‘Informal intern-sessional meeting on the Crime of Aggression, hosted by the Liechtenstein Institute of Self-Determination, Woodrow Wilson School, at the Princeton Club, New York, from 8 to 10 June 2009’

International Criminal Court, Assembly of State Parties, Eighth session (The Hague 18-26 November 2009) (10 July 2009) document ICC-ASP/8/INF.2, Appendix II (explanatory note), p. 16; Bakkenes, supra note. 27, p. 23

43 ‘Informal intern-sessional meeting on the Crime of Aggression (…)’ International Criminal Court, Assembly of State Parties, Eighth session, supra note. 40, p. 3; Bakkenes, supra note. 27, p. 24

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Thirdly, the “act of aggression” was committed. The term shall mean 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. Art. 8(2) bis lists State acts that, in accordance with UN General Assembly Resolution 3314 of 14 December 1974, will qualify as an act of aggression regardless of a declaration of war.44_The

question that arises is then whether or not this list is exhaustive. The list is adopted pursuant to the General Assembly Resolution, and Art. 4 of the Resolution states that the list is indeed not exhaustive. However Art. 8 did not adopt Art. 4 as a whole, therefore the open-endedness might not apply. However, in his article, Claus Kress said that it’s a non-exhaustive list containing examples of ways in which States acts of aggression can be committed; that, ”semi-open at best, because every act of aggression must fall within the generic definition in the first sentence of (…) Art. 8 bis of the ICC Statute.45

Fourthly, the perpetrator was aware of the factual circumstances that established that such use of armed force was inconsistent with the UN Charter. This element can be regarded as the corresponding mental element to the act of aggression set out in the third element.46_By

requiring awareness of factual circumstances, the perpetrator cannot remain ignorant of the legality of his action. Furthermore, the introduction of the Amendments to the Elements of the Crime states that it is not required to prove that the perpetrator has made a legal evaluation whether his action, meaning that it is not required the show that he has evaluated whether the use of armed force was inconsistent with the UN Charter.47_{Art. 30 of the Rome}

45 Bakkenes, supra note. 27, p. 17; Claus Kress, ‘Time for Decision: Some Thoughts on thw Immediate Future of the Crime of Aggression: A Reply to Andreas Paulus’ [2010] 20 European Journal of International Law 1129, p 1137

47 Amendments to the Rome Statute, supra note. 2, annex II, ‘Amendments to the Elements of Crimes’, Introduction, para. 4

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Statute entails ‘knowledge’ and ‘awareness’, thus the perpetrator must have had actual knowledge of the factual circumstance, being the fact that an act of aggression has occurred.

Fifthly, the act of aggression, by its character, gravity, and scale, constituted a manifest violation of the Charter of the United Nations. Aggression is considered to be the most serious and dangerous form of the illegal use of force, therefore a determination of whether an act of aggression has been committed requires consideration of all the circumstances of each individual case, including the gravity of the acts concerned and their consequences in accordance with the UN Charter.48_{Furthermore, in the consideration of whether an act of}

aggression constitutes a manifest violation of the UN Charter, the three components collectively must be sufficient to justify a ‘manifest’ determination. No one component by itself can be significant enough to satisfy the manifest standard.49

Lastly, the perpetrator was aware of the factual circumstances that established such a manifest violation of the Charter of the United Nations. This element sets out the mental element of the fifth element. The perpetrator must have been aware of the factual circumstances that established the manifest violation of the UN Charter. In the introduction of the Amendments to the Elements of the Crime it is also stated that it is not required to prove that the perpetrator has made a legal evaluation as to the ‘manifest’ nature of the violation.50

Furthermore, the Amendments to the Elements of the Crime note that the perpetrator must have been aware of the factual circumstances that established that the use armed of force was inconsistent with the UN Charter.51_{In addition, the perpetrator must have been aware of the}

48 Stefan Barriga and Claus Kress (eds), The Travaux Preparatoires of the Crime of Aggression (Cambridge University Press 2012) p. 106

49 id.

50 Amendments to the Rome Statute, supra note. 2, annex II, ‘Amendments to the Elements of Crimes’, Introduction, para. 4

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factual circumstances that established such a manifest violation of the UN Charter.52

Although the two requirements seem similar in hindsight, there is a clear distinction between the two. Where the former refers to the legal qualification that establishes the use of armed force as an act of aggression, the latter refers to the legal evaluation that the established act of aggression can be qualified as a manifest violation of the UN Charter according to its character, gravity, and scale.53

52 Bakennes, supra note, 27, p. 26

53 ‘Informal intern-sessional meeting on the Crime of Aggression (…)’ International Criminal Court, Assembly of State Parties, Eighth session, supra note. 41, p. 5

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III The Islamic State under International Law

This chapter will analyze whether the proposal put forth by leaders of different States, expressing their interest to engage in an armed attack against the Islamic State can be regarded as a crime of aggression. This analysis will be done by assessing whether the six elements of the crimes are fulfilled.

III.I Is the Islamic State Really a State?

Before diving into the elements of the crime, the most important question to be asked is whether the Islamic State is really a State? Art. 8 bis of the Rome Statute requires that the act of aggression is committed against the ‘sovereignty, territorial integrity, or political independence of another State’.54_{This implies that both the Islamic State and the perpetrator}

have to be a State in order for the attack to fall within the scope of the provision. Therefore, even if all the other elements of the crime are fulfilled, it can only be regarded as a crime of aggression if the Islamic State is actually a State.

The Islamic State declared themselves as a State; they give themselves the title. However, the statehood of the Islamic State has been previously questioned by international organizations and other States. The determination of statehood is laid down in Art. 1 of the Montevideo Convention:

‘The state as a person of international law should possess the following qualifications: (a) a permanent population; (b) a defined territory; (c) government; and (d) capacity to enter into relations with the other states.’ 55

55 Art. 1 of the Montevideo Convention on the Rights and Duties of States (adopted 26 December 1933) 165 LNTS 19

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In other words, the basic test of statehood is whether or not a national government can lay claim to a monopoly of force in the territory and over the population under its jurisdiction.56

Art. 3 of the Montevideo Convention further elaborates that the existence of a State is independent of the recognition by other States.57_{Which means that prior to recognition, the}

State has the right to defend its integrity and independence.58_{Art. 6 then continues to state}

that the ‘recognition of a State merely signifies that the State which recognizes it accepts the personality of the other with all he rights and duties determined by international law.’59_This

is because a State is part of the bigger international community, which is why recognition helps establishes its existence. Although this is not an exhaustive list, these criteria of statehood are regarded as the most authoritative under international law.

III.I.I A Permanent Population

As stated in Chapter I.I, the Islamic State has a population ranging between 2.8 to 8 million people as of late last year.60_{This is certainly higher than the population of other established}

States. However, the requirement of a permanent population stems from the idea that a State is a means of realizing the shared aspirations of groups that are united due to cultural, religious, historical, or other characteristics they have in common. In other words, the population of a State shall be somewhat homogenous. This requirement is fulfilled when the

56 Max Weber, The Theory of Social and Economic Organization (edited by Talcott Parsons, Free Press 1964) p. 156

57 Art. 3 of the Montevideo Convention, supra note. 55

58 id.

59 Art. 6 of the Montevideo Convention, supra note. 55

60 Amnesty International ‘Ethnic Cleansing on a Historic Scale: Islamic State’s Systematic Targeting of

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population consciously chooses to ties its fate to the specific State and subject themselves to the governing power.61

For the time being, it does not seem like the Islamic State has fulfilled this criteria considering the fact that the citizens of Iraq and Syria who resides in the territory now controlled by the Islamic State did not choose to subject themselves to the Islamic State. Rather, they found themselves in their current situation due to the Islamic State’s conquest. Furthermore, the people under the control of the Islamic State cannot oppose the organization without endangering themselves. Therefore, it can be said that they did not chose to be citizens of the Islamic State nor are they interested in realizing their aspirations and common goal within that State.

The only plausible way in which the Islamic State would fulfill this requirement is if the members of the organization, who identify completely with the Caliphate, were to be considered as the ‘permanent population’. This method was used to establish the existence of the population of Vatican. The statehood of Vatican City was created through the Lateran Pacts between the Kingdom of Italy and the Lateran Pacts in 1929.62_{Not only is the}

population of Vatican City exceedingly small, just over 800 people with only over half owning Vatican citizenship,63_{but they are also not permanent. However, this did not hinder}

the establishment of the State. Although acceptance and recognition by the host States, i.e. Iraq and Syria, will not be as easily obtained by the Islamic State as it was by the Catholic

61 Yuval Shany, Amichai Cohen, and Tal Mimran, ‘ISIS: Is the Islamic State Really a State?’ (The Israel

Democratic Institute, 14 September 2014) at

http://en.idi.org.il/analysis/articles/isis-is-the-islamic-state-really-a-state/ accessed 14 May 2016

62 Lateran Treaty of 1929 (Italy – Holy See), at

http://www.vaticanstate.va/content/dam/vaticanstate/documenti/leggi-e-decreti/Normative-Penali-e-Amministrative/LateranTreaty.pdf accessed 14 May 2016

63 Vatican City State Website, at

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Church of Vatican, there is no evidence that suggest this is not probable in the future. But since this is not yet achieved, the Islamic State has not fulfilled the first criteria of the Montevideo Convention.

III.I.II A Defined Territory

The essence of this requirement is that the entity must have effective control over a particular territory or a piece of land. However the interpretation of ‘defined territory’ under international is rather flexible. There is no minimum size of territory requirement, proven by Vatican City, which has a territory of just 0.44 square kilometers,64_{and Monaco, with a}

territory of 2.02 square kilometers.65_{Furthermore, there is also no requirement of permanent}

and defined borders between States. When the statehood of Israel was established, the borders were not explicitly recognized and some remain in dispute to this day. However, that did not hinder the creation of the State and diminish its legal status under international law.66

With regard to the Islamic State, it is evident that the organization is de facto exercising control over large area within the territory of Iraq and Syria, and this area is likely to expand. However, since the manner in which the Islamic State acquire these area consists of gross violations of international law, not only is raise questions regarding the legitimacy of the institution, but there is a high probability of this area shrinking in size and becoming unstable.

64 id.

65 United Nations Data Website, at http://data.un.org/CountryProfile.aspx?crName=Monaco accessed 14 May 2016

66 The legal status of Israel is evidenced by its status as a Member State of the United Nations since 11 May 1949.

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III.I.II An Effective Government

An effective government is arguably the most significant element in establishing statehood. From an international perspective, the government shall exercise exclusive and effective power over those within its territory. In other words, the government shall have monopoly of force throughout their territorial jurisdiction. However, international law does not prescribe which form of governance is required. That is to say that both a democratic form government and a more dictatorial form government are equally acceptable.

It is evident that the manner in which the leaders of the Islamic State impose their authority over the population constitutes a violation of international law with its human rights abuses and oppression. However, the Islamic State has been exercising governmental authority on various aspects of territory it controls. When the Islamic State first claimed the territory, its priority was restoring security and ensuring the availability of basic services that was not provided by the national government.67_{The police force and courts of Islamic State also}

attempted to reduce the number of crimes, theft, murder, drug offences, and rape as the main focus.68_{Soon after, the authority began regulating morality and pushing religious practices,}

which at first were disguised as advices but quickly, became coercive. They then started collecting taxes in exchange for protection and security and increasing the fee for water and electricity. These show that they in fact exercise governmental function over the population under their jurisdiction. Furthermore, it is disputed whether it is absolutely necessary for the government to have effective control or whether the existence of a normative government suffices, as is the case in the Democratic Republic of Congo, East Timor, and Kosovo.69_This

67 Mara Revkin, ‘Experts Weigh in: Is ISIS Good at Governing?’ (Brookings, 20 November 2015) at

http://www.brookings.edu/blogs/markaz/posts/2015/11/20-experts-weigh-in-isis-governance-revkin-mccants

accessed 14 May 2016

68 id.

69 Ilona-Margarita Stettner, ‘Palestinian Statehood According to International Law’, Konrad Adenauer Stiftung, at http://www.kas.de/palaestinensische-gebiete/en/pages/11510/ accessed 15 May 2016

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argument also emerges in the debate regarding the Statehood of Palestine, where some argues that a territorial unit can be recognized as a State even if they do not exercise full authority. Although such argument can only apply when the State in question have obtained recognition from other States.

Furthermore, the fact that the Islamic State exercises their authority in a violent and oppressive manner does not necessarily invalidate the existence of an effective government. North Korea is a State where the same circumstances apply. The dictatorship imposed on the population by the Regime and repeated human rights violation committed by those associated with the government is a matter of public record. Nevertheless, North Korea is a full member of the United Nations as of September 1991.70_{Therefore, since the international does not}

require a specific form of governance and to what extent the government must exercise effective control, it is not possible to dismiss the existence of a government in the Islamic State.

III.I.IV. Capacity to Enter into Relations with Other States

The capacity of a State to engage in relations with other States is closely related with recognition by those other States. Without the recognition of other States, such as in the case of Somaliland, the existence of a State becomes rather superficial. It is pretty evident that currently States do not recognize the statehood of Islamic State, so it is rather unlikely that they are interested in engaging in diplomatic, economic, or any relations with the Islamic State. However, there is nothing to suggest that this will not happen in the future, considering the military capability possessed by the Islamic State and its habit of putting pressure on other States. International Law does not necessarily require that the other States agree to 70 United Nations Data Website, at http://data.un.org/CountryProfile.aspx?crName=Democratic%20People

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maintain the relations, only emphasizing the ability to conduct foreign relations. Therefore, there is nothing to suggest that the Islamic State will not fulfill this requirement in the future.

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III.II Can It Still be Crime of Aggression?

Concluding from the previous discussion, for the time being the Islamic State does not fulfill the criteria of statehood laid down in the Montevideo Convention. However, there is nothing to suggest that the Islamic State will not fulfill the Montevideo criteria in the future. Furthermore, it is very unlikely that a State can launch an airstrike and bomb an area without infringing the territorial integrity of someone. One of the ways in which an airstrike wont infringe territorial integrity is if the State consented to it. Although the Islamic State has de facto control over its territory, the territory is de jure under the control of the government of Iraq and Syria.

On 20 September 2014, the Permanent Representative of Iraq to the United Nations submitted a letter from its Minister of Foreign Affairs to the President of the Security requesting assistance and support from the international community in its war against the Islamic State.71_{The letter also explicitly requests the United States to ‘lead international}

efforts to strike the Islamic State sites and military strongholds, without express consent’.72

However, no such letter, or a statement in any form indicating consent, has been sent from the Syrian government. Therefore, even if a strike against the Islamic State in the territory of Iraq is justified, a strike on the territory of Syria might amount to an infringement upon the territorial integrity and sovereignty of Syria. Therefore, it shall be assessed whether such a strike falls within the scope of crime of aggression.

1. The first element of the crime of aggression is that the perpetrator must have planned,

prepared, initiated, or executed an ‘act of aggression’. The mental element attached to the 71 United Nations Security Council, Letter dated 20 September 2014 from the Permanent Representative of Iraq to the United Nations addressed to the President of the Security Council, 22 September 2014, S/2014/691

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first element is that the perpetrator must have meant to engage in the conduct. The definition seems to focus on the actual act of aggression rather than the ‘threat’ of aggression, which implies that an actual use of force must occur before a crime of aggression has been committed.73_{Unfortunately, this element can only be assessed when the act of aggression has}

actually occurred. Only then can it be determined to what extent is the perpetrator is involved in the act of aggression and whether this element is satisfied.

2. The second element is that the perpetrator shall be a person in a leadership position. The

mental element attached to the second element is that the perpetrator must have been aware of his position in the hierarchy and of the fact that he was in a position to effectively exercise control over or to direct the political or military action of the State. The reasoning behind it is that, although it is arguable whether or not a State can commit a crime, the State itself cannot be prosecuted.74_{This element can be traced back to the Nuremberg Military Tribunal, the first}

time individual criminal responsibility was established. However, at that time, aggression was a crime of knowledge and participation, not a crime of leadership.75_{It was only after 14}

high-ranking officers of the German military were acquitted of crimes against peace in the High Command case that the Nuremberg Military Tribunal held that the crime of aggression could only be committed by individuals at the policy level:

When men make a policy that is criminal under international, they are criminally responsible for so doing. This is the logical and inescapable conclusion. The acts of commanders and staff officers below the policy level, in planning campaigns, preparing means for carrying them out, moving against a country on orders and fighting a war after it has been instituted, do not

73 Sean D. Murphy, ‘Aggression, Legitimacy, and the International Criminal Court’ [2009] 20 European Journal of International Law 1147

74 Aggression and the International Criminal Court’ [2006] Cornell Law School Graduate Student Papers at http://papers.ssrn.com/abstract=1673474

75 Kevin Jon Heller, ‘Retreat from Nuremberg: The Leadership Requirement in the Crime of Aggression’ [2007] 13 European Journal of International Law 477, p. 486

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constitute the planning, preparation, initiation, waging of war or the initiation of invasion that international law denounces as criminal.76

The judgment explicitly states that only acts committed by individuals at policy level can constitute the ‘planning, preparation, initiation, and waging of war’. However, the Tribunal did not define ‘policy level’ necessarily as those who could ‘control of direct’ the political or military action of a State as Art. 8 bis worded it. Instead, it refers to the ability to ‘shape and influence’ the action:

It is not a person’s rank or status, but his power to shape or influence the policy of his State, which is the relevant issue for determining his criminality under the charge of crimes against peace.77

The Tribunal further condemns those who, due to their ability to shape and influence the policy of their State, lead their nation into or in an aggressive war.78_{The Court then adopted a}

general test to determine the ‘shape and influence standard’. There are three requirements to this test. Firstly, the perpetrator shall have knowledge. The Tribunal held that, “There first must be actual knowledge that an aggressive war is intended and that if launched it will be an aggressive war.”79_{Secondly, the perpetrator must have the ability to shape or influence the}

policy in his country. The Tribunal further held that, “But mere knowledge is not sufficient to make participation even by high-ranking military officers in the war criminal. It requires in addition that the possessor of such knowledge, after he acquires it, shall be in a position to shape and influence the policy that brings about its initiation or its continuance after

76 11 Trials of War Criminals Before the Nuremberg Military Tribunals Under Control Council Law No. 10 (195) (United States v. von Leeb et al.) [1949] Military Tribunal XII, at <

https://www.loc.gov/rr/frd/Military_Law/pdf/Law-Reports_Vol-12.pdf> accessed 17 May 2016, para. 490-491

77 Ibid. para. 489

78 Ibid. para. 489

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initiation, either by furthering, or hindering or preventing it.”80_{Lastly, the determination of}

criminal responsible depends on the action taken by the perpetrator in furtherance of the policy. Where the Tribunal held that, “If he then does the former, he becomes criminally responsible; if he does the latter to the extent of his ability, then his action shows the lack of criminal intent with respect to such policy.”81

Although the standard adopted by the Tribunal is somewhat lower than the leadership standard required by Art. 8 bis, this test is relevant in determining the second element of crime of aggression. The striking difference between the ‘shape and influence’ standard and the leadership standard is the mens rea. The latter requires that the perpetrator to have been aware of his position in the hierarchy and of the fact that he was in fact in a position to effectively exercise control over or to direct the political or political or military action of the State. Therefore, applying the general test of the ‘shape and influence’ standard with the mens rea of the leadership standard would be a suitable test for determining the second element.

With regard to the present case, since the act of aggression has not been committed, it is difficult to assess whether this element is satisfied. However, it is safe to say a decision to launch an airstrike against the Islamic State would be taken by individuals at policy level. However, it is not possible to assess the mens rea for the time being.

3. The third element is that an ‘act of aggression’ must have been committed. Art. 8 bis (2)

of the Rome Statute define the act of aggression as the use of armed force by a State against the sovereignty, territorial integrity, or political independence of another State, or in any other 80 Id.

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manner inconsistent with the Charter of the United Nations.82_{As enshrined in the previous}

chapter, Art. 8 bis (2) lists seven acts, adopted pursuant to Resolution 3314, that would constitute an act of aggression regardless of a declaration of war. Learning from the previous actions taken by the global coalition, airstrikes and bombing will be the most probable course of action taken by the United States and the United Kingdom in its battle against the Islamic State. This would fall in the scope or Art. 8 bis (2)(b): “Bombardment by the armed forces of a State against the territory of another State (…)” or (c): “An attack by the armed forces of a State on the land, sea, or air forces, or marine and air fleets of another State.” Therefore, it is safe to say that the third element would be satisfied.

4. The fourth element of the crime, which might be considered as the mental element of the

third element, is that the perpetrator was aware of the factual circumstances that established that such use of armed force was inconsistent with the Charter of the United Nations. Again, since the act of aggression have not been committed, it is difficult to assess the mental element of the perpetrator. However, considering that the crime aggression can only be committed by high-ranking individuals, it can be assumed that such individuals are aware of the fact that use of force is inconsistent with Charter of the United Nations.

5. The fifth element is that the act of aggression, by its character, gravity, and scale,

constituted a manifest violation of the Charter of the United Nations. The rationale behind this element is that international law differentiates between ‘aggression’ on the one hand, and ‘war of aggression’ on the other. This is evidenced in Art. 5(2) of Resolution 3314 where it is stated that: “A war of aggression is a crime against international peace. Aggression gives rise to international responsibility.”83_{The wording of the Resolution illustrates that the General}

83 United Nations General Assembly Resolution 3314 on the Definition of Aggression (14 December 1974) UN Doc A/RES/3314, Art. 5(2)

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Assembly is of the view that not all acts of aggression is of a criminal nature and triggers criminal responsibility, even if all acts of aggression can be considered a violation of the Charter of the United Nations. In other words, mere acts of aggression that fall outside the scope of ‘war of aggression’ will not result in individual criminal responsibility are not enough to trigger the jurisdiction of the Court under Art. 8 bis.84_{This distinction can also be}

seen in the Rome Statute where Art. 8 bis (1) defines the ‘crime of aggression’ and Art. 8 bis (2) defines the ‘act of aggression’. It is the threshold of ‘manifest violation of the Charter of the United Nations’ that elevates an ‘act of aggression’ to a ‘crime of aggression’.

Unfortunately, neither the Rome Statute nor Resolution 3314 provide an exact definition of the term and mostly depended on the Court for interpretation. However, the term ‘manifest’ is also used in Art. 33 of the Rome Statute in the context of defense of superior liability stating, “(…) orders to commit genocide or crimes against humanity are manifestly unlawful.”85_The

term seems to be used as a reasonableness standard and there is no indication that it is to be used differently in Art. 8 bis. The introduction of the Amendments to Elements of the Crimes also states: “The term ‘manifest’ is an objective qualification.”86_{The objectivity can be}

applied by the reasonableness standard, that is what a typical person in the circumstances faced by actor would understand to be a reasonable behavior is objectively reasonable as matter of law.87_{However, this does not provide a comprehensive enough description for the}

threshold of ‘manifest violation’. Which is why the Rome Statute prescribes three different standards of character, gravity, and scale in assessing the seriousness of an act of aggression.

84 Joshua L. Root, ‘First Do No Harm: Interpreting the Crime of Aggression to Exclude Humanitarian Intervention’ [2013] 2 University of Baltimore Journal of International Law 62, p. 80

85 Art. 33 of the Rome Statute, supra note. 1

86 Amendments to the Rome Statute, supra. note. 2, introduction

87 Art. 31 of the Vienna Convention to the Law of the Treaties (adopted 23 May 1969, entered into force 27 January 1980) 1155 UNTS 331; Root, supra note. 84, p. 85

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The term ‘character’ seems to suggest a qualitative requirement rather than a quantitative one. The relevant character of an act of aggression can be construed as its motive. This understanding will differentiate between the use of force that may be found to be a technical act of aggression and that is executed for laudable motives. Therefore, this requirement implicitly requires that the act of aggression is committed with a special intent, which is an aggressive purpose.88_{According to this point of view, a military strike against the Islamic}

State would not constitute a crime of aggression. Since the aim of the strike is solely to end the human rights violations committed by the Islamic State and not mere use of force directed towards Syria or Iraq.

The threshold of ‘gravity’ is explicitly mentioned in both Art. 8 bis and Resolution 3314. The latter states that:

“(…) in order to determine whether a sanctionable act of aggression has occurred, the Security Council may “conclude that such a determination would not be justified in the light of other relevant circumstances, including the fact that the acts concerned of their consequences are not of sufficient gravity.”89

The threshold can be read as either a quantitative measure of the impact of the use of force or a qualitative measure of the seriousness of the legal breach. However, the former measurement seems to be captured better by the ‘scale’ threshold. The Court, in its decision of the Situation in the Democratic Republic of Congo (application for Warrants of Arrest) case, elaborates ‘scale’ using the same terminology, ‘systematic’ and ‘large scale’,90_which

88 Root, supra note. 84, pp. 88-89

89 Art. 2 of the UNGA Resolution 3314, supra note. 83

90 Situation in the Democratic Republic of Congo: Application for Warrants of Arrest (2004) Case No. ICC-01/04-01/07, para. 64

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refers to the quantitative measurement. Therefore, ‘gravity’ shall mean something different than ‘systematic’, ‘widespread’, or ‘large scale’.

It would then seem that the ‘gravity’ threshold should be used to analyze the degree of which a use of force is unlawful. In other words, ‘gravity’ shall assess how grave the violation is or the seriousness of the legal breach. In this specific case, it would be difficult to assess the seriousness of the breach considering the use of force has not yet been committed. But considering that the aim is to eliminate violence and human rights violation, the breach would be minimal. Therefore, it would seem that this threshold is not satisfied.

As determined before, the ‘scale’ threshold is a quantitative measurement of the impact of the use of force. This can be traced back to the Nicaragua case, where the International Court of Justice held that a use of force must have sufficient ‘scale and effects’ to constitute an armed attack for the purpose of the Charter of the United Nations.91_{It would suggest that any use of}

force that is substantial enough to curb atrocities would probably be enough to satisfy the requirement. Considering the area and population that are under the control of the Islamic State, it is likely that any strike against them would be in a scale large enough to fulfill this requirement.

6. The last element of the crime, which could be regarded as the mental element of the fifth

element, is that the perpetrator was aware of the factual circumstances that established such a manifest violation of the Charter of the United Nations. Since it is established that the fifth element is not fulfilled, it is not necessary to assess whether this last element is satisfied.

91 Military and Paramilitary Activities In and Against Nicaragua (Nicaragua. v. United States) (Merits) [1986] ICJ Rep 14, para. 92

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IV Humanitarian Intervention as a Justification to Crime of

Aggression

As discussed in the previous chapters, there is a fine line between mere acts of aggression and crimes of aggression. Even though the analysis in the previous chapter finds that a unilateral armed attack against the Islamic State does not constitute a crime of aggression, this analysis is based on a somewhat hypothetical event. Therefore, when the armed attack actually occurs, the assessment regarding the six elements might result in a different outcome. In case of such outcome, humanitarian intervention may serve as a possible justification. Although this chapter will not discuss humanitarian intervention in depth, it is necessary to touch upon the issue.

Humanitarian intervention is defined as “the use of armed force for the prevention or discontinuation of massive violations of human rights in a foreign State.”92_{It may seem}

paradoxical that a humanitarian effort must resort to the use of force, especially when the legal basis for such effort is deeply rooted in Art. 2(4) of the Charter of the United Nations containing the prohibition on the use of force.93_{The Charter of the United Nations explicitly}

provides two exceptions to the prohibition of the use of force; in the case of self defence under Art. 51 and pursuant to a Security Council Resolution adopted under Chapter VII (Art. 43-38).94_{A unilateral attack against the Islamic State would suggest that it is neither a form of}

self defence nor is it pursuant to a Security Council Resolution. However, there is nothing to suggest that these two are the only exception to the prohibition.95_{Although humanitarian}

92 Bruno Simma (ed), The Charter of the United Nations: a Commentary (2002), p. 130

93 Art. 2(4) of the Charter of the United Nations (adopted 24 October 1945) 1 UNTS XVI

94 ibid. Art. 51 and Chapter VII

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intervention is not expressly authorized by the Charter of the United Nations, it is not prohibited either, since States are free to engage in any conduct so long as it does not violate international law.96

Pursuant to Art. 2 of the Vienna Convention on the Law of Treaties, which holds the status of customary international law, the Charter of the United Nations is a treaty and therefore subject to the rules of interpretation.97_{The Vienna Convention provides that a provision shall}

be interpreted in accordance with the ordinary meaning of the text.98_{However, the}

International Court of Justice Judge Simma explained that “the ordinary meaning of a term can only be determined by looking at the context in which it is used.”99_{With regard to Art.}

2(4), it is contained in the Charter of the United Nations which is in itself a human rights document and thus must be read in that context.

Art. 31(1) of the Vienna Convention further provides that a treaty provision “shall be interpreted (…) in their context and in the light of its object and purpose.”100_{Art. 31(2) then}

goes on to state that the object and purpose of a treaty are determined by looking at the preamble of the treaty,101_{and the Preamble of the Charter of the United Nations provides that}

its members “reaffirm faith in fundamental human rights (…).”102_{Furthermore, Art. 1 of the}

Charter states that the purposes of the United Nations are

“(3) To achieve international cooperation in solving international problems of an economic, social, cultural or humanitarian character, and in promoting and encouraging respect for

96 The Case of S.S. Lotus (France v. Turkey) (Merits) [1927] P.C.I.J. (ser. A) No. 10, para. 18

97 Art. 2 of the Vienna Convention, supra note. 87

98 Art. 31(1) of the Vienna Convention, supra note. 87

99 Simma, supra note. 92, para. 20

100 Art. 31(1) of the Vienna Convention, supra note. 87

101 Art. 31(2) of the Vienna Convention, supra note. 87; Root, supra note. 84, p. 70

Unilateral Armed Attack Against the Islamic State as a Crime of Aggression