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Universiteit Leiden

Prospective Challenges of Applying the Kampala

Definition of the Crime of Aggression in the African Great

Lakes Region

Sharon Nakandha

Student No.: s1412892

LL.M. (reg.) Public International Law

Academic Year: 2013/2014

Word Count: 14,281

Thesis Supervisor: Dr. Dov Jacobs

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Table of Contents

Acknowledgements ................................................................................................................ 4

List of Abbreviations .............................................................................................................. 5

INTRODUCTION ................................................................................................................ 6

I. The Crime of Aggression Under the Rome Statute ...................................................... 6

II. Problem Statement ...................................................................................................... 8

III. The Great Lakes Region .............................................................................................. 9

IV. Typology of Conflict in the Great Lakes Region ......................................................... 9

V. Thesis Structure ........................................................................................................ 10

CHAPTER 1

THE CONTRIBUTION OF AFRICAN STATES TO THE DEVELOPMENT OF THE

CRIME OF AGGRESSION

1.1 Relevance of the Aggression Discourse to African States .......................................... 11

1.2 Participation of African States in Early Discussions on Aggression ........................... 13

1.3 Participation of African States in Resolution 3314 Negotiations ................................ 14

1.4 Participation of African States in Rome Statute Negotiations

Leading up to the Kampala Amendments .................................................................. 18

1.5 Conclusion ................................................................................................................ 19

CHAPTER 2

AFRICA’S CONCEPTUALIZATION OF AGGRESSION

2.1 Introduction .............................................................................................................. 20

2.2 Aggression at the African Regional Level ................................................................. 20

2.3 Aggression at the African Sub-regional Level ........................................................... 22

2.4 Distinguishing the Great Lakes Region and Rome Statute

Approaches to the Crime of Aggression .................................................................... 23

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CHAPTER 3

APPLYING THE KAMPALA DEFINITION OF AN ACT OF AGGRESSION TO

CLASSIC CONFLICT SITUATIONS IN THE GREAT LAKES REGION

3.1 Introduction .............................................................................................................. 27

3.2 Armed Groups: The Plight of the Great Lakes Region ............................................... 27

3.2.1 Background of the LRA ............................................................................................ 27

3.2.2 The LRA vis-à-vis the Crime of Aggression .............................................................. 28

3.3 Establishing Links between States and Armed Groups .............................................. 31

3.3.1 State-Armed Group Relationships in the Great Lakes Region .................................... 32

3.3.2 Understanding the Challenges Surrounding Article 8bis (2) (g) ................................. 34

3.4 Humanitarian Intervention and the Crime of Aggression ........................................... 36

3.4.1 Background of Humanitarian Intervention ................................................................. 36

3.4.2 Humanitarian Intervention vis-à-vis the Kampala Amendments ................................ 37

3.4.3 Humanitarian Intervention in the Great Lakes Region ............................................... 38

4. CONCLUSIONS ..................................................................................................... 41

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Acknowledgements

I would like to thank the Wim Deetman Studiefonds Foundation for the scholarship award

that made it possible for me to pursue the LL.M. Program in Public International Law.

I am also grateful to my thesis supervisor Dr. Dov Jacobs for his guidance and assistance in

developing this work.

Lastly, I am indebted to my family and friends for their continued support throughout this

academic year.

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List of Abbreviations

AU African Union

CICC Coalition for the International Criminal Court

CNDP National Congress for the Defence of the People

DRC Democratic Republic of Congo

ECOWAS Economic Community of West African States

ICC International Criminal Court

FRONASA Front for National Salvation

ICJ International Court of Justice

IGAD Intergovernmental Authority on Development

ILC International Law Commission

LRA Lord’s Resistance Army

M23 March23 Movement

NRM National Resistance Movement

SADAC Southern Africa Development Community

UNGA United Nations General Assembly

UNSC United Nations Security Council

UN United Nations

UPDF Uganda Peoples Defence Forces

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INTRODUCTION

I. The Crime of Aggression Under the Rome Statute

Page Wilson, one of the leading scholars on the crime of aggression, has described it as the

“ultimate universal negative value” from which the majority of actors at the international level

seek to disassociate themselves.1 Because of the high level of unanimity on its wrongfulness,

activating the ICC’s jurisdiction over the crime was the most important piece of “unfinished

business” from the Rome Diplomatic Conference.2

During the Rome negotiations, the state parties to the Rome Statute of the International

Criminal Court (the "Rome Statute") agreed to include aggression as one of the crimes over

which the Court would have jurisdiction.3 Article 5 (2) of the Statute however provided that

this jurisdiction would only be exercised upon the adoption, in accordance with the Statute, of

a provision defining the crime and setting out the conditions for exercise of jurisdiction.4 This

decision was taken because while the majority of the state parties agreed that the crime should

be included in the Statute, they still could not find common ground on its definition.5

In June 2010, the first ICC Review Conference6 held in Kampala, Uganda led to the adoption

of what are today referred to as the “Kampala Amendments” which, among others, defined

the crime of aggression. Article 8bis 1 of the Rome Statute now provides as follows,

“For the purpose of this Statute, “crime of aggression” means the planning, preparation, initiation or

execution, by a person in a position effectively to exercise control over or to direct the political or

1 P. Wilson, Aggression, Crime and International Security: Moral, political and legal dimensions of

international relations 3 (2009) 2 R. S. Clark, Amendments to the Rome Statute of the International Criminal Court Considered at the

first Review Conference on the Court, Kampala, 31 May-11 June 2010, 2 GoJIL (2010) 689, at 692

(2010) 3Rome Statute of the International Criminal Court, (as at 16 January 2002), Article 5 (1) (d) found at

http://www.icrc.org/ihl.nsf/385ec082b509e76c41256739003e636d/fb2c5995d7cbf846412566900039e

535?OpenDocument 4Id. Article 5 (2): “The Court shall exercise jurisdiction over the crime of aggression once a provision

is adopted in accordance with Articles 121 and 123 defining the crime and setting out the conditions

under which the Court shall exercise jurisdiction with respect to this crime. Such a provision shall be

consistent with the relevant provisions of the Charter of the United Nations.” 5 E. Wilmshurst, The Crime of Aggression: Custom, Treaty and Prospects for International

Prosecution in I. Buffard, J. Crawford, A. Pellet (Eds.), International Law between Universalism and

Fragmentation: Festschrift in Honour of Gerhard Hafner, 603 at 608 (2008) 6 The Review Conference is a special meeting of the ICC state parties at which they take stock of the

Rome Statute’s implementation and impact in the areas of complementarity, cooperation, peace and

justice, and victims and affected communities, as well as consider amendments to the Statute, See

ICTJ, The Rome Statute Review Conference, found at https://www.ictj.org/rome-statute-review-

conference

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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.”7

Article 8bis 2 of the Statute specifically defines an act of aggression to 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.8 It

further stipulates that “any of the following acts, regardless of a declaration of war, in

accordance with UNGA Resolution 3314 of 14 December 1974, qualify as acts of aggression:

a) The invasion or attack by the armed forces of a State of the territory of another State, or any

military occupation, however temporary, resulting from such invasion or attack, or any

annexation by the use of force of the territory of another State or part thereof;

b) Bombardment by the armed forces of a State against the territory of another State or the use of

any weapons by a State against the territory of another State;

c) The blockade of the ports or coasts of a State by the armed forces of another State;

d) An attack by the armed forces of a State on the land, sea or air forces, or marine and air fleets

of another State;

e) The use of armed forces of one State which are within the territory of another State with the

agreement of the receiving State, in contravention of the conditions provided for in the

agreement or any extension of their presence in such territory beyond the termination of the

agreement;

f) The action of a State in allowing its territory, which it has placed at the disposal of another

State, to be used by that other State for perpetrating an act of aggression against a third State;

and

g) The sending by or on behalf of a State of armed bands, groups, irregulars or mercenaries,

which carry out acts of armed force against another State of such gravity as to amount to the

acts mentioned in this provision, or its substantial involvement therein. ”

7 Rome Statute of the International Criminal Court, (as at 2011) found at http://www.icc-

cpi.int/nr/rdonlyres/add16852-aee9-4757-abe7-9cdc7cf02886/283503/romestatuteng1.pdf 8 Id.

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Many proponents of these amendments speak of them with a sense of legal euphoria and

accomplishment.9 The decision to criminalize acts of aggression is seen as an important step

towards ending the impunity that has long shadowed the illegal use of inter-State armed

violence.10

Some NGOs, despite lacking an official position on the amendments because of the

complexity of the discussions, still described their adoption as a delivery on the promise of a

“fair, effective and independent Court.”11 This is however debatable given the political nature

of the crime of aggression which may in the long run place the Court in a controversial

position. One scholar argues that States may take advantage of the Court’s jurisdiction over

the crime to seek favorable solutions to foreign relation matters which may prompt the Court

to exhaust its resources in an attempt to understand the causes and motives of war as opposed

to prosecuting those individuals committing international crimes.12

The other aspect that may diminish the capacity of the Kampala amendments to address the

impunity gap lies in the definition of the crime itself.

II. Problem Statement

The definition of the crime of aggression reached in Kampala does not suit the conflict

realities of the Great Lakes Region which is largely characterized by non-international armed

conflicts. The relevance of the definition will be challenged in light of the following tenets of

conflict in the region: a) the high number of armed groups embroiled in conflict b) the uphill

task of establishing links between State and Non-State actors and c) the regular occurrence of

situations of grave human rights violations in the region which necessitate the intervention of

States in each other’s affairs.

To support these conclusions, this thesis looks at past and ongoing events that stand at the

epicenter of conflict in the region, to wit, the Lord’s Resistance Army (LRA) insurgency,

9 See for example a speech delivered on behalf of the UN Secretary General, by Zachary Muburi-

Muita, Head of the United Nations Office to the African Union, at a workshop on the ratification and

implementation of the Kampala Amendments to the Rome Statute. The Secretary General refers to the

agreement reached at the Review Conference on the definition of the crime of aggression as a pivotal

moment in international law. Find at http://www.un.org/News/Press/docs//2013/sgsm14942.doc.htm 10 C. McDougall, The Crime of Aggression under the Rome Statute of the International Criminal Court,

1 (2013) 11 CICC, Delivering on the promise of a fair, effective and independent Court-The crime of

Aggression, Found at http://www.iccnow.org/?mod=aggression 12 S. N. Haskos, An Argument for the Deletion of the Crime of Aggression from the Rome Statute of

the International Criminal Court, 23 Pace International Law Review 249, at 27 (2011)

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allegations of Ugandan and Rwandan support for the “M23” armed group operating in the

DRC and the Sudan-LRA relationship and lastly, the 1979 intervention of Tanzanian forces in

Uganda that led to the ousting of President Idi Amin Dada, a notorious dictator and the recent

consensual intervention of Uganda in Southern Sudan on humanitarian grounds. These

different case studies are analyzed alongside other incidents of possible aggression that have

occurred in the region.

III. The Great Lakes Region

The Great Lakes region is located in the Central and Eastern parts of Africa and is in the

strictest sense, made up of the following countries: Uganda, Rwanda, Burundi, Tanzania and

the DRC.13 A more expansive composition of the region based on the membership of the

International Conference on the Great Lakes Region, an intergovernmental organization also

includes Angola, Central African Republic, Kenya, South Sudan, Sudan and Zambia.14 For

purposes of this study, due consideration shall be given to each of these states because it is

within this wider framework that one can have a clear understanding of the conflict linkages

in the region and also properly assess the regional efforts undertaken to deal with aggressive

acts.

IV. Typology of Conflict in the Great Lakes Region

The Great Lakes region is characterized by complex conflict dynamics involving numerous

and interlinked regional and international actors.15 This partly explains why the conflicts in

the region expand geographically16 from one country to another at a relatively fast pace. The

Great Lakes Region is therefore a hub of political instability, armed conflict, humanitarian

crisis and other potentially destabilizing factors17 which all have implications on the crime of

aggression.

13 E. Mabiengwa Naniuzeyi, Resolving the Conflict in the Great Lakes Region: The Role of the

International Community, in C. H. Grant & R. M. Kirton (eds.) Governance, Conflict Analysis and

Conflict Resolution, 287 14 International Conference on the Great Lakes Region, Background, Who We Are, found at

www.icglr.org/index.php/en/background 15 P. Kameri-Mbote, International Environmental Law Research Centre, Environment and Conflict

Linkages in the Great Lakes Region, IELC Working Paper 2005-6, 3 16 Id. P. Mbote, 3 17 UN Department of Political Affairs, Great Lakes Region, found at

www.un.org/wcm/content/site/undpa/main/activities_by_region/africa/pid/24261

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V. Thesis Structure

Chapter One traces the background of the crime of aggression with particular emphasis on

understanding the contribution African States have made to the development of the crime at

different negotiation stages.

Chapter Two provides an overview and analysis of the different African regional and sub-

regional instruments on non-aggression that have been enacted to date and the extent to which

they differ from the 2010 Kampala Amendments.

Chapter Three analyzes the relevance of the Kampala definition of aggression in light of

select conflict case studies in the Great Lakes region such as the LRA insurgency, alleged

state support for armed groups by Uganda, Rwanda and Sudan, the 1979 Tanzanian

intervention of Uganda and the recent deployment of UPDF soldiers in South Sudan on

humanitarian grounds.

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CHAPTER 1

THE CONTRIBUTION OF AFRICAN STATES TO THE DEVELOPMENT OF THE

CRIME OF AGGRESSION

1.1 Relevance of the Aggression Discourse to African States

In the period following the passing of the Friendly Relations Declaration and Resolution 3314,

the United Nations Security Council (“UNSC”)18 and United Nations General Assembly

(“UNGA”) adopted numerous resolutions condemning acts of aggression particularly on the

African continent. The UNSC for example adopted resolutions condemning acts of aggression

committed by Southern Rhodesia (present day Zimbabwe) against Angola, Botswana,

Mozambique and Zambia.19It also condemned acts of aggression committed by South Africa

against Angola, Botswana, Lesotho, Seychelles and other States in Southern Africa.20 The

UNGA also adopted a series of resolutions condemning South Africa for its occupation of

Namibia as an act of aggression and its use of the territory of Namibia to commit aggression

against other independent African States.21

Africa’s courtship with conflict is, therefore, often fronted to justify why African States must

be at the forefront of ratifying the Kampala amendments on the crime of aggression.

According to the Global Institute for the Prevention of Aggression22, prior to and at the 1998

Rome Diplomatic Conference that led to the adoption of the Rome Statute, many African

States advocated for the inclusion of the crime of aggression on account of their historic

experience with multiple inter-state conflicts and colonization.23

18 UNSC Resolution 573 (1985) of 4 October 1985, UNSC Resolution 611 (1988) of 25 April 1988,

UNSC Resolutions 387 (1976) of 31 March 1976 and 546 (1984) of 6 January 1984 19 United Nations, Historical Review of Developments Relating to Aggression, 225 (2003) 20 Id., 229 citing UNSC Resolution 455 (1979) and UNSC Resolution 466 (1980) 21 Id., 242 (2003) 22 Seehttp://crimeofaggression.info/the-campaign/the-global-institute-for-the-prevention-of-aggression/

for information on this organization: I is a network of interested parties involved in furthering dialogue

and sharing information aimed at advancing the goal of criminalizing the illegal use of force 23 See Global Institute for the Prevention of Aggression, Preventing Aggression in the African Context,

Found at http://crimeofaggression.info/documents/8/Bots_Aggression_in_Africa.pdf

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Suffice to note that African States played a critical role before and during the Rome Statute

negotiations, which culminated in the establishment of the ICC. 24 A fact-sheet on the

participation of African states in this process reveals that countries like South Africa, Senegal,

Lesotho, Malawi and Tanzania participated in discussions regarding the creation of an ICC as

early as 1993 when the ILC presented a draft ICC statute to the UNGA for consideration.25 47

African states were also present for the drafting of the Rome Statute at the Rome Conference

in July 1998; many of them were also members of the Like-Minded Group that pushed for

adoption of the final Statute.26 Furthermore, of these African states involved in drafting the

Statute, the vast majority voted in favour of its adoption and the establishment of the ICC.27

With regard to the Kampala Amendments, Botswana is the only African State Party so far that

has ratified them28 bringing the total number of States that have ratified the amendments to

13.29

It is evident that African States have not shown the same level of enthusiasm for ratification

of the amendments as they did at the time of the Rome Statute adoption. According to Stefan

Barriga, an active participant in the negotiations leading up to the Kampala amendments, this

may be attributed to the current difficult relationship between Africa and the ICC30; African

24 D. Akande, M. du Plessis & C. C. Jalloh, Position paper: An African expert study on the African

Union concerns about article 16 of the Rome Statute, 7, 2010 Institute for Security Studies Found at

http://www.elac.ox.ac.uk/downloads/AkandeDuPlessisJallohICCPositionPaper.pdf 25 Coalition for the International Criminal Court, Africa and the International Criminal Court, Found at

http://www.iccnow.org/documents/Africa_and_the_ICC.pdf 26 Id. 27 Id. 28

Press Release: 10/06/2013, Botswana and Germany ratify amendments on the crime of aggression

and Article 8” ICC-ASP-20130610-PR 916 Found at http://www.icc-

cpi.int/en_menus/icc/press%20and%20media/press%20releases/Pages/pr916.aspx 29

The Global Campaign for Ratification and Implementation of the Kampala Amendments on the

Crime of Aggression, Status of Ratification and Implementation of the Kampala Amendments on the

Crime of Aggression, Update No. 10 (Information as of 20 March 2014) Found at

http://crimeofaggression.info/the-role-of-states/status-of-ratification-and-implementation/ 30

See African Union, Decision on Africa’s Relationship with the ICC, Ext/Assembly/AU/Dec.1 (Oct.

2013) in which the AU reiterated its concern on the politicization and misuse of indictments against

African leaders by the ICC as well as unprecedented indictments of and proceedings against the sitting

President and Deputy President of Kenya in light of the recent developments in the country.

Consequently, it was decided, among others, “that to safeguard the constitutional order, stability and,

integrity of member states, no charges shall be commenced or continued before any International

Court or Tribunal against any serving AU Head of State or Government or anybody acting or entitled

to act in such a capacity during their term of office.” Found at

http://summits.au.int/en/sites/default/files/Ext%20Assembly%20AU%20Dec%20&%20Decl%20_E.p

df

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states actively involved in criticizing the ICC may not be too eager to ratify the amendments

because doing so would be a sign of support for the Court and the Rome Statute.31

Non-ratification of the amendments by countries such as DRC and Uganda on the other hand,

could be due to the relevance of the amendments—in cases where there are some delicate

relationships that have involved past uses of force across borders, any efforts to ratify may be

perceived as accusing neighboring countries of committing acts of aggression and, therefore,

in such instances, ratification of the amendments becomes a politically sensitive matter whose

pros and cons must be weighed carefully. 32

Barriga further posits that overall, perhaps the most important reason why African States have

not been eager to ratify the amendments is because many of them have to set strong priorities

in terms of what they do in international law and in the ratification of treaties and

unfortunately, ratifying the amendments may not appear to be a big priority because it has no

particular immediate positive impact for many of the countries other than showing support for

the ICC.33

Although the ratification process is still slow on the African continent, it is important to

analyze the contribution of African states to the development of the crime of aggression in

order to contextualize the discussion on its relevance to African States.

1.2 Participation of African States in Early Discussions on Aggression

During the initial stages, discussions on aggression were mainly dominated by the West with

occasional participation by some African states. The Kellog-Briand Pact of 1928 for example

was ratified by 15 States that included the Union of South Africa (present-day Republic of

South Africa) and major powers such as the USA, France, Germany and Great Britain. The

parties to this Pact condemned recourse to war as a solution to international controversies and

also renounced it as a national policy instrument in their relations with one another.

Deliberations on aggression later re-emerged in the closing days of World War II in which

many African states had participated as proxies of Western States. The Nuremberg trials

which followed marked a new era of international justice with the emergence of individual

criminal responsibility for “crimes against peace”, a term previously used to describe the

31 Discussion via Skype held on July 8, 2014 with Mr. Stefan Barriga, Deputy Permanent

Representative of Liechtenstein to the United Nations 32 Id. 33 Id.

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crime of aggression. Article 6 of the London Charter establishing the Tribunal conferred

powers on it to try and punish persons, who, “while acting in the interests of the European

Axis countries, whether as individuals or as members of organizations, committed among

others, crimes against peace namely planning, preparing, initiating 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 other

crimes.” It has been argued that these crimes were included in the Charter despite doubts as to

their existence under international law.

In 1945, 51 States which included four African countries, that is, Egypt, Ethiopia and Liberia

and the Union of South Africa enacted the UN Charter, which outlawed the use of force by

states against each other under Article 2 (4). Therein, all member states were called upon to

“refrain in their international relations from the threat or use of force against the territorial

integrity or political independence of any state, or in any other manner inconsistent with the

purposes of the United Nations”.

Article 2 (4) has since crystallized into a rule of custom having jus cogens character. Any

treaty that conflicts with a rule of such character is void.34 In the well-known dictum in the

Barcelona Traction Case, it was further asserted that the outlawing of acts of aggression in

contemporary international law also constitutes an obligation erga omnes 35 , that is, an

obligation a state owes the international community as a whole and in which all states have a

legal interest in case of breach.

1.3 Participation of African States in Resolution 3314 Negotiations

The 1974 definition of aggression under Resolution 3314 marked a watershed moment in the

aggression discourse.36 A number of African States were members of the Special Committee

on the Question of Defining Aggression established by the UNGA which was tasked with

developing this resolution. 37

34 Vienna Convention on the Law of Treaties (1969), Article 53 35 Case concerning the Barcelona Traction Light and Power Company Limited, Second Phase,

Judgement of 5 February 1970, ICJ Reports (1970), para. 3, at p. 32 36 N. Weisbord, Prosecuting Aggression, 49 Harvard International Law Journal 161, at 168 (2008)1

37 Member States of the Special Committee on the Question of Defining Aggression at its 1968

Session included Algeria, Egypt, Ghana, Madagascar, Sierra Leone, Sudan, Uganda and Zaire (now

DRC): Report of the Special Committee on the Question of Defining Aggression, 11 March-12 April

15

During the negotiations, the Ghanaian representative noted that agreement on a definition of

aggression was one way of discouraging potential aggressors.38 Algeria on the other hand was

more interested in finding a precise definition of aggression which would exclude subjective

and vague notions such as that of intent. 39 This argument is still relevant today particularly in

light of debates on the concept of humanitarian intervention vis-a-vis the crime of aggression.

Countries like Egypt were optimistic about finding a definition of aggression and argued that

this was essential for small countries of the third world which had suffered from colonialism

and sought to strengthen a world order which would be based on the respect of the

sovereignty, territorial integrity, and political independence of all States.40 This view lays

sound basis for exploring the extent to which the definition adopted in Kampala is relevant to

the Great Lakes Region. Those in support of the amendments have not delved into empirical

questions such as their applicability to the African context. The largely intra-state rather than

inter-state nature of conflicts experienced by different African countries41 should inform the

decisions of African governments to ratify or decline to ratify the amendments.

Although African regional instruments do not appear to have featured prominently in the

discussions, on one occasion, Ghana looked at the implication certain principles of the

Organization of African Unity (now AU) on self-determination would have on the aggression

discussion since according to the UN Charter, dependent peoples aiming at self-determination

had the right to be supported by independent African States.42 It was suggested that the

relationship between this provision and the definition of aggression was important since the

1974, General Assembly Official Records: Twenty-Ninth Session Supplement No. 19 (A/9619),

United Nations, New York, 1974, 2, Para. 2 38 Special Committee on the Question of Defining Aggression, Third Session, Volume II, Summary

Records of the Sixty-Seventh to Seventy-Eighth Meeting held at the Palais des Nations, Geneva from

30 July to 14 August 1970, 79 Summary Record of the seventy-second Meeting held on Thursday, 6th

August 1970 at 10.25am:A/AC. 134/SR. 72 39Special Committee on the Question of Defining Aggression, Sixth Session, Volume II, Summary

Records of the One Hundredth to One Hundred and ninth Meeting held at the Palais des Nations,

Geneva from 25 April to 30 May 1973, 31 Summary of the Record of the One Hundred and Seventh

Meeting held on Monday, 28 May 1973, at 3.30pm, A/AC.134/SR.107: 40 Summary of the Record of the Ninety-Sixth Meeting held on Wednesday, 1 March 1972, at 4.5am,

A/AC.134/SR.96, 55 41 J. Cilliers & J. Schunemann (Institute of Security Studies), The Future of Intrastate conflict in

Africa-More Violence or Greater Peace?, ISS Paper 246, May 2013 at 2 note that civil or internal wars

remain the dominant form of conflict in Africa Found at

http://www.issafrica.org/uploads/Paper246.pdf(last accessed on January 4, 2014) 42 Special Committee on the Question of Defining Aggression, Third Session, Volume II, Summary

Records of the Sixty-Seventh to Seventy-Eighth Meeting held at the Palais des Nations, Geneva from

30 July to 14 August 1970, 97 Summary Record of the seventy-third Meeting held on Thursday, 6th

August 1970 at 320pm:A/AC. 134/SR. 73

16

definition adopted could be misinterpreted to mean that a State which gave its support to a

dependent people would be taken to be indirectly supporting aggression; for this reason, it

was proposed that the definition of aggression should contain a provision which would protect

independent States which assisted dependent peoples struggling for their right of self-

determination.43 Still in relation to the question of self-determination vis-à-vis aggression,

Uganda submitted that in pursuing their struggles, dependent peoples were entitled to seek

and to receive support from other States; such support could consist of arms or personnel

would not be considered aggressive.44

Furthermore, in carrying out its mandate, the Special Committee received draft proposals

from different countries. One such proposal was submitted was by 13 countries, 3 of which

were African States, to wit, DRC, Ghana and Uganda.45 Article 2 of this proposal defined

aggression as “the use of armed force by a State against another State, including its territorial

waters or air space, or in any way affecting the territorial integrity, sovereignty, or political

independence of such State, save under the provisions of paragraph 3 which dealt with the

right to individual or collective self defence or when undertaken by or under the authority of

the Security Council.”46 Article 1 of the Draft proposal by the Union of Soviet Socialist

Republics on the other hand, simply defined armed aggression (direct or indirect) as the use

by a State, first, of armed force against another State contrary to the purposes, principles ad

provisions of the Charter of the United Nations.47

Article 5 of the draft proposal by the 13 countries further listed the following acts of

aggression: “declaration of war by one State against another State; the invasion or attack by

the armed forces of a state against the territories of another State, or any military occupation,

however temporary, or any forcible annexation of the territory of another State or part thereof;

bombardment by the armed forces of a State against the territory of another State, or the use

of any weapons, particularly weapons of mass destruction, by a State against the territory of

43 Id. 44 Id., 93 45Report of the Special Committee on the Question of Defining Aggression, 24 February-3 April 1969,

General Assembly Official Records: Twenty-Fourth Session Supplement No. 20 (A/7620), United

Nations, New York 1969, para. 8, pg. 4 46Id., para. 10, pg. 7 47 Id., para. 9 at 5

17

another State; the blockade of the coasts or ports of State by the armed forces of another

State.”48

During the negotiations, the acts of non-state actors were only looked at from the state-based

support angle. For example, Article 2 C. of the Soviet Union Proposal categorized the use by

a State of armed force by sending armed bands, mercenaries, terrorists or saboteurs to the

territory of another State and engagement in other forms of subversive activity involving the

use of armed force with the aim of promoting an internal upheaval in another State or a

reversal of policy in favour of the aggressor, as an act of indirect aggression.49 On the other

hand, the 13 countries’ proposal under Article 7 merely provided that when a State was a

victim of subversive acts by irregular, volunteer or armed bands organized or supported by

another State, it could take all reasonable and adequate steps to safeguard its existence and its

institutions without having recourse to the right of individual or collective self-defence

against the other State under Article 1 of the Charter.50

This discussion was carried on by the ILC which was in favor of a wide definition of

aggression that included not only force used openly by one State against another but also

indirect forms of aggression such as the fomenting of civil strife by one State in another, the

arming by a State of organized bands for offensive purposes directed against another State,

and the sending of volunteers to engage in hostilities against another State.51 The concept of

indirect aggression was accepted by a fairly large number of State representatives from

Canada, China, Colombia, Dominican Republic, India, Indonesia, Iran, Lebanon, United

Kingdom, and Uruguay.52 However, Egypt disagreed with this proposal on grounds that under

the UN Charter, aggression solely consisted of an armed attack and therefore any attempt to

expand the concept of aggression beyond armed attack would be a departure from the

Charter.53

48Id. note 46 49 Id. note 47 50 Id., para 10 at 8 51 Question of defining aggression: Report by the Secretary-General, UN General Assembly, General

A/2211, 3 October 1952, para. 412, pg. 56 citing A/1858, paragraph 47 52 Id., para. 438 at 57-58 53 Id. para. 440, at 58 citing Official Records of the Third Session of the General Assembly, Part 1,

Resolution, page 74 291st Meeting, paragraph 9

18

1.4 Participation of African States in Rome Statute Negotiations leading up to the

Kampala Amendments

African States were active participants in the Rome Statute negotiations that eventually led to

the enactment of the Kampala amendments. Individual African countries however took on

divergent positions throughout the negotiations. During the Rome Conference, Morocco for

example, argued that since it was proving difficult to find a precise definition of the crime of

aggression and to agree on the role of the UNSC in its determination, it should be excluded

from the list of crimes within the Court’s competence.54 Uganda’s representative, on the other

hand, proposed that a decision on the definition of the crime be left to the Assembly of State

Parties or the Preparatory Commission.55

In later discussions, the Nigerian delegate at the Rome Conference, opined that, it was

necessary to consider aggression by armed bands against States.56 However, his proposal does

not appear to have been substantively discussed.57 Barriga explains that this suggestion was

never taken up for three important reasons:58

a) The negotiation process on the crime of aggression was already a daunting task and so

the State parties decided to follow already established legal precedents such as UNGA

resolution 3314 and the UN Charter whose definition of aggression was state-centered;

b) Some states further argued that there were already avenues available to the ICC to deal

with armed rebel groups by charging them with crimes against humanity and war

crimes and it did not therefore appear necessary to charge them with the crime of

aggression.

54 S. Barriga & C. Kreß (Eds.) The Travaux Préparatoires of the Crime of Aggression, 260 (2012) 55 Mr. Katureebe, (1998 Rome Summary Records (8 July, 3.00 p.m.) (excerpts), Id. in S. Barriga & C.

Kreß (Eds.) at 284, His comments are evidence of the high tension levels around the time of

negotiating the crime of aggression with many state parties preferring to postpone its discussion to a

more convenient time. 56 Comment by Mr. Bello (Nigeria) 1998 Rome Summary Records (8 July, 9.00 p.m.) (excerpts), 294

in S. Barriga & C. Kreß (eds.), The Travaux Preparatoires of The Crime of Aggression (2012) 57 ICC Assembly of State Parties, Informal inter-sessional meeting of the Special Working Group on

the Crime of Aggression, held at the Liechtenstein Institute on Self-Determination, Woodrow Wilson

School, Princeton University, United States, from 11 to 14 June 2007, ICC-ASP/6/SWGCA/INF.1,

Paragraph 51 Page 10 Found at http://crimeofaggression.info/documents//6/2007_Princeton.pdf (last

accessed on March 15, 2014) 58 See Barriga Skype discussion, supra note 31

19

c) The activities of armed rebel groups were to a certain extent already covered by the

definition of aggression adopted in the amendments under Article 8bis 2(g) which deal

with state support for such groups.

It is important to note that throughout the process, the preferred approach of the Arab States

and many developing countries was to define acts of aggression by referring to the acts listed

in Article 3 of GA Resolution 3314.59 The final text adopted was reflective of this idea under

Article 8bis 2.

However, at no point in the negotiations did any of the African States raise the content of their

regional instruments on aggression as an argument during the discussions despite their

existence.60 This to a certain extent may negate possible criticisms of the definition adopted in

Kampala since the African states whether deliberately or simply out of omission chose not to

bring their regional instruments to the discussion table. It appears that the AU’s most pressing

concern in relation to the crime of aggression prior to the 2010 Review Conference was more

procedural than substantive.61 The member states were against granting exclusive power to

the UNSC to make a determination on whether or not aggression had been committed before

the ICC could exercise its jurisdiction over the crime. They, therefore, proposed that other

competent UN organs such as the International Court of Justice (the "ICJ") or the UNGA be

accorded this role. While there may be merits in their recommendation to give the ICJ, an

independent international judicial organ, a role to play in the determination process, involving

the UN General Assembly would subject such determination to political rather than legal

scrutiny.

1.5 Conclusion

African States played a proactive role during the negotiations on aggression before the UNGA

and at the ICC level. It is however clear that for the most part of the discussions, the proposals

of many of the states sought to address the challenge of inter-state use of force rather than

directly address the challenge posed by non-state actors.

59 S. Barriga, “Negotiating the Amendments on the crime of aggression”, 3 at 11 in S. Barriga & C.

Kreß (eds.), The Travaux Preparatoires of The Crime of Aggression (2012) 60 See Barriga Skype discussion, supra note 31 61 African Union, Report on the Ministerial Meeting on the Rome Statute of the International Criminal

Court (ICC) [Assembly/AU/Dec. 245 (XIII)] Executive Council Sixteenth Ordinary Session 25-29

January 2010 Addis Ababa, Ethiopia, Ex. CL/568 XVI, R. 6 at Page 4 Found at

http://www.issafrica.org/anicj/uploads/16th_Ordinary_Session_of_the_EC_of_the_AU.pdf

20

CHAPTER 2

AFRICA’S CONCEPTUALIZATION OF AGGRESSION

2.1 Introduction

Like their counterparts in the rest of the world, African states recognize that aggression is an

international wrong. They have, therefore, taken steps to enact legal instruments at both

regional and sub-regional level outlawing acts of aggression. This Chapter provides an

analysis of these different instruments in light of the 2010 Kampala amendments with the aim

of establishing the extent to which they differ from these amendments and are responsive to

African conflict realities.

2.2 Aggression at the African Regional Level

The prohibition of the use or threat of use of force among member states is one of the key

principles upon which the AU functions.62 On 31 January 2005, at the Fourth Ordinary

Session of the AU Assembly, the AU adopted the African Union Non-Aggression and

Common Defence Pact. (“AU Non-Aggression Pact”). In this Pact, the member states

acknowledged the gravity of the impact of conflicts both within and among African States on

peace, security and stability in the continent and their devastating impact on socio-economic

development.63 The Pact was therefore intended to comprehensively address these challenges.

In addition, the Common African Defence and Security Policy passed in 2004 was intended to

ensure the “scrupulous respect for human rights, peaceful coexistence, non-aggression, non-

interference in the internal matters of member states, mutual respect for national sovereignty

and territorial integrity of each State.”64

62 See Article 4 (f) of the Constitutive Act of the African Union. Found at

http://www.au.int/en/sites/default/files/ConstitutiveAct_EN.pdf (last accessed on January 4, 2014) 63 Paragraph 1, African Union Non-Aggression and Common Defence Pact, 2005 64 See Section 1 of the Preamble to the Solemn Declaration on a Common African Defence and

Security Policy found at http://www.peaceau.org/uploads/declaration-cadsp-en.pdf (last accessed on

January 15, 2014) Also see Article 2 (a) of the AU Non-Aggression and Common Defence Pact found

at

http://www.au.int/en/sites/default/files/AFRICAN_UNION_NON_AGGRESSION_AND_COMMON

_DEFENCE_PACT.pdf (last accessed on January 15, 2014) which also provides that the Pact is

intended to promote peaceful co-existence in Africa, to prevent conflicts of inter-State or intra-State

nature and to ensure that disputes are resolved by peaceful means.

21

The AU Peace and Security Council has been accorded the mandate to implement the AU

Aggression Pact.65 This comes as no surprise since the Council has a role almost similar to

that of the UNSC as the vanguard of peace and security on the African continent. Having

these two parallel bodies with varied spheres of influence may have implications on the crime

of aggression in the future particularly where they adopt varied views on the occurrence of an

act of aggression.66 This issue was, however, never raised in the negotiations leading up to the

Kampala amendments.

It is important to critically analyze some of the key provisions in the African regional legal

instruments in as far as they relate to the crime of aggression. Article 5 of the AU Defence

and Security Policy, for example, provides that “…each African country’s defence is

inextricably linked to that of other African countries, as well as that of other regions and, by

the same token, that of the African continent as a whole”. This provision lays the basis for

collective security measures by the AU which are justifiable given that in many instances,

unrest in one country often quickly leads to unrest in another country. However, although it

may not have been envisaged, this provision may also be relied upon to justify an aggressive

attack by one State against another even in the absence of the required authorization of the

AU governing organs on grounds that a State is averting a crisis.

Also relevant in the aggression discourse is the right accorded to the African Union under

Article 4 (h) of the AU Constitutive Act to intervene in the territory of a member state in case

of grave circumstances, namely: war crimes, genocide and crimes against humanity67 which

will be discussed in the next chapter under the humanitarian intervention section as one of the

possible circumstances that must be taken into account prior to prosecuting the crime of

aggression. This provision and Article 4 (j) which gives AU Member States the right to

request intervention from the Union in order to restore peace and security do not mention any

requirement under Article 53 of the UN Charter for UN authorization or approval of

enforcement action.68 Their compatibility strictu sensu, with the wider international legal

framework and with the general prohibition on the use of force in international law, as

codified in Article 2 (4) of the UN Charter, is therefore doubtful.69

65 AU Non-Agression Pact, Article 9 66 Id., Article 9 67 AU Constitutive Act 2000, Article 4 (h) 68 E. Y. Omorogbe, Can the African Union Deliver Peace and Security?, 16 Journal of Conflict &

Security Law, 35-62, at 41 69 Id.

22

The above criticism although justified, reflects one of the main challenges facing African

states in the international justice discussions today, it appears that any attempts by them to

pave their own path on matters of international law are often curtailed by calls to conform to

the usual understanding of legal concepts by the rest of the world. The result is that African

States often participate in passing laws such as that on aggression which for all intents and

purposes do not suit their context.

Lastly, although it is still work in progress, the Draft Protocol on Amendments to the Protocol

on the Statute of the African Court of Justice and Human Rights70 also seeks under Article

28A (1) (14), to grant the new Court jurisdiction over state and non-starters actors who

commit the crime of aggression.

2.3 Aggression at the African Sub-regional Level

At the sub-regional level, three protocols on non-aggression have so far been adopted, to wit,

the ECOWAS Protocol on Non-Aggression 1974, the SADC Protocol on Politics, Defense

and Security Cooperation 2001 and the Great Lakes Protocol on Non-Aggression and Mutual

Defense 2006. The three protocols share a common objective of ensuring that their members

refrain from the threat or use of force or aggression or from employing any other means

inconsistent with the UN Charter and the Constitutive Act of the African Union against the

territorial integrity of political independence of other member states. 71

The Protocol on Non-Aggression and Mutual Defence in the Great Lakes Region (the "Great

Lakes Region Protocol") is the only one that provides for the criminalization of acts of

aggression. Article 3 (4) provides for an undertaking by the State parties to criminalize any

act of aggression or subversion against other States by individuals or groups operating in their

respective states.72 Article 5 (3) thus provides for the punishment of an act of aggression

70 African Union, Draft Protocol on Amendments to the Protocol on the Statute of the African Court of

Justice and Human Rights (Revisions up to Tuesday 15th May 2012), Exp/Min/IV/Rev. 7, Found at

http://africlaw.files.wordpress.com/2012/05/au-final-court-protocol-as-adopted-by-the-ministers-17-

may.pdf 71 See Article 1 of the ECOWOS Protocol on Non-Aggression, 1978 found at

http://biblioteca.clacso.edu.ar/ar/libros/iss/pdfs/ecowas/14ProtNonAggre.pdf

Also see the Preamble and Article 2 (2) (a) of the SADC Protocol on Politics, Defence and Security

Co-operation 2001 (Entry into force in 2004) Found at

http://www.sadc.int/files/3613/5292/8367/Protocol_on_Politics_Defence_and_Security20001.pdf

Also see, the Great Lakes Region Protocol on Non-Aggression and Mutual Defence in the Great Lakes

Region 2006 found at http://www.peaceau.org/uploads/protocol-nonaggression-30-11-2006.pdf 72 Id. Great Lakes Region Protocol

23

individually as an international crime against peace as set out in the regional and international

legal instruments defining such a crime.73

With the adoption of the 2010 Rome Statute amendments that provide a specific definition of

the crime of aggression, it is imperative that the provisions in both the Great Lakes Pact and

the Rome Statute are reviewed and an assessment made on the extent to which the two legal

instruments complement each other and are responsive to regional conflict challenges.

2.4 Distinguishing the Great Lakes Region and Rome Statute Approaches to the

Crime of Aggression

The Great Lakes Region Protocol criminalized acts of aggression prior to the adoption of the

2010 Kampala Amendments to the Rome Statute which had a similar effect. While the

provisions in both legal instruments share the ideals of Article 2 (4) of the UN Charter, they

have a certain degree of dissimilarity which may have fundamental legal implications.

It may be argued that the definition of the crime of aggression under the Rome Statute is more

elaborate than that in the Great Lakes Region to the extent that it specifically highlights the

actus reus of the crime of aggression, that is, “planning, preparation, initiation or

execution…”74 Inasmuch as the Great Lakes Region Protocol criminalizes aggression, the

definition of aggression provided under Article 1 (2)75 is coined from a general international

law perspective rather than a criminal one.76 The Protocol does not, therefore, contain a

detailed breakdown of the actus reus of the crime of aggression. Consequently, should a

situation arise for one to be individually tried for the crime at the regional level, Courts may

be absorbed in lengthy deliberations on this issue. It is only at that stage that the possibility of

regional Courts borrowing from Rome Statute provisions even in the face of non-ratification

73 Id. 74 Id. Rome Statute, Article 8bis (1) 75 Id. Great Lakes Protocol-Article 1 (2) defines aggression to mean “the use, intentionally or

knowingly, of armed force or any hostile act, as referred to in Article 1 (3) (g to k), perpetrated by a

State, a group of States, an organization of States or an armed group or by any foreign or external

entity, against the sovereignty, political independence, territorial integrity and human security of the

population of a Member State, contrary to the Constitutive Act of the African Union, the African

Union Non-Aggression and Common Defence Pact or the Charter of the United Nations.” 76 See M. Roscini, Neighbourhood Watch? The African Great Lakes Pact and ius ad bellum, 934 (2009)

who notes that the Great Lakes Protocol definition is modeled on that contained in Article 1 of the AU

Non-aggression and Common Defence Pact, which is in turn inspired by the well-known definition of

aggression adopted by the UN General Assembly in 1974. Find article at

http://www.zaoerv.de/69_2009/69_2009_4_a_931_960.pdf (last accessed on January 15, 2014)

24

of the same by their member States will be explored—this will possibly open up the

discussion on the customary status of the definition of aggression adopted in Kampala.

In addition, although both the Rome Statute and the Great Lakes Protocol define aggression to

mean the “use…of armed force….against the sovereignty, political independence, territorial

integrity of another state or in any other manner inconsistent with the Charter of the United

Nations”, the latter extends this prohibition to the “...use of force against the human security

of the population of a Member State”.

Despite this extension, the Protocol, does not define the term human security. However,

looking at Article 1 (k) of the AU Non-Aggression Pact, the term human security is said to

refer to the security of the individual in terms of satisfaction of his/her basic needs. It also

includes the creation of social, economic, political, environmental and cultural conditions

necessary for the survival and dignity of the individual, the protection of and respect for

human rights, good governance and the guarantee for each individual of opportunities and

choices for his/her full development.

In Roscini’s opinion, the extension of the definition to cover human security is cognizant of

the pathological weakness of the African State as an institution and its incapacity to entirely

control its territory, as well as in the pandemic corruption of the governing elites: focusing on

traditional “State security” would often mean providing protection to greedy governments,

criminals and warlords.77 He, however, argues that including human security in the definition

of aggression appears redundant and mainly emphatic since it is difficult to see how the

external uses of force and hostile acts listed in Article 1 (3) of the Protocol could be against

human security without also being against the sovereignty, political independence and

territorial integrity of the State where the population is located.78

Traditionally, states have enjoyed the exclusive right to international recognition and

personality and because of this they have been characterized as the victims of aggression to

date.79 To extend the definition of aggression to acts that affect the human security of a

population slightly waters down the position that the state is the primary victim of the crime

of aggression since it seems to centralize the population rather than the State as the victim of

an act of aggression.

77 Id., 937 78 Id. , 937-938 79 See Wilson, supra note 1, at 5

25

Another important distinction between the jus ad bellum provisions in the Rome Statute and

Great Lakes Protocol lies in their position on the actors that may be charged with aggression.

While Article 8bis 2 defines an act of aggression to mean “the use of armed force by a

State…”, the Great Lakes Protocol recognizes the illegal use of armed force by not only the

State but also armed groups. The latter thus moves away from the archaic position that the

State is the primary custodian of armed force and thus the only actor capable of committing

an act of aggression. The next Chapter will provide a detailed practical analysis of the

challenges of the State-centric definition of the crime of aggression in the Rome Statute.

Furthermore, unlike the Rome Statute, the Great Lakes Region Protocol introduces the

phenomenon of “collective commission of acts of aggression”. This is seen in the definition of

aggression under Article 1 (2) of the Protocol which provides for “the use of armed

force….perpetrated by a State, a group of States…” The provision is alive to the realities of

regional integration that provide a platform for States to pursue joint military strategies. A

group of States may, therefore, agree to illegally use force against another State. The wording

of Article 8bis would shield perpetrators acting under the umbrella of a “group of States”

against prosecution since it appears to only envisage aggression on the basis of an act of a

single State. Article 1 (2) of the Protocol would still allow for the prosecution of acts of

aggression under these unique circumstances.

According to Article 1 (3) of the Great Lakes Protocol, similar acts as those highlighted under

Article 8bis 2 of the Rome Statute are stated to constitute acts of aggression. However, this

list is expanded to include acts of espionage and technological assistance, intelligence and

training which could be used for military aggression, as well as support for the commission of

terrorist acts against a member state.80 These additions reflect in part the concerns of AU

States about espionage from more technologically advanced countries, coming from ships off

the coast or from satellites.81

The leadership requirement for the crime of aggression highlighted under Article 8bis 1 of the

Rome Statute is also of key significance to this discussion. Whereas the Great Lakes Protocol

provides for individual punishment of an act of aggression as an international crime, the

hierarchy of such an individual in the State hierarchical structure is not specified. Although,

Article 5 (3) goes on to add that “an act of aggression shall be punishable...as set out in the

80 See Wilmshurst, supra note 5, at 616 81 Id.

26

regional and international legal instruments defining such a crime”, to read the leadership

requirement of the Rome Statute for purposes of individual criminal responsibility into the

Protocol would still require the ratification of the amendments by African States or the

customary law status of the leadership clause.

27

CHAPTER 3

APPLYING THE KAMPALA DEFINITION OF AN ACT OF AGGRESSION TO

CLASSIC CONFLICT SITUATIONS IN THE GREAT LAKES REGION

3.1 Introduction

This Chapter analyzes the challenges of applying the Kampala definition of aggression in the

Great Lakes Region in light of extensive armed group activities in the region, the indirect

forms of support offered to such groups by different states and the high level of instability in

the region which makes it almost inevitable for States to intervene in each other’s territories

on humanitarian grounds.

3.2 Armed Groups: The Plight of the Great Lakes

As is commonly known, the Great Lakes Region is rife with armed rebel activities that have

led to the death and displacement of thousands of civilians. This section looks at the

challenges of applying the definition of aggression in the Great Lakes Region where armed

groups such as the LRA are embroiled in aggressive activities against states on a regular basis.

Their leaders are, however, shielded from prosecution for the crime of aggression on the basis

of the mere technicality that they are not state actors.

3.2.1 Background of the LRA

The LRA was established following the entry into power of Ugandan President Yoweri

Museveni and his National Resistance Movement (the "NRM") in 1986.82 The group sustained

an insurgency against the well organized and well-trained forces of the Government of

Uganda (the "GoU") for approximately 20 years.83 In 2004, the President of Uganda referred

the situation concerning the LRA to the Prosecutor of the then newly-established ICC.84

82 A. Vinci, Existential Motivations in the Lord’s Resistance Army’s Continuing Conflict, Studies in

Conflict & Terrorism, 30: 337-352, at 338 (2007) 83T. Allen & K. Vlassenroot in “The Lord’s Resistance Army Myth and Reality (Eds. Tim Allen &

Koen Vlassenroot), Zed Books London New York 2010, 11 84 ICC Press Release, ICC-President of Uganda refers situation concerning the Lord’s Resistance

Army (LRA) to the ICC, ICC-20040129-44, Found at http://www.icc-

cpi.int/en_menus/icc/press%20and%20media/press%20releases/2004/Pages/president%20of%20ugan

da%20refers%20situation%20concerning%20the%20lord_s%20resistance%20army%20_lra_%20to%

20the%20icc.aspx>

28

Thereafter, the ICC issued arrest warrants for Joseph Kony, the leader of the LRA and other

high-ranking commanders in the group for crimes against humanity and war crimes.85

3.2.2 The LRA vis-à-vis the Crime of Aggression

Born out of the disintegration of a large force comprised of the former Uganda National

Liberation Army soldiers organized as the Uganda People’s Democratic Army, the group

invaded Uganda from across the Sudanese border.86 Had the group commenced its operations

from within Uganda, perhaps this would not categorically constitute an act of aggression.

However, by entering Uganda from an outside territory, the group prima facie committed an

act of aggression against a sovereign nation. As has been noted by Wilson, it is the use of

armed force across state borders which distinguishes aggression from domestic, political

attacks upon the state, such as sedition, insurrection or a coup d’état.87

Many armed groups operating in the Great Lakes region often start off by confining their

activities to the geographic precincts of the State against which they are fighting. The LRA is

no exception; for a number of years, the group’s main base of operation was Northern Uganda.

However, in late 2004, it shifted its base to Uganda’s neighboring countries; DRC, Southern

Sudan and the Central African Republic.88Many reports have limited their analysis to the

impact of the group’s acts on the civilian population89 and completely ignored their effects on

the State itself which is essentially a forgotten victim of the conflict.

The external attacks conducted by the LRA against Uganda and her neighbors are aggressive

in nature to the extent that they affect State sovereignty and territorial integrity. Sovereignty,

alternatively or cumulatively denotes the ultimate power and supreme authority a State has

85 See http://www.icc-

cpi.int/en_menus/icc/situations%20and%20cases/situations/situation%20icc%200204/related%20case

s/icc%200204%200105/Pages/uganda.aspx 86 Maj. Ondoga ori Amaza, Exile in Uganda and the Road to the 1990 invasion: Implication to

Regional Peace and Security, 45 at 56 in R. Ntalindwa, The Rwandan Conflict and its implications to

the Great Lakes Region, Blakworld Ltd (1990) 87 See Wilson, supra note 1, at 5 88 The LRA in Congo, CAR and South Sudan http://www.enoughproject.org/conflicts/lra/congo-car-

south-sudan 89 In the last quota of 2014, the LRA conducted a total of 65 attacks in the Central African Republic

and the DRC and caused the displacement of almost 160,000 people in the CAR, DRC and Southern

Sudan: See OCHA, LRA Regional Update: Central African Republic, DR Congo and South Sudan

(January-March 2014) Found at

http://reliefweb.int/sites/reliefweb.int/files/resources/LRA_Regional_Update_Q1-2014-

14Apr2014_final.pdf

29

over its territory and is a pivotal principle in modern international law.90 Legitimate authority

and territoriality are important concepts in understanding sovereignty.91 The external attacks

of these sovereign nations by the LRA amount to aggressive attacks since they are carried out

in complete disregard of the principle of sovereignty. Much of the territory covered by the

LRA is outside the day-to-day control of governments in the region.92 This implies that the

LRA to a large extent exercises a certain level of control over the areas it attacks and to this

extent challenges the sovereignty of the States.

Although the motivations of the group remain unclear,93 in a 2004 interview, Kony is reported

to have said that the group was fighting for the liberation of the people living in occupied

Northern Uganda.94 From this statement, one may argue that the group’s focus is regime

change and it is therefore a stretch to claim that their acts are aggressive. To challenge this

position, it is pertinent to borrow from the English adage, “actions speak louder than

words”—whereas the group does not specifically state that its mission is to challenge the

sovereignty, territorial integrity or political independence of the victim States, in reality its

actions prove the contrary. Moreover, the calls for regime change by the LRA through armed

force may also be perceived as aggressive since they seek to change the status quo in

independent states whose people have the right to elect their leadership.

As earlier highlighted, the framers of the Kampala Amendments chose to continue with the

traditional denotation of the crime of aggression as “State to State” action rather than “Armed

Groups against State” action because of the precedent set by UNGA resolution 3314 and the

UN Charter.95 States are looked at as primary actors in the international system.96 They are

therefore portrayed as the only actors capable of committing acts of aggression against their

fellow States.

90 S. Besson, “Sovereignty” in Max Plank Encyclopedia of Public International Law, Last updated in

April 2011 Found at

http://opil.ouplaw.com.ezproxy.leidenuniv.nl:2048/view/10.1093/law:epil/9780199231690/law-

9780199231690-e1472?rskey=yL8ITN&result=1&prd=EPIL 91 J. S. Barkin & B. Cronin, The State and the Nation: Changing norms and the rules of sovereignty in

international relations, International Organization Vol. 48 Issue 01, December 1994, 107-130 at 107 92 A. Le Sage, Countering the Lord’s Resistance Army in Central Africa, 1, Found at

http://www.isn.ethz.ch/Digital-Library/Publications/Detail/?lng=en&id=134652 93 A. Vinci, Existential Motivations in the Lord’s Resistance Army’s Continuing Conflict, Studies in

Conflict & Terrorism, 30: 337-352, 2007, 342 94 F. Nyakairu, Ugandan rebel leader reveals all in interview, Daily Monitor, Frank Nyakairu, 15

April 2004, Found at http://www.sudantribune.com/spip.php?article2504 (Note that the interviewer

was not named but merely described as a former bodyguard of the rebel leader) 95 See Barriga Skype discussion, supra note 31 96 G. Kemp, Individual Criminal Liability for the International Crime of Aggression ,9 (2010)

30

The State-centered approach however does not reflect the realities of contemporary armed

conflicts that involve strong networks of non-state actors.97 The operations of the LRA for

example prove the contrary— the group has thus far managed to sustain and regionalize a

previously domestic conflict since 1986. It has managed to do this partly through the support

of the Sudan Government which has on different occasions supplied it with new weapons and

equipment and allowed it to establish bases in Sudan, in exchange for its support for Sudan’s

war against its own insurgency in southern Sudan.98 The group has also reorganized its

leadership and overall structure and adjusted its tactics to offset the improved performance of

the Ugandan military. 99The extensive external support given to the LRA and its highly

organized internal structure defeats the notion that such groups lack the capacity to commit

acts of aggression against States.

One of the other arguments that has been put across to support the exclusion of armed groups

from the Kampala amendments is that doing so may affect the right of persons under

“occupation, apartheid and alien domination to use armed force against a suppressive

regime.”100 However, this argument would allow leaders of armed groups such as the LRA

whose objectives cannot be properly placed in this category to escape legal responsibility for

acts of aggression.

The LRA’s activities evidence a paradigm shift which the State parties to the Rome Statute

ought to have taken into account prior to concluding the definition of the crime of aggression.

Scholars continue to criticize them for failing to utilize the opportunity to shape international

law while taking into account the exponential increase in the number of civil wars over the

years.101 To this extent, the unique definition of aggression in the Great Lakes Region

Protocol is commendable because it allows for armed groups such as the LRA to be tried for

acts of aggression.

97 A. T. Boas, The Definition of the Crime of Aggression and its relevance for contemporary armed

conflict, ICD Brief 1 June 2013,3 98 Vinci, supra note 82, at 339 99 International Crisis Group, “Shock Therapy for Northern Uganda’s Peace Process,” 2 Found at

http://www.crisisgroup.org/~/media/Files/africa/horn-of-

africa/uganda/Shock%20Therapy%20for%20Northern%20Ugandas%20Peace%20Process.pdf 100 Liaquat Ali Khan, Legal Commentary: The Changing Right of Armed Struggle, BALT. CHRON.

& SENTINEL (Sept. 16, 2005) Found at <www.baltimorechronicle.com/2005/091605AliKhan.shtml> 101 S. Beytenbrod, Defining Aggression: An Opportunity to Curtail the Criminal Activities of Non-

State Actors, Brooklyn Journal of International Law, 2011 (Vol. 36: 2), 647 at 658

31

3.3 Establishing Links between States and Armed Groups

As has been emphasized in various sections of this thesis, in recent years there has been an

increase in the number of internationalized intra-state conflicts, that is, those in which one

State supports a party to the conflict.102 Such involvement has led to an increase in the

casualty rates and also prolonged conflicts.103

States in the Great Lakes Region constantly accuse each other of supporting armed groups

operating within their territories. Uganda has on numerous occasions blamed its neighboring

countries for harboring dissidents opposed to its Government, and provided evidence to prove

that the governments were actually aiding and abetting the activities of the dissidents in

question.104 The neighboring countries in turn have accused Uganda of supporting dissidents

opposed to their Governments. Sudan, for example, accused Uganda of supporting the SPLA,

an armed rebel group that waged war against it.105 Kenya was also convinced that the NRM

government of Uganda was training Kenyan youth to overthrow its Government through

armed force in collaboration with Libya, while Zaire (now DRC) saw Kampala as the force

behind the PLC, an armed Zairian dissident groups based in the Rwenzori region of Zaire.106

As earlier stated, the enumeration of acts of aggression in Article 8bis paragraph 2 hinges

upon Article 3 of Resolution 3314 of the UN General Assembly. Critical to the discussion on

conflict in the African Great Lakes Region is Article 8bis 2 (g) which qualifies as an act of

aggression “the sending by or on behalf of a State of armed bands, groups irregulars or

mercenaries, which carry out acts of armed force against another State of such gravity a to

amount to the acts listed above, or its substantial involvement therein.” The ICJ while dealing

with Article 3 (g) of Resolution 3314 which mirrors this provision noted that it was reflective

of customary international law.107

In the future, when the crime of aggression eventually comes into force, it is trite to presume

that the discourse on the crime of aggression in the African Great Lakes context will revolve

around the above provision. It is therefore, important to look at the State-Armed group

102 SIPRI Yearbook 2013: Armaments, Disarmament and International Security, 2 103 Id. 104Maj. O. ori Amaza, Exile in Uganda and the Road to the 1990 invasion: Implication to Regional

Peace and Security, 45 at 57 in R. Ntalindwa, The Rwandan Conflict and its implications to the Great

Lakes Region, Blakworld Ltd (1990) 105Id. 106Id. 107 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of

America), Merits, Judgment of 27 June 1986 (ICJ Reports, 1986) para. 195, 103

32

relationships in this region and determine whether this provision, in its current formulation,

would make it easier or perhaps an uphill task to try perpetrators of aggression.

3.3.1 State-Armed Group Relationships in the Great Lakes Region

One of the longest standing accusations of State support for an armed group in the region is

Sudan’s relationship with the LRA, a rebel group that was until around 2008 operating in

Northern Uganda killing and maiming innocent civilians.108 Support to the group by Sudan

was reported to have taken the form of military training, provision of a safe haven and supply

of weapons and other items such as food and medical supplies.109

Recent reports also indicate that Rwanda maintains its presence in the DRC through proxies

M23/CNDP.110 It is important to point out that this war is complex and characterized by the

presence of many regional and local actors including militia, paramilitary and warlords with

links to outside actors, which illustrate the globalization of the conflict and thus makes it

difficult to manage.111

In 2012, the UN Security Council expressed concern over reports that the 23 March

Movement (M23) a rebel group operating in the DRC was receiving external support such as

troop reinforcement, tactical advice and the supply of equipment causing a significant

increase in their military abilities.112 A UN report released later in the year revealed that

Rwanda and Uganda were some of the actors supporting the group. Rwanda was reported to

be behind the creation of the group and that also providing it with direct military support,

facilitating recruitment, encouraging desertions from the Congolese army and delivering

108 BBC, 30/04/2012, Ugandan Army says Sudan is backing Joseph Kony’s LRA, Found at

www.bbc.com/news/world-africa-17890432

A Uganda army colonel told the BBC that they had captured a member of the LRA who was wearing

a Sudanese uniform and carried its weapons and ammunition. 109 Paul Ronan, Michael Poffenberger and Chelsea Geyer, “Hidden in Plain Sight: Sudan’s Harboring

of the LRA in the Kafia Kingi Enclave, 2009-2013” The Resolve LRA Crisis Initiative, Invisible

Children & Enough April 2013 at Pg. 9 Found at

www.enoughproject.org/files/HiddeninPlainSight_Sudans_SupporttotheLRA_April2013.pdf 110 C. Kabemba, The Democratic Republic of Congo: The Land of Humanitarian Interventions, 140-

157, at 151 in B. Everill & J. Kaplan (eds.), The History and Practice of Humanitarian Intervention

and Aid in Africa (2013) 111 Id. 112 UN Security Council SC/10823, 20 November 2012, Security Council Adopting Resolution 2076,

Demands Immediate Withdrawal of “M23” Rebels from Key Congolese City, End To “Any and All”

Outside Support, Condemns Attacks on Civilians, Peacekeepers, Humanitarian Workers: Will

Consider Reinforcing Mission, Imposing Additional Targeted Sanctions, Found at

www.un.org/News/Press/docs/2012/sc10823.doc.htm

33

ammunition, intelligence and political advice to the group.113 It was also accused of being in

direct control of the group’s military strategy.114

The report also documented support for M23 by Uganda which provided the rebels with direct

troop reinforcements and also supported the creation and expansion of its political branch in

Kampala.115 While Rwandan troops bolstered the group militarily while it took over Goma,

Uganda provided them with logistical support. 116 The experts specifically mentioned that

they had witnessed the delivery of rain boots to the rebels at the Uganda-DR Congo border

town of Bunagana, suspected to have come from Uganda.117

The recent crisis in South Sudan where rebel groups led by former Vice President Riek

Machar have taken up arms against the Government has also brought to the fore allegations

that Sudan’s National Intelligence and Security Service is behind the supply of arms and

ammunition to the militia groups.118 South Sudan has also accused Sudan of training the

groups. 119 Additionally Sudan has also recently accused Uganda of harboring and supporting

the Sudan Revolutionary Front, an alliance of rebel groups operating in Sudan. 120

113 S. Hege, Africa Review, 17/12/2012, Rwanda schemed M23 rebellion for its benefit-UN expert,

Found at www.africareview.com/Special-Reports/Rwanda-schemed-M23-rebellion-for-its-benefit-/-

/979182/1645750/-/vi3b8fz/-/index.html 114 Al Jazeera, 17/10/2012, Uganda and Rwanda deny supporting the DRC rebels, Found at

www.aljazeera.com/news/africa/2012/10/2012101714443887755.html 115 Id. note 113 116 R. Kasasira, Uganda, Rwanda helped M23-UN Report, Daily Monitor, 05/12/2012, Found at

www.monitor.co.ug/News/National/Uganda--Rwanda-helped-M23---UN-report/-/688334/1636598/-

/105wvv7z/-/index.html 117 Id. 118 Small Arms Survey, Arms and Ammunition Tracing Desk Report Human Security Baseline

Assessment (HSBA) for Sudan and South Sudan, Weapons in service with David Yau Yau’s militia,

Joglei State, February 2013. Found at www.smallarmssurveysudan.org/fileadmin/docs/facts-

figures/arms-ammunition-tracing-desk/HSBA-Tracing-Desk-Yau-Yau-April-2013.pdf 119 Report from Sudan Tribune, 16/04/2014, Rebels were aided by foreign mercenaries in Unity state

capital, says South Sudan army, Found at reliefweb.int/report/south-sudan/rebels-were-aided-foreign-

mercenaries-unity-state-capital-says-south-sudan-army 120 Sudan Tribune, 04/05/2014, Sudan accuses Uganda of harboring rebel groups, Found at

www.sudantribune.com/spip.php?article50866

34

3.3.2 Understanding the Challenges Surrounding Article 8bis (2) (g)

The AU Non-Aggression Pact and Great Lakes Region Protocol both contain a provision that

is largely similar to Article 8bis (2) (g) of the Rome Statute.121 However, they slightly depart

from the Article by categorizing “the provision of any support to armed groups, mercenaries,

and other organized trans-national criminal groups which may carry out hostile acts against a

Member State…” as an act of aggression.

Arguments have, however, been made that by extending Article 8bis (2) (g) to also cover the

substantial involvement” of a State in the acts of armed bands, it is possible to consider other

ways through which a State may indirectly contribute to an act of aggression.122 These could

include provision of military training, a safe haven, medical and food supplies, intelligence

services et cetera to an armed group.

The reality, however, is that the term “substantial involvement” as used in the provision is

rather ambiguous and could potentially lead to the conclusion that no act of aggression has

taken place even when one has. In ordinary English language, the term “substantial” means

“of considerable importance, size, or worth” 123 while “involvement” means “the fact or

condition of being involved with or participating in something.”124

From the case studies above, it is evident that for the most part, State-supported aggressive

acts in the African Great Lakes region take the form of provision of military and other

logistical support to rebel groups rather than directly sending such groups into a neighboring

country. Applying the “substantial involvement” test could, therefore, mean that even if there

is evidence of a State training a rebel group in another country (denoting its involvement in

the group’s activities), in the grand scheme of the conflict, such action may not be as

significant to the aggressive actions of the armed group and so it may be difficult to conclude

that the State is “substantially involved” in the aggressive attacks by that group. Interpreted in

the region, it would mean that potentially, only the “M23-Rwanda” relationship would lead to

a successful aggression conviction given evidence that on top of training, financing, Rwanda

121 Article 1 (c) (viii) of the African Union Non-Aggression and Common Defence Pact and Article 1

(3) (h) of the Protocol on Non-Aggression and Mutual Defence in the Great Lakes Region 122 IntLawGrrls, Beth Van Schaack, 24/09/2009, Deconstructing Resolution 3314, Found at

www.intlawgrrls.com/2009/09/deconstructing-resolution-3314.html 123 Find at www.oxforddictionaries.com/definition/engligh/substantial 124 Find at www.oxforddictionaries.com/definition/english/involvement?q=INVOLVEMENT

35

also exercises some level of command over the rebel group and so one could rightly conclude

that even if “M23” was not sent by it, Rwanda is “substantially” involved in its actions.

Suffice to note that during UN discussions on the definition of aggression prior to the passing

of Resolution 3314, many States pushed for the extension of the content of Article 3 (g)

beyond “sending” of armed bands. Countries like Indonesia wanted the term “support” to be

included.125 The USA proposed that the definition specifically qualify as an act of aggression

“the organization of, encouragement of the organization of and offering assistance to armed

groups as well as mercenaries.” 126 Guyana like Uruguay proposed that in addition to

“sending”, “organization and supporting” should be included.127 On the other hand, African

States like Egypt proposed that this provision be categorized as a mere breach of the peace

and not aggression as such.128 Algeria, another African state proposed that the liberty to

engage in self-determination struggle should override the duty not to send armed bands in

Article 3 (g).129

It is evident that in the non-aggression protocols of African States are reflections of these

proposals since they include the “provision of any support to armed groups…” This

formulation is thus more comprehensive and in tandem with the realities of conflicts in Africa

where support to armed groups by States although subtle for strategic reasons, is still

aggressive in nature. If this definition were applied for criminal purposes, it would mean that

for example, even in instances where a State merely supplies medical items to a rebel group in

another State, a charge of aggression could ensue without necessitating the need for an

assessment on the extent to which the State is involved in the activities of the rebel group.

While Article 8bis (2) (g) could potentially allow for aggressors to slip out of the aggression

net on a mere technicality, the African definition would ensure that leaders of States are held

accountable for acts of aggression for any involvement in the activities of an armed group.

125 Report of the Special Committee on the Question of Defining Aggression, 28 GAOR, Supp. (No.

19) 7, UN Doc. A/9019 (1973) (hereinafter referred to as 1973 Report) at 22 126 1d., 23 127 Id., 24 128 J. Stone, Hopes and Loopholes in the 1974 Definition of Aggression, AJIL Vol. 71, No. 2 (April

1977), pp. 224-246 at 238 129 Id.

36

3.4 Humanitarian Intervention and the Crime of Aggression

3.4.1 Background of Humanitarian Intervention

The concept of humanitarian intervention denotes the threat or use of force across state

borders by a State (or group of States) aimed at preventing or ending widespread and grave

violations of the fundamental human rights of individuals other than its own citizens, without

the permission of the state within whose territory force is applied. 130 Humanitarian

interventions therefore seek to interfere in the internal affairs of another State.131

For actions to qualify as “humanitarian intervention”, the intervening actor must possess a

sincere and authentic humanitarian justification for interfering in the affairs of another

State.132 It is however often difficult to make this determination since in many instances,

political goals may be masked with humanitarian intentions.

Traditional international law constitutes a serious obstacle to humanitarian intervention owing

to the doctrine of state sovereignty and non-intervention in the internal affairs of other States

which has deep roots in customary international practice. 133 The right of humanitarian

intervention is therefore not recognized under customary international law.134

Article 2 (4) of the UN Charter represents a strict prohibition against the use of force in

international relations. States may only depart from this provision on the basis of Article 51

which provides for the inherent right of individual or collective self-defence which must be

authorized by the UNSC. To this extent, unilateral humanitarian intervention is not a

recognized exception to Article 2 (4).

However, the flexible and teleological approach when applied to the UN Charter may lead to

the conclusion that such intervention may be allowed. The Charter’s prohibition of the threat

or use of force when read in conjunction with the overarching human rights concerns of the

UN as recorded in several provisions of the Charter, include humanitarian intervention as a

logical extension which must to this extent be specifically provided for as an exception to the

130 J.L. Holzgrefe, Humanitarian Intervention, Cambridge 2003, p. 18 in P. Arrocha, The Never-

Ending Dilemma: Is the Unilateral Use of Force by States Legal in the Context of Humanitarian

Intervention?, Anuario Mexicano d Derecho Internacional XI-2011, 11-44 at 15 131 B. Everill & J. Kaplan, Introduction: Enduring Humanitarianisms in Africa, 1-22, at 4 in B. Everill

& J. Kaplan, The History and Practice of Humanitarian Intervention and Aid in Africa (2013) 132 Id. 133 G. Lewy, Essays on Genocide and Humanitarian Intervention (2012), 187 134 C. Burke, An Equitable Framework for Humanitarian Intervention (2013), 7

37

crime of aggression.135 For example, in the Preamble of the UN Charter, members undertake

“ to save succeeding generations from the scourge of war…to reaffirm faith in fundamental

human rights, in the dignity and worth of the human person…” In addition, under Article 1 (3)

of the UN Charter, one of the purposes of the UN is “to achieve international co-operation in

solving international problems of an economic, social, cultural or humanitarian character, and

in promoting and encouraging respect for human rights and for fundamental freedoms for all

without distinction as to race, sex, language, or religion.”

A report released by the International Commission on Intervention and State Sovereignty

(“ICISS”),136which has been referenced by the UN, also argues that on the basis of the

principle of responsibility to protect (“R2P”), a State may intervene in another’s affairs where

that state’s population is suffering serious harm, as a result of internal war, insurgency,

repression or state failure and the state in question is unwilling or unable to halt or avert it, the

principle of non-intervention yields to the international responsibility to protect.137 However,

the UN’s version of “responsibility to protect” restricts the power to use military means to the

Security Council and the General Assembly.138

3.4.2 Humanitarian Intervention vis-à-vis the Kampala Amendments

During the negotiations of the Kampala Amendments, the USA was at the forefront of

discussions to include forcible interventions to protect civilian populations as an exception to

the crime of aggression.139This exception was not provided for in the final amendments.

Article 8bis 1 simply described an act of aggression as one “which, by its character, gravity

135 Kemp, supra note 96, at 65 quoting J. Van der Vyver (Ius contra bellum), 6 136 G. Evans & M. Sahnoun, (eds), The Responsibility to Protect: Report of the International

Commission on Intervention and State Sovereignty (Ottawa, ON: International Development Research

Centre, 2001), 81, found at http://responsibilitytoprotect.org/ICISS%20Report.pdf (last accessed on

June 2, 2014) – It was established by Canada as a response to Secretary-General Kofi Annan’s

challenge to the international community to endeavor to build a new international consensus on how to

respond in the face of massive violations of human rights and humanitarian law 137 Id., 11 138 United Nations General Assembly, Draft resolution referred to the High-Level Plenary Meeting of

the General Assembly by the General Assembly at its fifty-ninth session 2005, World Summit

Outcome, September 2005, accessed June 1, 2014,

http://responsibilitytoprotect.org/world%20summit%20outcome%20doc%202005(1).pdf (last

accessed on June 2, 2014) 139 C. Kreß, S. Barriga, L. Grover & L. Von Holtzendorff, “Negotiating the Understandings on the

crime of aggression”, 81 at 95 in Stefan Barriga & Claus Kreß (eds.), The Travaux Preparatoires of

The Crime of Aggression (2012)

38

and scale, constitutes a manifest violation of the Charter of the UN Charter”140 The term

manifest was however never defined.

To clarify some of these gaps, the parties attached an annex to the amendments referred to as

“Understandings regarding the amendments to the Rome Statute of the International Criminal

Court on the Crime of Aggression.”141 The legal status of these understandings remains

unclear.142

Nevertheless, Understanding 6 and 7 are of particular relevance in any discussions regarding

the link between the crime of aggression and humanitarian intervention. Understanding 6

provides that all the circumstances of each particular case, including the gravity of the acts

concerned and their consequences must be considered prior to making a determination on

whether an act of aggression has been committed. Understanding 7 on the other hand,

provides that in establishing whether an act of aggression constitutes a manifest violation of

the UN Charter, the three components of character, gravity and scale must be sufficient to

justify a “manifest” determination and no one component can be significant enough to satisfy

the manifest standard by itself.

According to Van Schaack, the term manifest is still ambiguous; to some it refers to the

degree of legal clarity surrounding the state’s conduct; to others, it denotes some level of

seriousness (in terms of the impugned act’s scale or consequences) or willfulness.143 The

focus on “consequences” leaves room for one to argue that a military operation that may have

violated Article 2 (4) of the UN Charter as a technical matter might not be deemed to

constitute an act of aggression by virtue of the fact that it ultimately improved the situation on

the ground by protecting civilians and vulnerable groups from further attack.144

3.4.3 Humanitarian Intervention in the Great Lakes Region

One may argue that there is no strong case for requiring the specific listing of unilateral

humanitarian intervention as an exception under Article 8bis, since a liberal interpretation of

the provision itself and the understandings may already exclude it.

140 See Rome Statute, Article 8bis 1, supra note 7 141 Find at http://www.icc-cpi.int/iccdocs/asp_docs/Resolutions/RC-Res.6-ENG.pdf 142 K. Jon Heller, The Uncertain Legal Status of the Aggression Understandings, 10 JCIJ, 229-248 at

232 (2012) 143B. Van Schaack, The Crime of Aggression and Humanitarian Intervention on Behalf of Women,

International Criminal Law Review 11 (2011) 477-493, 484 144 Id., 485

39

However, looking at the Great Lakes Region, such a clear exception is necessary because of

the regular occurrence of human rights violations which necessitate the intervention of

neighboring States in each other’s affairs. In 1994 for example, Rwanda broke out into a

genocide which led to the death of approximately 800,000 people.145 In 2007, Kenya suffered

what was referred to as its “worst humanitarian crisis” since independence following the

December 30 results of a hotly-contested presidential election with opposition leader and his

supporters rejecting the declared victory of incumbent Mwai Kibaki alleging that it was the

result of election rigging.146

Furthermore, for close to eight years, Uganda was under the dictatorship of Idi Amin Dada

and was only rescued following the 1979 intervention by her neighboring country Tanzania

which fought alongside Ugandan exile forces.147 If this intervention were to take place today,

in the face of the Kampala amendments, it is highly likely that Tanzanian leaders would be

charged with the crime of aggression because their acts, although noble, constituted a direct

violation of the territorial integrity of Uganda.

The understanding 6 safeguard that all the circumstances of each particular case including the

gravity of the acts concerned and their consequences must be looked at would not entirely

favour the perpetrators because their intervention was essentially a reaction to an international

law violation of their borders following the brief annexation of their territory by Uganda.148

Additionally, because of varied interpretations on what circumstances constitute an act of

humanitarian intervention, it would be an uphill task for Tanzania to argue that because the

resultant consequences led to the ousting of a dictator, they could not lead to aggression

charges. The ICISS which is a persuasive authority on R2P matters since its reports have been

cited by the UNGA has for example, argued that an intervention of this nature would not

constitute an act of humanitarian intervention because an act of humanitarian intervention is

145 Council on Foreign Relations reporting on the UN Report of the Independent Inquiry into the

Actions of the United Nations During the 1994 Genocide in Rwanda, Found at

http://www.cfr.org/rwanda/un-report-independent-inquiry-into-actions-united-nations-during-1994-

genocide-rwanda/p24243 146 IRIN (Integrated Regional Information Networks), In-depth: Kenya’s post-election crisis, Kenya:

Introduction, Found at http://www.irinnews.org/in-depth/76116/68/kenya-s-post-election-crisis 147

Kahinda-Otafiire, Rwanda and Uganda: Post-war Prospects for Regional Peace and Security,13 at

25 in R. Ntalindwa, The Rwandan Conflict and its implications to the Great Lakes Region, Blakworld

Ltd (1990) 148 Id.

40

one which “responds to large-scale loss of life through acts such as genocide or ethnic

cleansing and not the overthrow of democratically elected governments.149

A further justification for a clear exception of unilateral humanitarian intervention under the

Rome Statute is the laxity of African regional institutions and the UN to act in the face of

humanitarian crises. For example, following Idi Amin’s overthrow, President Godfrey Binaisa

his successor criticized the UN for its failure to act throughout the human rights violations.150

In the case of Rwanda, the UNSC itself acknowledged that it failed the Rwandese people

during the 1994 genocide. 151 Uganda’s intervention in South Sudan on humanitarian

grounds,152 although not essentially aggressive because it was done with the approval of the

Government of South Sudan, further demonstrates the weaknesses of regional institutions

mandated to handle human rights violations. To date, despite IGAD’s approval of the

deployment of at least 5000 troops in January 2014, no forces have arrived in Southern Sudan

because of logistical challenges among other issues.153

Creegan rightly argues that indicting persons for the crime of aggression has negative

implications on the role of humanitarian intervention as a tool to prevent war crimes, genocide

and crimes against humanity. 154 Where they intervene on clear humanitarian grounds, States

must be able to carry out this role without the fear that this may trigger aggression charges.

The Great Lakes Region Protocol specifically provides that the prohibition of the threat or use

of force shall not impair the exercise of member states’ responsibility to protect populations

from genocide, war crimes, ethnic cleansing, crimes against humanity, and gross violations of

149 International Commission on Intervention and State Sovereignty (ICISS), The Responsibility to

Protect (Ottawa, ON: International Development Center, 2001) 150 Cited in D. Matas, No More: The Battle Against Human Rights Violations, 203 (1994, J. Kirk

Howard) 151 BBC, April 15, 2000, UN admits Rwanda Genocide Failure,

http://news.bbc.co.uk/2/hi/africa/714025.stm (last accessed on June 4, 2014) 152 Uganda Parliament Hansard, Tuesday 14 January 2014 ,2 Found at

http://www.parliament.go.ug/new/index.php/documents-and-reports/daily-hansard: The Minister of

Defence stated that the intervention was necessary for purposes of preventing potential

genocide and other atrocities against humanity. 153 Nicholas Bariyo, Uganda Calls for Urgent Deployment of Troops in South Sudan, The Wall Street

Journal, May 20, 2014, , Found at

http://online.wsj.com/news/articles/SB10001424052702304198504579573493421255118 154 E. Creegan, Justified Uses of Force and the Crime of Aggression, JCIJ 10 (2012), 59-82 at 70

41

human rights committed by, or within, a State.155 This provision, like many others in African

legal instruments, was never raised during the negotiations on the crime of aggression.

The safeguard it contains to prevent abuse is that the decision to exercise the responsibility to

protect populations must be taken collectively with due procedural notice to the Peace and

Security Council of the African Union and the Security Council of the United Nations. 156

Impliedly, failure to provide the necessary notification may be persuasive evidence of an act

of aggression. However, the inclusion of the provision in the Protocol may provide the

necessary legal cover for a State that intervenes on humanitarian grounds where international

or regional bodies delay or fail to act in the face of a crisis.

Based on the highlighted past and current experiences of the Great Lakes Region, African

States ought to have pushed for a definition that directly stipulates that a State does not

commit an act of aggression where there is reliable and persuasive proof that its acts were

prompted by a “greater good”, to wit, the need to avert a humanitarian crisis.

4. Conclusions

Harold Koh, the United States Representative present at the Kampala Review Conference is

reported to have stated as follows, “To be a success, the Review Conference must provide a

principled, workable system of international criminal justice that is consistent with existing

international law and institutions…”157

The Kampala negotiations and the amendments that resulted clearly demonstrate that the State

parties heeded this call when they enacted a definition that was in line with traditional

understandings of aggression as a “State against State” affair while ignoring the role of armed

groups in furthering aggressive acts against states. In addition, the wording of Article 8bis 2

(g) limited the circumstances under which States could be found liable for committing the

crime of aggression through armed proxies. The failure of the state parties to include a clear

exception of humanitarian intervention to the crime of aggression also spells havoc for the

future of the protection of persons from human rights violations. Ultimately, the definition

reached in Kampala does not suit the conflict realities of the Great Lakes Region which will

155 Article 4 (8) of the Great Lakes Region Protocol 156 Id. 157D. Rupiny, Radio Netherlands Worldwide, ICC states strike deal on crime of aggression, 14 June

2010, Found at www.rnw.nl/international-justice/article/icc-states-strike-deal-crime-aggression

42

have serious implications on the fight against impunity. African States will therefore have to

increasingly rely on their own mechanisms to provide long-term solutions to the conflict

challenges they face.

43

BIBLIOGRAPHY

LAWS

Charter of the United Nations (1945), 892 UNTS 119

Rome Statute of the International Criminal Court (1998), 2187 UNTS 3

Constitutive Act of the African Union, 2000

Protocol on Non-Aggression and Mutual Defence in the Great Lakes Region, 2006

African Union Non-Aggression and Common Defence Pact

Solemn Declaration on a Common African Defence and Security Policy

African Union, Draft Protocol on Amendments to the Protocol on the Statute of the African

Court of Justice and Human Rights (Revisions up to Tuesday 15th May 2012),

Exp/Min/IV/Rev. 7

ECOWOS Protocol on Non-Aggression, 1978

SADC Protocol on Politics, Defence and Security Co-operation 2001

Vienna Convention on the Law of Treaties (1969), 115 UNTS 331

CASE LAW

Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of

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Conflict Linkages in the Great Lakes Region, IELC Working Paper 2005-6

G. Kemp, Individual Criminal Liability for the International Crime of Aggression (2010)

A. Le Sage, Countering the Lord’s Resistance Army in Central Africa

E. Mabiengwa Naniuzeyi, Resolving the Conflict in the Great Lakes Region: The Role of the

International Community, in C. H. Grant & R. M. Kirton (eds.) Governance, Conflict

Analysis and Conflict Resolution

C. McDougall, The Crime of Aggression under the Rome Statute of the International Criminal

Court, 1 (2013)

R. Ntalindwa, The Rwandan Conflict and its implications to the Great Lakes Region,

Blakworld Ltd (1990)

E. Y. Omorogbe, Can the African Union Deliver Peace and Security?, 16 Journal of Conflict

& Security Law, 35-62

45

J. Stone, Hopes and Loopholes in the 1974 Definition of Aggression, AJIL Vol. 71, No. 2

(April 1977), pp. 224-246

B. Van Schaack, The Crime of Aggression and Humanitarian Intervention on Behalf of

Women, International Criminal Law Review 11 (2011) 477-493

A. Vinci, Existential Motivations in the Lord’s Resistance Army’s Continuing Conflict,

Studies in Conflict & Terrorism, 30: 337-352 (2007)

N. Weisbord, Prosecuting Aggression, 49 Harvard International Law Journal 161 (2008)

P. Wilson, Aggression, Crime and International Security: Moral, political and legal

dimensions of international relations 3 (2009)

E. Wilmshurst, The Crime of Aggression: Custom, Treaty and Prospects for International

Prosecution in I. Buffard, J. Crawford, A. Pellet (Eds.), International Law between

Universalism and Fragmentation: Festschrift in Honour of Gerhard Hafner, 603 at 608 (2008)

UN REPORTS

Question of defining aggression: Report by the Secretary-General, UN General Assembly,

General A/2211, 3 October 1952

Report of the Special Committee on the Question of Defining Aggression, 24 February-3

April 1969, General Assembly Official Records: Twenty-Fourth Session Supplement No. 20

(A/7620), United Nations, New York 1969

Special Committee on the Question of Defining Aggression, Third Session, Volume II,

Summary Records of the Sixty-Seventh to Seventy-Eighth Meeting held at the Palais des

Nations, Geneva from 30 July to 14 August 1970

Report of the Special Committee on the Question of Defining Aggression, 28 GAOR, Supp.

(No. 19) 7, UN Doc. A/9019 (1973)

Report of the Special Committee on the Question of Defining Aggression, 11 March-12 April

1974, General Assembly Official Records: Twenty-Ninth Session Supplement No. 19

(A/9619), United Nations, New York, 1974

OTHER REPORTS

International Crisis Group, “Shock Therapy for Northern Uganda’s Peace Process

Paul Ronan, Michael Poffenberger and Chelsea Geyer, “Hidden in Plain Sight: Sudan’s

Harboring of the LRA in the Kafia Kingi Enclave, 2009-2013” The Resolve LRA Crisis

Initiative, Invisible Children & Enough April 2013

46

G. Evans & M. Sahnoun, (eds), The Responsibility to Protect: Report of the International

Commission on Intervention and State Sovereignty (Ottawa, ON: International Development

Research Centre, 2001)

SIPRI Yearbook 2013: Armaments, Disarmament and International Security