Contents - Constitutional Court of Georgia

166
Michael J. Glennon
considered. Similarly, potential defenses are irrelevant in determining the existence of an act of aggression
under the SWGCA’s related definition.
The reference to “any other manner inconsistent with the Charter of the United Nations” in the
SWGCA definition seems intended to underscore the breadth of the initial definition and to achieve
the same effect as the wording of Article 2(4) of the Charter, 114 which it parallels. It is intended, in
other words, to broaden the scope of the prohibition, and not to include exceptions to the prohibition
(concerning Security Council approval or the use of defensive force). The phrase “inconsistent
with the Charter” does not modify “the use of armed force by a State against the sovereignty,
territorial integrity or political independence of another State”; to the contrary, the word “other”
indicates that these three uses of armed force are themselves inconsistent with the Charter—even
though it might turn out, upon further inquiry, that the use was defensive or authorized by the Security
Council. This interpretation is confirmed by the definition of a “crime of aggression.” As will
be seen, it is at that point that exceptions to the rule are recognized: a crime of aggression is an act
of aggression that violates the Charter.
Curiously, therefore, as defined by the SWGCA, not all acts of aggression violate the Charter. Acts
of aggression that are carried out in selfdefense and those authorized by the Security Council are
permissible. An act of aggression can therefore be lawful under the Charter even though the Charter
itself provides that one of its prime purposes is “the suppression of acts of aggression.” 115 Under
the SWGCA definition, the bombing of Baghdad in l99l would have constituted a use of armed force
against Iraqi sovereignty, and thus an act of aggression, even though it was authorized by the Security
Council. 116 Similarly, the overthrow of the Taliban government in Afghanistan by the United
States in 200l would have constituted a use of armed force against the sovereignty of Afghanistan,
and thus an act of aggression, even though it was permitted under Article 5l of the U.N. Charter. 117
In this respect, the SWGCA’s definition seems consistent with Resolution 33l4, which proclaims that
“[n]o consideration of whatever nature, whether political, economic, military or otherwise, may
serve as a justification for aggression.” 118 In the SCWGA definition, no legal consideration may serve
as a justification for aggression.
One way to evaluate whether the definitions of “act of aggression” and “crime of aggression” recommended
by the SWGCA meet the requisite legal standards of specificity and clarity is to apply the
SWGCA’s definitions to a few of the hundreds of instances in which force has been used since adoption
of the Charter. It might then be possible to determine whether the SWGCA’s definitions would
114 U.N. Charter art. 2, para. 4.
115 U.N. Charter art. l, para. l.
116 S.C. Res. 678, U.N. Doc. S/RES/678 (Nov. 29, l990).
117 The Charter in plain terms recognizes the “inherent right” of states to use armed force in response to an armed attack. U.N. Charter
art. 5l. Nowhere does it require that the attack in question come from a state. The Security Council itself on September l2, 200l seemingly
underscored its recognition of that inherent right in unanimously adopting Resolution l368, in which it “unequivocally condemn[ed]” the
previous day’s attacks as an act of “international terrorism” that was a “threat to international peace and security.” S.C. Res. l368, l,
U.N. Doc. S/RES/l368 (Sept. l2, 200l).
118 Resolution 33l4, supra note 43, Annex art. 5(l).