d) Generally unaccepted exceptions: Armed reprisals and “Uniting for Peace”

25. “Armed reprisals” and the Uniting for Peace Resolution are sometimes men- tioned as possible additional exceptions to the general prohibition to use force. This, however, is generally rejected by the international legal community. 26. Firstly, “armed reprisals” denotes the idea that one or several states can force

the cessation of grave violations of international law, such as the use of chemical weapons, by another state. Armed reprisals are explicitly prohibited in the UN General Assembly’s (UNGA) “Friendly Relations Declaration” of 1970,37 _which is deemed to generally reflect customary international law.

27. Secondly, there is the Uniting for Peace Resolution. Already in 1950, the debate arose on how to deal with a deadlocked Security Council, in particular at the time “the strategy of the Union of Soviet Socialist Republics (USSR) to block any determination by the Security Council on measures to be taken in order to protect the Republic of Korea against the aggression launched against it by military forces from North Korea”.38 _{In an attempt to bypass such a deadlock,} the General Assembly adopted Resolution 377 (V). Its main idea is that while the UN Security Council may have the “primary responsibility for the main- tenance of international peace and security”,39 _{the UN General Assembly has} a “secondary responsibility”40 _{in this area.}

28. In Section A of the resolution, it is noted that

“if the Security Council, because of lack of unanimity of the permanent members, fails to exercise its primary responsibility for the maintenance of international peace and security in any case where there appears to be a threat to the peace, breach of the peace, or act of aggression, the General Assembly

35 Kunschak, M. (2014), The role of the United Nations Security Council in the implementation of Article 4(h), in: D. Kuwali and F. Viljoen (eds.), Africa and the Responsibility to Protect: Article 4(h) of the African Union Constitutive Act, Abingdon, Routledge, 66.

36 Gray (2018), International Law and the Use of Force, 56.

37 UN General Assembly Resolution 2625 (XXV), 24 October 1970, Principle 1, para. 6. See also Art. 50 of the ILC’s 2001 Articles on State Responsibility.

38 Tomuschat, C. (2008), Uniting for Peace, introductory note, United Nations Audiovisual Library of International Law, legal.un.org/avl/ha/ufp/ufp.html.

39 UN Charter, Art. 24, para. 1.

40 Barber, R. (2019), Uniting for Peace Not Aggression: Responding to Chemical Weapons in Syria Without Breaking the Law, Journal of Conflict & Security Law, vol. 24, no. 1, 71–110, 102.

shall consider the matter immediately with a view to making appropriate recommendations to Members for collective measures, including in the case of a breach of the peace or act of aggression the use of armed force when necessary, to maintain or restore international peace and security.”41

According to the UN Charter, the General Assembly decides on “important questions […] by a two-thirds majority of the members present and voting”, which includes “recommendations with respect to the maintenance of inter- national peace and security”.42 _{Since “recommendations” are mentioned as the} only measures the UNGA can adopt here, the resolution does not go so far as to claim a concurrent right for the UNGA to authorize the use of force. II.3.e) The crime of aggression and individual criminal responsibility

29. In addition, mention should also be made of the crime of aggression, seeing in particular that the Netherlands is not only a Member of the UN, but also Party to the Rome Statute of the International Criminal Court. Originally, the ICC Statute did not include a definition of the crime of aggression, which was deferred to a later stage. In 2010, the Parties to the Rome Statute decided on a definition at the review conference in Kampala in 2010 to be included in the Statute.43

30. The newly inserted Article 8bis of the Rome Statute defines the crime of ag- gression as “the planning, preparation, initiation or execution, by a person in a position effectively to exercise control over or to direct the political or military action of a State, of an act of aggression which, by its character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations”.44 31. In 2017, the Parties to the Rome Statute adopted a resolution that the amend-

ment would not apply to states that have not ratified it.45 _{The ICC’s jurisdiction} over the crime of aggression became effective on 17 July 2018. The Netherlands ratified the amendment in September 2016. Hence, the ICC’s jurisdiction applies to the Netherlands with regard to the crime of aggression.

32. Some commentators have cautioned that the crime of aggression could have a “chilling effect” on bona fide humanitarian interventions.46 _{However, the crime} of aggression as defined in the Rome Statute operates with a high threshold,

41 UN General Assembly Resolution 377 (V), 3 November 1950, para. 1. 42 UN Charter, Art. 18, para. 2.

43 Rome Statute Review Conference, Resolution RC/Res.6, 11 June 2010. 44 ICC Statute, Art. 8bis, para. 1.

45 Assembly of State Parties to the Rome Statute, Resolution ICC-ASP/16/Res. 5, 14 December 2017. 46 See Ruys, T. (2018), Criminalizing aggression: how the future of the law on the use of force rests in the hands of the ICC, European Journal of International Law, vol. 29, no. 3, 887–917, 889 (footnote 8).

Annex E. The Legal Framework and the Contemporary Academic Debate 89 i.e., an act which “by its character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations”. These qualifications have led some authors to conclude that humanitarian intervention (assuming it is genuine, proportional, etc.) could not be considered a crime of aggression.47 Nevertheless, it should be noted that a United States proposal to that effect did not gain sufficient support at the Kampala conference.48