Has Sudan Fallen Victim to the Crime of Aggression?

Dr Inas Mohamed Ahmed
Before the First World War, war was regarded as one of the principal legitimate means of settling international disputes. Wars were even classified as just or unjust, without distinguishing between whether a particular war was legally legitimate or otherwise. In all circumstances, however, war remains the painful and inseparable part of human history. The causes of war may change, but its suffering, devastation and destruction have been a common feature throughout the ages.
For this reason, scholars of international law have considered the waging and initiation of war in itself to constitute a crime with distinct characteristics that set it apart from other war crimes. The crime of aggression is the gateway to other war crimes. This was therefore emphasised by both the Nuremberg and Tokyo Tribunals in their judgments against senior German war criminals following the Second World War in 1945. Since then, aggression has come to be regarded as one of the serious international crimes warranting prosecution and punishment. Yet, remarkably, since the Nuremberg and Tokyo trials, there have been no international trials for crimes of aggression committed at the international level, despite prosecutions and sanctions for the commission of other international crimes.
The idea of prosecuting and punishing the crime of aggression was not revived until the establishment of the International Criminal Court in 1998. Its founding instrument, known as the Rome Statute, included the crime of aggression within the Court’s subject-matter jurisdiction. However, the Court’s jurisdiction over this crime remained inactive because the parties had not reached a definitive agreement on a definition of aggression.
Subsequently, the States Parties to the International Criminal Court established a definition of the crime of aggression. This took place in connection with the twentieth anniversary of the adoption of the Rome Statute of the International Criminal Court on 17 July 2018. The decision was debated in New York because of the political and legal intersections affecting its proper application.
Article 39 of the United Nations Charter assigns the Security Council responsibility for maintaining international peace and security, including determining whether an act of aggression has occurred. The Security Council has broad powers to take measures and impose sanctions to bring to an end acts of aggression committed by any state in violation of the obligations established under the United Nations Charter.
However, the veto enjoyed by the permanent members of the Security Council has weakened the Council. Anyone following the use of the veto and the powers of the Security Council will find that no guiding rules assist the Council in determining which situations constitute aggression under international law, nor are there sufficient indicative criteria to help establish the legal characterisation of situations amounting to the crime of aggression.
As a result, we find that, for example, during the forty years from 1946 to 1986, despite the armed conflicts that occurred during that period, the Security Council adopted only two resolutions invoking Article 39 concerning violations of international peace and security: the first in relation to the Korean War in 1950 and the second in relation to the Falkland Islands in 1982. The Security Council did not refer to the Soviet Union’s invasion of Afghanistan in 1979, Iraq’s invasion of Kuwait in 1990, or the United States’ invasion of Iraq in 2003. These were subsequently described as violations of peace rather than as crimes of aggression.
Historically, the archives of international law record that wars have broken out in many parts of the world. The General Assembly adopted the proposed definition without a vote through Resolution 3314 of 14 December 1974. This resolution defined aggression as the use of force by one state against another state, or against its territorial integrity or political independence. Among the principal forms of aggression identified under Resolution 3314 are the invasion or armed attack by the forces of one state upon the territory of another state; bombardment; blockade of ports; allowing another state to use armed forces stationed within its territory; and the sending of armed bands or mercenaries to carry out acts involving armed force.
The resolution is regarded as a fundamental reference in international law and in matters concerning international peace and security. The International Criminal Court also clarified, in Article 8 bis of the Rome Statute, that the crime of aggression is committed by a person who is in a position effectively to exercise control over or direct the political or military action of a state and who plans, prepares, initiates or executes an act of aggression that, by its character, gravity and scale, constitutes a manifest violation of the United Nations Charter.
Applying the foregoing to the war in Sudan, and in light of what has been established regarding the involvement of a number of states in the war against Sudan and the targeting of the safety of its citizens and the integrity of its territory through planning and financing, as well as the opening of the territories and airports of certain neighbouring states to facilitate the passage of weapons and mercenaries, and the sheltering and financing of elements of the terrorist Rapid Support Forces militia in order to prolong the war, Sudan, according to the author, possesses conclusive evidence of all this.
It therefore becomes apparent that the United Arab Emirates and those who have assisted it stand accused of committing the crime of aggression against Sudan. However, this accusation will remain suspended for as long as a veto is used in the Security Council to obstruct the course of justice. Meanwhile, calls for reform of the United Nations Charter and the Security Council, particularly regarding the veto, will continue to grow louder each day.

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