Cyprus Mail
Opinion

Turkey’s EEZ incursion an ‘act of aggression’ punishable by the ICC

The Yavuz drillship heading for block 7 last month (Photo posted by Fatih Donmez on Twitter)

Dr Kypros Chrysostomides

According to the stipulations laid down by the Montego Bay Convention on the Law of the Sea and delineated between the Republic and neighbouring countries, the incursion by Turkey, its entry into and drilling in Cyprus’ EEZ is an “act of aggression” in accordance with the UN definition and the Rome statute of the International Criminal Court (ICC).

Such definition is contained in the UN General Assembly resolution 3314 (XXIX) of 14 December, 1974. This provides in its Article 1, that ”act of aggression is …“the use of armed force by a state against the sovereignty, territorial integrity or political independence of another state”. Article 3 lists examples of acts of aggresssion “including attack by armed forces, occupation…sea blockades…” Similarly Art. 2(4) of the UN Charter prohibits the use of force or the threat of use of force against a state member of the UN, thus restricting the wanton use of force in modern international society.

The Nuremberg judgement was the starting point for the generally accepted criminalisation of waging aggressive war. This was embodied in the UN charter and nowadays in the statute of the ICC, confirming that such acts are criminal under customary international law.

In accordance with Article 5 of the Rome statute, the crime of aggression falls within its jurisdiction subject to certain conditions stipulated in its further articles. That is, if such actions are referred to the ICC prosecutor by a state party to the statute, or if it is referred to it by the UN Security Council under chapter VII of the charter, or if the prosecutor has initiated an investigation ex proprio modu, it will be examined by the ICC. Such jurisdiction is also subject to some ratione temporis conditions as provided for in articles 13 to 15 of the same statute.

The question that has to be examined in the present situation of Turkey’s incursion or violation of the Cyprus Exclusive Economic Zone, as defined by the International Convention on the Law of the Sea of 1982 and duly declared as such by the Republic of Cyprus and delineated by international agreements with neighbouring states, years before the Turkish actions, is whether it is an obvious act of aggression.

Such illegal actions do not at this stage constitute an act of war, whether declared or not. They do not constitute an armed conflict in the form of exchange of firing or land or naval military clashes. At least not yet, though the express use of force is threatened almost daily by Turkish officials including its president.  They constitute, however, at the present stage not only a “threat of use of force”.

It is worth mentioning that also “sea blockades” constitute acts of aggression in accordance with the UN Resolution Defining Aggression under its Article 1. It should be noted that 15 Turkish warships and other vessels are now around the Cyprus EEZ. Two or three Turkish drilling rigs, and two or three surveying ships are circulating in the Cyprus EEZ accompanied by warships. It should also be recalled that Turkish warships prevented ENI, duly licensed by the Republic from drilling in block 3 of Cyprus’ EEZ, with the threat of using actual force by the Turkish warships which prevented the ENI rig from approaching bloc 3. If this is not a “blockade” then I do not know what a blockade actually is. Consequently, the ICC had and has, in my opinion, under its relevant provisions clear jurisdiction to try such a crime of aggression, even before its review conference in 2010.

Now, even more, after the review conference, the new article 8 bis includes in the definition of the crime of aggression “the planning, preparation, initiation or execution by a person in a leadership position” in relation to such acts of aggression. There are many candidates for prosecution.

The statute, as amended, contains a threshold that the act of aggression must constitute a manifest violation of the UN charter, which it clearly is. This is provided, of course, that it is referred to the ICC by the Security Council, or by a state member of the convention or by the prosecutor ex proprio modu subject to certain time constraints.

Finally, as indicated in the definition of the crime derived from article 8 bis of the Rome statute, for an “act of aggression” to take place, a certain act must be initiated by an official of the state in a leadership position who may “exercise control over or who may direct the political or military action of a State”. Additionally, paragraph 2 of the aforementioned article states that an “act of aggression” entails the use of armed force by a state against the sovereignty, territorial integrity or political independence of another state. This, in turn, could imply that the actions of such state organ, who themselves will bear individual criminal responsibility, will also be attributable to the state.

Taking into consideration these findings, one could argue that the crime of aggression, as formulated in the statute, generates state responsibility as well. In such a case, the court has to also examine the state responsibility.

Dr Kypros Chrysostomides is a lawyer and former government spokesman under the presidency of Tassos Papadopoulos

 

 

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