The yet to be implemented Article 8 bis of the Rome Statute criminalizes, as the crime of aggression, acts of aggression which by their “character, gravity and scale” constitute a “manifest violation” of the Charter of the United Nations. This article argues that Article 8 bis must be construed so as to exclude from the International Criminal Court’s jurisdiction uses of force, which are facial violations of the UN Charter, but which nonetheless comport with the principles and purposes of the Charter, such as bona fide humanitarian intervention unauthorized by the Security Council. This article examines and applies the Vienna Convention on the Law of Treaties, state practice, and opinion juris to conclude that such humanitarian intervention is not a use of force per se prohibited by Article 2(4) of the UN Charter, despite widespread belief to the contrary. Even if Article 2(4) prohibits bona fide humanitarian interventions, humanitarian interventions will not be—by their “character, gravity and scale”—“manifest” violations of the UN Charter, and therefore are not crimes within the competency of the International Criminal Court to punish.
Root, Joshua L.
"First Do No Harm: Interpreting the Crime of Aggression to Exclude Humanitarian Intervention,"
University of Baltimore Journal of International Law: Vol. 2
, Article 4.
Available at: https://scholarworks.law.ubalt.edu/ubjil/vol2/iss1/4