CYIL Vol. 5, 2014

JOSEF MRÁZEK CYIL 5 ȍ2014Ȏ they were committed after the ICC jurisdiction was fully activated (one year after the 30th ratification). Understanding 2 stipulates that the ICC does not need the consent of the states acting on the UNSC referral. In this case the ICC jurisdiction is derived from the competence of the UNSC. Nevertheless the competence of the UNSC was to some extent limited in Kampala in favour of ICC “independence”. Understanding 4 determines that the definition of the act and the crime of aggression are meant only for the purposes of the Rome Statute. This stipulation confirms the wording of Art. 8 bis. Understanding 6 reiterates main constituent elements of the 1974 Definition of Aggression, repeating that aggression is the “most serious and dangerous form of the illegal use of force”. The role of the UNSC before the ICC relating to aggression is not explicitly described in Art. 5 (2) of the Rome Statute. This Article only stipulates that the provisions on the crime of aggression should be “consistent with the relevant provisions of the Charter of the United Nations”. According to Art. 39 of the UN Charter the UNSC shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendation or decide what measures shall be taken in accordance with Art. 41 and 42 to maintain or restore international peace and security. The permanent members of the UNSC insisted that Art. 39 confers upon the UNSC exclusive competence to determine the existence of an act of aggression. This interpretation of Art. 39 had been opposed by the majority of delegations. It was argued that the UNSC has primary, but not exclusive, responsibility for maintaining international peace and security. It is not excluded that conflict may even arise here in the future between the competences of the UNSC and ICC. The question of whether the prosecution of the crime of aggression should proceed in the absence of the UNSC determination was a central issue until the end of the Kampala conference. 82 On the basis of the UNSC referrals the ICC may investigate and prosecute crimes of aggression regardless of whether the state has accepted the ICC jurisdiction or not (Art. 15 ter). Art. 15 bis provides when the ICCmay exercise jurisdiction in the absence of a UNSC referral, based on a state referral or proprio motu . Only crimes of aggression arising from acts of aggression may lead to the ICC jurisdiction even in the wake of a state referral or proprio motu investigation. With respect to a state party which has not accepted the amendment, the ICC shall not exercise its jurisdiction regarding a crime covered by the amendment when committed by that state party’s nationals or on its territory. The ICC may not exercise jurisdiction over the crime of aggression with regard to non-states parties to the Rome Statute. They are excluded both as potential aggressor and victim states. 83 Otherwise Art. 12 (3) permits non-state parties to accept the jurisdiction of the ICC on an ad hoc and case by case basis for other crimes under ICC jurisdiction. The exclusion of non-state party nationals and the opt-out possibility for states parties may occur only if there is no UNSC referral. 82 See e.g. Barriga, S. and Grover, L., A Historic Breakthrough on the Crime of Aggression, AJIL 2011, N., p. 527. 83 Handbook, supra note 75, p. 10.

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