CYIL 2015

THE DEFINITION OF THE CRIME OF AGGRESSION… to establish the jurisdiction of the Court over the other three core crimes under the Rome Statute. On the other hand, in case of the crime of aggression, the link to one single non- State Party is enough to prevent the exercise of the Court’s jurisdiction, i.e. the acts of aggression involving the nationals or the territory of a non-State Party (no matter whether the non-State Party is the aggresor or the victim) are excluded from the Court’s jurisdiction over the crime of aggression. 15 The question – one of the most contentious questions concerning the aggression amendments – is whether the same regime applies also with regard to States Parties to the Rome Statute which have not ratified or accepted the amendments on the crime of aggression; in other words, the question is whether the second sentence of article 121(5) of the Rome Statute (“In respect of a State Party which has not accepted the amendment, the Court shall not exercise its jurisdiction regarding a crime covered by the amendment when committed by that State Party’s nationals or on its territory.”) should be interpreted as it stands “plain and clear”, in the same way as almost identical wording of article 15bis(5), or whether the contextual interpretation of the Rome Statute, including the aggression amendments, sets aside the second sentence of article 121(5) and enables the Court to exercise its jurisdiction also over the crimes of aggression in which the States Parties – which have not ratified or accepted the aggression amendments – are involved. In yet other words, there is a divergence between the so called “positive” and “negative” understanding or interpretation of article 121(5), second sentence, and its relationship to newly adopted article 15bis [namely article 15bis(4)]. 16 5. The negative understanding of article 121(5), second sentence Under the negative interpretation of article 121(5), second sentence, the Court is excluded from exercising its jurisdiction over the crime of aggression whenever the crime is committed by the nationals or on the territory of a State Party which has not ratified or accepted the amendments on the crime of aggression. 17 Thus, under this interpretation, for the Court to be able to exercise its jurisdiction, it is necessary that all States Parties involved in the aggession – the aggressor State (States) as well as the State (States) on whose territory (against whom) the crime (act) of agression was committed – must have ratified or accepted the aggression amendments. This means that the link to one single State Party which was involved in the aggression and has not ratified or accepted the aggression amendments would be enough to prevent the exercise of the Court’s jurisdiction over this crime. This interpetation would be analogous to the above undisputed interpretation of article 15bis(5), the wording of which is, mutatis mutandis, identical and which is concerned with the non -States 15 Stefan Barriga, op. cit. sub 1, p. 41. 16 See e.g. Marko Milanović, Aggression and Legality (Custom in Kampala), Journal of International Criminal Justice, Vol. 10, Issue 1 (March 2012), p. 179. 17 A. Zimmermann, op. cit. sub 6, p. 217.

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