CYIL 2015

THE DEFINITION OF THE CRIME OF AGGRESSION… (under such conditions, the States Parties are, somewhat paradoxically, protected against the Court’s jurisdiction over new crimes more broadly than non-States Parties). This jurisdictional scheme, namely the second sentence of article 121(5), thus provides States Parties with a certain “jurisdictional bonus” in comparison to non-states Parties, which are subjected to the Court’s jurisdiction in accordance with the general regime under article 12(2). Nevertheless, in case of the crime of aggression, this differentiation between States parties and non-States Parties is eliminated by the new article 15bis(5) described above. Interestingly, in the case of the (“Belgian”) amendments to article 8 of the Rome Statute on war crimes adopted in Kampala, the differentiation between the States Parties and non -States Parties described above should be eliminated as well (at least according to the participants of the Review Conference): the second preambular paragraph of resolution Res./RC.5, after citing the second sentence of article 121(5) of the Rome Statute, confirms “the understanding” of the Review Conference “that in respect to this amendment the same principle that applies in respect of a State Party which has not accepted the amendment applies also in respect of States that are not parties to the Statute”. Thus, according to the Review Conference, the general jurisdictional scheme provided for under article 12(2) of the Rome Statute should be amended by article 15bis(5) in case of the crime of aggression and by a mere preambular paragraph of resolution Res./RC.5 in case of the amendment to article 8. This approach raises questions concerning the compatibility of the Kampala amendments with the general law of treaties, which are dealt with below. 6. The positive understanding of article 121(5), second sentence The positive understanding of the second sentence of article 121(5) is based on the premise that, with regard to the amendments on the crime of aggression, the second sentence of article 121(5) simply does not apply. The argument goes as follows: other provisions of the Rome Statute, which are also “plain and clear” in their wording and which, unlike the second sentence of article 121(5), explicitly relate to the crime of aggression, contain an exception to the more general rule of article 121(5), second sentence. The relevant provisions are article 12(1) (“[a] State which becomes a Party to this Statute thereby accepts the jurisdiction of the Court with respect to the crimes referred to in article 5.”, i.e. the four core crimes including the crime of aggression) 22 and article 5(2) of the Rome Statute, 23 under which the Court shall exercise jurisdiction over the crime of aggression once a provision defining this crime is adopted. According to the proponents of the positive understanding, article 12(1) 22 Article 5(1) lists the crime of aggression as one of the four crimes with respect to which “the Court has jurisdiction in accordance with this Statute”. 23 Articles 12(1) and 5(2) are referred to in the first preambular paragraph of resolution Res/RC.6. The resolution concerning the amendments to the war crimes (Res./RC.5) does not contain any reference to these articles.

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