CYIL 2015

PAVEL CABAN CYIL 6 ȍ2015Ȏ essentially says that States Parties have already accepted the Court’s jurisdiction over the crime of aggression, which obviously contradicts article 121(5), second sentence; however, the argument continues, article 12(1) should be seen as a more concrete provision (as regards its relationship to the crime of aggression), and therefore as the lex specialis that prevails over the more general rule of article 121(5), second sentence, but only as far as amendments dealing with the crime of aggression are concerned. In accordance with this argument, article 121(5) applies to a broad range of other amendments including entirely new categories of crimes that may be added in the future or to, even minor, amendments to the definitions of crimes already contained in the Rome Statute, such as the “Belgian” amendments to the definition of war crimes that were also adopted in Kampala (but not to the crime of aggression). 24 Article 5(2) is also seen as lex specialis with regard to the second sentence of article 121(5). According to the proponents of the positive understanding, this provision indicates that the Court shall exercise jurisdiction over the crime of aggression once a provision is “adopted in accordance with articles 121 and 123” defining the crime and setting out the conditions for the exercise of the Court’s jurisdiction over this crime; thus, article 5(2) does not explicitly mention that the conditions for “the exercise of jurisdiction” over the crime of aggression include other aspects dealt with by articles 121 and 123, such as entry into force of amendments or the limitation to the Court’s jurisdiction under article 121(5), second sentence. 25 In addition, the positive understanding is based on the reference to the new provision of article 15(bis)4, which provides that the Court “may, in accordance with article 12, exercise jurisdiction over a crime of aggression, arising from an act of aggression committed by a State Party, unless that State Party has previously declared that it does not accept such jurisdiction by lodging a declaration with the Registrar” (so called opt-out declaration). The opt-out declaration under this provision can cover only the crime of aggression arising from an act of aggression committed by the State Party, not against it; in addition, according to operative paragraph 1 of the resolution RC/Res.6, the State Party may lodge such a declaration “prior to ratification or acceptance” of the aggression amendments. In this connection, the supporters of the positive understanding pose the question: if the negative understanding of the second sentence of article 121(5) were true, what would be the point of mentioning, in article 15(bis)4, that a State Party can opt-out already at a moment in time when it has not even accepted (by the deposit of the instrument of ratification or acceptance) the aggression amendments under article 121(5)? Thus, in the words of S. Barriga, “any aggressor State Party is, by default, subject to the Court’s jurisdiction. It does not have 24 Stefan Barriga, op. cit. sub 1, pp. 48-49. 25 Ibid ., p. 49. However, this proposition contradicts the wording of the operative paragraph 1 of resolution RC/Res.6, according to which the Review Conference decided “to adopt, in accordance with article 5, paragraph 2 …the amendments to the Statute … which are subject to ratification or acceptance and shall enter into force in accordance with article 121, paragraph 5 …”.

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