CYIL 2015

PAVEL CABAN CYIL 6 ȍ2015Ȏ even if none of the States Parties involved in the crime (act) of aggression ratified the aggression amendments; the only exception would be the situation when the State Party as the aggressor state has lodged an opt-out declaration under article 15(bis)4. This conclusion would be based on the presumption, advanced by the supporters of the positive understanding, that under articles 12(1) and 5(2) of the Rome Statute, the States Parties already accepted the Court’s jurisdiction over the crime of aggression – thus, once the Court’s jurisdiction over the crime of aggression is activated, the only conditions for the exercise of the Court’ jurisdiction would be the fact that both states concerned are States Parties to the Rome Statute and the aggressor State Party has not opted out. 30 However, the proponents of the positive understanding do not go so far. For example according to S. Barriga, in such a scenario (if none of the States Parties involved have ratified or accepted the aggression amendments), the Court would not have jurisdiction: “if none of these States Parties have ratified the amendments, then the Court simply does not get to apply the amendments at all. In this case, the Court only gets to apply the 1998 version of the Statute …”. 31 On the other hand, according to Stefan Barriga, it is not necessary that the aggression amendments are ratified by both the aggressor State and the victim State [such an approach would, in fact, come very close to the negative understanding of article 121(5), second sentence]. Stefan Barriga suggests that, for the Court to exercise the jurisdiction, the aggression amendments must have entered into force (must have been ratified or accepted by) either for an aggressor State Party or for a victim State Party, i.e. the ratification by one of the two or more States Parties involved should be sufficient – again, unless the aggressor State Party has lodged an opt-out declaration under article 15(bis)4. He adds that such an answer “follows from the logic of article 12 of the Rome Statute to which article 15(bis)(4) refers: The amendment must have entered into force either for the State of nationality or the territorial State”. 32 Thus, in the words of S. Barriga, “the aggression amendments establish a true opt-out regime that would allow the Court to exercise jurisdiction over an aggressor State Party even if it had not ratified the amendments”. 33 However, as mentioned above, it seems that these conclusions are not based on the text of the aggression amendments and do not follow the logic of the positive understanding of the second sentence of article 121(5). 7. Conformity of the amendments with the law of treaties The amendments on the crime of aggression also raise questions concerning their conformity with the applicable rules of treaty law. According to article 40(4) of the 30 See Marko Milanović, op. cit. sub 15, p. 181, fn. 61 (“When read together with Art. 12(2), Art. 15(bis(4) could even bear the interpretation that neither the aggressor nor the victim state had to have ratified the amendments, so long as both are states parties and the aggressor has not opted out.”). 31 Stefan Barriga, op. cit. sub 1, p. 42. 32 Stefan Barriga, op. cit. sub 1, pp. 42-43. 33 Stefan Barriga, op. cit. sub 1, p. 51.

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