CYIL 2015

THE DEFINITION OF THE CRIME OF AGGRESSION… Vienna Convention on the Law of Treaties, “[t]he amending agreement does not bind any State already a party to the treaty which does not become a party to the amending agreement; article 30, paragraph 4(b), applies in relation to such State”. Article 30, paragraph 4(b) provides that “[w]hen the parties to the later treaty do not include all the parties to the earlier one … (b) as between a State party to both treaties and a State party to only one of the treaties, the treaty to which both States are parties governs their mutual rights and obligations”. 34 Article 121(5) of the Rome Statute, which regulates the entry into force of the aggression amendments, 35 does not change this general regime provided for in the Vienna Convention on the Law of Treaties. 84 states of the then 111 States Parties participated at the Review Conference in June 2010. As described above, the general jurisdictional scheme contained in the Rome Statute has been substantially changed with regard to the crime of aggression. 36 According to article 5(2) of the Rome Statute, the States Parties agreed, in advance, with “setting out the [new] conditions under which the Court shall exercise jurisdiction” with respect to the crime of aggression. Thus, article 5(2) only envisaged that the conditions for the exercise of the Court’s jurisdiction over the crime of aggression will be different from the general jurisdictional scheme provided for in the Rome Statute as adopted in 1998: article 5(2) just expressly anticipated this process of defining the crime of aggression and “setting out” the special conditions for the exercise of jurisdiction over this crime and implicitly obliged States Parties to proceed accordingly, without any specification as to the concrete content of the definition and the amended jurisdictional scheme. In my opinion, neither this provision, nor article 12(1), can be regarded as the substitution of the consent of individual States Parties with the concrete definition of the crime and the concrete modified conditions for the exercise of the Court’s jurisdiction over the crime of aggression as adopted at the Review Conference. Therefore, the States Parties which have not accepted the aggression amendments 34 Olivier Corten, Pierre Klein (eds.): The Vienna Convention on the Law of Treaties: A Commentary, Vol. II, pp. 983-984 (commentary to article 40, paragraph 4 of the Vienna Convention: “18. Once the amending agreement comes into force, the contractual relations between States that have become parties to the amending agreement are governed by the initial treaty text as amended. The relations between States that have not adhered to the amendment continue to be governed by the initial treaty. The relations between the parties to the original treaty and the parties to the amended treaty are governed by the text of the initial unamended treaty. 19. If all the parties to the initial treaty do not become parties to the amending agreement, the consequences concerning its application are indentical to those of an agreement inter se as provided for in Article 41. Article 40 does not, in effect, demand that all parties to the initial treaty agree to the amendment as it has been formulated. This is in keeping with the international law principle according to which States cannot be bound without their consent.”). 35 See i.a. operative paragraph 1 of the resolution RC/Res.6. 36 I.a. article 15bis(5) amends article 12 paragraph 2 of the Rome Statute by excluding the Court’s jurisdiction over acts of aggression committed by third-state nationals or committed on the territory of such third states; article 15(bis)(4) allows a State Party to submit an express declaration in order to exclude the Court’s jurisdiction over acts of aggression in which it might become involved as an aggressor state. See Andreas Zimmermann, op. cit. sub 6, p. 221.

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