CYIL Vol. 6, 2015

THE DEFINITION OF THE CRIME OF AGGRESSION…

8. Conclusions From the above description it can be seen that the conditions for the exercise of jurisdiction under the aggression amendments are very complex, unclear and complicated and that to come to their satisfactory interpretation in the context of other relevant provisions of the Rome Statute is a very difficult “mission”. 37 However, it is suggested that the negative understanding of the second sentence of article 121(5), which is the major bone of contention, is more coherent and well-founded than its positive counterpart. It seems that the assertion that the States Parties agreed with the exercise of the Court’s jurisdiction over the crime of aggression as defined by the Review Conference (including the new, special jurisdictional regime applicable with regard to this crime) already by consenting to articles 12(1) and 5(2) of the Rome Statute, as adopted in 1998, is a far-fetched interpertation which is not consistent with other provisions of the Rome Statute and the general law of treaties. It is suggested that the strongest argument of the proponents of the positive understanding is the text of article 15bis(4), adopted at the Review Conference, and the fact that under the negative understanding, this provision would lose its raison d’etre . However, this provision is not able to underpin the whole “construction” of the positive understanding of article 121(5), second sentence. When interpreted contextually, it seems to be clear that article 15bis(4) does not fit into the system created by other relevant provisions of the Rome Statute. One author, after briefly listing the inconsistencies concerning article 15bis(4), concludes that “[i]n the end, one could get the impression that paragraph 4 has been hastily inserted in Article 15bis without bringing it completely in coherence with the articles dealing with the amendment procedure.” 38 It has to be admitted that the negotiation of the amendments on the crime of aggression has been a very complicated process which had to take into account not only complex legal issues, but also very sensitive political concerns of big powers, including those which are not States Parties to the Rome Statute. It is suggested that, unfortunately, this complexity and political concerns negatively influenced the final text of the amendments. It seems that the whole opt-out system contained in article 15bis(4) was included in the Rome Statute mainly to appease the big powers (whether current or future States Parties) and to provide them with an “escape plan” and extra protection against the Court’s jurisdiction over the crime of aggression. 39 As pointed out above, in addition to legal problems, the concept of the opt-out system is also questionable from the broader point of view of its legitimacy and fairness: it 37 See also Marko Milanović, op. cit. sub 15, p. 181 (“To say that the jurisdictional picture that emerges from all this is complex would be an understatement, to put it mildly”). 38 Robert Heinsch, The Crime of Aggression After Kampala: Success or Burden for the Future?, Goettingen Journal of International Law 2 (2010) 2, p. 739. 39 For more detailed analysis of the political context see Jennifer Trahan, op. cit. sub 14, p. 92-93.

75