CYIL 2015

THE UNDERSTANDINGS TO THE ROME STATUTE’S CRIME OF AGGRESSION case the ICC would be able to act from the latter date (the re-adoption decision), but it would be able to prosecute crimes that occurred already before – between the 30 th ratification plus one year and the re-adoption (and obviously also those that occurred after the re-adoption). Unlike the Definition in its amending provisions, the first and third understanding attribute the substantive effect to both conditions (re-adoption as well as one year after 30 th ratification / acceptance). The text of the amendment does not. So in case the Understandings were not considered to be binding for the ICC, the moment of substantive effect of the amendments could outrun the re-adoption decision. Such an effect is not necessarily negative. Quite the opposite; it would enable the ICC to prosecute and try crimes of aggression as of an earlier date. It is not yet clear though whether the 30 th ratification will outrun the re-adoption decision, and, even if so, whether it will be by one year or more. So far less than 30 State Parties have ratified the amendment and the re-adoption vote’s time is the year 2017 at the earliest. Anyway, all the remaining understandings do not create an interpretative problem but for the first and third, because, when read in their strict textual meaning, they are clearly inconsistent with the text of the amendment. And so the question of whether the ICC will be obliged to abide by the Understandings arises. 3. The legal value of the Understandings Kevin Heller has discussed the legal value of the Understandings quite extensively in his above-mentioned article. And so I would like to sum up some of his points for the sake of clarity of this contribution and to add several comments. There is no doubt that the Statute does not count with the Understandings and as such they are not included into article 21 RC that lists the applicable law. Neither are they mentioned anywhere else in the Statute nor in the amendments (except for annex III and short note in the preamble of the resolution of course), nor is their status dealt with within the resolution RC/Res. 6. In fact the Understandings are not a very well-known concept at all for international treaty law; they were previously only used once. 19 This single example is the United Nations Convention on Jurisdictional Immunities of States and Their Property. 20 However, not only is the Convention on Jurisdictional Immunities not in force yet, but the Understandings are a part of the proposed treaty; they are an annex to it, while the Understandings to the amendments to the Rome Statute are “only” an amendment to the resolution RC/Res. 6 and as

19 RYNGAERT, Cedric. The Understandings regarding the Amendments to the Rome Statute of the International Criminal Court on the Crime of Aggression, p. 21. 20 (United Nations) Convention on Jurisdictional Immunities of States and Their Property, UN Doc. A/ RES/59/38.

97