CYIL Vol. 7, 2016

CYIL 7 ȍ2016Ȏ PROBLEMS WITH THE INCLUSION OF AGGRESSION… the meaning of Article 15 bis, para 4. 10 This ensures the regime of the whole Rome Statute, which is fully consent-based. States Parties to this Statute have the possibility of opting-out of the Court’s jurisdiction over the crime of aggression, despite the fact that by ratifying the 1998 version of the Rome Statute they have already accepted the Court’s jurisdiction over the yet-to-be-defined crime of aggression (Article 12(1) Rome Statute). States Parties can do so by lodging a declaration with the Registrar. 3. The current conception of having recourse to force in international relations In the past, over centuries, the use of violence has been a matter of liberty, which means, free from any restriction, it was freedom of action. Up until the early 20th century the waging of war was not prohibited under international law and states could use war as a legitimate political instrument. 11 Its ending and also the end of the state of war, of belligerence, arrived with the subjugation of the adversary party and its annexation or by negotiation of a contractual form. This peace treaty has been settled directly by the belligerents after cessation of hostilities. For the first time this long lasting practice has been changed by the negotiating of peace treaties with the Central Powers to end World War I. The content of the treaty was settled by the Allied Powers (70 delegates from 27 nations participated in the negotiations), The defeated nations of Germany, Austria, and Hungary were excluded from the negotiations. The Allies declared that war would resume if the German government did not sign the treaty they had agreed to among themselves. 12 There is a widespread belief that only WorldWar II is considered as a phenomenon wholly distinct from former wars. Previous wars were actually the expression of the above mentioned liberty of action, the change in which we can already notice after the ending of World War I. It was just with this conflict that the inter-war period of stabilization of custom began. This period also produced the so called Briand- Kellogg pact, which condemns recourse to war and renounces the use of force as an instrument of national policy in international relations. 13 The treaty achieved a high 10 See Art. 15 bis – 4. 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. The withdrawal of such a declaration may be effected at any time and shall be considered by the State Party within three years. 11 See GERHARD WERLE, Principles of International Criminal Law , 2nd edition. The Hague: T.M.C. Asser. 2009, p. 476-477, para. 1312. 12 The issue is of the Treaty of Versailles; see https://en.wikipedia.org/wiki/Treaty_of_Versailles. The other Central Powers on the German side of World War I were dealt with in separate treaties. Treaty of Saint- Germain-en-Laye (1919) with Austria; Treaty of Neuilly-sur-Seine with Bulgaria; Treaty of Trianon with Hungary; Treaty of Sèvres with the Ottoman Empire. 13 See https://en.wikipedia.org/wiki/Kellogg%E2%80%93Briand_Pact. Art. I. The High Contracting Parties solemly declare in the names of their respective peoples that they condemn recourse to war for

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