CYIL Vol. 6, 2015

MILAN LIPOVSKÝ CYIL 6 ȍ2015Ȏ by article 12 (2) of the Rome Statute in case of referral by the Security Council of the United Nations, as it is when other forms of referral take place. The Security Council has already used its power to refer certain situations to the International Criminal Court, while in both cases the relevant States are not State parties to the RC. 9 This understanding serves more as an express clarification of already existing principle. Similarly the fourth Understanding 10 reiterates what is already mentioned in article 10 11 of the Rome Statute and serves the purpose of separating the Rome Statute, and evaluations of legal matters regarding crimes of aggression based on this treaty, from the system of international security, as it is guaranteed by the Security Council of the UN. It is worth mentioning that there are, of course, other opinions claiming that the case-law of the ICC on the crime of aggression (and so even on jus ad bellum ) will in the end influence the existing law (system) of international security (and so as well jus ad bellum ). I have to admit that I agree with them. No doubt any interesting case-law of such an important tribunal as the ICC is will have an influence; it will be quoted and in time also relied upon. Nonetheless the question we are asking ourselves here is whether the +Understandings are in compliance with the Rome Statute, not whether the Rome Statute already claims something is not exactly possible or correct. And the understanding is in compliance with the Statute. 2.2 Possibly problematic understandings The second group of understandings might lead to a different interpretation than the Rome Statute and its amendments. However, in the end I think that it is unlikely they would. This group consists of understandings points five, six and seven . The fifth understanding 12 prevents the amendment from being interpreted in a way that would oblige any State to exercise domestic jurisdiction over acts of aggression committed by another State. This is quite a strange provision when read in connection with the whole purpose of the Rome Statute. According to article 1 RS, the jurisdiction of the ICC is complementary to the domestic jurisdictions of State Parties. The principle of complementarity is based on the presumption that States will prosecute their own nationals and other perpetrators, and only if they will be unable or unwilling to do so, a Security Council referral in accordance with article 13, paragraph (b), of the Statute irrespective of whether the State concerned has accepted the Court’s jurisdiction in this regard. 9 The situation in Darfur, Sudan and the situation in Libya; http://www.icc-cpi.int/en_menus/icc/ situations%20and%20cases/Pages/situations%20and%20cases.aspx [last access 18/08/2015]. 10 It is understood that the amendments that address the definition of the act of aggression and the crime of aggression do so for the purpose of this Statute only. The amendments shall, in accordance with article 10 of the Rome Statute, not be interpreted as limiting or prejudicing in any way existing or developing rules of international law for purposes other than this Statute. 11 Nothing in this Part shall be interpreted as limiting or prejudicing in any way existing or developing rules of international law for purposes other than this Statute. 12 It is understood that the amendments shall not be interpreted as creating the right or obligation to exercise domestic jurisdiction with respect to an act of aggression committed by another State.

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