CYIL Vol. 6, 2015

PAVEL CABAN CYIL 6 ȍ2015Ȏ Key words: International Criminal Court; crime of aggression; activation of the jurisdiction; article 121, paragraph 5 of the Rome Statute; “positive” and “negative” understanding; article 15bis of the Rome Statute; law of treaties. On the author: JUDr. Pavel Caban, Ph.D. (*1976) graduated from the Faculty of Law of Charles University in Prague (1999), where he also received his Ph.D. (2006) and externally taught public international law (2006 – 2009). He is an employee of the Ministry of Foreign Affairs of the Czech Republic: from 2000 to 2009 he worked at the International Law Department of the Ministry of Foreign Affairs; from 2009 to 2013 he was posted in the Embassy of the Czech Republic in the Kingdom of the Netherlands; since then he has been working again at the International Law Department of the MFA CR. The provisions on the entry into force of the amendments on the crime of aggression, adopted at the Review Conference in Kampala in 2010, and the conditions for the exercise of the jurisdiction of the International Criminal Court over this crime were one of the most contentious issues at the Review c onference in Kampala. The resulting text, based on difficult compromises reached at the final stages of the conference, is, in the diplomatic words of one of the active participants of these negotiations, “somewhat complicated”. 1 The aim of the following article is to provide a brief overview and a few comments on the most contentious issues concerning these provisions. 1. Entry into force of Kampala amendments on the crime of aggression Before the Review Conference there was a disagreement over the procedure under which the Kampala amendments on the crime of aggression should enter into force.The proponents of the first approach proposed that, for the Court to “exercise jurisdiction over this crime”, it would suffice if the provisions on aggression were simply “adopted” by the Review Conference on the basis of article 5(2) of the Rome Statute. 2 It would mean that, subsequently, States Parties to the Rome Statute would not have to ratify the amendments at all – they would be bound by the the amedments by the fact of its 1 Stefan Barriga, Exercise of Jurisdiction and Entry into Force of the Amendments on the Crime of Aggression; in: Gerard Dive, Benjamin Goes, Damien Vandermeersch (eds.): From Rome to Kampala: The first 2 amendments to the Rome Statute, Bruylant, 2012, p. 31-54. 2 Article 5(2) of the Rome Statute: “The Court shall exercise jurisdiction over the crime of aggression once a provision is adopted in accordance with articles 121 and 123 defining the crime and setting out the conditions under which the Court shall exercise jurisdiction with respect to this crime. Such a provision shall be consistent with the relevant provisions of the Charter of the United Nations.” The adoption of the text of a proposed amendment not achieving consensus is regulated in article 121(3) of the Rome Statute, according to which “  t  he adoption of an amendment at a meeting of the Assembly of States Parties or at a Review Conference on which consensus cannot be reached shall require a two- thirds majority of States Parties”.

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