CYIL Vol. 6, 2015

PAVEL CABAN CYIL 6 ȍ2015Ȏ 4. Exercise of jurisdiction based on State referrals and proprio motu investigations The exercise of jurisdiction over the crime of aggression in case of State referrals and investigations initiated proprio motu by the Court’s Prosecutor (article 13(a) and (c) of the Rome Statute) is regulated in the new article 15bis of the Rome Statute. The activation conditions under paragraphs 2 and 3 of article 15bis are the same as in case of the Security Council referrals. However, in addition to these activation conditions, there are several other important substantive conditions (relating to the States of nationality and territoriality involved), as well as procedural conditions (concerning the relationship between the Court and the Security Council), which further limit the scope of the Court’s jurisdiction over the crime of aggression in case of State referrals or proprio motu investigations. The procedural conditions are contained in article 15bis, paragraphs 6 to 8. According to these provisions, when the Prosecutor “concludes that there is a reasonable basis to proceed with an investigation in respect of a crime of aggression”, he or she shall first ascertain ( via notifying the Secretary-General of the United Nations) whether the Security Council has made a determination of an act of aggression committed by the State concerned. Where no such determination is made within six months after the date of notification, the Prosecutor may proceed with the investigation in respect of a crime of aggression, but only if the whole Pre-Trial Division authorizes the commencement of the investigation; even in this case, the Security Council is still entitled to (repeatedly) defer the commencement of investigation or prosecution for a period of 12 months in accordance with article 16 of the Rome Statute. As far as the substantive conditions are concerned, the exercise of jurisdiction over the crime of aggression with regard to States not Parties to the Rome Statute is limited by article 15bis(5), which provides that in respect of a State that is not a party to the Rome Statute, “the Court shall not exercise its jurisdiction over the crime of aggression when committed by that State’s nationals or on its territory”. By including this provision, the drafters took into account the alleged special nature of the crime of aggression and the concerns of important non-States Parties. 14 Thus, article 15bis(5) contains a regime which is the opposite of the existing jurisdictional regime of the Rome Statute in the case of State referrals and proprio motu investigations. Under this general regime, contained in article 12(2) of the Rome Statute, the link to one single State Party (the State Party of which the person accused of the crime is a national or the State Party on the territory of which the conduct in question occurred) is enough 14 As pointed out by Jennifer Trahan, the text “was no doubt included because non-States Parties wanted to ensure that their nationals would not be prosecuted based on state referrals or proprio motu , even if the acts at issue occur on the territory of a State Party. (Presumably, the U.S. delegation was one of the key delegations insisting on this text.)”; Jennifer Trahan, The Rome Statute’s Amendment on the Crime of Aggression: Negotiations at the Kampala Review Conference, International Criminal Law Review 11 (2011), p. 91-92.

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