CYIL Vol. 6, 2015

PAVEL CABAN CYIL 6 ȍ2015Ȏ Parties. 18 It is worth noting that the “Belgian” amendment to article 8 of the Rome Statute, which was adopted at the Kampala Review Conference together with the aggression amendments, was also adopted pursuant to article 121(5) of the Rome Statute and that the relevant resolution (RC/Res.5), after referring to article 121(5) of the Rome Statute, expressly repeats the second sentence of this article, i.e. that “the Court shall not exercise its jurisdiction regarding the crime covered by the amendment when committed by that State Party’s nationals or on its territory”. Thus, according to Andreas Zimmermann, there is no reason why article 121(5) should be applied differently to article 8 on the one hand and to the crime of aggression on the other. 19 (Still, the text of resolution RC/Res.6 concerning the crime of aggression slightly differs from resolution RC/Res.5: it does not contain a similar express quotation of the second sentence of article 121(5) but “only” refers, in the first operative paragraph, to the fact that the aggression amendments “shall enter into force in accordance with article 121, paragraph 5”.) 20 This negative understanding of article 121(5), second sentence, is regarded as an exception to the jurisdictional system under article 12 of the Rome Statute: it leads, in general, to a somewhat paradoxical differentiation between the treatment, on the one hand, of non -States Parties to the Rome Statute (and their nationals), which may be subjected to the Court’s jurisdiction over the crime, covered by the amendment, in accordance with the general jurisdictional scheme under article 12(2) of the Rome Statute, and, on the other hand, the treatment of States Parties to the Rome Statute which have not ratified or accepted the amendment and which may not be, under any circumstances, subjected to the Court’s jurisidction over “the crime covered by the amendment”. However, as pointed out by Andreas Zimmermann, “extending the Court’s jurisdiction to nationals of third states, even against the will of their home state, while at the same time protecting States Parties and their nationals, constitutes a general feature of the jurisdictional regime underlying the Statute”. 21 Article 121(5) is regarded as an exception from the jurisdictional regime under article 12 of the Rome Statute – and the reason for such an exception is the premise that the exercise of the jurisdiction of the Court over the State Party’s nationals or its territory is based on the fact that the State Party agreed (by ratification or acceptance) with the concrete new definitions of the crimes which are subject to the Court’s jurisdiction 18 For similar wording see also article 124 of the Rome Statute, according to which a State Party may declare that it temporarily “does not accept the jurisdiction of the Court with respect to the category of crimes referred to in article 8 when a crime is alleged to have been committed by its nationals or on its territory”. See Andreas Zimmermann, op. cit. sub 6, p. 217-218. 19 Andreas Zimmenrmann, op. cit. sub 6, p. 220. 20 In this regard, the opponents of the negative understanding assert that the text of operative paragraph 1 of resolution Res/RC.6 should be understood only as a reference to the first sentence of article 121(5), since the second sentence of this provision does not deal with the “entry into force”, but with conditions for the exercise of jurisdiction. See Stefan Barriga, op. cit. sub 1, p. 51. 21 Andreas Zimmermann, op. cit. sub 6, p. 218.

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