CYIL Vol. 6, 2015

PAVEL CABAN CYIL 6 ȍ2015Ȏ in accordance with article 121(5) of the Rome Statute cannot be subjected to the aggression amendments including the amended jurisdictional scheme – they are bound only by the original text and jurisdictional scheme of the Rome Statute as adopted in 1998. As regards the “Belgian” amendment to article 8 of the Rome Statute, its conformity with the law of treaties seems to be even more problematic. As mentioned above, in the second preambular paragraph of resolution Res./RC.5, the Review Conference confirmed “the understanding that in respect to this amendment the same principle that applies in respect of a State Party which has not accepted the amendment applies also in respect of States that are not parties to the Statute”. According to the same preambular paragraph, as regards the States Parties which have not accepted the amendment, “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”, as provided for in the second sentence of article 121(5). The question is, however, whether this understanding is applicable at all. As described above, the jurisdictional scheme, which covers the amendments under article 121(5) and which is applicable with regard to States Parties to the Rome Statute that have not accepted the relevant amendment, differs from the general jurisdictional scheme under article12(2) of the Rome Statute, which is applicable with regard to non -States Parties to the Rome Statute even in case of amendments adopted under article 121(5). In case of State referrals and proprio motu investigations, non-States Parties are subjected to the jurisdiction of the Court when their nationals commit a crime – the definition of which entered into force under article 121(5) – on the territory of a State Party or when a national of a State Party commit such a crime on the territory of the non-State Party. On the other hand, States Parties which have not ratified or accepted the new definition or amendment, which entered into force under article 121(5), and their nationals are protected against the jurisdiction of the Court over such a new crime. The States Parties might of course amend ( ad hoc or in general) this jurisdictional scheme, but, with regard to the “Belgian” amendment (unlike the aggression amendments), they even did not intend to do so: they just mentioned their understanding, which contradicts the text of the Rome Statute, in the preambular paragraph of the resolution, without adopting any new provision of the Rome Statute which would amend the general jurisdictional scheme. Therefore, it is suggested that the last sentence of the second preambular paragraph of resolution RC/Res.5 cited above is without any legal significance and that non-States Parties are subject to the Court’s jurisdiction over amended article 8 in accordance with the general regime provided for in article 12(2) of the Rome Statute.

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