CYIL 2015

106 / 464

92
MILAN LIPOVSKÝ CYIL 6 ȍ2015Ȏ
or any relevant treaty may agree upon. Article 121 of the Rome Statute does so, as
will be shown in following text.
The Kampala review conference took place for the purpose, among others, of giving
effect to the predicted jurisdiction of the International Criminal Court (hereinafter
referred to as the “ICC”) over the crime of aggression. The crime was listed within
article 5 RC as one of the crimes prosecutable by the ICC; however, unlike in the case
of the remaining three categories of crimes, the exercise of jurisdiction over the crime
of aggression was postponed to a later date (later than the Rome conference) when
the definition of the crime and conditions for exercising of jurisdiction over it would
be adopted [art. 5(2) RC].
There have been extensive discussions as to the qualities of the adopted text,
especially regarding the definition of the crime itself, relying heavily on the resolution
on aggression adopted by the General Assembly 3 in 1970s, or regarding the strong
position of the Security Council when dealing with aggression, etc. However these
topics are not issues for this contribution. The review conference adopted resolution
RC/Res. 6 on the crime of aggression, which includes 3 annexes. Annex I (hereinafter
referred to as the “Definition”) contains the amending provisions; annex II adds certain
provisions to the Elements of Crimes,4 and, finally, annex III, named “Understandings
regarding the amendments to the Rome Statute of the International Criminal Court on
the crime of aggression” (hereinafter referred to as the “Understandings”).
Since neither the Rome Statute nor the VCLT refer to a document (thus less
a source of law) identified as understandings, the question arises: what is the legal
status of this document and is there actually any importance to it?
There has not been a lot discussed on this topic. There are a few exceptions to this
lack of interest that I have found, and these are represented by Kevin Heller’s article
“The Uncertain Legal Status of the Aggression Understandings”,5 Cedric Ryngaert’s
article “The Understandings regarding the Amendments to the Rome Statute of the
International Criminal Court on the Crime of Aggression”6 and part of a book written
by Carrie McDougall called “The Crime of Aggression under the Rome Statute of
the International Criminal Court”. 7 These articles and a sub-chapter have quite fairly
3 Resolution on the Definition of Aggression, UNGA Res. 3314 (XXIX), from December 14, 1974.
4 Elements of Crimes (ICC-ASP/1/3) are provisions adopted by the assembly of state parties according
to article 9 of the Rome Statute.
5 HELLER, Kevin Jon. The Uncertain Legal Status of the Aggression Understandings. Social Science
Research Network [online] [last access
on 18/08/2015].
6 RYNGAERT, Cedric. The Understandings regarding the Amendments to the Rome Statute of the
InternationalCriminalCourtontheCrimeofAggression.InDIVE,G.,GOES,B.,VANDERMEERSCH,
D. Kampala: The first 2 amendments to the Rome Statute. 2012, Bruxelles: Éditions Bruylant.
7 MCDOUGALL, Carrie. The Crime of Aggression under the Rome Statute of the International Criminal
Court. 2013, Cambridge: Cambridge University Press. ISBN: 978-1-107-52184-1, chapter 3, pp. 113-122.