CYIL 2015

THE UNDERSTANDINGS TO THE ROME STATUTE’S CRIME OF AGGRESSION

covered the topic, each in their own respect; however, I still see some comments that

I would like to add to their interesting discussions.

2. (Ir)Relevance of the Understandings

BothHeller’s andRyngaert’s article broadly discuss the contents of theUnderstandings

point by point. McDougall adds comments to several of the understandings. Relevance of

this discussion is obvious – if the Understandings add nothing to the Rome Statute and

change the interpretation of the treaty in no way, then there is no problem and the legal

status (i.e. binding force of the Understandings for judges of the International Criminal

Court in possible future proceedings regarding any crime of aggression) is irrelevant.

On the other hand, if the Understandings do change the way the Rome Statute would

be interpreted without them even in the slightest way, it is crucial to identify the legal

status of annex III to Resolution RC/Res. 6 containing the Understandings in order

to find out their relevance and position (or “no position”) within the sources of law

that the ICC needs to abide by. In other words – do the judges of the ICC need to

follow the Understandings, or are they allowed to disregard them?

Unlike the status of the Understandings, there was quite a lot written as to

their meaning and what the reasons were for the way they look. Acceptance of the

Understandings is obviously as much different as there are different opinions of

authors of such commentaries. I do not want to repeat what has been already written

by others, and so this part of my contribution is rather a submission of ideas as to

why the Understandings do not necessarily create (with two exceptions) a problem

for the interpretation of the Rome Statute and the Definition. Although I agree

that there are other opinions as well, I usually see them, however, as unnecessarily

complicated when the issues could be solved as the following pages show.

The Understandings are separated into four parts – referrals by the Security Council,

jurisdiction

ratione temporis

, domestic jurisdiction over the crime of aggression, and

other understandings; each part containing 2 points, except for jurisdiction

ratione

temporis

, containing only one. For the purposes of this article, they are, however,

divided differently – into a group of those that have no legal significance (i.e. they are

clearly in compliance with the Rome Statute and the Definition), a second group of

those that are considered to be capable of providing a different interpretation than

the Rome Statute and the Definition alone, and a third group of those that simply

present a different interpretation than the Rome Statute or the Definition.

2.1 Confirming understandings

Several points of the Understandings are clearly only confirming what is already

stated within the Rome Statute or the Definition or can be deduced from them. The

second understanding

confirms that the scope of jurisdiction of the ICC is not limited

It is understood that the Court shall exercise jurisdiction over the crime of aggression on the basis of