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by article 12 (2) of the Rome Statute in case of referral by the Security Council of the
United Nations, as it is when other forms of referral take place. The Security Council
has already used its power to refer certain situations to the International Criminal
Court, while in both cases the relevant States are not State parties to the RC.
9
This
understanding serves more as an express clarification of already existing principle.
Similarly the
fourth Understanding
10
reiterates what is already mentioned in
article 10
11
of the Rome Statute and serves the purpose of separating the Rome
Statute, and evaluations of legal matters regarding crimes of aggression based on this
treaty, from the system of international security, as it is guaranteed by the Security
Council of the UN. It is worth mentioning that there are, of course, other opinions
claiming that the case-law of the ICC on the crime of aggression (and so even on
jus ad bellum
) will in the end influence the existing law (system) of international
security (and so as well
jus ad bellum
). I have to admit that I agree with them. No
doubt any interesting case-law of such an important tribunal as the ICC is will have
an influence; it will be quoted and in time also relied upon. Nonetheless the question
we are asking ourselves here is whether the +Understandings are in compliance with
the Rome Statute, not whether the Rome Statute already claims something is not
exactly possible or correct. And the understanding is in compliance with the Statute.
2.2 Possibly problematic understandings
The second group of understandings might lead to a different interpretation than
the Rome Statute and its amendments. However, in the end I think that it is unlikely
they would. This group consists of understandings points
five, six and seven
. The
fifth
understanding
12
prevents the amendment from being interpreted in a way that would
oblige any State to exercise domestic jurisdiction over acts of aggression committed
by another State. This is quite a strange provision when read in connection with the
whole purpose of the Rome Statute. According to article 1 RS, the jurisdiction of the
ICC is complementary to the domestic jurisdictions of State Parties. The principle
of complementarity is based on the presumption that States will prosecute their own
nationals and other perpetrators, and only if they will be unable or unwilling to do so,
a Security Council referral in accordance with article 13, paragraph (b), of the Statute irrespective of
whether the State concerned has accepted the Court’s jurisdiction in this regard.
9
The situation in Darfur, Sudan and the situation in Libya;
http://www.icc-cpi.int/en_menus/icc/situations%20and%20cases/Pages/situations%20and%20cases.aspx [last access 18/08/2015].
10
It is understood that the amendments that address the definition of the act of aggression and the crime
of aggression do so for the purpose of this Statute only. The amendments shall, in accordance with
article 10 of the Rome Statute, not be interpreted as limiting or prejudicing in any way existing or
developing rules of international law for purposes other than this Statute.
11
Nothing in this Part shall be interpreted as limiting or prejudicing in any way existing or developing
rules of international law for purposes other than this Statute.
12
It is understood that the amendments shall not be interpreted as creating the right or obligation to
exercise domestic jurisdiction with respect to an act of aggression committed by another State.