CYIL 2015

THE UNDERSTANDINGS TO THE ROME STATUTE’S CRIME OF AGGRESSION

would the ICC prosecute the perpetrators itself. Since the exercise of criminal jurisdiction

over individuals by an international tribunal might be considered as a punishment

of its own kind by co-nationals of the perpetrator, the principle of complementarity

might be understood as a way to enable States to evade such “punishment” for not

fulfilling the duty to prosecute. Only if they do not act accordingly (and fulfil their

obligation), would the international jurisdiction take place. When understood this

way, the principle of complementarity seems to construct an obligation to prosecute

domestically, and, if this obligation remains unfulfilled, sanction in the form of

international prosecution takes place.

However the Statute may not be interpreted as creating an obligation to exercise

domestic jurisdiction. It is true that the principle of complementarity enables States

of the nationalities of the perpetrators to evade the ICC’s jurisdiction; but the exercise

of the international one is not a punishment in the legal sense. Regardless of how

it is perceived by the public. It is only a tool to ensure that international criminals

would not go unpunished. If States wish to prevent jurisdiction of the ICC, the

only thing they need to do is to not ratify the Statute (obviously that may not be

enough if the nationals of such a State commit a crime within the territory of a State

Party; however then interests of the latter State would be damaged, and it is its right

to punish the perpetrator based on the principle of territoriality). And since the

principle of complementarity may not be understood as creating an obligation to

prosecute domestically, the fifth understanding is in full compliance with the Statute.

The

sixth understanding

deals with acts of aggression and their il/legality

under the Charter of the United Nations.

The claimed problem of this concept

is so-called humanitarian intervention. This point of the Understandings is a result

of an attempt to defend humanitarian intervention and protect it from illegality

under the Rome Statute;

however, due to its wording, it fails to do so. Regardless

of whether the Understandings require the ICC to take gravity and consequences

of the acts concerned into account, it is very likely that the ICC would take them

into consideration, as well as any other relevant issues. But solely taking them into

consideration does not prevent it from finding such an act illegal, even under the

whole concept of humanitarian intervention. As such, the sixth understanding does

not prevent the ICC from concluding that any use of force in contravention with the

UN Charter is also a basis for the crime of aggression.

It is understood that aggression is the most serious and dangerous form of the illegal use of force;

and that a determination whether an act of aggression has been committed requires consideration

of all the circumstances of each particular case, including the gravity of the acts concerned and their

consequences, in accordance with the Charter of the United Nations.

Charter of the United Nations, 892 UNTS 119, concluded on June 26, 1945, in force since October 24,

1945.

RYNGAERT, Cedric. The Understandings regarding the Amendments to the Rome Statute of the

International Criminal Court on the Crime of Aggression, p. 26.