CYIL 2015

MILAN LIPOVSKÝ

CYIL 6 ȍ2015Ȏ

The

seventh understanding

is only concerned with evaluating whether an act

that has already been recognized as an act of aggression also possesses the “quality”

of a

manifest

violation of the Charter of the United Nations. While the seventh

understanding could be interpreted as requiring only two components (character,

gravity or scale) to be present for the manifest violation to occur, article 8 bis RC

clearly requires all three of them. However, when the source to be interpreted (article 8

bis RC) is clear, its interpretative provision (the seventh understanding) may not

successfully go against it unless it has the same status. However, the Understandings

are not amendments to the Statute (as is proven later) and so cannot overwrite the

Statute where it is clear. Moreover the understanding claims that no one component

is enough, and that is in compliance with requiring all three, as article 8 bis RC does,

because “no one” does not rule out “all of them”.

2.3 Problematic understandings

The last two remaining understandings (the

first

and

third understanding

) possess

the capacity to raise interpretative problems though. Disregarding small textual

differences, their wording is the same and claim that the ICC will be able to exercise

jurisdiction over the crime of aggression after two conditions will be fulfilled: firstly,

a decision by the Assembly of the States Parties according to art. 15 bis (3) and 15 ter

(3) RC; and secondly, when a one year period passes after the ratification / acceptance

of the amendments by the 30

State Party. Both these two requirements must be

fulfilled, and, if one occurs later, the jurisdiction will be activated as to the date of

the latter’s fulfilment.

These two conditions emanate from articles 15 bis and 15 ter RC, in both cases

from its sections two

and three.

The texts are the same. These two provisions,

however, encompass an inconspicuous perfidy. Sections 2 state that the prosecutable

acts are only those that will occur at least one year after ratification / acceptance of

the amendments by the 30

State Party (substantive effect). But sections 3 do not

carry a substantive effect; they only state that the ICC will be able to act after the re-

adoption decision, regardless of when the prosecuted act would happen (procedural

effect). Hence, without the Understandings, it could happen that the 30

ratification

would take place more than one year later than the Assembly of State Parties re-

adopts the amendments according to articles 15 bis (3) and 15 ter (3) RC. In such a

It is understood that in establishing whether an act of aggression constitutes a manifest violation of the

Charter of the United Nations, the three components of character, gravity and scale must be sufficient

to justify a “manifest” determination. No one component can be significant enough to satisfy the

manifest standard by itself.

The Court may exercise jurisdiction only with respect to crimes of aggression committed one year after

the ratification or acceptance of the amendments by thirty States Parties.

The Court shall exercise jurisdiction over the crime of aggression in accordance with this article, subject

to a decision to be taken after 1 January 2017 by the same majority of States Parties as is required for

the adoption of an amendment to the Statute.