CYIL 2015

THE UNDERSTANDINGS TO THE ROME STATUTE’S CRIME OF AGGRESSION

case the ICC would be able to act from the latter date (the re-adoption decision), but

it would be able to prosecute crimes that occurred already before – between the 30

ratification plus one year and the re-adoption (and obviously also those that occurred

after the re-adoption).

Unlike the Definition in its amending provisions, the first and third understanding

attribute the substantive effect to both conditions (re-adoption as well as one year

after 30

ratification / acceptance). The text of the amendment does not. So in case

the Understandings were not considered to be binding for the ICC, the moment of

substantive effect of the amendments could outrun the re-adoption decision.

Such an effect is not necessarily negative. Quite the opposite; it would enable

the ICC to prosecute and try crimes of aggression as of an earlier date. It is not yet

clear though whether the 30

ratification will outrun the re-adoption decision, and,

even if so, whether it will be by one year or more. So far less than 30 State Parties

have ratified the amendment and the re-adoption vote’s time is the year 2017 at the

earliest.

Anyway, all the remaining understandings do not create an interpretative problem

but for the first and third, because, when read in their strict textual meaning, they are

clearly inconsistent with the text of the amendment. And so the question of whether

the ICC will be obliged to abide by the Understandings arises.

3. The legal value of the Understandings

Kevin Heller has discussed the legal value of the Understandings quite extensively

in his above-mentioned article. And so I would like to sum up some of his points for

the sake of clarity of this contribution and to add several comments.

There is no doubt that the Statute does not count with the Understandings and

as such they are not included into article 21 RC that lists the applicable law. Neither

are they mentioned anywhere else in the Statute nor in the amendments (except for

annex III and short note in the preamble of the resolution of course), nor is their

status dealt with within the resolution RC/Res. 6. In fact the Understandings are not a

very well-known concept at all for international treaty law; they were previously only

used once.

This single example is the United Nations Convention on Jurisdictional

Immunities of States and Their Property.

However, not only is the Convention on

Jurisdictional Immunities not in force yet, but the Understandings are a part of the

proposed treaty; they are an annex to it, while the Understandings to the amendments

to the Rome Statute are “only” an amendment to the resolution RC/Res. 6 and as

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

International Criminal Court on the Crime of Aggression, p. 21.

(United Nations) Convention on Jurisdictional Immunities of States and Their Property, UN Doc. A/

RES/59/38.