CYIL 2015

PAVEL CABAN

CYIL 6 ȍ2015Ȏ

Key words:

International Criminal Court; crime of aggression; activation of the

jurisdiction; article 121, paragraph 5 of the Rome Statute; “positive” and “negative”

understanding; article 15bis of the Rome Statute; law of treaties.

On the author:

JUDr. Pavel Caban, Ph.D. (*1976) graduated from the Faculty of

Law of Charles University in Prague (1999), where he also received his Ph.D. (2006)

and externally taught public international law (2006 – 2009). He is an employee of

the Ministry of Foreign Affairs of the Czech Republic: from 2000 to 2009 he worked

at the International Law Department of the Ministry of Foreign Affairs; from 2009

to 2013 he was posted in the Embassy of the Czech Republic in the Kingdom of

the Netherlands; since then he has been working again at the International Law

Department of the MFA CR.

The provisions on the entry into force of the amendments on the crime of aggression,

adopted at the Review Conference in Kampala in 2010, and the conditions for the

exercise of the jurisdiction of the International Criminal Court over this crime were

one of the most contentious issues at the Review

onference in Kampala. The resulting

text, based on difficult compromises reached at the final stages of the conference, is, in

the diplomatic words of one of the active participants of these negotiations, “somewhat

complicated”.

The aim of the following article is to provide a brief overview and a few

comments on the most contentious issues concerning these provisions.

1. Entry into force of Kampala amendments on the crime of aggression

Before the Review Conference there was a disagreement over the procedure under

which the Kampala amendments on the crime of aggression should enter into force.The

proponents of the first approach proposed that, for the Court to “exercise jurisdiction

over this crime”, it would suffice if the provisions on aggression were simply “adopted”

by the Review Conference on the basis of article 5(2) of the Rome Statute.

It would

mean that, subsequently, States Parties to the Rome Statute would not have to ratify

the amendments at all – they would be bound by the the amedments by the fact of its

Stefan Barriga, Exercise of Jurisdiction and Entry into Force of the Amendments on the Crime of

Aggression; in: Gerard Dive, Benjamin Goes, Damien Vandermeersch (eds.): From Rome to Kampala:

The first 2 amendments to the Rome Statute, Bruylant, 2012, p. 31-54.

Article 5(2) of the Rome Statute: “The Court shall exercise jurisdiction over the crime of aggression

once a provision is adopted in accordance with articles 121 and 123 defining the crime and setting

out the conditions under which the Court shall exercise jurisdiction with respect to this crime. Such

a provision shall be consistent with the relevant provisions of the Charter of the United Nations.” The

adoption

of the text of a proposed amendment not achieving consensus is regulated in article 121(3) of

the Rome Statute, according to which “





he adoption of an amendment at a meeting of the Assembly

of States Parties or at a Review Conference on which consensus cannot be reached shall require a two-

thirds majority of States Parties”.