CYIL 2015

THE DEFINITION OF THE CRIME OF AGGRESSION…

mere adoption at the Review Conference.

However, different reasons – ranging from

the principles of the law of treaties, constitutional requirements in individual States

Parties for a consent to be bound by such an amendment, the text of article 5(2)

(reference to the whole article 121 of the Rome Statute, as well to article 123 of

the Rome Statute),

as well the contextual interpretation

and inadequacy of such

a simple procedure when compared to the importance of the aggression amendments

– clearly support the conclusion that article 5(2) “could not provide any basis for

bringing into force any amendment regarding the crime of aggression”.

According to the second approach, article 121(4) should regulate the entry into

force of the aggression amendment; this means that the amendment would enter

into force for all States Parties only after seven eighths of States Parties ratified the

amendments.

However the text of article 121(4) and 121(5) of the Rome Statute

indicates that the former provision covers all “non-definitional” amendments to the

Rome Statute, but not the amendments to the definitions of crimes contained in

articles 5 to 8 of the Rome Statute.

Thus, the third approach based the entry into force of the aggression amendments on

article 121(5) of the Rome Statute, which is explicitly concerned with “any amendment

to articles 5, 6, 7 and 8” and according to which these amendments would enter into

force individually, only “for those States Parties which have accepted the amendment”,

one year after the deposit of their instruments of ratification or acceptance. Importantly,

with regard to the exercise of jurisdiction after the amendments enter into force,

article 121(5) provides that “[i]n respect of a State Party which has not accepted the

amendment, the Court shall not exercise its jurisdiction regarding a crime covered by

the amendment when committed by that State Party’s nationals or on its territory”.

The above described “trilemma” was solved by the Review Conference, which

– correctly, it is suggested – decided that article 121(5) of the Rome Statute will

govern the entry into force of the aggression amendments (article 5(2) of the Rome

Statute being relevant only for the adoption of the amendments at the Review

Stefan Barriga,

op. cit.

sub 1, p. 34-35.

See article 123(3), which provides: “The provisions of article 121, paragraphs 3 to 7, shall apply to the

adoption

and entry into force

of any amendment to the Statute considered at a Review Conference”

(unlike article 5(2), this provision refers also to the procedure for the entry into force of the

amendments).

See article 8(2)(b)(xx) and the procedure for the adoption of the “Belgian” amendments to article 8 of

the Rome Statute at the Review Conference.

For the detailed arguments concerning this conclusion see Andreas Zimmermann, Amending the

Amendment Provisions of the Rome Statute: The Kampala Compromise on the Crime of Aggression

and the Law of Treaties, Journal of International Criminal Justice, Volume 10, Issue 1 (March 2012),

pp. 212-217.

Article 121(4): “Except as provided in paragraph 5, an amendment shall enter into force for all States

Parties one year after instruments of ratification or acceptance have been deposited with the Secretary-

General of the United Nations by seven-eighths of them.”