CYIL 2015

PAVEL CABAN

CYIL 6 ȍ2015Ȏ

Conference).

The Review Conference applied article 121(5) also with regard to

the “Belgian” amendments to article 8 on war crimes, which were adopted at the

Review Conference together with the amendments on the crime of aggression.

Thus,

the amendments on the crime of aggression enter into force for each ratifying State

Party individually, one year after the deposit of relevant instrument of ratification or

acceptance with the depositary – the United Nations Secretary-General. The Czech

Republic deposited its instrument of acceptance of the aggression amendments as the

twenty-third State Party on 12 March 2015; the amendments will enter into force for

the Czech Republic on 12 March 2016.

2. Activation of the Court’s jurisdiction

However, the entry into force of the amendments on the crime of aggression

as such does not have any real legal effect; according to some authors, after the

entry into force of these amendments the States Parties are bound only by “sleeping

obligations”. The reason is the fact that, in addition to the entry into force, the

jurisdiction of the Court over the crime of aggression has to be

activated

by fulfilling

the additional conditions for the exercise of jurisdiction (

i.e.

not for the entry into

force), provided for in paragraphs 2 and 3 of the new articles 15bis (regulating

the exercise of jurisdiction over the crime of aggression in case of state referral and

proprio motu

investigation) and 15ter (regulating the exercise of jurisdiction based

on the United Nations Security Council referral) of the Rome Statute, adopted

at the Review Conference. According to one of the prominent participants of the

Review Conference, this special procedure for activating the Court’s jurisdiction

over the crime of aggression was adopted mainly in order to provide the Court with

“breathing room”,

i.e.

to enable the Court to prepare for this sensitive task, and to

take into account the fact that some delegations were reluctant to operationalize the

Court’s jurisdiction right away.

According to the activating conditions, the Court may exercise jurisdiction

(1) only with respect to crimes of aggression committed one year after the ratification

or acceptance of the amendments by thirty States Parties, and (2) subject to an

“activation” 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,

i.e.

two-thirds

of States Parties. In addition, the preamble of the resolution RC/Res.6 states that the

Resolution RC/Res.6, OP 1: “Decides to adopt, in accordance with article 5, paragraph 2, of the Rome

Statute of the International Criminal Court (hereinafter: “the Statute”) the amendments to the Statute

contained in annex I of the present resolution, which are subject to ratification or acceptance and shall

enter into force in accordance with article 121, paragraph 5; …”.

Resolution RC/Res.5, OP 1: “Decides to adopt the amendment to article 8, paragraph 2 (e), of the

Rome Statute … which is subject to ratification or acceptance and shall enter into force in accordance

with article 121, paragraph 5, of the Statute; …”.

Stefan Barriga,

op. cit.

sub 1, p. 37-38.