CYIL 2015

THE DEFINITION OF THE CRIME OF AGGRESSION…

Review Conference is resolved “to activate the Court’s jurisdiction over the crime of

aggression as early as possible”. Taken these activating conditions together with

the conditions for the entry into force under article 121(5) of the Rome Statute,

it means that, to activate the Court’s jurisdictions over the crime of aggression as

of 1 January 2017, the thirtieth State Party would have to ratify the amendments

by the end of 2015.

3. Exercise of jurisdiction in case of the United Nations Security Council

referrals

The exercise of jurisdiction over the crime of aggression in case of the Security

Council referrals under article 13(b) of the Rome Statute is regulated in the

new article 15ter of the Rome Statute. According to this article, once the special

activating conditions described above (entry into force for 30 States Parties and the

adoption of the activation decision by the States Parties) are fulfilled, the scope of

the Court’s jurisdiction over the crime of aggression will be the same as over the

other three core crimes defined in the Rome Statute. It means that the Court will be

able “to receive situations from the Security Council and investigate all four crimes

under the Rome Statute without having to deal with the aggression in any special

manner”.

Thus, in accordance with article 13(b) of the Rome Statute, the Court

will be entitled (depending on the concrete decision of the Security Council) to

exercise its jurisdiction with respect to a crime of aggression, if a situation in which

“such a crime appears to have been committed is referred to the Prosecutor by the

Security Council acting under Chapter VII of the Charter of the United Nations”,

whether or not the State committing the act of aggression is a State Party to the

Rome Statute, or, if it is a State Party, whether or not it has ratified or accepted the

amendments on the crime of aggression and the amendments have entered into force

for that state.

This fact (which also means that article 121(5), second sentence, does

not apply to crimes of aggression in case of Security Council referrals) is confirmed

also by the second understanding, adopted at the Review Conference, according to

which “[i]t is understood that the Court shall exercise jurisdiction over the crime of

aggression on the basis of a Security Council referral in accordance with article 13,

paragraph (b), of the Statute irrespective of whether the State concerned has accepted

the Court’s jurisdiction in this regard”.

(The same applies, of course, even if not

explicitly stated, also with regard to the exercise of the Court’s jurisdiction, in case of

the Security Council referral, over the “Belgian” amendments to article 8 adopted at

Kampala Conference.)

Stefan Barriga,

op. cit.

sub 1, p. 39.

Ibid

., p. 39; Milan Lipovský, Procedural issues of the crime of aggression (in Czech), in: Pavel Šturma

(ed.) a kol., Odpověď mezinárodního práva na mezinárodní zločiny [Studies in international law, No. 6

(19)], Law Faculty of Charles University, Prague, 2014, p. 86.