CYIL 2015

PAVEL CABAN

CYIL 6 ȍ2015Ȏ

4. Exercise of jurisdiction based on State referrals and

proprio motu

investigations

The exercise of jurisdiction over the crime of aggression in case of State referrals

and investigations initiated

proprio motu

by the Court’s Prosecutor (article 13(a) and

The activation conditions under paragraphs 2 and 3 of article 15bis are the same as

in case of the Security Council referrals. However, in addition to these activation

conditions, there are several other important substantive conditions (relating to the

States of nationality and territoriality involved), as well as procedural conditions

(concerning the relationship between the Court and the Security Council), which

further limit the scope of the Court’s jurisdiction over the crime of aggression in case

of State referrals or

proprio motu

investigations.

The procedural conditions are contained in article 15bis, paragraphs 6 to 8.

According to these provisions, when the Prosecutor “concludes that there is a reasonable

basis to proceed with an investigation in respect of a crime of aggression”, he or she shall

first ascertain (

via

notifying the Secretary-General of the United Nations) whether

the Security Council has made a determination of an act of aggression committed

by the State concerned. Where no such determination is made within six months

after the date of notification, the Prosecutor may proceed with the investigation in

respect of a crime of aggression, but only if the whole Pre-Trial Division authorizes

the commencement of the investigation; even in this case, the Security Council is still

entitled to (repeatedly) defer the commencement of investigation or prosecution for

a period of 12 months in accordance with article 16 of the Rome Statute.

As far as the substantive conditions are concerned, the exercise of jurisdiction

over the crime of aggression with regard to States

not Parties

to the Rome Statute is

limited by article 15bis(5), which provides that in respect of a State that is not a party

to the Rome Statute, “the Court shall not exercise its jurisdiction over the crime of

aggression when committed by that State’s nationals or on its territory”. By including

this provision, the drafters took into account the alleged special nature of the crime of

aggression and the concerns of important non-States Parties.

Thus, article 15bis(5)

contains a regime which is the opposite of the existing jurisdictional regime of the

Rome Statute in the case of State referrals and

proprio motu

investigations. Under this

general regime, contained in article 12(2) of the Rome Statute, the link to one single

State Party (the State Party of which the person accused of the crime is a national or

the State Party on the territory of which the conduct in question occurred) is enough

As pointed out by Jennifer Trahan, the text “was no doubt included because non-States Parties wanted

to ensure that their nationals would not be prosecuted based on state referrals or

proprio motu

, even if

the acts at issue occur on the territory of a State Party. (Presumably, the U.S. delegation was one of the

key delegations insisting on this text.)”; Jennifer Trahan, The Rome Statute’s Amendment on the Crime

of Aggression: Negotiations at the Kampala Review Conference, International Criminal Law Review

11 (2011), p. 91-92.