CYIL 2015

PAVEL CABAN

CYIL 6 ȍ2015Ȏ

Parties.

It is worth noting that the “Belgian” amendment to article 8 of the Rome

Statute, which was adopted at the Kampala Review Conference together with the

aggression amendments, was also adopted pursuant to article 121(5) of the Rome

Statute and that the relevant resolution (RC/Res.5), after referring to article 121(5)

of the Rome Statute, expressly repeats the second sentence of this article,

i.e.

that “the

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

when committed by that State Party’s nationals or on its territory”. Thus, according

to Andreas Zimmermann, there is no reason why article 121(5) should be applied

differently to article 8 on the one hand and to the crime of aggression on the other.

(Still, the text of resolution RC/Res.6 concerning the crime of aggression slightly

differs from resolution RC/Res.5: it does not contain a similar express quotation of

the second sentence of article 121(5) but “only” refers, in the first operative paragraph,

to the fact that the aggression amendments “shall enter into force in accordance with

article 121, paragraph 5”.)

This negative understanding of article 121(5), second sentence, is regarded as an

exception to the jurisdictional system under article 12 of the Rome Statute: it leads,

in general, to a somewhat paradoxical differentiation between the treatment, on the

one hand, of

non

-States Parties to the Rome Statute (and their nationals), which may

be subjected to the Court’s jurisdiction over the crime, covered by the amendment,

in accordance with the general jurisdictional scheme under article 12(2) of the Rome

Statute, and, on the other hand, the treatment of States Parties to the Rome Statute

which have not ratified or accepted the amendment and which may not be, under

any circumstances, subjected to the Court’s jurisidction over “the crime covered by

the amendment”. However, as pointed out by Andreas Zimmermann, “extending the

Court’s jurisdiction to nationals of third states, even against the will of their home

state, while at the same time protecting States Parties and their nationals, constitutes

a general feature of the jurisdictional regime underlying the Statute”.

Article 121(5)

is regarded as an exception from the jurisdictional regime under article 12 of the

Rome Statute – and the reason for such an exception is the premise that the exercise

of the jurisdiction of the Court over the State Party’s nationals or its territory is

based on the fact that the State Party agreed (by ratification or acceptance) with the

concrete new definitions of the crimes which are subject to the Court’s jurisdiction

For similar wording see also article 124 of the Rome Statute, according to which a State Party may

declare that it temporarily “does not accept the jurisdiction of the Court with respect to the category of

crimes referred to in article 8 when a crime is alleged to have been committed by its nationals or on its

territory”. See Andreas Zimmermann,

op. cit.

sub 6, p. 217-218.

Andreas Zimmenrmann,

op. cit.

sub 6, p. 220.

In this regard, the opponents of the negative understanding assert that the text of operative paragraph 1

of resolution Res/RC.6 should be understood only as a reference to the first sentence of article 121(5),

since the second sentence of this provision does not deal with the “entry into force”, but with conditions

for the exercise of jurisdiction. See Stefan Barriga,

op. cit.

sub 1, p. 51.

Andreas Zimmermann,

op. cit.

sub 6, p. 218.