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THE DEFINITION OF THE CRIME OF AGGRESSION…
(under such conditions, the States Parties are, somewhat paradoxically, protected
against the Court’s jurisdiction over new crimes more broadly than non-States
Parties). This jurisdictional scheme, namely the second sentence of article 121(5),
thus provides States Parties with a certain “jurisdictional bonus” in comparison to
non-states Parties, which are subjected to the Court’s jurisdiction in accordance with
the general regime under article 12(2).
Nevertheless, in case of the crime of aggression, this differentiation between States
parties and non-States Parties is eliminated by the new article 15bis(5) described above.
Interestingly, in the case of the (“Belgian”) amendments to article 8 of the Rome Statute
on war crimes adopted in Kampala, the differentiation between the States Parties and
non
-States Parties described above should be eliminated as well (at least according
to the participants of the Review Conference): the second preambular paragraph of
resolution Res./RC.5, after citing the second sentence of article 121(5) of the Rome
Statute, confirms “the understanding” of the Review Conference “that in respect to
this amendment the same principle that applies in respect of a State Party which has
not accepted the amendment applies also in respect of States that are not parties to
the Statute”. Thus, according to the Review Conference, the general jurisdictional
scheme provided for under article 12(2) of the Rome Statute should be amended
by article 15bis(5) in case of the crime of aggression and by a mere preambular
paragraph of resolution Res./RC.5 in case of the amendment to article 8. This
approach raises questions concerning the compatibility of the Kampala amendments
with the general law of treaties, which are dealt with below.
6. The positive understanding of article 121(5), second sentence
The positive understanding of the second sentence of article 121(5) is based on the
premise that, with regard to the amendments on the crime of aggression, the second
sentence of article 121(5) simply does not apply. The argument goes as follows: other
provisions of the Rome Statute, which are also “plain and clear” in their wording and
which, unlike the second sentence of article 121(5), explicitly relate to the crime of
aggression, contain an exception to the more general rule of article 121(5), second
sentence. The relevant provisions are article 12(1) (“[a] State which becomes a Party
to this Statute thereby accepts the jurisdiction of the Court with respect to the
crimes referred to in article 5.”,
i.e.
the four core crimes including the crime of
aggression)
22
and article 5(2) of the Rome Statute,
23
under which the Court shall
exercise jurisdiction over the crime of aggression once a provision defining this crime
is adopted. According to the proponents of the positive understanding, article 12(1)
22
Article 5(1) lists the crime of aggression as one of the four crimes with respect to which “the Court has
jurisdiction in accordance with this Statute”.
23
Articles 12(1) and 5(2) are referred to in the first preambular paragraph of resolution Res/RC.6. The
resolution concerning the amendments to the war crimes (Res./RC.5) does not contain any reference
to these articles.