CYIL 2015

PAVEL CABAN

CYIL 6 ȍ2015Ȏ

essentially says that States Parties have already accepted the Court’s jurisdiction over

the crime of aggression, which obviously contradicts article 121(5), second sentence;

however, the argument continues, article 12(1) should be seen as a more concrete

provision (as regards its relationship to the crime of aggression), and therefore as the

lex specialis

that prevails over the more general rule of article 121(5), second sentence,

but only as far as amendments dealing with the crime of aggression are concerned.

In accordance with this argument, article 121(5) applies to a broad range of other

amendments including entirely new categories of crimes that may be added in the

future or to, even minor, amendments to the definitions of crimes already contained

in the Rome Statute, such as the “Belgian” amendments to the definition of war crimes

that were also adopted in Kampala (but not to the crime of aggression).

Article 5(2)

is also seen as

lex specialis

with regard to the second sentence of article 121(5). According to

the proponents of the positive understanding, this provision indicates that the

Court shall exercise jurisdiction over the crime of aggression once a provision is

“adopted in accordance with articles 121 and 123” defining the crime and setting

out the conditions for the exercise of the Court’s jurisdiction over this crime; thus,

article 5(2) does not explicitly mention that the conditions for “the exercise of

jurisdiction” over the crime of aggression include other aspects dealt with by articles

121 and 123, such as entry into force of amendments or the limitation to the Court’s

jurisdiction under article 121(5), second sentence.

In addition, the positive understanding is based on the reference to the new

provision of article 15(bis)4, which provides that the Court “may, in accordance

with article 12, exercise jurisdiction over a crime of aggression, arising from an act

of aggression committed by a State Party, unless that State Party has previously

declared that it does not accept such jurisdiction by lodging a declaration with the

Registrar” (so called opt-out declaration). The opt-out declaration under this provision

can cover only the crime of aggression arising from an act of aggression committed

the State Party, not against it; in addition, according to operative paragraph 1 of the

resolution RC/Res.6, the State Party may lodge such a declaration “prior to ratification

or acceptance” of the aggression amendments. In this connection, the supporters of the

positive understanding pose the question: if the negative understanding of the second

sentence of article 121(5) were true, what would be the point of mentioning, in article

15(bis)4, that a State Party can opt-out already at a moment in time when it has not

even accepted (by the deposit of the instrument of ratification or acceptance) the

aggression amendments under article 121(5)? Thus, in the words of S. Barriga, “any

aggressor State Party is, by default, subject to the Court’s jurisdiction. It does not have

Stefan Barriga,

op. cit.

sub 1, pp. 48-49.

Ibid

., p. 49. However, this proposition contradicts the wording of the operative paragraph 1 of

resolution RC/Res.6, according to which the Review Conference decided “to adopt, in accordance

with article 5, paragraph 2 …the amendments to the Statute … which are subject to ratification or

acceptance and shall enter into force in accordance with article 121, paragraph 5 …”.