CYIL 2015

PAVEL CABAN

CYIL 6 ȍ2015Ȏ

in accordance with article 121(5) of the Rome Statute cannot be subjected to the

aggression amendments including the amended jurisdictional scheme – they are

bound only by the original text and jurisdictional scheme of the Rome Statute as

adopted in 1998.

As regards the “Belgian” amendment to article 8 of the Rome Statute, its conformity

with the law of treaties seems to be even more problematic. As mentioned above, in

the second preambular paragraph of resolution Res./RC.5, the Review Conference

confirmed “the understanding 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”. According to the same

preambular paragraph, as regards the States Parties which have not accepted the

amendment, “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”, as provided for in the second sentence of article 121(5). The

question is, however, whether this understanding is applicable at all. As described

above, the jurisdictional scheme, which covers the amendments under article 121(5)

and which is applicable with regard to States Parties to the Rome Statute that

have not accepted the relevant amendment, differs from the general jurisdictional

scheme under article12(2) of the Rome Statute, which is applicable with regard to

non

-States Parties to the Rome Statute even in case of amendments adopted under

article 121(5). In case of State referrals and

proprio motu

investigations, non-States

Parties are subjected to the jurisdiction of the Court when their nationals commit

a crime – the definition of which entered into force under article 121(5) – on the

territory of a State Party or when a national of a State Party commit such a crime

on the territory of the non-State Party. On the other hand, States Parties which have

not ratified or accepted the new definition or amendment, which entered into force

under article 121(5), and their nationals are protected against the jurisdiction of the

Court over such a new crime. The States Parties might of course amend (

ad hoc

in general) this jurisdictional scheme, but, with regard to the “Belgian” amendment

(unlike the aggression amendments), they even did not intend to do so: they just

mentioned their understanding, which contradicts the text of the Rome Statute, in

the preambular paragraph of the resolution, without adopting any new provision of

the Rome Statute which would amend the general jurisdictional scheme. Therefore,

it is suggested that the last sentence of the second preambular paragraph of resolution

RC/Res.5 cited above is without any legal significance and that non-States Parties

are subject to the Court’s jurisdiction over amended article 8 in accordance with the

general regime provided for in article 12(2) of the Rome Statute.