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THE DEFINITION OF THE CRIME OF AGGRESSION…
8. Conclusions
From the above description it can be seen that the conditions for the exercise
of jurisdiction under the aggression amendments are very complex, unclear and
complicated and that to come to their satisfactory interpretation in the context of
other relevant provisions of the Rome Statute is a very difficult “mission”.
37
However,
it is suggested that the negative understanding of the second sentence of article
121(5), which is the major bone of contention, is more coherent and well-founded
than its positive counterpart. It seems that the assertion that the States Parties
agreed with the exercise of the Court’s jurisdiction over the crime of aggression as
defined by the Review Conference (including the new, special jurisdictional regime
applicable with regard to this crime) already by consenting to articles 12(1) and 5(2)
of the Rome Statute, as adopted in 1998, is a far-fetched interpertation which is not
consistent with other provisions of the Rome Statute and the general law of treaties.
It is suggested that the strongest argument of the proponents of the positive
understanding is the text of article 15bis(4), adopted at the Review Conference, and
the fact that under the negative understanding, this provision would lose its
raison
d’etre
. However, this provision is not able to underpin the whole “construction” of
the positive understanding of article 121(5), second sentence. When interpreted
contextually, it seems to be clear that article 15bis(4) does not fit into the system
created by other relevant provisions of the Rome Statute. One author, after briefly
listing the inconsistencies concerning article 15bis(4), concludes that “[i]n the end,
one could get the impression that paragraph 4 has been hastily inserted in Article
15bis without bringing it completely in coherence with the articles dealing with the
amendment procedure.”
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It has to be admitted that the negotiation of the amendments on the crime of
aggression has been a very complicated process which had to take into account not
only complex legal issues, but also very sensitive political concerns of big powers,
including those which are not States Parties to the Rome Statute. It is suggested
that, unfortunately, this complexity and political concerns negatively influenced the
final text of the amendments. It seems that the whole opt-out system contained in
article 15bis(4) was included in the Rome Statute mainly to appease the big powers
(whether current or future States Parties) and to provide them with an “escape plan”
and extra protection against the Court’s jurisdiction over the crime of aggression.
39
As
pointed out above, in addition to legal problems, the concept of the opt-out system
is also questionable from the broader point of view of its legitimacy and fairness: it
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See also Marko Milanović,
op. cit.
sub 15, p. 181 (“To say that the jurisdictional picture that emerges
from all this is complex would be an understatement, to put it mildly”).
38
Robert Heinsch, The Crime of Aggression After Kampala: Success or Burden for the Future?,
Goettingen Journal of International Law 2 (2010) 2, p. 739.
39
For more detailed analysis of the political context see Jennifer Trahan,
op. cit.
sub 14, p. 92-93.