CYIL 2015

PAVEL CABAN

CYIL 6 ȍ2015Ȏ

enables an opting-out State Party to protect itself against the Court’s jurisdiction

over the possible crime of aggression committed by itself against another State Party,

while, at the same time, to remain under the protection of the Court’s jurisdiction

with regard to an act (crime) of aggression committed against it by another State

Party. Such a concept does not seem to support the principle of the rule of law and

reciprocity in international relations.

It is possible that many participants to the Review Conference originally did

not intend to create a system which would be based on the negative understanding

of the second sentence of article 121(5); it also has to be admitted that the negative

understanding results in a much narrower scope of jurisdiction covering only

those crimes of aggression where both the aggressor state and the victim state accepted

(ratified) the aggression amendments. However, the advantages of such a narrower

and more cautious “negative” approach seems to be greater legal consistency and

persuasiveness, accordance with the law of treaties and clear specification of a “circle of

virtuous states”

which voluntarily submitted themselves to the Court’s jurisdiction

over the crime of aggression committed in their mutual relations.

Jennifer Trahan,

op. cit.

sub 14, p. 91.