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CYIL 7 ȍ2016Ȏ PROBLEMS WITH THE INCLUSION OF AGGRESSION…
the meaning of Article 15 bis, para 4.10 This ensures the regime of the whole Rome
Statute, which is fully consent-based. States Parties to this Statute have the possibility
of opting-out of the Court’s jurisdiction over the crime of aggression, despite the fact
that by ratifying the 1998 version of the Rome Statute they have already accepted
the Court’s jurisdiction over the yet-to-be-defined crime of aggression (Article 12(1)
Rome Statute). States Parties can do so by lodging a declaration with the Registrar.
3. The current conception of having recourse to force
in international relations
In the past, over centuries, the use of violence has been a matter of liberty,
which means, free from any restriction, it was freedom of action. Up until the early
20th century the waging of war was not prohibited under international law and
states could use war as a legitimate political instrument.11 Its ending and also the
end of the state of war, of belligerence, arrived with the subjugation of the adversary
party and its annexation or by negotiation of a contractual form. This peace treaty
has been settled directly by the belligerents after cessation of hostilities. For the first
time this long lasting practice has been changed by the negotiating of peace treaties
with the Central Powers to end World War I. The content of the treaty was settled
by the Allied Powers (70 delegates from 27 nations participated in the negotiations),
The defeated nations of Germany, Austria, and Hungary were excluded from the
negotiations. The Allies declared that war would resume if the German government
did not sign the treaty they had agreed to among themselves.12
There is a widespread belief that only WorldWar II is considered as a phenomenon
wholly distinct from former wars. Previous wars were actually the expression of the
above mentioned liberty of action, the change in which we can already notice after
the ending of World War I. It was just with this conflict that the inter-war period
of stabilization of custom began. This period also produced the so called Briand-
Kellogg pact, which condemns recourse to war and renounces the use of force as an
instrument of national policy in international relations.13 The treaty achieved a high
10 See Art. 15 bis – 4. 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.
The withdrawal of such a declaration may be effected at any time and shall be considered by the State
Party within three years.
11 See GERHARD WERLE, Principles of International Criminal Law, 2nd edition. The Hague: T.M.C.
Asser. 2009, p. 476-477, para. 1312.
12 The issue is of the Treaty of Versailles; see The other
Central Powers on the German side of World War I were dealt with in separate treaties. Treaty of Saint-
Germain-en-Laye (1919) with Austria; Treaty of Neuilly-sur-Seine with Bulgaria; Treaty of Trianon
with Hungary; Treaty of Sèvres with the Ottoman Empire.
13 See Art. I. The High Contracting
Parties solemly declare in the names of their respective peoples that they condemn recourse to war for