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06 June 2010

New Paper on Aggression

The Coordinator of the negotiations on the crime of aggression has just issued a new Conference Room Paper. This is an attempt to the focus discussion and gradually narrow the options in the search for consensus.  The proposal is noteworthy in that it has eliminated some of the options concerning triggering (some are calling this 'jurisdictional filter') of the jurisdiction of the Court over the crime of aggression. Basically, what now remains is that there are two options:
1. The Security Council must make a determination of an act of aggression. Failing that, the Prosecutor may not proceed with an investigation (alternative 1)
2. If six months go by without the Security Council making a determination, the Prosecutor may proceed with an investigation (alternative 2).
Of note, also, is the appendix with its list of understandings, and particularly the last understanding which concerns the amendment procedure. It is noted that this understanding is 'only relevant in case the amendments are adopted in accordance with the amendment procedure set out in article 121, paragraph 5, of the Rome Statute'. In other words, by implication debate continues as to whether the applicable amendment procedure is article 121(4) or article 121(5).


Acceptance of the amendment on the crime of aggression

5. [Acceptance by the victim State not required where the aggressor State has accepted jurisdiction] It is understood that article 121, paragraph 5, second sentence, of the Statute does not prevent the Court from exercising jurisdiction in respect of an act of aggression committed by a State Party that has accepted the amendment on aggression.

6. [Alternative 1 – “positive” understanding: jurisdiction without acceptance by the aggressor State] It is understood that article 121, paragraph 5, second sentence, of the Statute does not prevent the Court from exercising jurisdiction in respect of an act of aggression committed against a State Party that has accepted the amendment.

[Alternative 2 – “negative” understanding: no jurisdiction without acceptance by aggressor State] It is understood that article 121, paragraph 5, second sentence, of the Statute prevents the Court from exercising jurisdiction in respect of an act of aggression committed by any State that has not accepted the amendment.
These two options reflect the issue of whether the aggressor State must also ratify the amendment in order for a case to proceed. Note that under the so-called 'negative understanding', the Court cannot exercise jurisdiction where aggression is committed by 'any State' that has not accepted the amendment. In other words, if the 'negative understanding' is adopted, the Court could not proceed in a situation where aggression was committed by a non-party State - such as the United States, Russia, Israel, India, Pakistan, and the list goes on.

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