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11Jun10

Draft resolution submitted by the President of the Review Conference on the Crime of Aggression

Table of Contents:

  • DRAFT RESOLUTION SUBMITTED BY THE PRESIDENT OF THE REVIEW CONFERENCE: The crime of aggression
  • ANNEX I: Amendments to the Rome Statute of the International Criminal Court on the Crime of Aggression
  • ANNEX II: Amendments to the Elements of Crimes
  • ANNEX III: Understandings regarding the amendments to the Rome Statute of the International Criminal Court on the Crime of Aggression

    [This table of contents is not part of the original document]

    International Criminal Court
    Review Conference of the Rome Statute

    RC/10
    Distr.: General
    11 June 2010
    Original: English


    Kampala
    31 May - 11 June 2010

    Draft resolution submitted by the President of the Review Conference

    The Crime of Aggression

    The Review Conference,

      Recalling paragraph 1 of article 12 of the Rome Statute, Recalling paragraph 2 of article 5 of the Rome Statute,

      Recalling also paragraph 7 of resolution F, adopted by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court on 17 July 1998,

      Recalling further resolution ICC-ASP/1/Res.1 on the continuity of work in respect of the crime of aggression, and expressing its appreciation to the Special Working Group on the Crime of Aggression for having elaborated proposals on a provision on the crime of aggression,

      Taking note of resolution ICC-ASP/8/Res.6, by which the Assembly of States Parties forwarded proposals on a provision on the crime of aggression to the Review Conference for its consideration,

    1. Decides to adopt, in accordance with article 5, paragraph 2, of the Rome Statute of the International Criminal Court (hereinafter: "the Statute") the amendments to the Statute contained in annex I of the present resolution, which are subject to ratification or acceptance and shall enter into force in accordance with article 121, paragraph 5; and notes that any State Party may lodge a declaration referred to in article 15 bis prior to ratification or acceptance.

    2. Also decides to adopt the amendments to the Elements of Crimes contained in annex II of the present resolution.

    3. Also decides to adopt the understandings regarding the interpretation of the above-mentioned amendments contained in annex III of the present resolution.

    4. Further decides to review the amendments on the crime of aggression seven years after the beginning of the Court's exercise of jurisdiction.

    5. Calls upon all States Parties to ratify or accept the amendments contained in annex I.


    Annex I

    Amendments to the Rome Statute of the International Criminal
    Court on the Crime of Aggression

    1. Article 5, paragraph 2, of the Statute is deleted.

    2. The following text is inserted after article 8 of the Statute:

      Article 8 bis
      Crime of aggression

      1. For the purpose of this Statute, "crime of aggression" means the planning, preparation, initiation or execution, by a person in a position effectively to exercise control over or to direct the political or military action of a State, of an act of aggression which, by its character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations.

      2. For the purpose of paragraph 1, "act of aggression" means the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations. Any of the following acts, regardless of a declaration of war, shall, in accordance with United Nations General Assembly resolution 3314 (XXIX) of 14 December 1974, qualify as an act of aggression:

        a) The invasion or attack by the armed forces of a State of the territory of another State, or any military occupation, however temporary, resulting from such invasion or attack, or any annexation by the use of force of the territory of another State or part thereof;

        b) Bombardment by the armed forces of a State against the territory of another State or the use of any weapons by a State against the territory of another State;

        c) The blockade of the ports or coasts of a State by the armed forces of another State;

        d) An attack by the armed forces of a State on the land, sea or air forces, or marine and air fleets of another State;

        e) The use of armed forces of one State which are within the territory of another State with the agreement of the receiving State, in contravention of the conditions provided for in the agreement or any extension of their presence in such territory beyond the termination of the agreement;

        f) The action of a State in allowing its territory, which it has placed at the disposal of another State, to be used by that other State for perpetrating an act of aggression against a third State;

        g) The sending by or on behalf of a State of armed bands, groups, irregulars or mercenaries, which carry out acts of armed force against another State of such gravity as to amount to the acts listed above, or its substantial involvement therein.

    3. The following text is inserted after article 15 of the Statute:

      Article 15 bis
      Exercise of jurisdiction over the crime of aggression
      (State referral, proprio motu)

      1. The Court may exercise jurisdiction over the crime of aggression in accordance with article 13, paragraphs (a) and (c), subject to the provisions of this article.

      2. The Court may exercise jurisdiction only with respect to crimes of aggression committed one year after the ratification or acceptance of the amendments by thirty States Parties.

      [3.insert provision on delayed entry into force]

      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.

      5. In respect of a State that is not a party to this Statute, the Court shall not exercise its jurisdiction over the crime of aggression when committed by that State's nationals or on its territory.

      6. Where the Prosecutor concludes that there is a reasonable basis to proceed with an investigation in respect of a crime of aggression, he or she shall first ascertain whether the Security Council has made a determination of an act of aggression committed by the State concerned. The Prosecutor shall notify the Secretary-General of the United Nations of the situation before the Court, including any relevant information and documents.

      7. Where the Security Council has made such a determination, the Prosecutor may proceed with the investigation in respect of a crime of aggression.

      8. Where no such determination is made within six months after the date of notification, the Prosecutor may proceed with the investigation in respect of a crime of aggression, provided that the Pre-Trial Division has authorized the commencement of the investigation in respect of a crime of aggression in accordance with the procedure contained in article 15, and the Security Council has not decided otherwise in accordance with article 16.

      9. A determination of an act of aggression by an organ outside the Court shall be without prejudice to the Court's own findings under this Statute.

      10. This article is without prejudice to the provisions relating to the exercise of jurisdiction with respect to other crimes referred to in article 5.

    4. The following text is inserted after article 15 bis of the Statute:

      Article 15 ter
      Exercise of jurisdiction over the crime of aggression
      (Security Council referral)

      1. The Court may exercise jurisdiction over the crime of aggression in accordance with article 13, paragraph (b), subject to the provisions of this article.

      2. The Court may exercise jurisdiction only with respect to crimes of aggression committed one year after the ratification or acceptance of the amendments by thirty States Parties.

      [3. insert provision on delayed entry into force]

      4. A determination of an act of aggression by an organ outside the Court shall be without prejudice to the Court's own findings under this Statute.

      5. This article is without prejudice to the provisions relating to the exercise of jurisdiction with respect to other crimes referred to in article 5.

    5. The following text is inserted after article 25, paragraph 3 of the Statute:

      3 bis In respect of the crime of aggression, the provisions of this article shall apply only to persons in a position effectively to exercise control over or to direct the political or military action of a State.

    6. The first sentence of article 9, paragraph 1 of the Statute is replaced by the following sentence:

      1. Elements of Crimes shall assist the Court in the interpretation and application of articles 6, 7, 8 and 8 bis.

    7. The chapeau of article 20, paragraph 3, of the Statute is replaced by the following paragraph; the rest of the paragraph remains unchanged:

      3. No person who has been tried by another court for conduct also proscribed under article 6, 7, 8 or 8 bis shall be tried by the Court with respect to the same conduct unless the proceedings in the other court:


    Annex II

    Amendments to the Elements of Crimes

    Article 8 bis
    Crime of aggression

    Introduction

    1. It is understood that any of the acts referred to in article 8 bis, paragraph 2, qualify as an act of aggression.

    2. There is no requirement to prove that the perpetrator has made a legal evaluation as to whether the use of armed force was inconsistent with the Charter of the United Nations.

    3. The term "manifest" is an objective qualification.

    4. There is no requirement to prove that the perpetrator has made a legal evaluation as to the "manifest" nature of the violation of the Charter of the United Nations.

    Elements

    1. The perpetrator planned, prepared, initiated or executed an act of aggression.

    2. The perpetrator was a person |1| in a position effectively to exercise control over or to direct the political or military action of the State which committed the act of aggression.

    3. The act of aggression - the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations - was committed.

    4. The perpetrator was aware of the factual circumstances that established that such a use of armed force was inconsistent with the Charter of the United Nations.

    5. The act of aggression, by its character, gravity and scale, constituted a manifest violation of the Charter of the United Nations.

    6. The perpetrator was aware of the factual circumstances that established such a manifest violation of the Charter of the United Nations.


    Annex III

    Understandings regarding the amendments to the Rome Statute of
    the International Criminal Court on the Crime of Aggression

    [to be inserted]

    - - - 0 - - -

    Notes:

    1. With respect to an act of aggression, more than one person may be in a position that meets these criteria. [Back]

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