Equipo Nizkor - Germany: Explanatory Memorandum to the Act regarding the Amendments of 10 and 11 June 2010 to the Rome Statute of the International Criminal Court of 17 July 1998.

Crime of Aggression
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Mar/Apr 2013

Explanatory Memorandum to the Act regarding the Amendments of 10 and 11 June 2010 to the Rome Statute of the International Criminal Court of 17 July 1998

- Germany -

Overall assessment
From 31 May to 11 June 2010, the first Review Conference of the Rome Statute of the International Criminal Court took place in Kampala (Uganda). A central endeavour of that conference was to achieve agreement in relation to the crime of aggression. Following intense discussions and negotiations, the States Parties to the Rome Statute agreed on 11 June 2010 on a definition of the crime of aggression and on the conditions under which the Court may exercise jurisdiction with respect to that crime.
The agreement reached in Kampala constitutes a historical breakthrough in the development of international criminal law. The insertion of a definition of the crime of aggression in the Rome Statute closes a major gap in international criminal law and marks an important step in the fight against impunity for perpetrators of the most serious crimes of concern to the international community as a whole. The agreement on the crime of aggression results from a compromise achieved with some considerable effort between the States Parties and follows many years of preparatory discussions. The Federal Republic of Germany played an important role in this process and in shaping the compromise.
In addition, the Review Conference resolved on 10 June 2010 to amend article 8 of the Rome Statute and to add certain acts, already regarded as war crimes when committed in international armed conflict, as offences also in the context of armed conflicts not of an international character.
The States Parties to the Rome Statute agreed the amendments in two resolutions adopted by consensus on 10 and 11 June 2010. The German translation of the two resolutions is attached as an annex.
Definition of the crime of aggression and the Court's exercise of jurisdiction
Background to the issue
In the trials held before the International Military Tribunals in Nuremberg and Tokyo, the crime of aggression - expressed as crimes against peace - constituted one of the central prosecution charges. Article 6 (a) of the Charter of the Nuremberg Military Tribunal, which criminalized the 'planning, preparation, initiation or waging of a war of aggression, or a war in violation of international treaties, agreements or assurances was based on the Kellogg-Briand Pact of 1928 which required Contracting States to refrain from wars and acts of aggression. However, following the Nuremberg and Tokyo trials, it proved extremely difficult to codify the offence described by the International Military Tribunal in Nuremberg as the 'supreme international crime'.
The notion of aggression was addressed in resolution 3314 (XXIX) of the United Nations General Assembly of 14 December 1974. However, as a political document, its definition of aggression was not drafted for the purposes of international criminal law but to assist the United Nations Security Council in determining the existence of an act of aggression within the meaning of article 39 of the UN Charter.
Admittedly, the Rome Statute of the International Criminal Court adopted on 17 July 1998 at the Conference of Diplomatic Plenipotentiaries in Rome, which entered into force for the Federal Republic of Germany on 1 July 2002 (BGBl. 2003 II p. 293), included the crime of aggression alongside the crime of genocide, crimes against humanity and war crimes in article 5 (1) which lists the crimes within the jurisdiction of the International Criminal Court (ICC). However, in contrast to the situation regarding the first three crimes, no agreement could be reached in Rome on the definition of the crime of aggression and on the conditions under which the Court may exercise jurisdiction with respect to that crime. In particular, there was disagreement on the role the United Nations Security Council should play in determining whether an act of aggression exists. For that reason, article 5 (2) of the Rome Statute expressly provided that exercise of jurisdiction by the ICC over the crime of aggression was conditional on a subsequent agreement between the States Parties defining the crime and setting out the conditions under which the Court could exercise jurisdiction with respect to that crime. The Final Act of the Rome Conference provided for the establishment of a commission to prepare proposals on matters that were unresolved and to submit such to the Assembly of the States Parties to the Rome Statute.
This task was initially entrusted to the Preparatory Commission for the ICC which met from spring 1999 to summer 2002. In turn, the Commission established a Working Group on the Crime of Aggression which summarized the most important positions on the crime of aggression in a discussion paper of 11 July 2002. Following the entry into force of the Rome Statute in July 2002, the Assembly of the States Parties to the Rome Statute convened a Special Working Group on the Crime of Aggression to continue and complete the work on the crime of aggression. The deliberations of this Special Working Group, which met from September 2003 to February 2009 and were supplemented by informal meetings at the Liechtenstein Institute on Self-Determination in the Woodrow Wilson School of Public and International Affairs at Princeton University, were characterised by comprehensive dialogue and the greatest possible transparency. Consultations and discussions involved not only the States Parties to the Rome Statute but also non-States Parties and representatives from academia and nongovernmental organizations on behalf of civil society at large. The publication of detailed reports on the work of the Special Working Group after every meeting facilitated the continuation and strengthening of the dialogue with civil society and academia in between the meetings. The Special Working Group presented its proposals to the Assembly of the States Parties on 13 February 2009, which, in turn, accepted these unanimously on 26 November 2009. The proposals set out a provisional agreement as regards the definition of the crime of aggression but certain matters remained unresolved in relation to the exercise of the Court's jurisdiction. These proposals provided the basis for the negotiations at the Review Conference in Kampala.
Developments at the Conference
Given the preparatory work of the Special Working Group in the years preceding the Conference and the agreement reached in that context on the definition of the crime of aggression, negotiations in Kampala were focused on formulating the conditions under which the Court may exercise jurisdiction with respect to that crime. The delegations sought if at all possible to achieve agreement by consensus.
The key issues for the negotiations were, first, the role of the United Nations Security Council and, second, the conditions under which the new provision should enter into force. As regards the Security Council, certain States including the permanent members of the Security Council argued that article 39 of the UN Charter conferred on the Security Council a central role in the determination of the existence of an act of aggression. Consequently, in their view, the ICC could only have jurisdiction over the crime of aggression following a referral by the Security Council as, in relation to that crime, it was argued, the sole mechanism for triggering the Court's jurisdiction should be the mechanism provided for in article 13 (b) of the Rome Statute. Other States including the Federal Republic of Germany argued that the ICC should have jurisdiction in relation to the crime of aggression not only in the case of a referral by the Security Council but also in the other cases provided for in article 13 of the Rome Statute, that is, in the case of a referral by a State Party and in the case of an investigation initiated proprio motu by the Prosecutor. Ultimately, this latter view prevailed at the Kampala Conference.
As regards the ratification procedure to be followed in this matter, there was disagreement whether the procedure provided for in article 121 (4) or that of article 121 (5) of the Rome Statute should apply. Here, the Conference ultimately decided to adopt the latter procedure.
The fact that these decisions - by which the German objectives for the Conference were achieved in full - were adopted by consensus must be seen as a success in international law terms. This outcome was only possible through its incorporation in a compromise package which also

established a quorum of ratifications by thirty States Parties before the Court may exercise jurisdiction in this regard,

required a decision by the Assembly of the States Parties confirming the Court's authority to exercise jurisdiction with respect to this crime to be taken after 1 January 2017, and

introduced the option for a State Party to exclude the exercise of jurisdiction by the Court in this regard in the case of referrals by States Parties and investigations proprio motu by the Prosecutor.

Results of the negotiations
Definition of the crime of aggression
(article 8bis of the Rome Statute)
The definition of the crime of aggression adopted at the Review Conference constitutes a careful compromise and takes account of the fact that this crime -by reason of its criminalization of State acts of aggression and because of the leadership requirement - has a special character in contrast to the other crimes referred to in the Rome Statute.
The definition of the individual elements of the crime follows almost word for word the definition of 'crimes against peace' established in the Charter of the Nuremberg Military Tribunal. To counter the risk that this definition of the crime could be politicized, first, the definition of what constitutes an 'act of aggression' follows word for word the Definition of Aggression annexed to resolution 3314 (XXIX) of the United Nations General Assembly of 14 December 1974 and, second, the existence of an act of aggression itself does not give rise to the crime of aggression. Instead, the act of aggression must 'by its character, gravity and scale, constitute a manifest violation of the Charter of the United Nations'. Consequently, not every use of force by States which is contrary to international law will constitute also a crime of aggression. The provision is intended specifically not to include and hence not to criminalize as a crime of aggression actions whose legality is disputed - such as those committed in the course of humanitarian interventions - and situations in which the aggression is not of sufficient severity.
The crime of aggression is a leadership crime which can only be committed - be it as principal or accessory - by a narrowly defined set of perpetrators. Only persons in a position effectively to exercise control over or to direct the political or military action of a State can be held individually responsible.
Exercise of jurisdiction over the crime of aggression
(article 15bis and article 15ter of the Rome Statute)
Following intense negotiations, the scheme adopted concerning the exercise of the Court's jurisdiction in relation to the crime of aggression provides that all three mechanisms set out in article 13 of the Rome Statute, by which the Court's jurisdiction is triggered for the other crimes covered by the Rome Statute (the crime of genocide, crimes against humanity and war crimes), shall apply also to the crime of aggression.
Pursuant to the new article 15bis, the Court shall have jurisdiction either as a result of State referral or on the initiative of the Prosecutor (proprio motu). In neither case is there any need for a prior determination by the Security Council of an act of aggression by a State. However, the jurisdiction of the ICC over the crime of aggression under this article is restricted in two respects. First, the ICC has no jurisdiction over the crime where it is committed by the national of a non-State Party or on the territory of such a State. Second, States Parties are able to exclude by declaration the jurisdiction of the ICC over the crime of aggression (also known as 'opting out'). The special role played by the Security Council in ensuring world peace and restoring international security is underlined by procedural rules establishing a scheme of cooperation between the ICC and the Security Council.
In recognition of the special role played by the Security Council in the determination of an act of aggression, referral by the Security Council of a situation of that kind to the ICC is governed by a separate article, the future article 15ter of the Rome Statute. States Parties to the Rome Statute and non-States Parties can be the subject of a referral by the Security Council. In addition, in this case, States cannot opt out of the jurisdiction of the ICC in relation to the crime of aggression.
Activation of the ICC's jurisdiction over the crime of aggression
Before the ICC can exercise any jurisdiction over the crime of aggression the following conditions must be satisfied. First, the amendments to the Rome Statute must have been ratified or accepted by thirty States Parties. Second, the Court's jurisdiction over the crime of aggression must have been confirmed by a decision of the Assembly of States Parties. This decision cannot be taken until after 1 January 2017. This requirement constitutes an important element of the compromise package achieved in Kampala.
Amendment to article 8 of the Rome Statute
In addition to reaching agreement on the crime of aggression, the Review Conference in Kampala adopted an amendment to article 8 (2) (e) of the Rome Statute in relation to war crimes. As a result of this amendment, the deployment of certain weapons and bullets, which already constitutes a war crime when it occurs in international armed conflict, is now also a war crime when effected in armed conflict not of an international character, thus reflecting the position under customary international law and the German Code of Crimes Against International Law (Völkerstrafgesetzbuch). In 1998 the United Nations Diplomatic Conference of Plenipotentiaries in Rome had discussed an alignment of the offences constituting war crimes in international armed conflict and armed conflict not of an international character for the purposes of article 8 of the Rome Statute. However, at the time, no agreement could be reached.
The amendments result from a Belgian initiative, first proposed at the annual Assembly of States Parties in 2008. The draft resolution amending article 8 initiated by Belgium and supported by Germany and seventeen other States proved not to be controversial at the Kampala Review Conference and was adopted by consensus.
Elements of Crimes and understandings regarding the amendments
Together with the amendments made to the Rome Statute by resolution 5 of 10 June 2010 on article 8 (2) (e) (xiii), (xiv) and (xv) and resolution 6 of 11 June 2010 on article 8bis, amendments were also made to the Elements of Crimes, which, pursuant to article 9 of the Rome Statute, are intended to assist the ICC in the interpretation and application of the definitions of the crimes.
As a further aid to interpretation, the Conference adopted in resolution 6 understandings regarding the amendments to the Rome Statute of the International Criminal Court on the crime of aggression.
The German translations of the Elements of Crimes and the understandings regarding the amendments are included in the resolutions annexed to this explanatory memorandum.
German translation
The German translation of the amendments was produced jointly by official representatives of the Federal Republic of Germany, the Republic of Austria, the Swiss Confederation and the Principality of Liechtenstein on the basis of a draft produced by the Federal Republic of Germany.
Resolution RC/Res.5
Adopted at the 12th plenary meeting, on 10 June 2010, by consensus
RC/Res.5 Amendments to article 8 of the Rome Statute
The Review Conference,
Noting article 123, paragraph 1, of the Rome Statute of the International Criminal Court which requests the Secretary-General of the United Nations to convene a Review Conference to consider any amendments to the Statute seven years after its entry into force,
Noting article 121, paragraph 5, of the Statute which states that any amendment to articles 5, 6, 7 and 8 of the Statute shall enter into force for those States Parties which have accepted the amendment one year after the deposit of their instruments of ratification or acceptance and that in respect of a State Party which has not accepted the amendment, the Court shall not exercise its jurisdiction regarding the crime covered by the amendment when committed by that State Party's nationals or on its territory, and confirming its understanding that in respect to this amendment the same principle that applies in respect of a State Party which has not accepted the amendment applies also in respect of States that are not parties to the Statute,
Confirming that, in light of the provision of article 40, paragraph 5, of the Vienna Convention on the Law of Treaties, States that subsequently become States Parties to the Statute will be allowed to decide whether to accept the amendment contained in this resolution at the time of ratification, acceptance or approval of, or accession to the Statute,
Noting article 9 of the Statute on the Elements of Crimes which states that such Elements shall assist the Court in the interpretation and application of the provisions of the crimes within its jurisdiction,
Taking due account of the fact that the crimes of employing poison or poisoned weapons; of employing asphyxiating, poisonous or other gases, and all analogous liquids, materials or devices; and of employing bullets which expand or flatten easily in the human body, such as bullets with a hard envelope which does not entirely cover the core or is pierced with incisions, already fall within the jurisdiction of the Court under article 8 (2) (b) as serious violations of the laws and customs applicable in international armed conflict,
Noting the relevant elements of the crimes within the Elements of Crimes already adopted by the Assembly of States Parties on 9 September 2000,
Considering that the abovementioned relevant elements of the crimes can also help in their interpretation and application in armed conflict not of an international character, in that inter alia they specify that the conduct took place in the context of and was associated with an armed conflict, which consequently confirm the exclusion from the Court's jurisdiction of law enforcement situations,
Considering that the crimes referred to in article 8 (2) (e) (xiii) (employing poison or poisoned weapons) and in article 8 (2) (e) (xiv) (asphyxiating, poisonous or other gases, and all analogous liquids, materials and devices) are serious violations of the laws and customs applicable in armed conflict not of an international character, as reflected in customary international law,
Considering that the crime referred to in article 8 (2) (e) (xv) (employing bullets which expand or flatten easily in the human body), is also a serious violation of the laws and customs applicable in armed conflict not of an international character, and understanding that the crime is committed only if the perpetrator employs the bullets to uselessly aggravate suffering or the wounding effect upon the target of such bullets, as reflected in customary international law,
Decides to adopt the amendment to article 8 (2) (e) of the Rome Statute of the International Criminal Court contained in annex I to the present resolution, which is subject to ratification or acceptance and shall enter into force in accordance with article 121 (5) of the Statute;
Decides to adopt the relevant elements to be added to the Elements of Crimes, as contained in annex II to the present resolution.
Annex I
Amendment to article 8
Add to article 8 (2) (e) the following:

"(xiii) Employing poison or poisoned weapons;
(xiv) Employing asphyxiating, poisonous or other gases, and all analogous liquids, materials or devices;
(xv) Employing bullets which expand or flatten easily in the human body, such as bullets with a hard envelope which does not entirely cover the core or is pierced with incisions."

Annex II
Elements of Crimes
Add the following elements to the Elements of Crimes:
Article 8 (2) (e) (xiii) War crime of employing poison or poisoned weapons
Elements
1. The perpetrator employed a substance or a weapon that releases a substance as a result of its employment.
2. The substance was such that it causes death or serious damage to health in the ordinary course of events, through its toxic properties.
3. The conduct took place in the context of and was associated with an armed conflict not of an international character.
4. The perpetrator was aware of factual circumstances that established the existence of an armed conflict.
Article 8 (2) (e) (xiv) War crime of employing prohibited gases, liquids, materials or devices
Elements
1. The perpetrator employed a gas or other analogous substance or device.
2. The gas, substance or device was such that it causes death or serious damage to health in the ordinary course of events, through its asphyxiating or toxic properties.
3. The conduct took place in the context of and was associated with an armed conflict not of an international character.
4. The perpetrator was aware of factual circumstances that established the existence of an armed conflict.
Article 8 (2) (e) (xv) War crime of employing prohibited bullets
Elements
1. The perpetrator employed certain bullets.
2. The bullets were such that their use violates the international law of armed conflict because they expand or flatten easily in the human body.
3. The perpetrator was aware that the nature of the bullets was such that their employment would uselessly aggravate suffering or the wounding effect.
4. The conduct took place in the context of and was associated with an armed conflict not of an international character.
5. The perpetrator was aware of factual circumstances that established the existence of an armed conflict.
Resolution RC/Res.6
Adopted at the 13th plenary meeting, on 11 June 2010, by consensus
RC/Res.6 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,
Resolved to activate the Court's jurisdiction over the crime of aggression as early as possible,
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 15bis 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 abovementioned 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 8bis
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 15bis
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. The Court shall exercise jurisdiction over the crime of aggression in accordance with this article, subject to a decision to be taken after 1 January 2017 by the same majority of States Parties as is required for the adoption of an amendment to the Statute.
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 15bis of the Statute:
Article 15ter
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. The Court shall exercise jurisdiction over the crime of aggression in accordance with this article, subject to a decision to be taken after 1 January 2017 by the same majority of States Parties as is required for the adoption of an amendment to the Statute.
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:
3bis. 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 8bis.
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 8bis 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 8bis Crime of aggression
Introduction
1. It is understood that any of the acts referred to in article 8bis, 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 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
Referrals by the Security Council
1. It is understood that the Court may exercise jurisdiction on the basis of a Security Council referral in accordance with article 13, paragraph (b), of the Statute only with respect to crimes of aggression committed after a decision in accordance with article 15ter, paragraph 3, is taken, and one year after the ratification or acceptance of the amendments by thirty States Parties, whichever is later.
2. It is understood that the Court shall exercise jurisdiction over the crime of aggression on the basis of a Security Council referral in accordance with article 13, paragraph (b), of the Statute irrespective of whether the State concerned has accepted the Court's jurisdiction in this regard.
Jurisdiction ratione temporis
3. It is understood that in case of article 13, paragraph (a) or (c), the Court may exercise its jurisdiction only with respect to crimes of aggression committed after a decision in accordance with article 15bis, paragraph 3, is taken, and one year after the ratification or acceptance of the amendments by thirty States Parties, whichever is later.
Domestic jurisdiction over the crime of aggression
4. It is understood that the amendments that address the definition of the act of aggression and the crime of aggression do so for the purpose of this Statute only. The amendments shall, in accordance with article 10 of the Rome Statute, not be interpreted as limiting or prejudicing in any way existing or developing rules of international law for purposes other than this Statute.
5. It is understood that the amendments shall not be interpreted as creating the right or obligation to exercise domestic jurisdiction with respect to an act of aggression committed by another State.
Other understandings
6. It is understood that aggression is the most serious and dangerous form of the illegal use of force; and that a determination whether an act of aggression has been committed requires consideration of all the circumstances of each particular case, including the gravity of the acts concerned and their consequences, in accordance with the Charter of the United Nations.
7. It is understood that in establishing whether an act of aggression constitutes a manifest violation of the Charter of the United Nations, the three components of character, gravity and scale must be sufficient to justify a "manifest" determination. No one component can be significant enough to satisfy the manifest standard by itself.

[Source: Federal Foreign Office, Berlin, March/April 2013.]

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