Informal and Unofficial Notes from the ASP by chenmeixiu

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									               Resumed Fifth Session of the Assembly of States Parties to
                  the Rome Statute of the International Criminal Court
                      SWGCA, 29 January 2007, Afternoon Session

                  Informal and Unofficial Notes from the ASP
           SWGCA, 29 January 2007 (Afternoon Session) – Formal Meeting

These notes are not an official transcript of the meetings, but may serve as an informal
and general overview of the proceedings. Please do not use these notes for official
purposes. Please note in particular that some of the interventions were listened to in
translation and may differ significantly in meaning from the original.

Chair: […]

Portugal: [English] It is of course with great pleasure that my delegation sees you once
again chairing our meetings of the Special Working Group on the Crime of Aggression.
We ought to continue to participate actively and in a concerted matter in these debates.
Quite a bit of progress has already been made in the course of the various sessions of the
Assembly of State Parties, and especially during the inter-sessional discussions in
Princeton regarding the crime of aggression. We thank also the Liechtenstein Institute
and the states that supported the meeting financially. The discussion paper you have
submitted to us reflects that progress and we would like to warmly thank you again for
your efforts in producing this paper, which we feel is more than timely. However, we are
conscious of a long work ahead of us to come to a successful outcome that will allow for
the effective inclusion of the crime of aggression in the Statute of the ICC.

The closer we come to the first Review Conference of the Rome Statute, at which my
delegation views the crime of aggression as a subject of particular priority, the more
important the work within this Special Working Group becomes. The ASP just recently
has taken important steps to initiate the preparations for the Review Conference and thus
we should not forget our proposed roadmap to achieve results by 12 months prior of the
Review Conference.

Mr. Chairman, we would like to focus our comments on the discussion paper proposed by
you right now. As it was suggested, we will not comment on the second part of the paper
concerning the elements of the crime of aggression. We will focus only on the definition
of the crime of aggression and not the conditions for the exercise of the jurisdiction.

But first allow me a comment of a more general nature. In our view, changes that will be
introduced to the Rome Statute should be reduced to the minimum, and they should fit
comfortably under the provisions for the jurisdiction of the Court and the rest of the
Statute. It is in that context that the considerations made below should be understood.

Mr. Chairman, let me start with the definition of aggression. First, we agree with the
insertion of a new article 8 bis titled Crime of Aggression into the Rome Statute.
As to Paragraph 1, we prefer, as we said it before, Variant (a) and agree that the
leadership character of the crime of aggression has to be reflected in the definition of the
crime itself.


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Concerning the wording proposed, for ease of drafting and keeping with the technique
used in the other crime definitions, it may be useful to explain separately the definition of
the individual crime of aggression from the definition of the collective act of aggression
in Paragraph 2.
Moreover, since the differentiated approach means that Article 25(3) does apply to the
crime of aggression, we feel that the reference to „planning, preparation, initiation or
execution“ is not necessary. Therefore, we would propose something along the following
lines for the definition of the individual crime of aggression in Para. 1 and we think it is
more straightforward. It should read as follows: “For the purpose of this Statute, the
crime of aggression means the conduct of a person when being in the position effectively
to exercise control over or direct the political or military action of the state, that person
leads or engages or directs the state into an act of aggression.’’

As to the continuation of Paragraph 1, as the Greece delegation said also, we are of the
view that this is not necessary. We do not think that the reference to „war of aggression“
is warranted since it would set the threshold too high. Furthermore, we likewise consider
the reference to the object or result is irrelevant. Moreover, Resolution 3314 does not
mention words such as „character“, „scale“ or „manifest“ violation of the charter. Only in
Art. 2 it deals with the issue of sufficient gravity, in as much as it recognizes that acts or
consequences that are not of sufficient gravity may make the determination of aggression
not justified. In this respect, some consideration of the issue of the gravity of aggression
should be given. But our view is that this issue is rather one of the requisites for the
exercise of jurisdiction of the ICC and not a matter of the definition of the crime. There is
already the reference in the preamble of the ICC Statute to jurisdiction with regard to the
most serious crimes, in particular in paragraph 9.

As to the definition of the collective act of aggression in Paragraph 2, our preference is
for the generic approach here reflected, but with the reference, maybe, to the exact
wording of Article 1 of the United Nations General Assembly Resolution 3314 of 1974.
Therefore, Paragraph 2 could read along the following lines: “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.” This could be
combined with a more complete reference to the acts that are listed in Resolution 3314,
by a reference to Article 3 or to the specific acts there mentioned following the drafting
technique used for instance in Article 6 of the Statute on the Crime of Genocide.
As to Paragraph 3, according to the differentiated approach, Article 25 is applicable to the
crimes within the jurisdiction of the Court, and therefore, in our opinion will be
applicable to the crime of aggression. This view is preferred, not only because of the
concerns expressed above about minimal changes to the Statute, but also in light of the
drafting technique of the Statute and in order to obtain a uniform regime concerning all
aspects of the crime of aggression: commission, forms of participation, attempt, etc., etc.

We consider, in principle that Article 25 in its entirety is applicable to the crime of
aggression. However, after the definition of the crime is adopted, there may be a need to

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revisit this article in order to avoid inconsistencies with the definition of the crime of
aggression and its characterization as a leadership crime, mainly, in regards to the so-
called ‘principal perpetrator.’

Concerning the possible exclusion of Article 28, we understand that there are good
reasons to exclude it in relation to the crime of aggression, but we feel that this issue has
not yet been sufficiently discussed and could benefit from a wider reflection. As concerns
the conditions for the exercise of jurisdiction, we will come back to the subject in the
order, as you asked for it before. Thank you very much, Mr. Chairman.

Chairman: [English] Thank you very much indeed for your comments, I next call
Australia.

Australia: [English] Thank you very much Mr. Chairman, and thank you to for your
revised discussion paper, which we agree reflects progress made, particularly in
Princeton, while not taking important options off the table as yet. Mr. Chairman, I have
three comments on Para. 1 of your paper. Our first comment is to say that we have a
slight preference for Variant (a), given that we have a slight preference for a
differentiated, rather than a monistic approach. However, I must say that above all, we
want a practical solution here which reflects the true leadership character of the crime.
And if it is determined after further discussion that this is best achieved through the
monistic approach, then we could very well be open to that. But at this stage, it seems
most sensible for us to make the crime of the aggression fit into the Statute in the same
way as all the other crimes, and therefore to go for the differentiated approach.

Our second point in relation to Paragraph 1 is a point that has been made by others, the
notion of needing a threshold to ensure that only the most serious crimes are investigated
and prosecuted by the ICC. This is something we feel strongly about, as we have said in
the past. In relation to the bracketed text you have included in Paragraph 1, we would
certainly support the inclusion of the [text in the] first set of brackets and are also open to
the inclusion of the [text in the] second set, but we’d like to discuss that further. So
certainly the first, and perhaps the second.

And our third point in relation to Paragraph 1, relates to the distinction between a generic,
a specific, or a combined definition of the state act of aggression. I think the combined
definition of the state act of aggression is distinct from the generic or the specific.
Certainly, we envisaged a generic definition as not including any list of examples of such
state acts of aggression. A specific definition would have an exhaustive list of such acts,
and to our mind a combined definition would have a non-exhaustive list of such acts.
This is relevant to Para. 1 as our Greek colleague pointed out, because of the option
between the terms „act of aggression“ and „armed attack“ at the end of both Variant (a)
and (b). We are pleased that you have included „armed attack“ here, which of course, is
perhaps the most generic option we could choose. Having said that, we acknowledge that
„armed attack“ is perhaps difficult to clearly define, and might need some further
consideration. So we can see merit to choosing „act of aggression“ here, providing that

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we define „act of aggression“ in Para. 2 in a sufficiently generic way. These are my three
comments on Para. 1, Mr. Chairman.

We have one comment on Para 2. As I said, „act of aggression“ could work for us at the
end of Variant (a) or (b) if it is defined in Para.2 in a sufficiently generic way. We think
that it would be best, therefore to exclude the bracketed texts reading Articles 1 and 3.
This would ensure that we are very clearly including Article 3 as a non-exhaustive list of
state acts of aggression, which would obviously tend towards a generic approach. I
understand some delegations have expressed concern about including Article 4 of
Resolution 3314 either expressly or implicitly in Para.2. I understand there are concerns
about legality here. But I think if the generic aspect of the combined definition is
sufficiently precise, then we need not be worried about concerns relating to legality, if the
list of specific acts is still non-exhaustive. And looking at Article 1 of 3314, we wonder
if that might do the trick, if there is sufficient precision inArticle 1 of 3314, that perhaps
concerns about legality will be less than they otherwise might be with a generic approach.
Thank you Mr. Chairman.

Democratic Republic of Congo: [translation from French] Thank you Mr. Chairman.
Allow me to say that your discussion paper is an excellent paper, which reflects the
progress made in previous meetings, particularly in Princeton. We are delighted to be
able to comment on that, in light of what others have said.

As far as we are concerned, we have a preference for Paragraph 1, for the differentiated
approach, a preference for Variant (a). We think that (a) reflects our viewpoint that we
expressed previously. We remain constant in that. We feel that is the version which has
received the most comments during the previous meeting, thus it should be kept.

Our second comment relates to the second part, that is the threshold of gravity. We
listened with great interest to comments made by previous speakers. For our part, we feel
that the issue of the threshold of gravity is interesting - in that it refers to the Charter of
the United Nations itself, and we really realize that the crime of aggression, or rather the
act of aggression comes under the part related to Chapter VII where it says clearly that
the act of aggression calls for the implementation of Chapter VII. And in Art. 39 you
will see that there is a graduation where before talking of the act of aggression itself, a
certain number of other conducts are listed, threat to peace, breach of peace, and act of
aggression is the last one. So that’s the way of highlighting this aspect of the threshold of
gravity that we think is well reflected here. We feel, that the „manifest violation of the
Charter“ should be kept and if we left it just like that there might be a great deal of
confusion. So we should justify by what we mean by „manifest violation of the Charter“.
We just have reservations that „manifest violation of the Charter“ should be explained,
particularly the expression of war of aggression. Much has been said about this, we
reserve our comment on this. We feel that we should be able to come back to this
question on the threshold of gravity given that the crime of aggression is a crime of
sufficient gravity in itself and the fact that we are here discussing this matter, whilst the
other issues in the Statute of the Court, other crimes against humanity, war crimes have

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already had their definitions. Those were established in the conference in Rome. If we are
here, it is because of the complexity of the crime of aggression. And it does have certain
specific aspects which should be reflected in its gravious threshold of gravity, so it is
important that we keep the second part of the definition, which is reflected here by
„manifest violation of the Charter“.

As regards to the Paragraph 2 of the definition, we also feel that the reference to
Resolution 3314, and Articles 1 and 3 which were mentioned, were done with good
reason, and that reflects the various viewpoints expressed in our previous debates. It is a
kind of symbiosis between the generic approach and the specific approach, which we
think is being taken into account here. That is a generic definition and the definition by
example with what is listed in 3314 so we think it is a merger of these two versions. We
were always in the favor of the generic approach but we would accept that the examples
which were mentioned in 3314 also be covered here if that helps us find consensus. So
we would not have much difficulty with that. But for the time being, Mr. Chairman, we
would stop here and come back later on the details. Thank you.

Finland: [English] Thank you Mr. Chairman. Thank you also for revising the
coordinator’s paper of 2002. That was clearly timely given the advances in recent years
in the context of the informal meetings and in the [regular] Working Group. Let me also
say that we are grateful to the three Coordinators, whose contribution to the work of the
Working Group has been indispensable. We are happy with the way the paper has been
updated. While it reflects the progress made so far, it also leaves room for further
proposals to be made during this meeting, that could help narrow down the differences.
We are actually quite optimistic that this will indeed be the case. I will try to respond to
your questions briefly so as not to repeat too much what has already been said.

Concerning Para 1, we also have a slight preference for the differentiated approach, and
would be willing to work on the language of Variant (a). Like Greece, we see merit in
discussing the drafting in informal consultations.

As to the threshold, we prefer the first bracketed text, and regard it as a good basis for
further discussions in case delegations feel it does not as yet contain sufficient criteria for
excluding minor cases. My delegation is quite happy with the text as it is now.

As to Paragraph 2, as Sweden pointed out, it has been made self-contained, and therefore
reflects the current view that the definition and the questions of the conditions for
exercise of jurisdiction should be kept separate.

We would have some misgivings about a general reference to GA Resolution 3314,
because such a general reference would create uncertainty, which is problematic from the
point of view of the principle of legality. Specific reference to Articles 1and 3 would not
have the same effect. However, as it stands now, we see Para. 2 as a place holder, and
agree with the Netherlands that a further version of the text should spell out these specific
acts, incorporating the text of Articles 1 and 3. As to the proposal to also incorporate the

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text of Article 2, I’m not quite sure whether the idea was to include the thrust of the
article, mainly, that the first use of armed force shall constitute prima facie evidence of an
act of aggression, or whether the article in its entirety should be incorporated, thus re-
introducing to the definition references to Security Council deliberations. In the latter
case, we would have some doubts. Thank you.

Chairman: I give the floor to Argentina.

Argentina: [Translation from Spanish] Mr. Chairman, I’d like to thank you for the new
version of the document that you put forward. I’ll make some very brief initial general
comments on the Argentine position on this and then I’d like to go into the section that
you asked us to put comments on, that is Section 1.

In general terms, we think that whatever solution on the crime of aggression should not
imply the amendment or a change to the principal norms of the Rome Statute or a change
in any way to its fundamental principles, with regards to jurisdiction and guarantees,
procedural guarantees that are in the Statute. For this reason we think that the crime of
aggression should have descriptions which are precise. We believe that we should not             Comment [B1]: I deleted the last part
                                                                                                 of the sentence because the translation
allow for open or blank crimes without specific standards and definitions. We also               looks very confusing and subtracts from
believe that we should not allow standards that would allow for analogous interpretation.        the thrust of the argument.


With regard to the definition of the crime of aggression, and the alternatives that you put
forward in Variant (a) or (b), we are flexible, although we do have a slight preference for
Variant (a), but we have to see how we can best achieve consensus.

With regard to the paragraph in brackets, I am wondering Sir, and in agreement with
what has been said by the distinguished delegate from Portugal, if it is necessary that we
add ‘flagrant’ or ‘manifest’ violations. In terms of whether we have to qualify the state
act as a flagrant or manifest violation of the Charter, I think we need to think as to
whether the ICC can act as an interpreter of standards which are not part of its Statute - in
particular in this case, something that is in the Charter. According to this logic, the ICC
would then have to decide on whether the act of state indeed violates general
international law which is within the Charter. And we think that this might in fact go
beyond the nature and function of the ICC and the object of the Rome Statute. We think
that this characterization of the act of aggression really corresponds to other levels within
the United Nations, such as the Council or the General Assembly. We would
differentiate, between the act of aggression and the crime of aggression. And that is the
context in which we feel that the act of aggression – as the act of state – should be
defined [determined] by one of the main bodies of the Charter.

Now, moving on to Paragraph 2 of your paper. We think that the crime should be a
closed one, and we need to refer to Resolution 3314, which is customary law and
accepted as such by the international community. An alternative that I could suggest in
order to ensure that there is no ambiguity: Art. 4 of 3314 leaves discretion and provides
that the acts are not exhaustive.So we should use the enumeration which is in Art. 3 of

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Resolution 3314, which is what the international community as a whole so far has
accepted. And I say this Mr. Chairman, because the ICC brings to justice individuals, so
that an open definition of the crime would raise the issue of procedural guarantees [due
process], which under our internal [national] procedure would be very complicated. That
would be difficult to solve.

Finally, on Para.3 and the reference to Art.25 (3) with regard to participation and attempt,
we believe that we do not need special rules on attempt and participation, that the general
rules in the Statute should be sufficient, and we should not be creating special rules for
attempts of the crime of aggression. This is my contribution for now. Thank you.

Chairman: I now give the floor to the UK.

UK: [English] Mr. Chairman, thank you. As with other speakers, I would like to
congratulate you on the very useful paper which you have produced. As was said in our
meeting in The Hague before Christmas, it was clearly necessary at this stage, that we
should now move on from the previous Coordinator’s paper, which in various respects
has been over taken. And I think the paper you have produced is an excellent way of
moving forward. Mr. Chairman, I think from our perspective, we see what has been
happening over the last couple of years as a steady movement forward, and this not only
reflects the constructive attitude that delegates have taken, but is also, I think, the best
way to make progress on this difficult issue. So, I think we will be looking for steady
progress on this issue over the next few meetings.

As I said in The Hague before Christmas, we do attach some importance as to when
precisely the Review Conference will take place. As I think many speakers have said, we
have to have in our minds a roadmap or a timeline and I think obviously it’s difficult for
us to have that timeline in mind, until we know exactly when that end point will be. It’s
obviously not for this Working Group to decide, but I think it’s important to have in mind
exactly what the end point is, and this means knowing as soon as we can when the
Review Conference will take place.

Mr. Chairman, you asked for comments on Paragraphs 1, 2 and 3 of your paper.
Beginning with paragraph 1, I think we like the way you have redrafted the Coordinator’s
paper. The way that it’s now done is much more consistent with the way other crimes in
the Statute are drafted and I think that’s a better way of doing things. Personally, and I
may have missed something here, but I’ve never been clear that there’s a difference in
substance between those who are keen on what is now represented in your Variant (a)
and those who prefer Variant (b). I must say that if there is a difference in substance, it
rather passed me by. If that’s right, then this may in the end turn out to be more a
drafting issue rather than one of substance. And I’m rather fortified by the fact that of
those who have spoken a large number have tended to say that they have no strong view
about this.



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In Variant (a), I’ve noticed that you have put various verbs in brackets and that you
suggested you might want to talk about this later or perhaps informally. Therefore, I
don’t want to start a drafting exercise here, but I did just wonder whether we can avoid
these problems by leaving out a verb that you have placed in brackets and just simply say
that person “plans, prepares, initiates or executes an act of aggression.” That then just
avoids having to think of another verb in addition to the verbs that are already there. But
perhaps greater minds than me can establish why that’s not a good idea. But it seems to
me looking at it, that that may be a way around the difficulties.

Mr. Chairman, as many others have said, we see a clear need for a high threshold in the
definition of the crime of aggression. I think that is consonant with the other provisions
in the Rome Statute. I don’t myself see that as inconsistent with other provisions of the
Rome Statute. Actually, on the contrary, if one looks at the way crimes against humanity
and war crimes are defined, you see a number of adjectives used that indicate some
degree of seriousness. So, I think that it’s important that we also have similar use of
language here. And from that it follows that we’re actually keen on keeping a word such
as „manifest“ before the word „violation“ because it’s important, as several speakers
have said, that we try to exclude what might be called the gray area cases that have been
mentioned.

Mr. Chairman, I personally have also always felt that it was useful to retain a reference to
the term “war of aggression.” Now why do I say that? I think the reason is that this is a
phrase that has been subject to judicial interpretation. Admittedly, we are talking about
interpretation of some years ago, but that does not necessarily mean that we should not
utilize the phrase and therefore utilize the learning which has gone into its interpretation
albeit some years ago. I just think it would be useful to the Court as in when it has to
interpret the phrase, to be able to look back at some of the precedents which have
interpreted that phrase “war of aggression” in the past.

As will perhaps be apparent from what I’ve already said, we prefer the use of the words
“act of aggression” as opposed to “armed attack.”

We’ve noted the way that you have in the paper defined the term „act of aggression“ by
reference to Resolution 3314. We have been looking back at some of the papers
generated at the time of the adoption of that resolution, and it was clear at the time that
the intention behind the resolution was to give guidance to the Security Council in the
carrying out of its functions under the Charter. I think we would be happy to accept that it
should be included in this definition, but I think equally we would find it difficult to see
how one can pick and choose which bits of it should be referred to. It’s quite clear,
looking back at the records, that the resolution was adopted as a package, after, as many
have pointed out, many many years of discussion. It was eventually adopted by
consensus, but I think that reflected the fact that there were checks and balances in the
resolution and I think it is unwise to pick and choose bits out of it. I think also, Mr.
Chairman, that is inconsistent with the resolution itself, which in Article 8, seems to rule
that out.

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Mr Chairman, just finally while I’m mentioning the resolution, on what is perhaps a
minor point, but something we should think about at some stage, I noticed that when the
resolution was adopted, there were several interpretative statements made in the report of
the Special Committee on Aggression, and further two interpretive statements made in
the reports of the Sixth Committee. And I think I’m right in saying that all of those
interpretive statements relate to Article 3. So there may be some question as to how or
whether we should reflect those interpretive statements in any definition which we come
up with for the crime of aggression. I’m not saying that’s a major issue, but if we are as
lawyers defining a crime of aggression, I think we need to bear in mind these perhaps
slightly more minor issues.

Mr. Chairman, again, I’d like to go back to where I have started and thank you again for
producing this discussion paper. We find it very useful. I think it is a movement forward.
I think, as I’ve said, we feel that moving forward steadily is the best way to make
progress and the production of the discussion paper is one step on that road. Thank you
Mr. Chairman.

Brazil: [English] Mr. Chairman thank you. Mr. Chairman, at the outset, on behalf of the
Brazilian delegation, I wish to thank you for preparing this useful discussion paper and
explanatory note. With regards to the paragraphs that are on the table for discussion, my
delegation would like to make the following brief comments.

First, Variants (a) and (b) seem to draw a slightly clearer line between the differentiated
and monistic approach. Taking into the account the advantages and disadvantages of each
option, Brazil would favor a wording closer to Variant (a), the differentiated approach,
even considering the specificities of the crime of aggression, as pointed out by the
distinguished Dutch delegate. My delegation is of the view that all crimes within the
jurisdiction of the ICC should be submitted to some basic common rules and legal basis.
That is the reason why Article 25(3) should apply to the crime of aggression.

The second point, I’d like to highlight, is that it seems to be more appropriate and prudent
to set a high threshold, as already mentioned by some other delegations. In that sense, we
believe that the first line between brackets would be more adequate, avoiding references
to war of aggression, or military occupation, or territory annexation, for example.

Third, as my delegation has already expressed in other meetings of the Special Working
Group on the Crime of Aggression, the language of the Rome Statute regarding the crime
of aggression, should be as close as possible to the one contained in Resolution 3314 of
the UN General Assembly. My delegation would be comfortable either with specific
references to Articles 1 and 3, or the exact transcription of the language contained in
these articles of Resolution 3314.

Mr. Chairman, the fourth and the last preliminary comment I’d like to make, is that we
believe that the ICC should work as an independent and autonomous body. Let’s not

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forget that the ICC is a judicial body that works within the international legal framework
in general and under the Statute of Rome, Rome Statute in particular. My delegation will
address this point thoroughly in due time. I thank you very much.

Chairman: I thank you, the next speaker is United Arab Emirates. Your floor, sir.

UAE: [translation from Arabic] Thank you Mr. Chairman. In turn, I would like to
associate myself with delegations who have congratulated you on this working document
which represents progress indeed and we feel and hope will lead to a successful outcome,
namely that we find a definition of crime of aggression as part of the competence of the
ICC. I don’t want to repeat what other delegations have said before me, and would like
to be brief, following your instructions at this morning’s meeting as regards this working
document.

So as regards Paragraph 1, we feel that Variant (a) is perhaps a variant that should be
taken into account, although the wording may need some reformulation, particularly
when we talk about „act of aggression“ or „armed attack“. We feel that “act of
aggression“ might be the more appropriate term which is in accordance with what comes
in Paragraph 2 of the definition. That’s the conception of the act of aggression in
accordance with Resolution 3314. Thus, we feel that this reference in Paragraph 2 should
be adopted. And particularly, the constituent elements of the act of aggression.

As regards what is in brackets and the threshold, what we have in the first set of brackets
is a good starting point, in order to distinguish between crimes of aggression and other
crimes. Thank you.

Chairman: Thank you very much for your comments, I next have Slovenia.

Slovenia: [English] Thank you, Mr. Chairman. At the outset let me thank you for the
excellent paper on the Crime of Aggression prepared for the discussion at this Resumed
Session. And let me express my gratitude for organizing the inter-sessional meetings of
the Special Working Group on the Crime of Aggression being held at Princeton
University. Mr. Chairman, I would like to put forward some preliminary points of my
delegation.

On the definition of the crime of aggression, our delegation is in favor of a generic
approach, but as a compromise, we would be willing to discuss the combined approach, if
that would be a preference of the majority of delegations. Furthermore, when considering
the individual conduct, we prefer having clearly defined individual participation in the
definition of the crime of aggression. Therefore, our preference would be the monistic
approach as suggested in Variant (b), under Paragraph 1 of the discussion paper.
However, we see advantages in the differentiated approach, as it has some notable
advantages, the most obvious being the preservation of the intergrity of the Rome Statute.



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In addition, my delegation does not have a strong position on the need of additional
qualifier in the definition of the crime of aggression, as it is already included in Article 5
of the Rome Statute. However, we would not oppose to the wording proposed in the
discussion paper concerning the act of aggression as constituting a manifest violation of
the UN Charter.

On the issue of the possible role of the Security Council, our delegation believes it is of
great importance to precisely define and clarify the role in conditioning the jurisdiction of
the ICC in order to avoid any unnecessary ambiguity when dealing with a particular case
of aggression.

Mr. Chairman, my delegation reserves its position to further comment on proposals
relating to the crime of aggression in future deliberations of the Special Working Group
on this issue. Thank you, Mr. Chairman.

Chairman: I thank you very much, I next give the floor to the delegate of New Zealand.

New Zealand: [English] Thank you Mr. Chairman and thank you for your valuable work
in updating the 2002 paper. We agree the updated paper reflects progress from Princeton
while well keeping the options on the table. As a general comment, we hope that the
paper will assist us in narrowing down our differences and help us continue the steady
progress towards defining the crime of aggression.

To be more specific, in terms of the definition of the crime of aggression, Paragraph 1,
New Zealand delegation would be willing to support Variant (a), the differentiated
approach. For consistency withPpara. 2, we would favor the use of „act of aggression“
over „armed attack“. We however could be flexible on Variant (a) as long asVariant (b)
well reflects the leadership character of the crime in this context.

In terms of the bracketed text, for Para. 1, we would be willing to accept the inlcusion of
the reference to „manifest violation of the UN Charter“. We believe this would make
clear an appropriate threshold for a crime of this nature.

For Para. 2, we agree that the reference to Resolution 3314 is appropriate, given the
significance and meaning of this resolution. For Para 2, at this stage we prefer the
paragraph without the text in square brackets. We consider this would result in a generic
definition of an act of state aggression complemented with a non-exhaustive list, in
effect, a combined approach. Again, however, we would be flexible in order to achieve
consensus on this. Thank you for the floor.

Chairman: Thank you very much, I next give the floor to the delegation of Kuwait.

Kuwait: [translation from Arabic] Thank you Mr. Chairman. Firstly, my delegation
would like to express great thanks for your efforts to make progress in defining the crime
of aggression either in the Princeton meetings, or in the meetings in The Hague of the

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Assembly of States Parties. We are pleased to see you chairing our work here in NY. We
would like to thank you for the discussion paper which has been updated, which
represents a step forward towards an appropriate definition of the crime of aggression and
deserves our appreciation. As regards the content of this document, we would like to
clarify the following points.

Firstly, we are in favor of including a new article in the Rome Statute. And there is
already a possibility of doing this under Article 5 of the Rome Statute, so we could just
include Aricle 5 bis, like other crimes mentioned in Article 5.

So as regards to these two variants, either differentiated or monistic, we prefer the
differentiated approach. Because it makes it possible to raise the threshold and to cover
the greatest number of crimes of aggression in the definition we ought to adopt. As
regards Variant (a) – we would like to delete the verbs „directs“ and keep „organizes or
directs“, while stressing the military act of aggression, and we would also like to remove
the brackets around “engages in“ and keep that term.

As regards „act of aggression“ or „armed attack“, we prefer „act of aggression“ because
it is more generic. Because any armed attack is an act of aggression, whilst an act of
aggression can take other forms.

As regards the brackets in the first paragraph, we prefer „which, by its character, gravity
and scale, constitutes a manifest violation of the Charter of the United Nations“. Because
the examples given in the second set of brackets are merely examples, it is not an
exhaustive list.

We support what the representative of China said, regarding the Resolution 3314,
because this is an indivisible whole, and choosing and picking various parts of the
resolution might undermine the intention behind this resolution.

As regards the role of the Security Council, we feel that paragraph (b) of Article 13 of the
Statute of Rome clearly defines the role of the Security Council, and we don’t need to
add anything to it. However, we are flexible. If there is not a prompt decision by the
Security Council relating to the specific act of aggression, we should not be unable to
address the situation. Therefore, we would be in favor of Option 3 which gives the Court
the possibility of determining the act of aggression. But not [with a wait] for 12 months,
because that would be too long and could undermine justice. Thank you.

Chairman: Thank you very much for your comments. I give the floor to the Cuban
delegation.

Cuba: [translation from Spanish] Thank you Mr. Chairman. As have other delegations
who have already spoken, we’d like to thank you for this working document that you
have presented to us, which we believe is a good basis for negotiation. And it is the
result of the informal meetings in Princeton, which of course, as everybody knows, this

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delegation was not allowed to attend because the host country authorities have denied the
Cuban representatives the permit to travel beyond the 25 mile radius which are measured
starting at Columbus Circle. And this is a discriminatory policy, which for reasons of
bilateral relations are applied to the representatives of some UN accredited delegations,
among them the Cuban delegation.

With regard to the request from you to speak to the first three paragraphs of the document
and to be brief, I will attempt to respect your request. With regard to Paragraph 1, this
delegation feels that in the definition of the crime of aggression, in order to appropriately
reflect this crime, we should also take into account when this crime of aggression takes
place by omission, as is in the general principles of criminal law. In other words, a crime
can be committed by action or omission. So, my delegation will later on make the
necessary proposals when the time comes to discuss this particular aspect.

With regard to the sets of square brackets, our delegation prefers the text that is in the
first set of brackets, which says that this crime of aggression is a „manifest violation of
the UN Charter“. Here, we’re in the same position as other delegations who have
expressed their doubts as to whether or not we need to qualify the fact, i.e. that we use
„manifest“ or „flagrant“. We believe that we only need it to constitute „a violation of the
UN Charter“.

With regard to Para. 2, we think this paragraph is appropriate in referring to Resolution
3314, a very important resolution with regard to this particular issue. We also think that
it would be appropriate to keep the full Resolution 3314 - as is stated in Article 8 of the
Resolution itself which says that the above provisions are interrelated and each should be
construed in the context of the other provisions.

And then with regard to Para 3, we would ask that Article 25 be applicable to the crime
of aggression, but in its entirety including with regard to attempts. We don’t believe that
attempt to commit aggression should be dropped from this paragraph. Thank you very
much. And this delegation would reserve the right when we engage in the further
negotiation process, we would want to make further proposals. Thank you.

Chairman: Canada you have the floor.

Canada: [English] Thank you very much Mr. Chairman for this opportunity to take the
floor. Canada would like to join the chorus of praise for your work on the discussion
paper, which creates a very very helpful basis for our work here this week. As you know,
Canada participated actively in Princeton, and felt that they were very useful in
advancing our understanding of these issues. We are pleased to provide financial
support, in fact, for that process and through our ICC accountability campaign to extend
our most recent meeting an extra day. We are all aware that these discussion concerning
how to define the crime of aggression and conditions under which the Court may exercise
its jurisdiction, are politically sensitive; and there continue to be diverging views on
important issues. We will continue to examine with interest the various proposals made

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over the past few years. But I would say at this junction, three comments regarding the
discussion paper that you have prepared.

With regards to paragraph 1, Canada would prefer the differentiated approach that is
outlined in Variant (a). In our view this would treat the crime of aggression in the
manner, which is in keeping with the broader architecture of the Statute as it applies to
other crimes within the jurisdiction of the Court. And it is therefore in keeping with the
overall package.

As to the threshold issue, and the question of whether or not the words manifest or
flagrant should be used to characterize the manner of the violation of the Charter, at this
juncture we would not wish to labor on the exact wording, but we do think its extremely
important, as other delegations have noted, in order to avoid having the Court consider
marginal or borderline cases.

Finally, in respect of the generic or specific definition, we are open to the proposals
concerning the combined approach, but we think the bottom line, the most important is
that the definition is clear and rigorous. So thank you very much Mr. Chair. We would no
doubt have other comments as this week unfolds.

Chairman: I thank you very much. I next give the floor to the delegation of Republic Of
Korea.

Korea: [English] Thank you Mr. Chairman. This delegation thanks you and the
Secretariat for preparing the new discussion paper. This delegation would like to make
short preliminary remarks on Paragraphs 1, 2 and 3.

First, with regard to Paragraph 1, my delegation prefers Variant (a), which represents the
differentiated approach, like the distinguished delegate from Canada has mentioned.

As to the threshold, my delegation believes that too high or too strict of a threshold may
deprive the ICC the opportunity to exercise its jurisdiction over the crime of aggression.
My delegation thinks that the threshold under the latter bracketed sentence of Paragraph
1, which refers to „war of aggression“, is too high and too open-ended as pointed out by
the distinguished delegation of Belgium. My delegation thinks the crime of aggression is
a leadership crime, so the nature of the crime should be maintained in the definition of
the crime.

As regards Paragraph 2, my delegation is in favor of the combined approach, which is
based on the generic approach supplemented by a specific list. The specific list may be
found in Articles 1 and 3 of Resolution 3314. And also, this delegation believes that
Article 2 of the Resolution may also be reflected in the definition as suggested by the
distinguished delegate of the Netherlands.



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Concerning Para. 3, my delegation is of the view that reference to Article 28 of the
Statute should be deleted. Although it seems that Article 28 of the Statute may have little
possibility to be applied to the crime of aggression, it is not necessary to block the
possibility at this time. And this delegation believes it should be decided by the judges of
the ICC.



Japan: [English] Thank you Mr. Chairman. Japan would like to welcome the hosting of
this meeting and also the great efforts by Mr. Chairman for providing this excellent,
updated discussion paper. It is no exaggeration that the crime of aggression is one of the
most important elements in the Rome Statute. Establishing a widely-accepted definition
would certainly contribute to the rule of international law in international relations. As
Japan attaches great importance to the crime of aggression, and also as the government of
Japan is currently accelerating its final efforts to prepare for accession to the Rome
Statute during this year, Japan hopes to actively participate in the upcoming discussions
towards the Review Conference. Here, I will touch on the basic idea in regard to the
definition of the crime of aggression at this moment briefly.

It will be more appropriate to have a generic definition rather than a description list of
acts and also if we were to include elements of specificity, or to use some examples to
specify the elements, it is essential to maintain certain parameters to the definition.
Otherwise, it would become theoretically possible to include all kind of acts as crime of
aggression, even if they don’t have the gravity and nature that would be viewed as such.
Thank you Mr. Chairman.

Chairman: Thank you very much. I now would like to give a floor to Colombia.

Colombia: [translation from Spanish] Thank you Mr. Chairman. First of all, my
delegation would like to join previous speakers in thanking you warmly for the very
complete working paper that you have provided us, which not only brings together the
different proposals with regard to the definition of the crime of aggression, the
circumstances for the exercise of jurisdiction and the act of aggression. So once again
we’d like to thank you for convening us at the informal meetings at Princeton, where
we’ve made considerable progress together with the other delegations.

With the working paper that you are proposing, we would state our preference with
regard to the definition of the crime of aggression as stated in Variant (a), in other words
the differentiated approach, because it integrates Art. 25(3) of the Statute, and as stated
by Canada, preserves the architecture of the Statute. Variant (a) keeps the homogeneity
of the possible conduct of participation for all types of crimes contained in the Statute,
and we think this is a virtue, because it would not modify, when you include this crime of
aggression, it would not change the Statute as such.



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With regard to this crime, we believe that we should keep the words “act of aggression”
and therefore delete or suppress the words “armed attack” because the act of aggression
would be based on Resolution 3314 under Para. 2 if that is accepted.

We believe that there should be a threshold when deciding how to qualify the crime of
aggression and we believe that the reference in the first set of square brackets would be
the appropriate.

With regard to Para. 2, which refers to the act of aggression, we believe that the reference
to Resolution 3314 is appropriate and I think in this way we include what the
international community put so much effort into doing in terms of defining the act of
aggression. We do not believe that it would be appropriate to only refer to some
provisions, in other words, as written here, Articles 1 and 3 of the Resolution. We
believe therefore that it would be appropriate to drop the mention of Articles 1 and 3 in
square brackets.

And in a preliminary fashion, we would say that with regard to the conditions for the
exercise of jurisdiction, we would point out that the ICC as a jurisdictional entity should
have autonomy in terms of becoming familiar with crimes of aggression if the Security
Council does not declare that these acts are acts of aggression. Therefore, the ICC would
be able to investigate.

Lichtenstein: [English] Thank you very much Mr. Chairman, my delegation is very
happy that we now have an opportunity here in NY, in the formal setting and with
enough time to consider these issues in front of us and to build on the progress made in
Princeton. I would also like to say that what my delegation really hopes is that as many
delegations as possible are able to participate here, including those delegations and
countries that are not yet States Parties to the ICC. I think it is worthwhile reminding that
the Special Working Group on the Crime of Aggression is open to participation on an
equal footing to all States. And therefore, I think it will be very important for the progress
on this issue that all States that have an interest in this issue be heard and be active during
this session. I just want to offer two comments on issues that have been mentioned today.

First is on the question in Paragraph 1, whether Variant (a) or Variant (b) should be
chosen, and in that respect my delegation favors Variant (a), the so called ‘differentiated’
approach for the reason that has been stated by some delegations, namely that Variant (a)
implies that we do make use of Art. 25(3), and that is in fact, maybe coming back to the
question that was posed by my distinguished colleague from the UK, there is a big
difference between Variant (a) and Variant (b). Because, in Variant (b), Art. 25(3) will be
completely excluded. Therefore, all the elements therein which are in essence more
precise elaborations of what it means to „order“, what it means to „commi“t a crime, all
these precise definitions, they will be lost. In other words, whereas Variant (b) only
speaks of „orders or participates actively“, uses only these four words, Art. 25(3) uses a
couple of sentences – „commits such a crime, whether as an individual, jointly ......“ etc.,
„orders, solicits, or induces the commission of such a crime .....“. All these elements will

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be lost if we would go for Variant (b). This of course does not mean that if excluded, that
the Court at the end through interpretations would not come back to these elements. But it
would certainly be a much neater and cleaner way of keeping what has been achieved in
these general principals of criminal law incorporated in the Rome Statute.

Then, I would just quickly like to mention, what the distinguished colleague from
Sweden said, that maybe the beginning of the sentence of paragraph 1 should be aligned
more closely with Art. 6, 7 and 8. Because if you look at these articles in the Rome
Statute, Art. 6, 7, and 8 they all begin by what a certain crime „means“, and then it is not
followed by a verb but by a subject, by a gerundium; therefore, we should also consider
whether this could be done here. There would be certain advantages to that, and I will
come back to the issue, when maybe in a more informal setting, we will discuss these
verbs that should be chosen under the differentiated approach. There is a possibility, and I
will come back to that, of not having to choose any of these verbs, if we choose a
formulation that is more closely worded according to the existing crimes of the Statute.
But I will certainly come back to that.

My second comments is regarding Paragraph 2, currently this is worded “... “act of
aggression“ means an act referred to in [articles 1 and 3 of] ... resolution 3314 ...“ and I
think here it is worthwhile mentioning that even though the brackets right now only refer
to Articles 1 and 3, this does not mean that the rest of the resolution is excluded.
Certainly, when we speak in this paragraph of an act referred to in Articles 1 and 3, that
means, while we look at an act that is defined in Articles 1 and 3, the other paragraphs of
Resolution 3314 also have to be considered while doing that. I think, the fact that we at
the moment do not just simply copy the text over and no longer mention the reference to
Article 2 of Resolution 3314, clearly implies that while we look at the definition of
aggression, we look at Resolution 3314 as a whole, while specifying that the exact acts
that we are looking at are those contained in Articles 1 and 3. So again, in our view this
would imply that the rest of the Resolution would not be lost. That’s what I have to add at
the moment, I thank you Mr. Chairman.

Chairman: Thank you very much. In terms of the drafting that you have suggested, for
those that are interested in that, there is a reflection of that in one of the old Princeton
reports. And that is the report of the 2005 session, and in appendix 1 to that report which
is ASP/4/32, which I understand is available in the room. On Appendix 2, you will find
sort of, at least, a raw draft that reflects the different approaches that were also mentioned
this morning by Sweden. So, if you want to look at that, because indeed it will be
discussed informally later on. Thank you. I next have Jordan.

Jordan: [translation from Arabic] In the name of God, the merciful, the compassionate. I
would like to join others who have praised you for your document, which I think is a
good basis for negotiation and discussion this week and in future meetings.

With regard to the definition of the crime of aggression, and specifically Variants (a) and
(b), we are flexible, and could take into account either (a) or (b), but we do prefer the

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monistic approach, the general approach, because we do not believe we need to discuss
the preliminary aspects of the person who commits the crime of aggression.

We also support the idea of „act of aggression“ as opposed to „armed attack“.

With regard to the square brackets, we do not support the two sets of square brackets.
We think this will complicate discussions. “War of aggression“ would complicate the
definition, especially in view of the acts you find in Article 3 of Resolution 3314. The
mention of occupation means that the crime of aggression doesn’t fulfill all the elements
unless there is military occupation. This would not be acceptable because the act of
aggression does not necessarily lead to an occupation.

This is why we support Paragraph 3 [2?] with regard to the element of the crime [act?].
We would prefer that mention be made of Articles1 and 3 of the Resolution with regard
to defining the crime of aggression, and this is not selective when you use the provisions
of the resolution, which has been agreed to by consensus.

On Paragraph 5, the delegation of Jordan would like the Court, if the Security Council
cannot do so, to be able to proceed with the case, because the Court should not depend on
the Security Council for something which is under its jurisdiction according to the Rome
Statute, and this is why we would prefer Option 1. Thank you.

Chairman: Thank you very much. I next give the floor to Norway.

Norway: [English] Thank you very much Mr. Chairman. Let me assure you that my
delegation applauds your efforts, and believes that the discussion paper is a proof of
constructive engagement, high quality of work and continued progress. We would like to
limit our observations to what you have invited us to comment upon, in order to help us
make further progress.

We have four overarching guidelines in own approach to these particular paragraphs.
One is, this is a leadership crime, as also reflected in the body of law represented by the
Nuremburg judgments. Second is that we need a clear and high threshold as repeated by a
number of delegations. Third, we have to respect the integrity and the inter-relatedness of
provisions contained in Resolution 3314 of the General Assembly from 1974, as reflected
in Article 8 of the latter. And fourth and finally, we would prefer following the structure
of the definitions of the other crimes in the provisions of the Statute. So we prefer
integrity in the final product. With these four factors, for reasons mentioned by a number
of delegations before ours, we will speak in favor of the following priorities and
preferences again guided by the spirit of flexibility and brevity.

The first is, we have a preference for Variant (a) for reasons already expressed. And we
would also clearly prefer the reference to „act of aggression“ rather than an „armed
attack“. Referring to an act of aggression is reflecting that we built on the established


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body of law, as represented by United Nations 1974 GA resolution and other factors that
are relevant to our work.

Second, with regards to the paragraph which is currently within two sets of brackets, we
clearly have a preference for the qualification, whether „manifest“ or „flagrant“. We will
reserve our judgment in regard to the content of the second brackets. Moreover, with
regards to Paragraph 2, we are comfortable with the reference, generic reference to
Resolution 3314. I would believe that references to Articles 1 and 3 are at best
redundant, because they are an implicit reference to the act of aggression in the whole of
resolution 3314. If it is not redundant, then we fear it will have a limiting effect. We
would favor deleting the content of the square brackets in Paragraph 2.

We believe that these issues are ripe for discussions in informal sessions such as you
indicated. We believe that there is scope for streamlining the wording and drafting style,
to that used in Articles 6, 7 and 8 of the Statute. I believe that with regard to these issues,
we have quite firm ground under the feet, and we welcome substantive discussions, also
on all other relevant aspects concerning the crime of aggression, in this open and
transparent way you are engaged in, Mr. Chairman. Thank you.

Chairman: Many thanks for that. I have Libya next.

Libya: [Arabic translation] Thank you Mr. Chairman. Allow me to thank you for your
efforts in preparing this paper now before us. It is undoubtedly a paper which reflects
major progress toward the objective we are seeking, being a legal definition of the penal
crime of aggression. It would then fall within the jurisdiction of the ICC which
prosecutes persons and not States.

My delegation believes that references to Resolution 3314 helps in reaching such a
definition without prejudicing the Statute of the ICC, otherwise known as the Rome
Statute. My country, like others, which were not a party to the drafting of the Rome
Statute, - a Statute which is very flexible at the current time, the way it contains the crime
of aggression, whether with regard to the reference to 3314 as well as both of the
alternatives or variants before us -, we believe that this definition will lead to a change in
position of many countries including mine, a country which lives in a region which has
been subjected to many notable cases of acts of aggression. Despite the progress made so
far, the hiatus recently witnessed is not due to legal issues but is rather due to political
reasons, and attempts to separate the ICC from the crime of aggression and also at
preventing a definition that would allow for a crime of aggression in the jurisdiction of
the Court. A definition by this Assembly of the crime of aggression will help many
States to become a party to the Court, including mine.

Now going back to the questions pertaining to the discussion paper, our preference would
be for Variant (a) because we believe that it better expresses the characteristics of that
crime we are attempting to define. It also allows for application of Article 25(3). My
country would also stress that we should use „act of aggression“ as opposed to „armed

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attack“. We are flexible enough to accept any other proposals which may allow us to
reach an appropriate definition of this crime. I thank you Sir.

Chairman: Thank you. I give the floor to the delegation of Egypt.

Egypt: [Arabic translation] Thank you Mr. Chairman. At the very outset, let me join all
previous speakers in expressing our thanks to you for the discussion paper you have
prepared for this series of meetings and to facilitate our work. Let me enter into the
substance directly as you have requested Mr. Chairman.

Now, pertaining to the definition, the delegation of Egypt prefers specificity, as these are
serious crimes and all are aware that crimes must be defined in order to be prosecuted.
We would therefore prefer Variant (b) of Paragraph 1 of your paper. It is more specific,
it is clearer in setting out the specific responsibility for such acts, it clearly shows that it is
a leadership crime.

As for the variants in brackets, the delegation of Egypt prefers the second set of brackets,
with the need of reviewing the issue of „war of aggression“, since war is per se an act of
aggression, and therefore the right of self-defense according to the Charter is not an act of
war as defined as an act of aggression. As we are flexible in choosing among both
variants, we do not like the term „flagrant“, because we believe that this issue is covered
under international law, and we must in no way prejudice the role of United Nations in
the finding of an act that is a violation of the Charter.

Concerning Paragraph 2 of your discussion paper, we prefer that Resolution 3314 of the
General Assembly of December 1974 be referred to, because it is essential in
international norms in this regard. It is part and parcel of the role to be taken up by the
General Assembly. The General Assembly provides guidelines to the Security Council,
and although the delegation of Egypt is flexible as to the reference to the resolution as a
whole, we prefer reference to articles that do take up acts of aggression. We believe there
would be no problem in quoting specific articles of the said resolution.

As for the Court taking up its jurisdiction when the Security Council fails to make a
determination, we prefer the first Option in Paragraph 5 of the document, because the
Security Council has not used this expression of aggression for decades now. In some
cases, it is difficult for the Security Council, purely for political reasons, to take
decisions, that a particular State has committed an act of aggression. Thank you.

Chairman: Thank you very much. I next have Venezuela.

Venezuela: [Spanish translation] The Venezuelan delegation would like to join those
who have congratulated you Sir in recognizing the work you have done in chairing the
Special Working Group and in preparing this document. Before we start on the aspects
you’ve requested us to discuss, we wanted to make a general comment on the issue. We


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think its important that we make an effort to give a context to the work that could be
called historic, this work that’s being carried out by the ASP.

We’d like to say that it’s been a significant progress that was made in drawing up
Resolution 3314 with regard to acts of aggression. In that resolution, as we all know, it is
stated that it is important for the Security Council to take into account the definition
stated here. However, recent history reminds us that, unfortunately for the international
community and for peoples and nations that have suffered aggression, there has been very
little activity by the UN bodies. And this has left the resolution within a political sphere
and not binding in nature. And so the significant step in the search for justice gives us
this creation of the ICC whose ideal is justice and to guarantee international justice, and
to fight impunity, within a legal framework that binds us. And it is in this legal aspect
where all States are equal, and this is what we need to guide ourselves by. So in the
framework of this discussion, we would prefer to guide ourselves by the legal framework
and not the political context. And in this context we will make some comments on the
paper you have drafted.

With regard to the definition of the crime of aggression, we believe both the monistic and
differentiated variants have important elements. However, in the view of our delegation,
studying this together with Venezuelan experts, we feel we should not forget that the
main debate we should be carrying out is to identify those who are responsible—the
intellectual and material authors of the crime of aggression. And we believe that what is
closest to what is in our internal criminal law in our countries is the differentiated
approach.

However, with regards to how to decide on the intellectual responsibility, it is not that
clear to us. Within these verbs that are placed in this drafting, Article 25(3) is a very
important reference point in that context, because it brings in the different variants that
could help us in determining the individual criminal responsibility of these perpetrators.
To our view, article 25(3)(a) [?] should be included here, because that means in terms of
Venezuela, we propose and suggest to all States here that we should include two elements
under the differentiated approach—the decision and the ordering. Ordering is in (b) but
is not in (a), which is the differentiated approach. We think that if we put ordering in the
differentiated variant, it would allow those States that have not decided which of the two
approaches they prefer, that would probably help them decide.

With regard to the sets of square brackets sir, which refer to the threshold, we think its
important to point out that the preamble of the Rome Statute brings in the necessary
parameters, they’re already established and we shouldn’t be seeking other qualifiers, they
might be difficult to specify. And with regard to the second set of brackets, which
mentions a “war of aggression or an act which has the object or result of … occupation ...
or annexing…”, we think this is a rather limited definition, because we know in reality
that an act of aggression cannot be limited to force but goes beyond force. And so, we
prefer not to limit this simply to military occupation or annexing territory.


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With regard to defining the act of aggression and taking into account what I said at the
outset, about the importance of the ICC as a body that guarantees international justice, we
believe that in this framework, we should take the text of Articles 1 and 3 of Resolution
3314 without specifying Articles 1 and 3, because coming back to reality which is what
hits all of us, within international law and impunity, this cannot be carried out by any
other body and the ICC needs to ensure its autonomy and its independence. Now further
on we could give you further reasons, because the Court is born as a complement to
national judicial bodies, this is an essential elements that we should not forget.

With regard to paragraph 3 and the attempted act of aggression, we think it is important
to qualify the attempt as a crime of aggression. Those are the views of our delegation and
our contribution to this debate. Thank you very much.

Chairman: Thank you. I next give the floor to Trinidad and Tobago.

Trinidad and Tobago: [English] Thank you very much Mr. Chairman. Once again we
salute your efforts in coordinating our work and your presence is showing the role that
small States can play in international relations. And we wish to commend your
government on being so intimately involved in this very important area in international
criminal law.

Mr. Chairman, we have a few preliminary observations to make at this point in time. We
are in favor of Paragraph 1, Variant (a). Let me first emphasize the leadership nature of
the crime in question, but also because it rests comfortably with the object and purpose of
the Statute, that is to prosecute the principal offenders who commit crimes within the
jurisdiction of the Court. Consequently, we prefer among the words in brackets, although
we are not wedded to it, – the word ‘directs.’ Because, it also emphasizes, in our view
the importance of the leadership character of the crime in question.

With respect to Paragraph 2, we also find very useful your reference to the Resolution
3314. The incorporation of Articles 1 and 3 of the Resolution in the definition of the
crime of aggression, is not only grounded in customary international law, to which all
States adhere, but when read together with Article 4 of the resolution, provide us with the
window of opportunity to deal with future acts which are not contemplated by this
Working Group.

As for Article 25(3), we wish to emphasize, that since we are dealing with a crime of
leadership, a crime for which leadership is an important element, we need not forget that
incoherent crimes may also be committed by those leaders. And we should not allow the
possibility of leaving out the reference of this particular Article when we finish our
definition. Thank you.

Chairman: Thank you very much. Now I give the floor to the delegation of Spain.



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Spain: [Spanish translation] Thank you Mr. Chairman. First of all, before I start my
statement, I’d like to thank you very warmly for the work you have been carrying out
since you undertook to chair the SWGCA. I’d especially like to thank you for the
discussion paper you prepared, which we believe will facilitate our work. In order to be
brief I’ll focus exclusively on Paragraphs 1, 2 and 3.

With regard to Paragraph 1, my delegation would clearly like to state its preference for
Variant (a), which brings in, in a sufficiently clear way, the idea of a crime of aggression
as a leadership crime, which ensures the broader scope for the application of the
principles of the Statute of Rome. However, we would prefer the drafting of the first part
of Paragraph 1 to refer only to „act of aggression“ and therefore exclude the words
„armed attack“. With regard to the words that are in square brackets, we believe we need
further debate and we would be happy to participate in informal consultations that you’ve
announced will be taking place.

Second, with regard to the threshold of gravity which is in the second part of Paragraph 1,
we believe this is sufficiently reflected in the first sentence which is in square brackets,
and which refers to a “manifest violation” without, to our view, needing any examples of
this type of violation. Therefore, the second set of brackets, we believe, could simply be
deleted.

And finally, with regards to Paragraph 2 and the reference to Resolution 3314, we think
we should keep this as a basis for the definition of an act of aggression. However we
should understand that Para.2 does not attempt to define the act in general terms but just
for the purpose of Para. 1, so that it can be part of the ICC process - to give an
interpretation with a guarantee of legal proceedings. So, we believe it is very useful in
that case to make reference to Articles 1 and 3. However, we believe on the basis of
opinions expressed today, there is obviously a clear need to continue to discuss this last
element. Thank you.

Chairman: Thank you. I now give the floor to Sweden.

Sweden: [English] Thank you Mr. Chairman. It has been a very long, fruitful and
interesting discussion; that should be accredited both to the dedications of colleagues and
also a good quality of the draft. You encouraged us to be interactive, so in response to
that I would like to return to a couple of issues that have been raised by colleagues.

The first one is the threshold. I believe that there has been a broad support for the idea of
a threshold, in particular for the first sentence in square brackets, in the second part of
Paragraph 1. Let me just comment on what some have referred to, namely Article 5 [of
the Statute] as a threshold. Article 5 provides, as you all know, that the jurisdiction of the
Court should be limited to the most serious crimes of concern to the international
community as whole. In my reading, this is not a threshold applicable to each and every
crime, it is more of a declaration, I would say, which explains why it is that these
particular four crimes were included in the Statute and not other crimes. So it is not a

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threshold that should be applied to each of the crimes. In fact, the other crimes already
have appropriate thresholds included in their definitions. So I think, we should think
about the need of the threshold with regard to the crime of aggression, specifically.

The other issue that has been brought up by quite a few delegations, is whether we should
keep reference to Resolution 3314 as a whole. There has been quite a lot of support for
this suggestion that is in the draft, namely that we refer or perhaps cite Articles 1 and 3.
But there has been also a substantial number of States that want to include the whole
definition. Now, the bottom line for my delegation is that there should be no doubt that
the definition is self-contained, in the sense that the determination of the crime should not
be dependent on the decision by another body. Furthermore, the definition should
correspond with the principle of legality, that it should be sufficiently precise. If that is
granted, we would take the flexible approach.

But let me, nevertheless, go through 3314 very briefly. Now, Article 1 and Article 3,
clearly define and enumerate types of acts that should be covered by the term of „act of
aggression“. Article 2, as has been pointed out by one colleague, provides what should
constitute evidence of the act, which is something else than a definition in my view.
Article 4 provides that acts enumerated above, that is acts in Article 3, are not exhaustive
-- that is something my delegation could live with also, that idea, as long as it is for the
Court to decide on its own authority which other acts should constitute aggression. I think
that would have to be phrased quite carefully, probably along the lines of Article 7 [of the
Statute] to assure that it is a semi-closed list, so-to-say. Now, Article 5(1) provides that
no consideration of any nature may serve as a justification for aggression. And I think
that it is important. But Articles 1 and 3 do not suggest that any consideration may serve
as a justification for aggression. Article 5(2) provides that war of aggression is a crime
against international peace and it gives rise to the international responsibility, that is not
necessary for our purposes, since what paragraph 2 [of Art.5] provides is actually what
we are trying to do. Paragraph 3 provides that no territorial acquisition or special
advantage should be recognized as lawful. I think it not immediately relevant for us. Now
Article 6, says that nothing in this definition should be construed as enlarging or
diminishing the scope of the Charter. And of course that is important. But I would like to
remind colleagues of Article 10 of the Statute, which provides something similar,
namely, that nothing in this part should be interpreted as limiting or diminishing in any
way existing or developing rules of international law for purposes other than in this
Statute. Perhaps that could cover what is in Art. 6 of Resolution 3314. And then in
Article 7 there is of course an important provision that refers to the right of self-
determination, which should not be prejudiced by the definition of aggression.

Now, as was mentioned by another colleague, a reference to Article 3 and Article 1 does
not close the concept of an act of aggression, it would still have to be interpreted in light
of public international law, including the law of UN Charter. And if that would be
helpful, I think that could be provided as well in the definition. But as I said, we will keep
an open mind, as long as it would be for the Court and the Court only to determine
whether the crime has been committed. Thank you.

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Chairman: Thank you.

Mexico: [Spanish translation] Thank you very much Mr. Chairman. My delegation
appreciates the discussion paper that you have presented. Now I’d like to make some
brief comments with regard to Paragraphs 1-3. As mentioned before, Mexico prefers the
monistic approach in Paragraph 1. We believe it is clearer and allows us to cover the full
scope of a leadership crime, such as that of aggression, because of the advantages we see
in its implementation though a court of law.

With regard to threshold which is included in the second part of Paragraph 1, my
delegation believes it is appropriate to include the first set of brackets in the paragraph,
“which, by its character, gravity and scale, constitutes a manifest violation of the Charter
of the United Nations.” As other delegations have said and we agree with them, the text
within the second set only includes some examples, and can in no way be considered
exhaustive and it should be dropped.

As to Para. 2, Mexico believes it’s necessary and appropriate to include the mention of
Articles 1 and 3 of Resolution 3314, but it should be limited to those articles. In this
way, my delegation feels it inappropriate to make a generic reference to Resolution 3314,
especially because this would bring in the risk of violating legal certainty. In addition,
some articles within the Resolution may contradict provisions in the Statute of Rome and
in fact go beyond individual responsibility. For this reason, the Mexican delegation
believes it is essential to keep the independence and autonomy of the ICC.

Chairman: I next give the floor to the delegation of Italy.

Italy: [English] Thank you Mr. Chairman. As the previous speakers, let me thank you
warmly for the excellent discussion paper you have produced, with your dedicated efforts
to finalize the work of the Special Working Group. We also, as some previous speakers
have said, understand that it is essential, in order to finalize this work, that we have a
clear time-framework in which to produce the results of our work.

Some brief comments on Paragraphs 1 to 2. We are in favor of the differentiated
approach and Variant (a) of the text, and we understand that the first part of Variant (a)
captures very well the character of a leadership crime, of the crime of aggression. As far
as words in the brackets are concerned, we are ready to discuss these in informal setting.
We would rather exclude that „armed attack“ should be included in this definition, as
„act of aggression“ would better fit with the following part of the definition.

The threshold which has been included in the two subsequent brackets, we are in favor of
the first wording, in the first brackets. While we are not convinced that the current
definition reflects exactly the structure of the other crimes under the Rome Statute, and
we might consider revisiting the current wording in order to align the definition of the
crime of aggression to the definition of the other crimes. For instance, instead of dealing

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with it in the second part of paragraph 1, the issue of the threshold could be put right at
the beginning of the definition, as it is in Articles 7 and 8. The higher the threshold is, the
better it is, in order to capture the idea of the crime and it is something that has already
been dealt with for Articles 7 and 8.

Now, the issue of Resolution 3314. We are in favor of a generic approach, and we tend to
understand that Resolution 3314 cannot be an object of selection by this Assembly; it
would be up to the ICC, when interpreting the crime of aggression provision, to identify
which provision from the articles in the resolution to apply and which are not applicable.
Therefore the wording that is currently in brackets, Articles 1 and 3, should be in our
understanding deleted in order also to have the act of aggression definition applicable to
modern warfare, and other acts of aggression which could be identified under Article 4 of
Resolution 3314. We do understand that these won’t open the door to any uncertainty
under the principle of legality, exactly because we have a threshold whith regard to
character, gravity and scale, which would allow to have enough specificity in the
definition of the crime also for these other acts. Thank you Mr. Chairman.

Chairman: Thank you. I next give the floor to delegation of Kenya.

Kenya: [English] Mr. Chairman, before I make my brief comment, let me join the other
delegations in thanking you for a very fine discussion paper which is a good basis for our
discussions at this meetings. Mr. Chairman, as far as the definition of the crime of
aggression is concerned, my delegation aligns itself with other delegations who prefer the
differentiated approach of Variant (a). We believe that Variant (a) comprehensively
covers participation in the crime in line with Article 25(3) of the Rome Statue. In so far
as the act of aggression is concerned, it is our considered view that as long as the act fits
within Resolution 3314 and is [not] in violation of the UN Charter, it should be sufficient.
We shall, Mr. Chairman, be making further comments as the meeting progresses.

Chairman: Thank you very much. No other requests for the floor at this point. Does
anyone else wish to speak? That does not seem to be the case, I then give the floor to two
representatives of non-governmental organizations and I would ask them to limit their
comments also to the paragraphs under discussion, that is paragraphs 1 to 3 at this point.

Jutta Bertram-Nothnagel (Union Internationale des Avocats): Mr. Chairman and
distinguished delegates, I will actually limit my comments even further. I want to be very
basic because I do not want to use one minute too much of your very precious time in this
endeavor. But we must express our gratitude to the Chair for this new discussion paper,
and our gratitude to all of you delegates for having given him the mandate to move
forward. We feel that the new discussion paper really gives you a great opportunity to
make progress, particularly in the definition on the conduct element, and also in the
definition of the act of aggression. We have felt that today in particular, because I have
listened to many, many sessions on this and I rarely heard so often the word flexibility as
today. I want to thank you for this. I am very confident that you will succeed with this
endeavor. Particularly in the Princeton meetings, I often sensed that many of you

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understand that in these negotiations, you are not just representatives of your particular
country, as important as that is, but also representatives of all humanity, of all people in
this world, and we thank you very much for your persistence in this.

Chairman: Thank you.

Ben Ferencz (former Nuremberg Prosecutor): I’d like to thank you for the privilege of
addressing you, particularly, since I don’t represent anybody, except myself. But, having
been a Nuremburg prosecutor, and having been present when the principles which you
are now debating were created, I hope you’ll allow me two minutes to review, without
sticking to your mandate of just these two paragraphs, because it fits within it. It was
over 60 years ago that the International Military Tribunal decided its most important
decision, that war-making was the supreme international crime and that those who were
responsible would be held accountable in a court of law.

That is what this meeting is all about. It’s taken awhile to get through those sixty years,
but we’ve come a remarkably long way. It took about thirty years to come to a consensus
definition of aggression. I sat through most of those hearings, if not all of them. But the
definition didn’t seem to satisfy the needs for the principle of legality. We want the
accused to know, before he’s brought to trial, that his actions might subject him to
criminal penalties. There are many ways to do that. The Rome Statute, which was
adopted nine years ago, listed aggression as a crime, which was an important step
forward, but it tied the hands of the Court so that it had no real meaning, until at this
meeting you meet the conditions. The conditions can be met. Mr. Chairman, the very
fact that you have a two-page summary of the differences indicates how far we have
come in meeting those conditions. It’s inconceivable to me, in having come so far in the
evolution of mankind from the rule of the jungle to the rule of law, that it would end in a
quibble between the monistic or differentiated or another approach, particularly in the
view of the flexibility on this.

Some of the representatives have talked about the need for proceeding carefully. Of
course, you should proceed carefully, but bear in mind that every day, every day that you
delay enabling the Court to act on this crime, you are telling dictators all around the
world that they will be immune from prosecution. I don’t know who the next victim will
be. So that is the importance of what it is that you’re doing.

The Security Council problems can by bypassed in number of ways, I’ve written about
this in many places. The judges can be relied upon to conclude if the Security Council
does not pay attention to the UN Charter, which is your binding document. If they ignore
principles of law and justice as required, the Court will disregard their decision. You
have major enforcement problems, which will impact completely, it’s another step of
civilization. There are other things that can be done, there’s not time to go into them
here, but certainly the unfair existence of the Security Council can be bypassed in a
number of ways consistent with the Charter, the ILC principles and the Nuremburg
principles and laid down by the General Assembly in Resolution 3314.

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So I want to congratulate you Mr. Chairman for the fourth time on how far you’ve
brought the Group. I’m well aware that this has been the product of many competent
people. I want to pay particular tribute to Adrian Bos, Philippe Kirsch, and the
Committee Chairman, who are dealing with this most difficult problem. But you are on
the verge now of taking an important step forward in history. I will not be here to see it,
but I hope you recognize the importance of what you are doing, and don’t get bogged
down in minor details which will long be forgotten. But if you don’t overcome those,
then you will never be forgiven.

Chairman: On this encouraging note [laughter], - it was a pep talk before you said that -,
but thanks, thanks a lot. This brings us to the end of our discussion on the first part of the
discussion paper. I really want to thank all of you for contributing to the discussion. You
offered very specific comments, that is extremely valuable to me. I also want to thank
you for saying all the nice things concerning the discussion paper, and certainly for
accepting it as a basis of discussion. I do not take that for granted and I am happy to see
that I can continue to rely on your support. I feel encouraged by the discussions that we
had and I will hold informals on the issues we have discussed here. I will give it a bit
more thought, and not say more about it right now. I will certainly talk in more detail
about how we can readjust a little more Variant (a) of Paragraph 1, and also talk about
possible clauses to add under the two variants.

But before doing that, I would like to obviously invite you to offer your comments as
well, on the second part of the discussion paper, Paragraphs 4 and 5, on the conditions for
the exercise of jurisdiction. I have made a few comments, when introducing the paper this
morning. I would also like to mention at this point that the delegation of Belgium has
produced a paper that relates to these two paragraphs and I would give the delegation of
Belgium the floor tomorrow to explain their ideas, because it is tomorrow that we have
that particular proposal available in all languages.

And with this, I now open the floor on Paragraphs 4 and 5, the issues that I have told you
about. You all know that this is a particularly thorny and difficult issue and that we have
discussed this, at least in part, before in Princeton. The floor is open on paras 4 and 5. We
have a bit more than half an hour and that should enable us to finish the discussion on this
hopefully by the end of tomorrow’s morning session, so that we can have an informal
meeting in the afternoon. The floor is open. Sweden has the floor.

Sweden: [English] Thank you Mr. Chair. Well, it has been an exhausting discussion on
the definition. Actually, it is difficult for me to say something useful on this second and
even more important part. Nevertheless, let me try to add a couple of things that might be
useful for further discussion. We all know that the difficult part is Paragraph 5. Whether a
non-yes by the Security Council will provide a bar on the Court proceeding with the case
or whether not it will provide such a bar. I would particularly like to hear whether there is
still much support for Options 3 and 4. Those options were debated quite a lot a few years
ago, but there has been less support for them at sessions in Princeton to my recollection.

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In Paragraph 4, I would like to add two aspects. The first is an option that was discussed
in Princeton but is not yet reflected in the paper, that was an option that instead of asking
whether the Security Council has made a determination of an act of aggression, one
might give the Council another option, namely the option to simply give a green light.
That might be more comfortable for the Security Council, because it might feel that it is
not an appropriate body to make a legal decision, that is, to qualify the act in legal terms.
An act of aggression is indeed a legal term. The Council might be more comfortable with
admitting or endorsing the Court to proceed with the case, rather than to form its own
legal opinion. So, therefore, I wonder whether one could annex to this discussion paper
the following words at the end of the first sentence of Paragraph 4, “or the Security
Council has declared that it does not object to the Court’s proceeding with the case.” That
might not be the optimal Queen’s English, but I hope that you get the gist of it. I can give
it to you in writing.

Chairman: Can you repeat it slowly? And say again where it goes.

Sweden: To add to the first sentence of Paragraph 4, after “committed by the State
concerned,” addition, “or the Security Council has declared that it does not object to the
Court’s proceeding with the case.” So, that will give the Council another option.

I have another suggestion for the second sentence of Paragraph 4. I believe that if the
Court should notify the Council before the Court, that would also be appropriate for it to
provide any information that it might have, that might be useful for the Council. So to
that end, I like to propose new words at the end of this sentence: “including any relevant
information and evaluation thereof that might assist the Security Council in its
deliberations of the situation.”

That finishes my comments for the time being. Thank you.

Chairman: Can you, for the benefit of the others, also repeat your second proposal which
goes all the way at the end of Para 4.

Sweden: Thank you. It would read, “including any relevant information and evaluation
thereof that might assist the Security Council in its deliberations of the situation.” Thank
you.

Chairman: Thank you very much. The floor is open, and you are invited of course to
also comment on the proposals put forward by Sweden just now. Greece.

Greece: [English] Thank you very much Mr. Chairman. Mr. Chairman, I perhaps would
be allowed to comment on, as you have asked us to do, on Paras 4 and 5. Paragraph 4
describes in our view a smooth procedure which is in full conformity with the UN
Charter and in our view should give rise to no particular problem. Obviously the formula
proposed fits well where there is a state referral or when the prosecution proceeds propio

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motu. But this would not be obvious in the event of a referral by the Security Council.
We take this to be a point which would be rather of a drafting nature, more or less, and
would not present great difficulties. It could therefore be rather easily accommodated.

Now as to the proposals we heard just a moment ago, a minute ago, by our Swedish
colleague, of course, we’d like to have the benefit of seeing them in writing. But as an
immediate reaction, to the first one, it would seem to us to go a bit further than we would
be prepared to find good for our purposes. Conversely, we have no objection to the
second proposal, which consists of giving information, if I jotted down correctly the
wording, although I think the notion of notification which is already included in your text
could be considered to encompass also the kind of information that is being proposed to
be given to the Security Council.

In Para. 5, this delegation, consistent with its long-standing position on this matter, favors
Option 1, by the same token we do not favor Option 2 for reasons which we had the
previous opportunity to explain amply. Options 3 and 4 seem in our view to complicate
things unnecessarily. Option 3, although attractive at first sight, has the substantial
disadvantage of politicizing the question, which the Court should avoid at all costs in our
view. Option 4, on the other hand, brings into play any finding by the ICJ and makes
such findings binding on the ICC. However, it is difficult at least for us to see why any
such finding should have any binding effect, binding force on the ICC. Apart from the
awkward question of primacy between the two courts, we hardly see any legal reason
which would justify such an eventuality. These are our comments for these paragraphs. I
thank you for your attention.

Chairman: Any other views? Well, I know there are other views. [Laughter] If you can
perhaps comment in particular on Options 3 and 4 in Para 5, and if you can already, but
perhaps you can do it tomorrow, also offer some thoughts on Swedish proposals. Czech
Republic.

Czech Republic: [English] Thank you Mr. Chairman. With respect to the question
whether there should be a prior determination by a body outside the Court that the act of
aggression has occurred, the Czech Republic supports a balanced relationship between
the Court and Security Council. We do not too much favor the interference of other
bodies such as the ICJ or UN General Assembly for several legal and factual reasons.
Concerning the relationship between the Court and UN Security Council, we believe that
a certain system of checks and balances should be incorporated therein; and the rights of
the accused must be taken into the account. On one hand, the UN Security Council
should not be a sole steersman of the whole process given its political character. On the
other hand, today’s system of collective security laid down by the UN Charter has been
carefully and realistically drafted, and it is based on historic experience. Therefore in this
context, the United Nations Security Council can not be completely disregarded. Similar
reasoning applies analogically to the Court. Therefore, the Czech Republic would like to
find a solution between the border lines of Article 16 of the Rome Statute system, and the
so called green-light of the UN Security Council system. If there is a solution where the

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Security Council alone would define what an act of aggression is, it would not reflect an
independent position of the Court as guaranteed by the Rome Statute. Thank you for the
floor Mr. Chairman.

Chairman: I thank you very much. The United Arab Emirates.

United Arab Emirates: [translated from Arabic] Thank you Mr. Chairman. In turn, I’d
like to express my thanks to you once again on the clarity of this document on the role of
Security Council and the proposed options. The relationship, as has been said several
times during the various meetings, the Council has the main role under the Charter and
that’s why Paragraph 4 sets out that role.

But the question still arises and we still have the discussion on the case where the Council
does not take a position, what then will be the role of the Court? There are other legal
institutions. There’s the Security Council and then the ICC. We don’t need any others,
that’s enough. If the Council has a role in determining the crime of aggression, then the
same role should be given to the ICC, so that it can assume its role in accordance with the
Rome Statute, and on an equal footing. Thus, the Court could prosecute those who have
committed other acts, pursuant to the Rome Statute, and it needs to assume responsibility
with regard to the crime of aggression, so we think Option 1 is the best option. It’s the
most appropriate one, and if Security Council has not taken the necessary decision within
a reasonable time period, then the Court should proceed with the case.

Chairman: Thank you very much. Portugal.

Portugal: [English] Thank you Mr. Chairman. Well, concerning the conditions for the
exercise of the jurisdiction, we agree with the drafters of Paragraph 4, though we feel the
need to examine better whether the drafting needs to reflect the different trigger
mechanism of Article 13 of the Statute, like my Greek colleague said also. But in
principle we have no objection.

With regards to Paragraph 5, we have long favored Option 1, and we have an open mind
as to the time limit of the Security Council response. Concerning other options, Option 2
for Portugal it is out of the question. We think the Court should not be barred by the
Security Council in case of silence at the least. And Option 3, we agree also with our
Greek colleagues, that it will politicize the question too much and it will bring us back to
the precedence of UN General Assembly resolution 377. And with Option 4, we agree
also with our Greek colleague, we have here a problem of the primacy of courts, of one
court over another, and I think nothing in international law makes that correct or makes
that assertive.

Well, recognizing that Security Council has under Article 24 of the United Nations
Charter the primary responsibility for maintenance of peace and security, and for that
purpose Chapter VII entitles the Council to take action with respect to threats to the
peace, breaches of the peace and acts of aggression. When exercising its jurisdiction with

        Notes Provided by The European Law Students’ Association (ELSA) and
        the Council of American Students in International Negotiations (CASIN)
               Resumed Fifth Session of the Assembly of States Parties to
                  the Rome Statute of the International Criminal Court
                      SWGCA, 29 January 2007, Afternoon Session

regard of the crime of aggression, the ICC must take this into account. But another way to
recognize the prominent role of the Security Council, in our mind, would be to bar the
ICC from the exercise of its jurisdiction with regard to the crime of aggression if there is
a Security Council resolution to that affect; and Article 16 of the Statute does that, see
also in this respect Article 17(2), of the Relationship Agreement between the ICC and
UN. That could be also a way to deal with this matter. Therefore, we could envisage,
when the Court exercises its jurisdiction with respect of the crime of aggression. it should
take into the account the determinations or directives of the Security Council or other
bodies of the UN on the issue of aggression. In this view, while the determination by the
Security Council that there was an act of aggression before the Court could exercise its
jurisdiction is not mandatory, the Security Council would have an exclusive power to
stop the Court from doing so in accordance with Article 16 of the Statute, having thus
legal privilege in according with what is setout in Article 24 of the Charter. Thank you
Mr. Chairman.

Chairman: I thank you very much, I next give the floor to Austria.

Austria: [English ] Thank you Mr. Chairman. With regard to the conditions for the
exercise of jurisdiction, we acknowledge the paramount role of the Security Council. In
either case, the Court would benefit from the authority of the Security Council, as there
would be political backing to the Court’s investigation of the situation. We find it,
however, worth considering a model in which the role of the Security Council would not
remain an exclusive one, according to which there could be a way for the Court to go
forward in exceptional cases, especially whenever it is apparent and widely acceptable
that these crimes of aggression have taken place. We stand ready to discuss this and all
possible approaches to models that would help us out during informal discussions. You
asked us about our views on Options 3 and 4 and for the reasons specified by Greece
earlier, we would not favor these options.

Chairman: Thank you very much for your very brief comments, Samoa is next.

Samoa: [English] I thank you, chair. I think, I basically want to make two points of a
general nature.

The first point is to consider the situation in which the Security Council has in fact made
a determination that an act of aggression has occurred. Are we at the point where we can
face the big question, what is the impact of that determination. Is it a go-ahead
determination of some sort, or is it a finding as to the act of aggression element of the
crime. And I would submit, that it is probably at about this point that we should make a
determination, that whatever the Security Council does, its decision is not determinative
as to that element. It is still up to the ICC to make this decision, of course taking into
account whatever it was that the Security Council took into account.

The second point, and I will present it in general terms, has to do with specific options in
Paragraph 5, as we have it before us. Those of us that have been with this for a while,

        Notes Provided by The European Law Students’ Association (ELSA) and
        the Council of American Students in International Negotiations (CASIN)
               Resumed Fifth Session of the Assembly of States Parties to
                  the Rome Statute of the International Criminal Court
                      SWGCA, 29 January 2007, Afternoon Session

would appreciate that the option of obtaining an advisory proceeding from International
Court of Justice, either through the General Assembly’s request or a request from the
Security Council, has now been dropped. I would love to hear from those delegations, as
I recall it, Bosnia and Herzegovina, Romania, and New Zealand, which were the parents
of that proposal, and to a lesser extent the Netherlands, which was responsible for the
Security Council part of that proposal. Have they now abandoned that, or do they still see
merit in that part of the proposal? It would help my thinking anyway to appreciate
whether its original parents are happy to see it die its natural death. To continue with that
question though, we got into this path of the debate, I think, in my mind anyway, because
there were those who saw some relationship between the United Nations and the ICC as
rather important, particularly important with respect to the crime of aggression.

Why? Because the United Nations is an organization concerned with peace and security.
Now, there were those who took this position that the Security Council is primary,
indeed some have suggested it is the sole organ concerned with international peace and
security. There were others of us though, particularly those from smaller countries, that
said, yes, but the General Assembly has an important role in relation to peace and
security. And it operates when the Security Council, for one reason or another, is unable
to fulfill its primary responsibility. And we had extensive debates about that, did we not.
And then there was a group of countries that put forward the International Court of
Justice. And they said the International Court of Justice has a role in dealing with
international peace and security and they referred to some of the case law. If we started
that debate again, undoubtfully we would talk about the Congo v. Uganda case, and the
way the Court there examined the principles that are in Resolution 3314 and the strange
reluctance of the Court in fact for what Judge Simma calls calling a spade a spade. They
are as reluctant as the Security Council, for heaven’s sake, to use that dirty word -
aggression. But in all events, we went down this road, on the theory that there might be
alternative routes.

Now, of course, we can cut the United Nations out of this discussion, can’t we, to the
extent it is already not in the Statute. If the Security Council wants to refer a case to the
Court, they can. If the Security Council wants to stop the Court from considering the
case, Article 16 permits them to do that. But we’ve been trying to find other routes to put
these alternatives in.

So I suspect, that where this general line of reasoning takes me, is that I am absolutely
comfortable with Paragraph 4, even as amended by Sweden, if then we go to straight to
Option 1, and drop everything else. If Option 1 is not acceptable, then we have some
difficulties, don’t we, because I think, there are those of us that would want to go to some
version of Option 3, yet again; because we would be totally uncomfortable with Option 2.
So we are left with a little bit of conundrum, are we not? So as I say, if we can perhaps
qualify what exactly is the nature of the determination that the Security Council gives,
and exactly what effect this would have on the subsequent proceedings. It will probably
get us to the next level of the debate. Thank you Mr. Chairman


        Notes Provided by The European Law Students’ Association (ELSA) and
        the Council of American Students in International Negotiations (CASIN)
               Resumed Fifth Session of the Assembly of States Parties to
                  the Rome Statute of the International Criminal Court
                      SWGCA, 29 January 2007, Afternoon Session

Chairman: Thank you. Colombia.

Colombia: [Translated from Spanish] My delegation would like to state that it is in
agreement with the text of Para. 4 in the document that you’ve kindly presented, because
we believe that it safeguards the essential concern, or resolves the concern which has
gone right through our deliberations - and that is to preserve a system of checks and
balances at the international level. It brings together the independence of the ICC and the
authority and competence of the Security Council. From our point of view, Paragraph 4
allows for both essential assumptions, in order to safeguard the balance. The Court must
ascertain if the Security Council has made a determination of an act of aggression. If this
has not occurred, the Court must notify the Security Council. We believe, that in this
way, you do maintain that necessary balance between the ICC and the Security Council,
but this does not mean Option 2 under Para.5, that the ICC cannot exercise its jurisdiction
on this particular case. So we could go for Option 1. That is, if the Security Council
does not make a determination, the Court can proceed with the case because that is its
sovereign right to decide what is its jurisdiction and competence. We believe the other
options would be an obstacle for the Court to proceed.

Now Mr Chairman, I don’t want to add to the controversy, but since mention has been
made to remind us, the previous speaker has reminded us of something we did in the
preparatory work for the Court. We had said that it would be appropriate for the ICC to
have the possibility of carrying out a consultative relationship with the ICJ, and we think
that in the long run, this is an objective the Court should undertake. So, I think it is well
worth reminding you of this particular opinon taken by several delegations, so as to
clarify aspects of law the Court might need on a consultative basis.

Chairman: Democratic Republic of Congo has the floor.

Republic Democratic of Congo: [French translation] Thank you Mr. Chairman. I think
the way in which paragraphs 4 and 5 are drafted, already reflect some progress, as we
noted on the rest of the text, as we have commented sometime back. The major difficulty
that we have from the outset was establishing a certain balance between two principles
which I consider to be sacred ones. On the one hand, there is a system of collective
security established by the United Nations, whose important role in the maintenance of
the international peace and security is not to be ignored. And on the other hand, there is a
sacred principle of the independence of international jurisdiction, in this case the
International Criminal Court. I think, so far, in our efforts, we have not overlooked the
work done by the Security Council. On the other hand, we should not subject the work of
the International Criminal Court to a certain monopoly of the Security Council. The
wording of Paragraph 4 really does reflect that balance. We like it.

However, the difficulties arise in Paragraph 5. I would leave aside the question of time or
a deadline for the Security Council before there is a reaction. I think that could be the
subject of another debate, where we could discuss it further. I think if we can just limit
ourselves to Option 1, then the matter would be resolved definitively and there would be

        Notes Provided by The European Law Students’ Association (ELSA) and
        the Council of American Students in International Negotiations (CASIN)
               Resumed Fifth Session of the Assembly of States Parties to
                  the Rome Statute of the International Criminal Court
                      SWGCA, 29 January 2007, Afternoon Session

no further difficulties. Options 2, 3 and 4 cause a great deal of problems, and if there was
as easy a choice as possible, we would select Option 1. That’s the comment we have for
the time being, and we will come back to this later.

Chairman: Thank you very much. Bulgaria.

Bulgaria: [English] Thank you Mr. Chairman. It will be a comment and a question at
the same time. But let me say first say that this delegation shares the general esteem for
your revised paper. We, as Greece, think that Paragraph 4 does not cause any particular
difficulties and the procedure that it lays is a smart one.

On Paragraph 5, we prefer Option 1. It is our understanding that the Security Council is
the organ with competence to make the determination, and if it remains silent, it gives up
its right to make the determination and we don’t see any problem with the Court making
the determination for the Council.

In the beginning, I said it would be a question as well, at let me bring you back to the first
sentence of Paragraph 4. It says that the Court shall first ascertain whether the Security
Council has made a determination, and here comes the question. It looks to our
delegation that the more important question is what should the Court do if the
determination of the Security Council was that no act of aggression was committed by the
State. The opinion of this delegation is that the future rules on the crime of aggression
should not shake the established rules of the international system. Thank you Mr.
Chairman.

Chairman: I thank you for your comments. We have to finish, the interpreters are about
to leave. I have now, two delegations on the speakers list for tomorrow. And I certainly
expect others to ask for the floor. So thank you for this very rich discussion.

Meeting closes.




        Notes Provided by The European Law Students’ Association (ELSA) and
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