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> Delivering on the promise of a fair, effective and independent Court > The Crime of Aggression > Special Working Group’s Proposal on the Crime of Aggression

Pursuant to the activities of the Special Working Group on the Crime of Aggression, the following changes and amendments are proposed to the Rome Statute so as to codify the crime:

1. Delete article 5, paragraph 2, of the Statute.
2. Insert the following text after article 8 of the Statute:

Article 8 bis
Crime of Aggression

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

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

(a) The invasion or attack by the armed forces of a State of the territory of another
State, or any military occupation, however temporary, resulting from such invasion or
attack, or any annexation by the use of force of the territory of another State or part thereof;
(b) Bombardment by the armed forces of a State against the territory of another State or
the use of any weapons by a State against the territory of another State;
(c) The blockade of the ports or coasts of a State by the armed forces of another State
(d) An attack by the armed forces of a State on the land, sea or air forces, or marine and
air fleets of another State;
(e) The use of armed forces of one State which are within the territory of another State
with the agreement of the receiving State, in contravention of the conditions provided for in the agreement or any extension of their presence in such territory beyond the termination of the agreement;
(f) The action of a State in allowing its territory, which it has placed at the disposal of another State, to be used by that other State for perpetrating an act of aggression against a third State;
(g) The sending by or on behalf of a State of armed bands, groups, irregulars or mercenaries, which carry out acts of armed force against another State of such gravity as to amount to the acts listed above, or its substantial involvement therein.

3. Insert the following text after article 15 of the Statute:

Article 15 bis
Exercise of jurisdiction over the crime of aggression

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

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

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

Alternative 1

3. In the absence of such a determination, the Prosecutor may not proceed with the
investigation in respect of a crime of aggression,

Option 1 – end the paragraph here.
Option 2 – add: unless the Security Council has, in a resolution adopted under Chapter VII of the Charter of the United Nations, requested the Prosecutor to proceed with the investigation in respect of a crime of aggression.

Alternative 2

3. Where no such determination is made within [6] months after the date of notification, the Prosecutor may proceed with the investigation in respect of a crime of aggression,

Option 1 – end the paragraph here.
Option 2 – add: provided that the Pre-Trial Chamber has authorized the commencement of
the investigation in respect of a crime of aggression in accordance with the procedure
contained in article 15;
Option 3 – add: provided that the General Assembly has determined that an act of
aggression has been committed by the State referred to in article 8 bis;
Option 4 – add: provided that the International Court of Justice has determined that an act of aggression has been committed by the State referred to in article 8 bis.

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

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

6. Insert the following text after article 25, paragraph 3, of the Statute:

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

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

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

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

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