Crime of aggression

• The adopted amendments to the Rome Statute included deletion of Article 5.2 of the Rome Statute that formerly stated "The Court shall exercise jurisdiction over the crime of aggression once a provision is adopted in accordance with articles 121 and 123 defining the crime and setting out the conditions under which the Court shall exercise jurisdiction with respect to this crime. Such a provision shall be consistent with the relevant provisions of the Charter of the United Nations."[6] and additions of Article 8 bis and Article 15 bis/ter that defined the "crime of aggression" and conditions on the exercise of jurisdiction over the "crime of aggression," respectively.
• Resolution RC/Res.6 states that these amendments enter into force in accordance with Article 121.5 of the Rome Statute, meaning for each ratifying State individually one year after the deposit of its instrument of ratification or acceptance. For the Court to actively exercise jurisdiction over the crime of aggression, however, the amendments stipulate additional conditions: The amendments must have been ratified or accepted since a year by at least thirty States Parties, and in addition States Parties must “activate” the Court's jurisdiction through an additional decision to be taken on or after 1 January 2017 by a two thirds majority.

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.

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

1. The Court may exercise jurisdiction over the crime of aggression in accordance with article 13, paragraphs (a) and (c), subject to the provisions of this article.
2. The Court may exercise jurisdiction only with respect to crimes of aggression committed one year after the ratification or acceptance of the amendments by thirty States Parties.
3. The Court shall exercise jurisdiction over the crime of aggression in accordance with this article, subject to a decision to be taken after 1 January 2017 by the same majority of States Parties as is required for the adoption of an amendment to the Statute.
4. The Court may, in accordance with article 12, exercise jurisdiction over a crime of aggression, arising from an act of aggression committed by a State Party, unless that State Party has previously declared that it does not accept such jurisdiction by lodging a declaration with the Registrar. The withdrawal of such a declaration may be effected at any time and shall be considered by the State Party within three years.
5. In respect of a State that is not a party to this Statute, the Court shall not exercise its jurisdiction over the crime of aggression when committed by that State's nationals or on its territory.
6. Where the Prosecutor concludes that there is a reasonable basis to proceed with an investigation in respect of a crime of aggression, he or she shall first ascertain whether the Security Council has made a determination of an act of aggression committed by the State concerned. The Prosecutor shall notify the Secretary-General of the United Nations of the situation before the Court, including any relevant information and documents.
7. Where the Security Council has made such a determination, the Prosecutor may proceed with the investigation in respect of a crime of aggression.
8. Where no such determination is made within six months after the date of notification, the Prosecutor may proceed with the investigation in respect of a crime of aggression, provided that the Pre-Trial Division has authorized the commencement of the investigation in respect of a crime of aggression in accordance with the procedure contained in article 15, and the Security Council has not decided otherwise in accordance with article 16.
9. A determination of an act of aggression by an organ outside the Court shall be without prejudice to the Court's own findings under this Statute.
10. This article is without prejudice to the provisions relating to the exercise of jurisdiction with respect to other crimes referred to in article 5.[7]

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

1. The Court may exercise jurisdiction over the crime of aggression in accordance with article 13, paragraph (b), subject to the provisions of this article.
2. The Court may exercise jurisdiction only with respect to crimes of aggression committed one year after the ratification or acceptance of the amendments by thirty States Parties.
3. The Court shall exercise jurisdiction over the crime of aggression in accordance with this article, subject to a decision to be taken after 1 January 2017 by the same majority of States Parties as is required for the adoption of an amendment to the Statute.
4. A determination of an act of aggression by an organ outside the Court shall be without prejudice to the Court's own findings under this Statute.
5. This article is without prejudice to the provisions relating to the exercise of jurisdiction with respect to other crimes referred to in article 5.

Liechtenstein, which served the Presidency of the Review Conference, issued a statement upon ratification to the amendments:

At the Review Conference, States Parties expressed their resolve to “activate the Court’s jurisdiction over the crime of aggression as early as possible.” In order to ensure the necessary 30 ratifications by States Parties until the end of 2016, which are necessary to activate the jurisdiction, Liechtenstein will actively promote ratification of the amendments in collaboration with the Global Institute for the Prevention of Aggression. The project will feature workshops, resource materials and a future website on the ratification and implementation of the Kampala amendments on the crime of aggression.

— Permanent Mission of Liechtenstein to the United Nations[15]

At the Review Conference, Japan issued two statements before and after the adoption of the amendments took place:

• Before adoption

...it is with a heavy heart that I declare that, if all the other delegations are prepared to support the proposed draft resolution as it stands, Japan will not stand in the way of a consensus.

— H. E. Mr. Ichiro Komatsu, Special Envoy of the Government of Japan[16]

• After adoption

As the head of my Delegation, appointed to represent Japan in this Review Conference, it is my duty to register, at this juncture, that the future cooperation of Japan with the ICC will hinge upon whether the ASP (Assembly of States Parties) can deliver on this with your cooperation.

— H. E. Mr. Ichiro Komatsu, Special Envoy of the Government of Japan[17]

In 2006, the House of Lords ruled in the case or R v Jones that the crime of aggression did not exist in English law as it applied within the United Kingdom.[18]

After its formal participation in the Review Conference as Observer, on 15 June 2010 the United States government held a special briefing on the Conference outlining what they deemed as accomplishments.

The United States considered the definition of aggression flawed, but a number of important safeguards were adopted. Understandings were adopted to make the definition more precise, to ensure that the crime will be applied only to the most egregious circumstances. And while we think the final resolution took insufficient account of the Security Council’s assigned role to define aggression, the states parties rejected solutions that provided for jurisdiction without a Security Council or consent-based screen. We hope that crime will be improved in the future and will continue to engage toward that end.

— Harold Hongju Koh, Legal Advisor U.S. Department of State [19]

Exercise of jurisdiction

The Court may exercise its jurisdiction with respect to a crime referred to in article 5 in accordance with the provisions of this Statute if:

(a) A situation in which one or more of such crimes appears to have been committed is referred to the Prosecutor by a State Party in accordance with article 14;

(b) A situation in which one or more of such crimes appears to have been committed is referred to the Prosecutor by the Security Council acting under Chapter VII of the Charter of the United Nations; or

(c) The Prosecutor has initiated an investigation in respect of such a crime in accordance with article 15.