Informal inter-sessional meeting on the crime of aggression, hosted by the Liechtenstein Institute on Self-Determination, Woodrow Wilson School, at the Princeton Club, New York.

1. Introduction

   1. Pursuant to a recommendation by the Assembly of States Parties and at the invitation of the Government of Liechtenstein, an informal inter-sessional meeting on the Crime of Aggression was hosted by the Liechtenstein Institute on Self-Determination, Woodrow Wilson School, on the premises of the Princeton Club, New York, United States of America, from 8 to 10 June 2009. Invitations to participate in the meeting had been sent to all States, as well as to representatives of civil society. H.R.H. Prince Zeid Ra'ad Zeid A1-Hussein (Jordan) chaired the meeting.

   2. The participants in the informal inter-sessional meeting expressed their appreciation to the Governments of Denmark, Finland, Germany, Liechtenstein, Mexico, the Netherlands, Sweden and Switzerland for the financial support they had provided for the meeting and to the Liechtenstein Institute on Self-Determination at Princeton University for hosting the event and the financial support.

   3. The participants noted with appreciation that the meeting was held on the premises of the Princeton Club in New York, thereby enabling the presence of delegations that had in the past been denied permission to travel to Princeton to attend previous inter-sessional meetings of the Special Working Group on the Crime of Aggression (hereinafter "the Group").

   4. The present document does not necessarily represent the views of the governments that the participants represent. It seeks to reflect the opinions expressed on various issues pertaining to the crime of aggression on the basis of the proposals for a provision on aggression elaborated by the Group and adopted on 13 February 2009. (1) It is hoped that the material in the present report will facilitate the future work of the Assembly of States Parties on the crime of aggression, in particular during the upcoming eighth session, to be held in The Hague from 18 to 26 November 2009.

   5. The discussions were held on the basis of two papers submitted by the Chairman: a non-paper on the Elements of Crimes (2), as well as a non-paper on the conditions for the exercise of jurisdiction. (3) The Chairman introduced both non-papers and recalled the significant progress that had been made by the Group, culminating in the adoption of the Group's final report in February 2009. He underlined that the future work on aggression should focus on the outstanding issues left over from the Group, as well as the Elements of Crimes. The Chairman furthermore noted that the participation of both States Parties and non-States Parties was essential, despite the fact that the Group no longer existed as such. The future format of the work on aggression would have to be decided by the Assembly of States Parties at its next session.

2. Non-paper on the Elements of the crime of aggression

   6. The Chairman recalled earlier discussions on the drafting of the Elements of the crime of aggression and expressed his appreciation to the delegations of Australia and Samoa, which had prepared a first draft of the Elements, as well as to the delegation of Switzerland, which had organized a small informal retreat on this topic. (4) This work formed the basis for the Chairman's non-paper on the Elements of Crimes, which was submitted to facilitate discussions.

   7. The Chairman recalled the drafting of the existing Elements of Crimes (5), which had been a very useful exercise in that it deepened the understanding of the definition of the crimes. He recalled that the purpose of the Elements of Crimes was to assist the Court in the interpretation and application of the definitions of crimes (6), including by clarifying the precise mental element required in accordance with article 30 of the Rome Statute.

   8. In introducing the non-paper, the Chairman explained that the Elements of the crime of aggression would be added to the existing Elements of Crimes. Therefore, the existing general introduction to the Elements of Crimes would also apply to the crime of aggression. The non-paper suggested that the general introduction would require a technical amendment, replacing the words "articles 6, 7 and 8" with the words "articles 6, 7, 8 and 8 bis". Otherwise, the general introduction could be applied to the crime of aggression without further modification. No objections were raised to this suggested technical amendment and no proposals were made to further modify the general introduction to the Elements of Crimes.

   9. Appendix I of the non-paper contains the draft Elements of Crimes, which include a special introduction to the Elements of the crime of aggression. The Chairman explained that such a special introduction could provide additional guidance in relation to several issues related to the proposed Elements. In order to facilitate a focused discussion, the Chairman suggested taking up each paragraph of the special introduction in the context of the Elements to which they relate.

      General comments on the draft Elements

   10. Overall, the draft Elements were considered to form a good basis for future work and their structure met with general support. It was observed that the Elements were a list of all material and mental elements that the Prosecutor had to prove in any given case. The draft adhered to the logic of article 30 of the Rome Statute by listing material and mental elements. The material elements could be categorized as conduct, consequence or circumstance, and were followed by the corresponding mental elements (intent and knowledge). The default rule of article 30 automatically applied to any material element to which no specific mental element was expressly attached. It was observed that it was sometimes difficult to clearly categorize a material element (in particular proposed Element 3, as well as proposed Element 5). Nevertheless, that theoretical distinction had no practical effect as long as there was agreement on the required mental element.

   11. It was observed that the order of the draft Elements followed the general structure of the Elements of Crimes (conduct, consequences and circumstances are generally listed in that order), (7) with the exception of Element 2, which was clearly a circumstance element, but one that was very closely related to the perpetrator and his or her conduct. Some delegations queried whether the order of Elements 3 to 6 could be changed. In response, it was noted that Element 3 contained the material element of the act of aggression, to which Element 4 provided the respective mental element. Similarly, Element 5 contained the material element of the threshold of a manifest violation of the United Nations Charter, to which Element 6 provided the mental element. It was important to have each mental element follow immediately after the material element to which it related; otherwise the default rule contained in article 30 of the Rome Statute would automatically apply to that material element.

   12. Regarding the special introduction to the Elements of the crime of aggression, it was observed that similar introductions precede the other Elements of Crimes. A suggestion was made to consider whether the statements contained in the introduction were not better placed in a new section following after the Elements, as they were not really introductory in nature.

       Proposed Element 1: The conduct element

   13. Proposed Element 1 sets out the conduct element for the crime of aggression by describing the conduct of the perpetrator. The non-paper notes that, since the nature of Element 1 as a conduct element was sufficiently clear, the draft did not contain any express mental element. The default mental element in article 30, paragraph 2(a), of the Rome Statute would therefore apply: the person had intent where that person "means to engage in the conduct". While there was only limited discussion on proposed Element 1, no objections were raised with respect to its drafting.

       Proposed Element 2: The leadership clause

   14. As noted in the non-paper, proposed Element 2 reflects the leadership nature of the crime and is a circumstance element. In accordance with article 30, paragraph 3, of the Rome Statute, the perpetrator must therefore have been aware that he or she was in a position effectively to exercise control over or to direct the political or military action of the State that committed the act of aggression. The non-paper suggests that the application of article 30 is sufficiently clear and that there is therefore no need to articulate an express mental element attaching to Element 2.

   15. Proposed Element 2 furthermore contains a footnote, clarifying that, with respect to any particular situation involving an act of aggression, more than one person may be in a leadership position. Some drafting changes were explored with respect to proposed Element 2. It was suggested to delete the word "a person" and to move the footnote to the word "perpetrator". There was, however, only a brief discussion on this suggestion, and no such changes to the draft were subsequently made.

       Proposed...