Non-paper by the chairman on the conditions for the exercise of jurisdiction.

  1. Introduction

    1. The present non-paper is aimed at facilitating discussions at the Princeton Club with respect to the major outstanding issues regarding the "conditions for the exercise of jurisdiction" over the crime of aggression. These outstanding issues are primarily reflected in draft article 15 bis, paragraph 4, of the proposals for a provision on aggression, elaborated by the Special Working Group on the Crime of Aggression (hereinafter "the Group"). (1) The February 2009 report of the Group notes in this respect that this paragraph requires "further discussion, including on the basis of new ideas and suggestions". (2) The issue of the entry into force procedure (article 121, paragraph 4 or 5) is directly linked to this question.

    2. It is suggested that delegations use the inter-sessional meeting to exchange views on possible ways of finding an acceptable solution for the outstanding issues, including on the basis of such new ideas and suggestions. Due to the very complex nature of the issue and the numerous variables related to the discussion, the Chairman suggests that participants address specific questions (printed in italics below), dealing with specific scenarios and based on a number of considerations that can be extracted from the previous work of the Group.

  2. Some underlying considerations for a discussion on outstanding issues

    1. All three existing trigger mechanisms apply to the crime of aggression. Based on draft article 15 bis, paragraph 1, the Prosecutor could conduct a preliminary investigation into a crime of aggression after the use of any of the three existing trigger mechanisms: State referral, Security Council referral, or proprio motu. The trigger mechanism needs to be distinguished from the question of a jurisdictional filter that arises only at a later stage, as envisaged by draft article 15 bis, paragraphs 2-4.

    2. In case of a Security Council referral, the Court could exercise jurisdiction over the crime of aggression irrespective of the consent of the State concerned. This follows from article 13 (b) of the Statute, and this has also been the clear understanding in the Group. (3) The issue of the territoriality or nationality requirement (article 12, paragraph 2) does not arise in the context of a Security Council referral.

    3. In case of a State referral or proprio motu investigation, the territoriality or nationality requirement of article 12, paragraph 2, of the Statute applies. In these two cases, jurisdiction is based on the consent (i.e. consent to be bound by the Rome Statute and the amendment on aggression) of either the State of nationality or territoriality. In this context, it is important to note that a crime of aggression is typically committed on the territory of both the aggressor and the victim State. (4) For the sake of clarity in discussions relating to questions of territoriality, it is therefore useful to refer to an alleged aggressor State (usually the State of nationality and territoriality of a crime of aggression) and to an alleged victim State (usually the State of territoriality of a...

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