International Law Commission International Law Commission

Last update: June 23, 2023

Summaries of the Work of the International Law Commission

Draft code of crimes against the peace and security of mankind* (Part II) — including the draft Statute for an international criminal court

See also: Analytical Guide | Texts and Instruments

Draft Code of Offences (1954)

The task of preparing a draft code of offences against the peace and security of mankind was entrusted to the Commission in 1947, by General Assembly resolution 177 (II) of 21 November 1947, the same resolution that requested it to formulate the Nürnberg principles.

The Commission began its consideration of the draft code of offences at its first session, in 1949, when the Commission appointed Jean Spiropoulos as Special Rapporteur for the subject. It proceeded with its work at its third, fifth and sixth sessions, in 1951, 1953 and 1954, respectively. In connection with its work on the draft code of offences, the Commission had before it the reports of the Special Rapporteur,1 information received from Governments2 as well as documents prepared by the Secretariat.3

At its third session, in 1951, the Commission completed a draft Code of Offences against the Peace and Security of Mankind and submitted it to the General Assembly, together with commentaries thereto.4

In the course of the preparation of the text, the Commission considered that it was not necessary to indicate the exact extent to which the various Nürnberg principles had been incorporated in the draft Code. As to the scope of the draft Code, the Commission decided to limit the Code to offences containing a political element and endangering or disturbing the maintenance of international peace and security. It therefore omitted such matters as piracy, traffic in dangerous drugs, traffic in women and children, slavery, counterfeiting of currency, and damage to submarine cables. The Commission also decided that it would deal only with the criminal responsibility of individuals and that no provisions should be included with respect to crimes by abstract entities.5 The Nürnberg Tribunal had stated in its judgment that: “Crimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced.”6 Thus, offences enumerated in the draft Code were characterized as “crimes under international law, for which the responsible individuals shall be punishable”.7

The Commission refrained from providing for institutional arrangements for implementing the Code; it thought that, pending the establishment of an international criminal court, the Code might be applied by national courts.8 As the Commission deemed it impracticable to prescribe a definite penalty for each offence, it was left to the competent tribunal to determine the penalty for any offence under the Code, taking into account the gravity of the particular offence.9

At its sixth session, in 1951, the General Assembly postponed consideration of the draft Code until its next session, in view of the fact that the draft had only recently been communicated to Governments for comments. At the Assembly’s seventh session, in 1952, the item was omitted from the final agenda on the understanding that the matter would continue to be considered by the International Law Commission.

The Commission accordingly took up the matter again at its fifth session, in 1953, and requested the Special Rapporteur, Jean Spiropoulos, to prepare a new report for submission at the sixth session.

At its sixth session, in 1954, the Commission considered the report of the Special Rapporteur10 which discussed the observations received from Governments and proposed certain changes in the text previously adopted by the Commission. The Commission decided to modify its previous text in certain respects and added a new offence to the list of crimes, namely, the intervention by the authorities of a State in the internal or external affairs of another State by means of coercive measures. It also decided to omit the condition that inhuman acts against a civilian population were crimes only when committed in connection with other offences defined in the draft Code. The rule regarding crimes committed under order by a superior was reworded to say that the perpetrator of such a crime would be responsible if, under the circumstances at the time, it was possible for him not to comply with the order. In addition, the Commission decided to omit the provision dealing with the punishment of the offences defined in the draft Code, as the Commission considered that the question of penalties could more conveniently be dealt with at a later stage, after it had been decided how the Code was to become operative.11

At the same session, the Commission adopted the revised draft Code of Offences against the Peace and Security of Mankind, with commentaries.12

The General Assembly, in resolution 897 (IX) of 4 December 1954, considering that the draft Code raised problems closely related to that of the definition of aggression, decided to postpone further consideration of the draft Code until the new special committee on the question of defining aggression had submitted its report. The report of the special committee was before the General Assembly at its twelfth session, in 1957. At that session, the General Assembly took note of the report and decided to postpone consideration of the question of aggression to a later stage. In view of that decision and the consideration that the draft Code raised problems related to the question of defining aggression, the General Assembly, in resolution 1186 (XII) of 11 December 1957, deferred consideration of the draft Code until such time as it took up again the question of defining aggression. In the same resolution, the General Assembly requested the Secretary-General to transmit the text of the draft Code to Member States for comment, and to submit their replies to the General Assembly at such time as the item might be placed on its provisional agenda.

As mentioned earlier, the item was brought to the attention of the General Assembly in 1968 and again in 1974. The Assembly decided at its twenty-third session, in 1968, not to take up the item. At its twenty-ninth session, in 1974, it decided to consider whether it should take up again the question of a draft code of offences against the peace and security of mankind.

The Commission, in its report on the work of its twenty-ninth session, in 1977, referred to the advisability of the General Assembly giving consideration to the draft Code, including the possibility of its review by the Commission if the Assembly so wished.13

The Assembly, at its thirty-second session, in 1977, acting on the request of seven Member States, decided to include in its agenda the item entitled “Draft Code of Offences against the Peace and Security of Mankind,” and to allocate it to the Sixth Committee. However, because of lack of time, the Assembly agreed to defer consideration of the item until its thirty-third session.14 At that session, the General Assembly adopted resolution 33/97 of 16 December 1978, by which, inter alia, it requested the Secretary-General to invite Member States and relevant international intergovernmental organizations to submit their comments and observations on the draft Code, including comments on the procedure to be adopted, and to prepare a report to be submitted to the Assembly at its thirty-fifth session, in 1980.

The comments received further to General Assembly resolution 33/97 were circulated at the thirty-fifth session of the General Assembly, in 1980.15 At the same session, the General Assembly, in resolution 35/49 of 4 December 1980, requested the Secretary-General to reiterate his invitation to Member States and relevant international intergovernmental organizations to submit or update their comments and observations and in particular to inform him of their views on the procedure to be followed in the future consideration of the item, including the suggestion to have the item referred to the International Law Commission.

Draft Code of Crimes (1996)

The General Assembly, by resolution 36/106 of 10 December 1981, invited the International Law Commission to resume its work with a view to elaborating the draft Code of Offences against the Peace and Security of Mankind and to examine it with the required priority in order to review it, taking duly into account the results achieved by the process of the progressive development of international law.

Accordingly, at its thirty-fourth session, in 1982, the Commission included the item “Draft Code of Offences against the Peace and Security of Mankind” in its agenda and appointed Doudou Thiam as Special Rapporteur for the subject.

The Commission proceeded with its work on the draft code from its thirty-fifth session, in 1983, to its forty-third session, in 1991, and at its forty-sixth and forty-seventh sessions, in 1994 and 1995, respectively. In connection with its further consideration of the draft code, the Commission had before it the reports of the Special Rapporteur,16 comments and observations received from Governments and international organizations17 as well as documents prepared by the Secretariat.18

At its thirty-fourth session, in 1982, the Commission established a Working Group chaired by the Special Rapporteur that held a preliminary exchange of views on the requests addressed to the Commission by the General Assembly in its resolution 36/106. On the recommendation of the Working Group, the Commission indicated its intention to proceed during its thirty-fifth session to a general debate in plenary on the basis of a first report to be submitted by the Special Rapporteur. The Commission further indicated that it would submit to the General Assembly, at its thirty-eighth session, the conclusions of that debate.

The General Assembly, in resolution 37/102 of 16 December 1982, requested the Commission, in conformity with resolution 36/106 of 10 December 1981, to submit to the General Assembly at its thirty-eighth session a preliminary report, on inter alia, the scope and the structure of the draft code.

At its thirty-fifth session, in 1983, the Commission proceeded to a general debate on the basis of the first report of the Special Rapporteur,19 which focused on three questions: (1) the scope of the draft; (2) the methodology to be followed; and (3) the implementation of the code. On the question of methodology, the Commission considered it advisable to include an introduction recalling the general principles of criminal law, such as the non-retroactivity of criminal law and the theories of aggravating or mitigating circumstances, complicity, preparation and justified acts.20 On the other two questions, the views of the Commission were as follows:

"(a) The International Law Commission is of the opinion that the draft code should cover only the most serious international offences. These offences will be determined by reference to a general criterion and also to the relevant conventions and declarations pertaining to the subject;

(b) With regard to the subjects of law to which international criminal responsibility can be attributed, the Commission would like to have the views of the General Assembly on this point, because of the political nature of the problem;

(c) With regard to the implementation of the code:

(i) Since some members consider that a code unaccompanied by penalties and by a competent criminal jurisdiction would be ineffective, the Commission requests the General Assembly to indicate whether the Commission’s mandate extends to the preparation of the statute of a competent international criminal jurisdiction for individuals;

(ii) Moreover, in view of the prevailing opinion within the Commission, which endorses the principle of criminal responsibility in the case of States, the General Assembly should indicate whether such jurisdiction should also be competent with respect to States.”21

The General Assembly, in resolution 38/132 of 19 December 1983, invited the Commission to continue its work on the elaboration of the draft code of offences against the peace and security of mankind by elaborating, as a first step, an introduction and a list of the offences in conformity with its report on the work of its thirty-fifth session.

At its thirty-sixth session, in 1984, the Commission proceeded to a general debate on the draft code on the basis of the second report22 of the Special Rapporteur, which dealt with two questions, namely the offences covered by the 1954 draft and the offences classified since 1954. In its own report to the General Assembly on the work of that session, the Commission expressed its intention to limit the scope ratione personae of the draft code to the criminal responsibility of individuals, without prejudice to subsequent consideration of the possible application to States of the notion of international criminal responsibility, and to begin by drawing up a provisional list of offences while bearing in mind the drafting of an introduction summarizing the general principles of international criminal law relating to offences against the peace and security of mankind. The offences which were mentioned for possible inclusion in the code included, in addition to the offences covered in the 1954 draft, colonialism, apartheid, serious damage to the human environment, economic aggression, the use of atomic weapons and mercenarism.23

At its thirty-ninth session, the General Assembly, in resolution 39/80 of 13 December 1984, requested the Commission to continue its work on the elaboration of the draft code of offences against the peace and security of mankind by elaborating an introduction as well as a list of the offences, taking into account the progress made at the thirty-sixth session of the Commission, as well as the views expressed during the thirty-ninth session of the General Assembly.

The Commission began the first reading of the draft code at its thirty-seventh session, in 1985. At its thirty-eighth session, in 1986, the Commission discussed again the problem of the implementation of the code and announced its intention to examine carefully any guidance that might be furnished on various possible options (system of territoriality, system of personality, universal system and system of international criminal jurisdiction).

At its thirty-ninth session, in 1987, the Commission recommended to the General Assembly that it amend the title of the topic in English so that it would read “Draft Code of Crimes against the Peace and Security of Mankind”,24 a recommendation which the General Assembly endorsed in resolution 42/151 of 7 December 1987.

At its forty-third session, in 1991, the Commission adopted on first reading the draft Code of Crimes against the Peace and Security of Mankind, which included the following crimes: aggression; threat of aggression; intervention; colonial domination and other forms of alien domination; genocide; apartheid; systematic or mass violations of human rights; exceptionally serious war crimes; recruitment, use, financing and training of mercenaries; international terrorism; illicit traffic in narcotic drugs; and wilful and severe damage to the environment. The Commission decided to defer the questions of applicable penalties and the crimes which could involve an attempt until the second reading of the draft. The Commission noted that the draft Code constituted the first part of the Commission’s work on the topic and that the Commission would continue its work on the question of an international criminal jurisdiction. In accordance with articles 16 and 21 of its Statute, the Commission decided to transmit the draft Code, through the Secretary-General, to Governments for their comments and observations.25

The General Assembly, in resolution 46/54 of 9 December 1991, expressed its appreciation to the Commission for the completion of the provisional draft articles on the draft Code of Crimes against the Peace and Security of Mankind and urged Governments to present in writing their comments and observations on the draft, as requested by the Commission. The request to Governments for their comments and observations on the draft was reiterated by the General Assembly in resolution 47/33 of 25 November 1992. The General Assembly, in resolution 48/31 of 9 December 1993, requested the Commission to resume at its forty-sixth session the consideration of the draft Code.

At its forty-sixth session, in 1994, the Commission began the second reading of the draft code, which was completed at its next session, in 1995. The second reading was held on the basis of the twelfth and thirteenth reports of the Special Rapporteur26 and in the light of the comments and observations received from Governments.27 The twelfth report, considered by the Commission at its forty-sixth session, in 1994, focused only on the general part of the draft dealing with the definition of crimes against the peace and security of mankind, characterization and general principles. The Special Rapporteur also indicated his intention to limit the list of crimes to be considered during the second reading to offences whose characterization as crimes against the peace and security of mankind was hard to challenge. At that session, after considering the report, the Commission decided to refer the draft articles dealt with therein to the Drafting Committee, it being understood that the work on the draft code and on the draft statute for an international criminal court should be coordinated by the Special Rapporteur on the draft code and by the Chair and members of the Drafting Committee and of the Working Group on a draft statute for an international criminal court.

At its forty-seventh session, in 1995, the Commission considered the thirteenth report of the Special Rapporteur. The Special Rapporteur had omitted from his report 6 of the 12 crimes included on first reading, namely: the threat of aggression; intervention; colonial domination and other forms of alien domination; apartheid; the recruitment, use, financing and training of mercenaries; and wilful and severe damage to the environment, in response to the strong opposition, criticisms or reservations of certain Governments with respect to those crimes. Accordingly, the report focused on the remaining crimes contained in the draft code adopted on first reading, namely: aggression, genocide, systematic or mass violations of human rights, exceptionally serious war crimes, international terrorism and illicit traffic in narcotic drugs.28 The Commission decided to refer to the Drafting Committee articles dealing with aggression, genocide, systematic or mass violations of human rights and exceptionally serious war crimes, on the understanding that the Drafting Committee, in formulating those articles, would bear in mind and at its discretion deal with all or part of the draft articles adopted on first reading concerning intervention; colonial domination and other forms of alien domination; apartheid; recruitment, use, financing and training of mercenaries; and international terrorism. The Commission also decided to continue consultations as regards articles dealing with illicit traffic in narcotic drugs, and wilful and severe damage to the environment.

The Commission decided to establish a Working Group that would meet at the beginning of the forty-eighth session, in 1996, to examine the possibility of covering in the draft code the issue of wilful and severe damage to the environment.29 The Working Group examined the issue at the forty-eighth session and proposed to the Commission that such crime be considered a war crime, a crime against humanity or a separate crime against the peace and security of mankind. The Commission decided by a vote to refer to the Drafting Committee only the text prepared by the Working Group for inclusion of wilful and severe damage to the environment as a war crime.30

At the forty-eighth session, in 1996, the Commission adopted the final text of the draft Code of Crimes against the Peace and Security of Mankind, with commentaries,31 consisting of 20 articles divided into two parts: Part One, General Provisions (articles 1–15) and Part Two, Crimes against the Peace and Security of Mankind (articles 16–20). Part One contains provisions relating to the scope and application of the Code (article 1), individual responsibility (article 2), punishment (article 3), responsibility of States (article 4), order of a Government or a superior (article 5), responsibility of the superior (article 6), official position and responsibility (article 7), establishment of jurisdiction (article 8), obligation to extradite or prosecute (article 9), extradition of alleged offenders (article 10), judicial guarantees (article 11), non bis in idem (article 12), non-retroactivity (article 13), defences (article 14), and extenuating circumstances (article 15). Part Two includes the following crimes: aggression (article 16), genocide (article 17), crimes against humanity (article 18), crimes against United Nations and associated personnel (article 19), and war crimes (article 20).

The Commission adopted the draft Code with the following understanding:

“with a view to reaching consensus, the Commission has considerably reduced the scope of the Code. On first reading in 1991, the draft Code comprised a list of 12 categories of crimes. Some members have expressed their regrets at the reduced scope of coverage of the Code. The Commission acted in response to the interest of adoption of the Code and of obtaining support by Governments. It is understood that the inclusion of certain crimes in the Code does not affect the status of other crimes under international law, and that the adoption of the Code does not in any way preclude the further development of this important area of law.”32

As agreed to upon the adoption of the draft code on first reading, in 1991, the Commission returned to the questions of penalties and attempt during the second reading. With regard to penalties, the Commission decided to include a general provision indicating that the punishment of an individual for a crime against the peace and security of mankind must be commensurate with the character and gravity of the crime (article 3) rather than to provide specific penalties for each crime. With regard to attempt, the Commission decided to address individual criminal responsibility for attempt with respect to all of the crimes except aggression (article 2, paragraph 3(g)).

The Commission considered various forms which the draft Code of Crimes against the Peace and Security of Mankind could take, including an international convention adopted by a plenipotentiary conference or the General Assembly, incorporation of the Code in the statute of an international criminal court, or adoption of the Code as a declaration by the General Assembly. The Commission recommended that the General Assembly select the most appropriate form which would ensure the widest possible acceptance of the draft Code.33

The General Assembly, in resolution 51/160 of 16 December 1996, expressed its appreciation to the Commission for the completion of the draft Code; drew the attention of the States participating in the Preparatory Committee on the Establishment of an International Criminal Court to the relevance of the draft Code to their work; and requested the Secretary-General to invite Governments to submit, before the end of the fifty-third session of the General Assembly, their written comments and observations on action which might be taken in relation to the draft Code.

Draft Statute for an International Criminal Court

At its thirty-fifth session, in 1983, the Commission had before it the first report of the Special Rapporteur for the draft code which focused, inter alia, on the implementation of the code.34 Following a general debate on the basis of this report, the Commission requested the General Assembly to indicate whether the Commission’s mandate with respect to the draft code extended to the preparation of the statute of a competent international criminal jurisdiction for individuals since some members considered that a code unaccompanied by penalties and by a competent criminal jurisdiction would be ineffective.35

At its thirty-eighth session, in 1986, the Commission had before it the fourth report of the Special Rapporteur which addressed, inter alia, the implementation of the code.36 After considering this report, the Commission indicated that it would examine carefully any guidance that might be furnished on the various options for the implementation of the code set out in its report and reminded the General Assembly of the conclusion concerning the ineffectiveness of a code unaccompanied by penalties and a competent jurisdiction contained in the report on the work of its thirty-fifth session, in 1983.37

From 1986 to 1989, the General Assembly requested the Secretary-General to seek the views of Members States regarding the Commission’s conclusions concerning the implementation of the draft code.38

At its thirty-ninth session, in 1987, the Commission had before it the fifth report of the Special Rapporteur39 which included draft article 4 on the aut dedere aut punire principle which was intended to fill the existing gap with regard to jurisdiction.40 The Commission considered issues relating to an international criminal court in the context of its discussion of draft article 4. The Commission referred the draft article to the Drafting Committee which was unable to formulate a text for article 4 due to lack of time.

At its fortieth session, in 1988, the Commission provisionally adopted draft article 4 (Obligation to try or extradite) which relied on national courts to enforce the code without ruling out the consideration of an international criminal court at a later stage.41

In 1989, the General Assembly considered a new agenda item entitled “International criminal responsibility of individuals and entities engaged in illicit trafficking in narcotic drugs across national frontiers and other transnational criminal activities: establishment of an international criminal court with jurisdiction over such crimes”.42 In resolution 44/39 of 4 December 1989, the Assembly requested the Commission, when considering at its forty-second session the draft code of crimes against the peace and security of mankind, to address the question of establishing an international criminal court or other international criminal trial mechanism with jurisdiction over persons alleged to have committed crimes which may be covered under such a code, including persons engaged in illicit trafficking in narcotic drugs across national frontiers, and to devote particular attention to that question in its report on that session.

At its forty-second session, in 1990, the Commission had before it the eighth report of the Special Rapporteur on the draft code, part three of which dealt with the statute of an international criminal court.43 The Commission considered extensively the question of the possible establishment of an international criminal jurisdiction for two main reasons: first, because the question concerning the draft code’s implementation and, in particular, the possible creation of an international criminal jurisdiction to enforce its provisions had always been foremost in the Commission’s concerns regarding the topic, and, second, because of the specific request addressed to the Commission by the General Assembly in resolution 44/39 of 4 December 1989. After considering the report, the Commission decided to establish a Working Group to prepare a response by the Commission to the request by the Assembly.44

By resolutions 45/41 of 28 November 1990 and 46/54 of 9 December 1991, the General Assembly invited the Commission, within the framework of the draft code, to consider further and analyse the issues raised in the report concerning the question of an international criminal jurisdiction.

From 1991 to 1993, the Special Rapporteur for the draft code submitted three reports which addressed issues relating to the question of an international criminal jurisdiction.45

At its forty-fourth session, in 1992, the Commission decided to set up a Working Group to consider further and analyse the main issues relating to the question of an international criminal jurisdiction. The Working Group, at the same session, drew up a report to the Commission, which contained, inter alia, a set of specific recommendations on a number of issues related to the possible establishment of an international criminal jurisdiction.46 The structure suggested in the Working Group’s report consisted, in essence, of an international criminal court established by a statute in the form of a multilateral treaty agreed to by States parties. The proposed court would, in the first phase of its operations, at least, exercise jurisdiction only over private persons, as distinct from States. Its jurisdiction should be limited to crimes of an international character defined in specified international treaties in force, including the crimes defined in the draft code of crimes against the peace and security of mankind upon its adoption and entry into force, but not limited thereto. A State should be able to become a party to the statute of the court without thereby becoming a party to the code. The court would be a facility for States parties to its statute (and also, on defined terms, other States) which could be called into operation when and as soon as required and which, in the first phase of its operation, at least, should not have compulsory jurisdiction and would not be a standing full-time body. Furthermore, whatever the precise structure of the court or other mechanisms, it must guarantee due process, independence and impartiality in its procedures.47

The Commission noted, at the same session, that a structure along the lines suggested in the Working Group’s report could be a workable system but that further work on the issue required a renewed mandate from the General Assembly to draft a statute, and that it was now for the General Assembly to decide whether the Commission should undertake the project for an international criminal jurisdiction, and on what basis.48

The General Assembly, in resolution 47/33 of 25 November 1992, took note with appreciation of the chapter of the report of the Commission on the work of its forty-fourth session, entitled “Draft Code of Crimes against the Peace and Security of Mankind”, which was devoted to the question of the possible establishment of an international criminal jurisdiction; invited States to submit to the Secretary-General, if possible before the forty-fifth session of the Commission, written comments on the report of the Working Group on the question of an international criminal jurisdiction; and requested the Commission to continue its work on the question by undertaking the project for the elaboration of a draft statute for an international criminal court as a matter of priority as from its next session, beginning with an examination of the issues identified in the report of the Working Group and in the debate in the Sixth Committee with a view to drafting a statute on the basis of the report of the Working Group, taking into account the views expressed during the debate in the Sixth Committee as well as any written comments received from States, and to submit a progress report to the Assembly at its forty-eighth session.

At its forty-fifth session, in 1993, the Commission decided to reconvene the Working Group it had established at the previous session to continue its work, as requested by the General Assembly in resolution 47/33 as referred to above.49 The Working Group prepared a preliminary draft statute for an international criminal court and commentaries thereto.50 Though the Commission was not able to examine the draft articles in detail at the forty-fifth session and to proceed with their adoption, it felt that, in principle, the proposed draft articles provided a basis for examination by the General Assembly at its forty-eighth session. The Commission therefore decided to annex the report of the Working Group containing the draft statute to its report to the General Assembly. The Commission stated that it would welcome comments by the General Assembly and Member States on the specific questions referred to in the commentaries to the various articles, as well as on the draft articles as a whole. It furthermore decided that the draft articles should be transmitted, through the Secretary-General, to Governments for their comments.51

The General Assembly, in resolution 48/31 of 9 December 1993, took note with appreciation of chapter II of the report of the Commission on the work of its forty-fifth session, entitled “Draft Code of Crimes against the Peace and Security of Mankind”, which was devoted to the question of a draft statute for an international criminal court; invited States to submit to the Secretary-General, as requested by the Commission, written comments on the draft articles proposed by the Working Group on a draft statute for an international criminal court; and requested the Commission to continue its work as a matter of priority on the question with a view to elaborating a draft statute, if possible at its forty-sixth session, in 1994, taking into account the views expressed during the debate in the Sixth Committee as well as any written comments received from States.

At its forty-sixth session, in 1994, the Commission decided to reestablish the Working Group on a draft statute for an international criminal court. The Working Group re-examined the preliminary draft statute for an international criminal court annexed to the Commission’s report at the preceding session,52 and prepared the draft statute,53 taking into account, inter alia, the comments by Governments on the report of the Working Group submitted to the Commission at its previous session,54 and the views expressed during the debate in the Sixth Committee of the General Assembly at its forty-eighth session on the report of the International Law Commission on the work of its forty-fifth session.55

The draft statute consisted of 60 articles which were divided into eight main parts: Part One on Establishment of the Court; Part Two on Composition and Administration of the Court; Part Three on Jurisdiction of the Court; Part Four on Investigation and Prosecution; Part Five on the Trial; Part Six on Appeal and Review; Part Seven on International Cooperation and Judicial Assistance; and Part Eight on Enforcement. In drafting the statute, the Working Group did not purport to adjust itself to any specific criminal legal system but, rather, to amalgamate into a coherent whole the most appropriate elements for the goals envisaged, having regard to existing treaties, earlier proposals for an international court or tribunals and relevant provisions in national criminal justice systems within the different legal traditions. Careful note was also taken of the various provisions regulating the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991. It was also noted that the Working Group conceived the statute for an international criminal court as an attachment to a future international convention on the matter and drafted the statute’s provisions accordingly.56

The Commission adopted the draft Statute for an International Criminal Court, together with its commentaries,57 prepared by the Working Group, and decided, in accordance with article 23 of its Statute, to recommend to the General Assembly that it convene an international conference of plenipotentiaries to study the draft statute and to conclude a convention on the establishment of an international criminal court.58

The General Assembly, in resolution 49/53 of 9 December 1994, welcomed the report of the Commission on the work of its forty-sixth session, including the recommendations contained therein, and decided to establish an ad hoc committee open to all States Members of the United Nations or members of specialized agencies to review the major substantive and administrative issues arising out of the draft statute prepared by the Commission and, in the light of that review, to consider arrangements for the convening of an international conference of plenipotentiaries. It also decided that the Ad Hoc Committee should submit its report to the General Assembly at the beginning of its fiftieth session in 1995. By the same resolution, the General Assembly invited States to submit to the Secretary-General written comments on the draft statute and requested the Secretary-General to invite such comments from relevant international organs. It further requested the Secretary-General to submit to the Ad Hoc Committee a preliminary report with provisional estimates of the staffing, structure and costs of the establishment and operation of an international criminal court. The General Assembly decided to include in the provisional agenda of its fiftieth session an item entitled “Establishment of an international criminal court”, in order to study the report of the Ad Hoc Committee and the written comments submitted by States and to decide on the convening of the proposed international conference of plenipotentiaries, including its timing and duration.

The Ad Hoc Committee on the Establishment of an International Criminal Court met from 3 to 13 April and from 14 to 25 August 1995, during which time the Committee reviewed the issues arising out of the draft statute prepared by the Commission and considered arrangements for the convening of an international conference.59

The General Assembly, in resolution 50/46 of 11 December 1995, decided to establish a preparatory committee to discuss further the major substantive and administrative issues arising out of the draft statute prepared by the Commission and, taking into account the different views expressed during the meetings, to draft texts with a view to preparing a widely acceptable consolidated text of a convention for an international criminal court as a next step towards consideration by a conference of plenipotentiaries.

The Preparatory Committee on the Establishment of an International Criminal Court met from 25 March to 12 April and from 12 to 30 August 1996, during which time the Committee discussed further the issues arising out of the draft statute and began preparing a widely acceptable consolidated text of a convention for an international criminal court.60

The General Assembly, in resolution 51/207 of 17 December 1996, decided to hold a diplomatic conference of plenipotentiaries in 1998 with a view to finalizing and adopting a convention on the establishment of an international criminal court. The Assembly also decided that the Preparatory Committee would meet in 1997 and 1998 in order to complete the drafting of the text for submission to the Conference.

The Preparatory Committee met from 11 to 21 February, from 4 to 15 August and from 1 to 12 December 1997, during which time the Committee continued to prepare a widely acceptable consolidated text of a convention for an international criminal court.61

The General Assembly, in resolution 52/160 of 15 December 1997, decided to hold the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, open to all States Members of the United Nations or members of specialized agencies or of the International Atomic Energy Agency, at Rome from 15 June to 17 July 1998. In the same resolution, the General Assembly requested the Secretary-General to invite to the Conference the following organizations to participate as observers: organizations and other entities that had received a standing invitation from the Assembly pursuant to its relevant resolutions to participate as observers in its sessions and work, as well as interested regional intergovernmental organizations and other interested international bodies, including the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991 and the International Criminal Tribunal for the Prosecution of Persons Responsible for Genocide and Other Serious Violations of International Humanitarian Law Committed in the Territory of Rwanda and Rwandan Citizens Responsible for Genocide and Other Such Violations Committed in the Territory of Neighbouring States, between 1 January 1994 and 31 December 1994. In addition, the Secretary-General was requested to invite to the Conference to participate in accordance with the resolution and the rules of procedure to be adopted by the Conference non-governmental organizations accredited by the Preparatory Committee with due regard to the provisions of part VII of Economic and Social Council resolution 1996/31 of 25 July 1996, and in particular to the relevance of their activities to the work of the Conference. The Assembly further requested the Preparatory Committee to continue its work in accordance with General Assembly resolution 51/207 and, at the end of its sessions, to transmit to the Conference the text of a draft convention on the establishment of an international criminal court prepared in accordance with its mandate.

The Preparatory Committee met from 16 March to 3 April 1998, during which time the Committee completed the preparation of the draft Statute of an International Criminal Court, which was transmitted to the Conference.62

The Conference met in Rome from 15 June to 17 July 1998.63 It was attended by 160 States as well as by the observers of the Palestine Liberation Organization, sixteen intergovernmental organizations and other entities, five specialized agencies and related organizations, and nine United Nations programmes and bodies. Furthermore, representatives of 135 non-governmental organizations participated in the work of the Conference in accordance with General Assembly resolution 52/160 of 15 December 1997.

The Conference had before it the draft Statute which was assigned to the Committee of the Whole for its consideration. The Conference entrusted the Drafting Committee, without reopening substantive discussion on any matter, with coordinating and refining the drafting of all texts referred to it without altering their substance, formulating drafts and giving advice on drafting as requested by the Conference or by the Committee of the Whole and reporting to the Conference or to the Committee of the Whole as appropriate.

On 17 July 1998, the Conference adopted the Rome Statute of the International Criminal Court64 which consists of a preamble and 128 articles contained in thirteen parts: Part 1. Establishment of the Court; Part 2. Jurisdiction, Admissibility and Applicable Law; Part 3. General Principles of Criminal Law; Part 4. Composition and Administration of the Court; Part 5. Investigation and Prosecution; Part. 6. The Trial; Part 7. Penalties; Part 8. Appeal and Revision; Part 9. International Cooperation and Judicial Assistance; Part 10. Enforcement; Part 11. Assembly of States Parties; Part 12. Financing; and Part 13. Final Clauses.

The Rome Statute, which is subject to ratification, acceptance or approval, was opened for signature on 17 July 1998, in accordance with its provisions, until 17 October 1998 at the Ministry of Foreign Affairs of Italy and, subsequently, until 31 December 2000, at United Nations Headquarters in New York. It remains open for accession by all States. The Rome Statute entered into force on 1 July 2002.65

The Final Act of the Conference,66 of which six resolutions adopted by the Conference form an integral part, was signed on 17 July 1998. In one of the resolutions, resolution E, the Conference recommended that a review conference pursuant to article 123 of the Rome Statute consider the crimes of terrorism and drug crimes with a view to arriving at an acceptable definition and their inclusion in the list of crimes within the jurisdiction of the Court. By another resolution, resolution F, the Conference established the Preparatory Commission for the International Criminal Court consisting of representatives of States-signatories of the Final Act and other States which had been invited to participate in the Conference. The Preparatory Commission was entrusted with the preparation of a number of proposals for the practical arrangements for the establishment and coming into operation of the Court, including the draft texts of the rules of procedure and evidence and of the elements of crimes, as well as proposals for a provision on aggression.

In successive resolutions adopted from 1998 to 2001, the General Assembly requested the Secretary-General to convene and reconvene the Preparatory Commission to carry out its mandate set forth in Resolution F and, in that connection, to discuss ways to enhance the effectiveness and acceptance of the Court. From 1999 to 2002, the Preparatory Commission held ten sessions during which it prepared a number of proposals relating to the establishment and operation of the Court, including the draft Rules of Procedure and Evidence and the draft Elements of Crimes, which were transmitted to the Assembly of States Parties to the Rome Statute of the International Criminal Court.67

The General Assembly, in resolution 56/85 of 12 December 2001, requested the Secretary-General to make the preparations necessary to convene, in accordance with article 112, paragraph 1, of the Rome Statute, the Assembly of States Parties upon the entry into force of the Rome Statute.

The Assembly of States Parties has met periodically since its first session, in 2002, when it considered the report of the Preparatory Commission and adopted a number of instruments based on the drafts prepared by the Preparatory Commission, including the Rules of Procedure and Evidence and the Elements of Crimes.68

With the establishment of the Permanent Secretariat of the Assembly of States Parties to the Rome Statute, by resolution ICC-ASP/2/Res.3, adopted at the second session of the Assembly, on 12 September 2003, the United Nations Secretariat ceased to serve as the Secretariat of the Assembly on 31 December 2003.

The Secretary-General of the United Nations, in his capacity as depositary of the Rome Statute of the International Criminal Court, convened a Review Conference of the Rome Statute69 which, in accordance with a decision taken by the Assembly of States Parties to the Rome Statute at its eighth session,70 was held in Kampala, Uganda from 31 May to 11 June 2010. At the Review Conference, States Parties reviewed and amended the Rome Statute of the International Criminal Court (see, concerning the crime of aggression, subsection (d), below), conducted a stocktaking of international criminal justice and adopted declarations and resolutions on a variety of issues.71

Crime of aggression

The International Law Commission considered the question of the crime of aggression in the context of its work on the draft code of offences against the peace and security of mankind and the draft code of crimes against the peace and security of mankind, both of which include provisions on the crime of aggression.72 Likewise, the draft statute of the international criminal court, adopted by the Commission in 1994, included the crime of aggression within the jurisdiction of the Court.

The Rome Statute of the International Criminal Court, in article 5, paragraph 2, provided that the Court should exercise jurisdiction over the crime of aggression once a provision had been adopted defining the crime and setting out the conditions for the exercise of jurisdiction with respect to this crime; such a provision should be consistent with the Charter of the United Nations.73

The Rome Conference, which adopted the Statute, also adopted resolution F on the establishment of the Preparatory Commission for the International Criminal Court, which was annexed to the Final Act of the Conference.74 The Preparatory Commission was entrusted with the preparation of proposals for a provision on aggression, including the definition and the elements of the crime of aggression as well as the conditions under which the International Criminal Court will exercise its jurisdiction with regard to this crime. The proposals were to be submitted to the Assembly of States Parties of the Court at a review conference, with a view to arriving at an acceptable provision on the crime of aggression for inclusion in the Statute. The provisions relating to the crime of aggression will enter into force for the States Parties in accordance with the relevant provisions of the Statute.75

The Preparatory Commission considered the crime of aggression at its second to tenth sessions held from 1999 to 2002,76 in the context of the Working Group on the Crime of Aggression established as its third session, in 1999.77 At its tenth session, the Preparatory Commission agreed to include in its report to the Assembly of States Parties the discussion paper78 on the definition and elements of the crime of aggression prepared by the Coordinator of the Working Group, together with a list of all proposals and related documents on the crime of aggression issued by the Preparatory Commission as well as the historical review of developments relating to aggression79 prepared by the Secretariat for transmission to the Assembly of States Parties.80

The General Assembly, in resolutions 55/155 of 12 December 2000 and 56/85 of 12 December 2001, noted the importance of the growing participation in the work of the Working Group on the Crime of Aggression.

At its first session, in September 2002, the Assembly of States Parties adopted a resolution on the continuity of work in respect of the crime of aggression, by which it took the following decisions: (1) a special working group on the crime of aggression shall be established, open on an equal footing to all States Members of the United Nations or members of specialized agencies or of the International Atomic Energy Agency, for the purpose of elaborating the proposals for a provision on aggression in accordance with the Rome Statute (article 5, paragraph 2) and Resolution F (paragraph 7); (2) the special working group shall submit such proposals to the Assembly for consideration at a Review Conference; and (3) the special working group shall meet during the regular sessions of the Assembly or at any other time that the Assembly deems appropriate and feasible.81 The Assembly subsequently decided that the Special Working Group on the Crime of Aggression should meet during annual sessions of the Assembly, while leaving open the possibility of informal inter-sessional meetings depending upon the availability of funding for such a meeting by any Government wishing to do so.82

At its second session, in 2003, the Assembly of States Parties decided, on the recommendation of the Chair of the Special Working Group, to annex the discussion paper on the definition and elements of the crime of aggression, prepared by the Coordinator of the Working Group on the Crime of Aggression during the Preparatory Commission of the International Criminal Court,83 to the report of the Assembly.84

At its third to seventh sessions, from 2004 to 2008, the Assembly took note of the reports of the Special Working Group.85 At its eighth session, in 2009, the Assembly decided that the Review Conference would be held from 31 May to 11 June 2010, in Kampala, Uganda.86 The Assembly further decided that the Review Conference should consider, inter alia, the proposals on the crime of aggression and on elements of crimes.

At its 13th meeting, on 11 June 2010, the Review Conference adopted the report of the Working Group on the Crime of Aggression.87 At the same meeting, the Conference adopted, by consensus, resolution RC/Res.6 by which it amended the Rome Statute so as to include a definition of the crime of aggression88 and the conditions for the exercise by the Court of its jurisdiction with respect to this crime.89 By the same resolution, the Conference adopted amendments to the Elements of Crimes related to the crime of aggression and deleted paragraph 2 of article 5 of the Rome Statute.90

At its sixteenth session, on 14 December 2017, the Assembly of States Parties adopted a resolution,91 by which it decided to activate the jurisdiction of the International Criminal Court over the crime of aggression as of 17 July 2018 and confirmed that, in accordance with the Rome Statute, the amendments to the Statute regarding the crime of aggression adopted at the Review Conference entered into force for those States Parties which had accepted the amendments one year after the deposit of their instruments of ratification or acceptance and that in the case of a State referral or proprio motu investigation the Court shall not exercise its jurisdiction regarding a crime of aggression when committed by a national or on the territory of a State Party that has not ratified or accepted the amendments.

* This topic was originally entitled “Draft code of offences against the peace and security of mankind”. At its thirty-ninth session, in 1987, the Commission recommended to the General Assembly that it amend the title of the topic in English so that it would read as above. The General Assembly agreed with this recommendation in resolution 42/151 of 7 December 1987.

1 See Yearbook … 1950, vol. II, document A/CN.4/25; Yearbook … 1951, vol. II, document A/CN.4/44; and Yearbook … 1954, vol. II, document A/CN.4/85.

2 See Yearbook … 1950, vol. II, document A/CN.4/19 and Add.1 and 2; Official Records of the General Assembly, Seventh Session, Annexes, agenda item 54, document A/2162 and Add.1 as well as document A/2162/Add.2. The Commission also examined the comments and observations received from Governments on the formulation of the Nürnberg principles (see Yearbook … 1951, vol. II, document A/CN.4/45 and Add.1 and 2).

3 See Yearbook … 1950, vol. II, document A/CN.4/39 as well as document A/CN.4/72.

4 See Yearbook … 1951, vol. II, document A/1858, paras. 57 and 59.

5 See ibid., document A/1858, para. 52 (a, b and c).

6 Trial of the Major War Criminals before the International Military Tribunal, Nürnberg, 14 November 1945–1 October 1946, published at Nürnberg, Germany, 1947, p. 223.

7 See Yearbook … 1951, vol. II, document A/1858, para. 59, article 1.

8 See ibid., para. 52 (d).

9 See ibid., para. 59, article 5 and its commentary.

10 See Yearbook … 1954, vol. II, document A/CN.4/85.

11 See ibid., document A/2693, paras. 50 and 51.

12 See ibid., document A/2693, paras. 49 and 54.

13 See Yearbook … 1977, vol. II (Part Two), para. 111.

14 See Official Records of the General Assembly, Thirty-second Session, Annexes, agenda item 131, document A/32/470.

15 Document A/35/210 and Add.1 and 2 and Add.2/Corr.1.

16 See Yearbook … 1983, vol. II (Part One), document A/CN.4/364; ibid., 1984, vol. II (Part One), document A/CN.4/377; ibid., 1985, vol. II (Part One), document A/CN.4/387; ibid., 1986, vol. II (Part One), document A/CN.4/398; ibid., 1987, vol. II (Part One), document A/CN.4/404; ibid., 1988, vol. II (Part One), document A/CN.4/411; ibid., 1989, vol. II (Part One), document A/CN.4/419 and Add.l; ibid., 1990, vol. II (Part One), document A/CN.4/430 and Add.l; ibid., 1991, vol. II (Part One), document A/CN.4/435 and Add.l; ibid., 1992, vol. II (Part One), document A/CN.4/442; ibid., 1993, vol. II (Part One), document A/CN.4/449 (the tenth and eleventh reports of the Special Rapporteur published in the 1992 and 1993 Yearbooks, respectively, were devoted entirely to the question of the possible establishment of an international criminal jurisdiction); and ibid., 1994, vol. II (Part One), document A/CN.4/460; as well as document A/CN.4/466. (see Analytical Guide for individual documents)

17 See Yearbook … 1982, vol. II (Part One), document A/CN.4/358 and Add.1–4; ibid., 1983, vol. II (Part One), document A/CN.4/369 and Add.1 and 2; ibid., 1985, vol. II (Part One), document A/CN.4/392 and Add.1 and 2; ibid., 1987, vol. II (Part One), document A/CN.4/407 and Add.1 and 2; ibid., 1990, vol. II (Part One), document A/CN.4/429 and Add.1–4; and ibid., 1993, vol. II (Part One), document A/CN.4/448 and Add.l. (see Analytical Guide for individual documents)

18 Documents A/CN.4/365 and A/CN.4/368 and Add.1. (see Analytical Guide for individual documents)

19 See Yearbook … 1983, vol. II (Part One), document A/CN.4/364. (see Analytical Guide)

20 See Yearbook … 1983, vol. II (Part Two), para. 67.

21 See Yearbook … 1983, vol. II (Part Two), para. 69.

22 See Yearbook … 1984, vol. II (Part One), document A/CN.4/377. (see Analytical Guide)

23 See Yearbook … 1984, vol. II (Part Two), para. 65.

24 See Yearbook … 1987, vol. II (Part Two), para. 65.

25 See Yearbook … 1991, vol. II (Part Two), paras. 170–175.

26 See Yearbook … 1994, vol. II (Part One), document A/CN.4/460; as well as document A/CN.4/466. (see Analytical Guide)

27 See Yearbook … 1993, vol. II (Part One), document A/CN.4/448 and Add.l.

28 See Yearbook … 1995, vol. II (Part Two), paras. 38 and 39.

29 See Yearbook … 1995, vol. II (Part Two), para. 140.

30 See Yearbook … 1996, vol. II (Part Two) and Corr.1 (Arabic only), paras. 43 and 44.

31 See Yearbook … 1996, vol. II (Part Two), paras. 45 and 50.

32 See Yearbook … 1996, vol. II (Part Two), para. 46.

33 See Yearbook … 1996, vol. II (Part Two), paras. 47 and 48.

34 See Yearbook … 1996, vol. II (Part One), document A/CN.4/364. (see Analytical Guide)

35 See Yearbook … 1996, vol. II (Part Two) and Corr.1 (Arabic only), para. 69(c)(i).

36 See Yearbook … 1986, vol. II (Part One), document A/CN.4/398.

37 See Yearbook … 1986, vol. II (Part Two), para. 185.

38 See General Assembly resolutions 41/75 of 3 December 1986, 42/151 of 7 December 1987, 43/164 of 9 December 1988 and 44/32 of 4 December 1989.

39 See Yearbook … 1987, vol. II (Part One), document A/CN.4/404. (see Analytical Guide)

40 In 2006, the Commission included the topic “Obligation to extradite or prosecute (aut dedere aut judicare)” in its programme of work (see Part III.A, section 35).

41 See Yearbook … 1988, vol. II (Part Two), paras. 213 and 280 (commentary to article 4).

42 See Official Records of the General Assembly, Forty-fourth Session, Annexes, vol. II, agenda item 152, document A/44/195.

43 See Yearbook … 1990, vol. II (Part One), document A/CN.4/430 and Add.1. (see Analytical Guide)

44 For the report of the Working Group, see document A/CN.4/L.454. (see Analytical Guide)

45 See Yearbook … 1991, vol. II (Part One), document A/CN.4/435 and Add.1; ibid., 1992, vol. II (Part One), document A/CN.4/442; and ibid., 1993, vol. II (Part One), document A/CN.4/449. (see Analytical Guide)

46 Document A/CN.4/L.471, reproduced in Yearbook … 1992, vol. II (Part Two), annex. (see Analytical Guide) See also Yearbook … 1992, vol. II (Part Two), para. 99.

47 See Yearbook … 1992, vol. II (Part Two), para. 11 and annex, para. 4.

48 See Yearbook … 1992, vol. II (Part Two), paras. 11 and 104.

49 The Commission had before it comments of Governments on the report of the Working Group established at the previous session submitted pursuant to General Assembly resolution 47/33 (see Yearbook … 1993, vol. II (Part One), document A/CN.4/452 and Add.1–3. (see Analytical Guide))

50 For the revised report of the Working Group, see document A/CN.4/L.490 and Add.1 reproduced in Yearbook … 1993, vol. II (Part Two), annex. (see Analytical Guide)

51 See Yearbook … 1993, vol. II (Part Two), paras. 99 and 100.

52 See Yearbook … 1993, vol. II (Part Two), annex.

53 For the final revised report of the Working Group, see document A/CN.4/L.491/Rev.2 and Add.1–3. (see Analytical Guide)

54 See Yearbook … 1994, vol. II (Part One), document A/CN.4/458 and Add.1–8. (see Analytical Guide)

55 Document A/CN.4/457, section B. (see Analytical Guide)

56 See Yearbook … 1994, vol. II (Part Two), paras. 84–86.

57 See Yearbook … 1994, vol. II (Part Two), paras. 88 and 91.

58 See Yearbook … 1994, vol. II (Part Two), para. 90.

59 See Official Records of the General Assembly, Fiftieth session, Supplement No. 22 (A/50/22).

60 See Official Records of the General Assembly, Fifty-first session, Supplement No. 22 (A/51/22), vols. I and II.

61 Documents A/AC.249/1997/L.5, A/AC.249/1997/L.8/Rev.1 and A/AC.249/1997/L.9/Rev.1.

62 See Official Records of the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Rome, 15 June–17 July 1998, vol. III, Reports and other documents (United Nations publication, Sales No. 02.I.5), document A/CONF.183/2/Add.1.

63 For the Final Act of the Conference, see ibid., vol. I, Final documents (United Nations publication, Sales No. 02.I.5), document A/CONF.183/10.

64 See United Nations, Treaty Series, vol. 2187, p. 3. See also Official Records of the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Rome, 15 June–17 July 1998, vol. I, Final documents (United Nations publication, Sales No. 02.I.5), document A/CONF.183/9.

65 The Rome Statute of the International Criminal Court is not reproduced in the annexes of this publication since it was adopted on the basis of the text of the Preparatory Committee which further elaborated the Commission’s draft statute for an international criminal court.

66 See footnote 54 above.

67 See Proceedings of the Preparatory Commission at its first, second and third sessions (16–26 February, 26 July–13 August and 29 November–17 December 1999) (document PCNICC/1999/L.5/Rev.1 and Add.1 and 2); Proceedings of the Preparatory Commission at its fourth session (13–31 March 2000) (document PCNICC/2000/L.1/Rev.1 and Add.1 and Add.2); Proceedings of the Preparatory Commission at its fifth session (12–30 June 2000) (document PCNICC/2000/L.3/Rev.1); Proceedings of the Preparatory Commission at its sixth session (27 November–8 December 2000) (document PCNICC/2000/L.4/Rev.1 and Add.1–3); Proceedings of the Preparatory Commission at its seventh session (26 February–9 March 2001) (document PCNICC/2001/L.1/Rev.1 and Add.1–3); Proceedings of the Preparatory Commission at its eighth session (24 September–5 October 2001) (document PCNICC/2001/L.3/Rev.1 and Add.1); Proceedings of the Preparatory Commission at its ninth session (8–19 April 2002) (document PCNICC/2002/L.1/Rev.1 and Add.1 and 2); and Proceedings of the Preparatory Commission at its tenth session (1–12 July 2002) (document PCNICC/2002/L.4/Rev.1); as well as Report of the Preparatory Commission for the International Criminal Court (contained in documents PCNICC/2000/1 and Add.1 and 2; PCNICC/2001/1 and Add.1–4; PCNICC/2002/1 and Add.1 and 2; and PCNICC/2002/2 and Add.1–3). See also a Guide to the Report of the Preparatory Commission prepared by the Secretariat (document PCNICC/2002/3 and Corr.1).

68 See Official Records of the Assembly of States Parties to the Rome Statute of the International Criminal Court, First Session, New York, 3–10 September 2002 (ICC-ASP/1/3, United Nations publication, Sales No. 03.V.2), paras. 16–23.

69 Article 123, paragraph 1, of the Rome Statute of the International Criminal Court requests the Secretary-General of the United Nations to convene a Review Conference to consider any amendments to the Statute seven years after its entry into force.

70 Official Records of the Assembly of States Parties to the Rome Statute of the International Criminal Court, Eighth session, The Hague, 18–26 November 2009 (ICC-ASP/8/20), vol. I, part II, resolution ICC-ASP/8/Res.6, para.2.

71 For more information about the 2010 Review Conference of the Rome Statute, see the conference website at https://asp.icc-cpi.int/reviewconference.

72 Article 2, paragraphs 1 and 2, of the draft code of offences against the peace and security of mankind, of 1954, characterized an act of aggression and the threat of aggression as on “offence against the peace and security of mankind” which were crimes under international law “for which the responsible individuals shall be punished” (article 1). Article 6 of the draft code of crimes against the peace and security of mankind, adopted in 1996, provides the following: “[a]n individual who, as leader or organizer, actively participates in or orders the planning, preparation, initiation or waging of aggression committed by a State shall be responsible for a crime of aggression”.

73 See Official Records of the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Rome, 15 June–17 July 1998, vol. I, Final documents (United Nations publication, Sales No. 02.I.5), document A/CONF.183/9, article 5. Article 5, paragraph 2, was deleted by resolution RC/Res.6, annex 1, adopted by the Review Conference on 11 June 2010. See p. 118.

74 See ibid., document A/CONF.183/10, Annex I, F.

75 Rome Statute, articles 121 and 123.

76 See Proceedings of the Preparatory Commission at its First, Second and Third sessions (16–26 February, 26 July–13 August and 29 November–17 December 1999) (document PCNICC/1999/L.5/Rev.1, paras. 12, 15, 16 and 20); Proceedings of the Preparatory Commission at its Fourth session (13–31 March 2000) (document PCNICC/2000/L.1/Rev.1, paras. 9 and 11); Proceedings of the Preparatory Commission at its Fifth session (12–30 June 2000) (document PCNICC/2000/L.3/Rev.1, paras. 9 and 12); Proceedings of the Preparatory Commission at its Sixth session (27 November–8 December 2000) (document PCNICC/2000/L.4/Rev.1, paras. 10 and 11); Proceedings of the Preparatory Commission at its Seventh session (26 February–9 March 2001) (document PCNICC/2001/L.1/Rev.1, paras. 9, 11 and 14); Proceedings of the Preparatory Commission at its Eighth session (24 September–5 October 2001) (document PCNICC/2001/L.3/Rev.1, paras. 10, 11 and 14); Proceedings of the Preparatory Commission at its Ninth session (8–19 April 2002) (document PCNICC/2002/L.1/Rev.1, para. 14); Proceedings of the Preparatory Commission at its Tenth session (1–12 July 2002) (document PCNICC/2002/L.4/Rev.1, paras. 9, 10 and 16); and Report of the Preparatory Commission for the International Criminal Court (document PCNICC/2002/2, paras. 8 and 9 as well as document PCNICC/2002/2/Add.2).

77 See Proceedings of the Preparatory Commission at its First, Second and Third sessions (16–26 February, 26 July–13 August and 29 November–17 December 1999) (document PCNICC/1999/L.5/Rev.1), para. 16.

78 Document PCNICC/2002/WGCA/RT.1/Rev.2.

79 Document PCNICC/2002/WGCA/L.1 and Add.1 reproduced in “Historical Review of Developments relating to Aggression” (United Nations publication, Sales No. E.03.V.10).

80 See Report of the Preparatory Commission for the International Criminal Court (document PCNICC/2002/2, para. 9, as well as document PCNICC/2002/2/Add.2).

81 Resolution ICC-ASP/1/Res.1 of 9 September 2002. See Official Records of the Assembly of States Parties to the Rome Statute of the International Criminal Court, First Session, New York, 3–10 September 2002 (ICC-ASP/1/3, United Nations publication, Sales No. 03.V.2), p. 328.

82 See ibid., First Session (First and Second Resumptions), New York, 3–7 February and 21–23 April 2003 (ICC-ASP/1/3/Add.1, United Nations publication, Sales No. 03.V.8), paras. 37 and 38.

83 As contained in document PCNICC/2002/2/Add.2.

84 See ICC-ASP/2/10, Annex II.

85 See ICC/ASP/3/25, Annex II (2004); ICC-ASP/4/32, Annex II (2005); ICC-ASP/5/32, Annex II (2006); ICC-ASP/6/20, Annex II (2007); and ICC-ASP/7/20, Annex III (2008).

86 See ICC-ASP/8/20.

87 RC/11, Annex III.

88 Article 8 bis of the Rome Statute.

89 Articles 15 bis and 15 ter and 25, para. 3 bis of the Rome Statute.

90 See RC/Res.6, Annex I. Paragraph 2 of article 5 provided that “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.”

91 Resolution ICC-ASP/16/Res.5 of 14 December 2017. See Official Records of the Assembly of States Parties to the Rome Statute of the International Criminal Court, Sixteenth Session, New York, 4–14 December 2017, vol. 1 (ICC-ASP/16/20), p. 35.