Introduction

1. Resolution F of the Rome Conference, in paragraph 7, instructed the Preparatory Commission to “prepare proposals for a provision on aggression, including the definition and Elements of Crimes of aggression and conditions under which the International Criminal Court shall exercise its jurisdiction with regard to this crime”. The Commission has concentrated its efforts to date on the “definition” and the “conditions”. It occurred to us that the question of the Elements should not pass entirely unnoticed with the impending demise of the Preparatory Commission. The question is important, not only for its own sake, but also, and perhaps more importantly, for the light that it might shed on technical aspects of the “definition” and “conditions”.

2. The following is therefore a tentative first effort to think conceptually about the Elements of the Crime of aggression. We have taken the discussion paper proposed by the Coordinator on 1 April 2002 (PCNICC/2002/WGCA/RT.1) and tried to apply to it the conceptual structure contained in articles 30 and 32 of the Rome Statute as utilized in the draft Elements of Crimes (PCNICC/2000/1/Add.2) (hereinafter “Elements” or “Elements of Crimes”). In particular, we have operated on the premise that the crime of aggression can be conceptualized, like other crimes within the jurisdiction of the Court, in terms of “mental” elements and “material” elements, terms to be found (but not fully explained) in article 30 of the Rome Statute.