ure. Further, States Parties may suggest amendments to the Rules at any time after their initial adoption by the Assembly of States Parties (articles 9 (2)(a) & 51 (2)(a)). The rights of States Parties that these amendments generate are similar to those amendments of an institutional nature, despite the different time period in which they enter into effect.
Effect of amendments to the Statute on States Parties'
rights to withdraw from the Statute
Any amendment to the Statute will give rise to the right of immediate withdrawal from the Statute, with two exceptions: amendments of an exclusively institutional nature discussed above, and amendments to the list of crimes under the jurisdiction of the Court. There are two modes of withdrawal related to amendment of the Statute: specific withdrawal, with immediate effect, as provided for in article 121 (6), and non-acceptance of amendments concerning the list of the crimes as provided in article 121 (5).
The option of withdrawal with an immediate effect can be taken when an amendment has been accepted by seven-eighths of the States Parties. Every State that did not accept the amendment can, during a period of one year after its entry into force, withdraw immediately from the Statute.
The non-acceptance of an amendment concerning the list of the crimes under the jurisdiction of the Court will prevent the Court from exercising its jurisdiction over a new type of crime committed by a national or committed on the territory of the State that did not accept the amendment.
The amendments of an exclusively institutional nature do not confer any right of immediate withdrawal on a State desiring to withdraw as a consequence of adoption of the amendment. In such cases, as with amendments to the Rules and Elements, the normal withdrawal regime of article 127 applies.
Crime of Aggression
Article 5 (2) provides that the Court shall exercise jurisdiction over the crime of aggression once an acceptable provision is adopted at a Review Conference, no earlier than seven years from the entry into force of the Statute. This provision must set out both the definition of the crime and the conditions under which the Court shall exercise jurisdiction with respect to this crime, and be consistent with the "relevant provisions" of the Charter of the UN.
A Working Group on this crime was established at the third Prepcom meeting in November 1999, representing delegates from over 100 States. Many of these States are hopeful that an acceptable provision on aggression will be negotiated before the Court comes into operation. However, articles 5 (2), 121 & 123 make it clear that the Court will not have jurisdiction over the crime of aggression until at least seven years after entry into force of the Statute.
Background to the crime of aggression
The crime of aggression has always proved controversial. Proscriptions against "aggressive wars" were set out in the 1899 and 1907 Hague Conventions for the Pacific Settlement of International Disputes, and the 1928 Pact of Paris (Kellog-Briand Pact). But none of these declared aggression an international crime. Needless to say, most of these agreements were made amongst the Western nations only, and did not even attempt to encompass the views of the rest of the world, unlike the Rome Statute.
After the Second World War, the UN War Crimes Commission Draft Convention for the Establishment of a United Nations War Crimes Court provided that such a Court would only prosecute persons "acting under the authority of, or claim or colour of authority of, or in concert with a State or political entity engaged in war or armed hostilities with any of the High Contracting Parties, or in hostile occupation of territory of any of the High Contracting Parties." In other words, Allied personnel could not be
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