Explanatory note

1. The revised discussion paper contained in the attachment is submitted following the discussions held by the Special Working Group during the sixth session of the Assembly of States Parties (30 November to 14 December 2007). It is based on the previous discussion paper (2007 Chairman's paper) and takes into account the developments and discussions held since its submission. It is prepared without prejudice to the positions of delegations and intended to facilitate the future work of the Special Working Group.

2. The first part of the revised paper, referring to the procedure for entry into force of the amendment as well as to the possibility of deleting article 5, paragraph 2, of the Statute, mainly serves as placeholder, since these issues have not been thoroughly discussed.

3. The suggested insertion of a new article 8 bis, paragraph 1, taken together with draft article 25 (3 bis), reflects the progress made thus far on the definition of the individual’s conduct, the “crime” of aggression.

4. Draft article 8 bis, paragraph 2, reflects the progress in the discussions on the definition of the State “act” of aggression. The draft is based on the assumption that United Nations General Assembly resolution 3314 (XXIX) should serve as the basis for such a definition. While there have been different views on the question whether such a reference should be limited to certain articles of that resolution, and whether the list of acts enumerated should be “open” or “closed”, the suggested formulation is intended to bridge this gap.

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