Introduction

The Elements of Crimes, an example of one of the Rome Statute system's many innovative contributions to international criminal law, were adopted by the Preparatory Commission (PrepComm) for crimes of genocide, crimes against humanity and war crimes on 30 June 2000, and then by the Assembly of States Parties on 9 September 2002.

Elements of Crimes form an important part of the range of instruments available to the Court. They elaborate the definitions of the Rome Statute crimes and thereby assist the Court in their interpretation and application, including, upon entry into force of the relevant amendments, the crime of aggression. The Elements of Crimes must be read in conjunction with article 30 of the Rome Statute, which sets out the general rules with respect to the ‘mental element’ of each crime, i.e. personal criminal liability and responsibility shall only accrue if the ‘material elements’ of the relevant crime are committed with intent and knowledge.

Although the PrepComm was mandated by Resolution F of the Final Act of the Rome Conference to prepare proposals on the crime of aggression including the elements,5negotiations on the elements of the crime of aggression (hereafter ‘the Elements’) were slow to commence in earnest, both in the PrepComm and in the Special Working Group on the Crime of Aggression (Special Working Group) that took over its mandate. That said, this chapter will illustrate how discussions on the Elements in the context of informal settings and formal meetings of the Assembly of States Parties progressed rapidly and effectively once the Special Working Group had agreed on a draft definition of the crime of aggression in February 2009.