rangement of Provisions

1. Short title and commencement
2. Section 3 amended
3. New section 7A inserted
4. Consequential amendments
5. New Schedule 2 inserted


__________

2014, No. 23

AN ACT to amend the International Criminal Court Act 2007
(“Principal Act”). [28th
October 2014]

BE IT ENACTED by the Legislative Assembly of Samoa in
Parliament assembled as follows:

1. Short title and commencement-(1) This Act may be cited
as the International Criminal Court Amendment Act 2014.
(2) This Act commences on the date nominated by the
Minister.

2. Section 3 amended - For section 3 of the Principal Act, in
the definition of “Statute” after “this Act” insert:

“and includes the Amendments to the Statute set out in
Schedule 2 of this Act.”.



2 International Criminal Court Amendment 2014, No. 23

3. New section 7A inserted - After section 7 of the Principal
Act insert:

“7A. Crime of aggression-(1) A person who, in Samoa or
elsewhere, commits a crime of aggression commits an offence
and is liable on conviction to life imprisonment.
(2) For the purpose of this section, “crime of aggression”
is an act specified in Article 8 bis of the Statute and includes
any other act which at the time and in the place of its
commission, constitutes crime of aggression according to
customary international law or conventional international law
or by virtue of it being criminal according to the general
principles of law recognised by the community of nations,
whether or not it constitutes a contravention of the law in
force at the time and in the place of its commission.”.

4. Consequential amendments - In sections 9, 10, 11, 13, 14
and 16 of the Principal Act, for “or 7” wherever occurring
substitute “, 7 and 7A”.

5. New Schedule 2 inserted - After Schedule 1 of the
Principal Act insert:

“SCHEDULE 2
(Section 2)
ROME STATUTE OF THE
INTERNATIONAL CRIMINAL COURT

Part I - Amendment to Article 8

Resolution RC/Res.5
Adopted at the 12th plenary meeting, on 10 June 2010, by
consensus.

RC/Res.5
Amendments to article 8 of the Rome Statute


2014, No. 23 International Criminal Court Amendment 3

The Review Conference,

Noting article 123, paragraph 1, of the Rome Statute of the
International Criminal Court which requests the Secretary-
General of the United Nations to convene a Review Conference to
consider any amendments to the Statute seven (7) years after its
entry into force,

Noting article 121, paragraph 5, of the Statute which states that
any amendment to articles 5, 6, 7 and 8 of the Statute shall enter
into force for those States Parties which have accepted the
amendment one (1) year after the deposit of their instruments of
ratification or acceptance and that in respect of a State Party
which has not accepted the amendment, the Court shall not
exercise its jurisdiction regarding the crime covered by the
amendment when committed by that State Party’s nationals or on
its territory, and confirming its understanding that in respect to
this amendment the same principle that applies in respect of a
State Party which has not accepted the amendment applies also in
respect of States that are not parties to the Statute,

Confirming that, in light of the provision of article 40, paragraph
5, of the Vienna Convention on the Law of Treaties, States that
subsequently become States Parties to the Statute will be allowed
to decide whether to accept the amendment contained in this
resolution at the time of ratification, acceptance or approval of, or
accession to the Statute,

Noting article 9 of the Statute on the Elements of Crimes which
states that such Elements shall assist the Court in the
interpretation and application of the provisions of the crimes
within its jurisdiction,

Taking due account of the fact that the crimes of employing
poison or poisoned weapons; of employing asphyxiating,
poisonous or other gases, and all analogous liquids, materials or
devices; and of employing bullets which expand or flatten easily
in the human body, such as bullets with a hard envelope which


4 International Criminal Court Amendment 2014, No. 23

does not entirely cover the core or is pierced with incisions,
already fall within the jurisdiction of the Court under article 8,
paragraph 2(b), as serious violations of the laws and customs
applicable in international armed conflict,

Noting the relevant elements of the crimes within the Elements of
Crimes already adopted by the Assembly of States Parties on 9
September 2000,

Considering that the abovementioned relevant elements of the
crimes can also help in their interpretation and application in
armed conflict not of an international character, in that inter alia
they specify that the conduct took place in the context of and was
associated with an armed conflict, which consequently confirm
the exclusion from the Court’s jurisdiction of law enforcement
situations,

Considering that the crimes referred to in article 8, paragraph
2(e)(xiii) (employing poison or poisoned weapons) and in article
8, paragraph 2(e)(xiv) (asphyxiating, poisonous or other gases,
and all analogous liquids, materials and devices) are serious
violations of the laws and customs applicable in armed conflict
not of an international character, as reflected in customary
international law,

Considering that the crime referred to in article 8, paragraph
2(e)(xv) (employing bullets which expand or flatten easily in the
human body), is also a serious violation of the laws and customs
applicable in armed conflict not of an international character, and
understanding that the crime is committed only if the perpetrator
employs the bullets to uselessly aggravate suffering or the
wounding effect upon the target of such bullets, as reflected in
customary international law,

1. Decides to adopt the amendment to article 8, paragraph 2(e), of
the Rome Statute of the International Criminal Court contained in
annex I to the present resolution, which is subject to ratification
or acceptance and shall enter into force in accordance with article
121, paragraph 5, of the Statute;

2014, No. 23 International Criminal Court Amendment 5

2. Decides to adopt the relevant elements to be added to the
Elements of Crimes, as contained in annex II to the present
resolution.

Annex I
Amendment to article 8
Add to article 8, paragraph 2(e), the following:

(xiii) Employing poison or poisoned weapons;

(xiv) Employing asphyxiating, poisonous or other gases, and all
analogous liquids, materials or devices;

(xv) Employing bullets which expand or flatten easily in the
human body, such as bullets with a hard envelope which does not
entirely cover the core or is pierced with incisions.
Annex II
Elements of Crimes
Add the following elements to the Elements of Crimes:
Article 8(2)(e)(xiii)
War crime of employing poison or poisoned weapons
Elements
1. The perpetrator employed a substance or a weapon that releases a substance as a result of its employment.
2. The substance was such that it causes death or serious damage to health in the ordinary course of events, through its toxic
properties.
3. The conduct took place in the context of and was associated with an armed conflict not of an international character.
4. The perpetrator was aware of factual circumstances that established the existence of an armed conflict.
Article 8(2)(e)(xiv)
War crime of employing prohibited gases, liquids, materials
or devices
Elements
1. The perpetrator employed a gas or other analogous substance or
device.

6 International Criminal Court Amendment 2014, No. 23

2. The gas, substance or device was such that it causes death or
serious damage to health in the ordinary course of events, through
its asphyxiating or toxic properties.
3. The conduct took place in the context of and was associated
with an armed conflict not of an international character.
4. The perpetrator was aware of factual circumstances that
established the existence of an armed conflict.

Article 8(2)(e)(xv)
War crime of employing prohibited bullets
Elements
1. The perpetrator employed certain bullets. 2. The bullets were such that their use violates the international law of armed conflict because they expand or flatten easily in the
human body.
3. The perpetrator was aware that the nature of the bullets was such that their employment would uselessly aggravate suffering or
the wounding effect.
4. The conduct took place in the context of and was associated with an armed conflict not of an international character.
5. The perpetrator was aware of factual circumstances that established the existence of an armed conflict.

Part II - Crime of aggression

Resolution RC/Res.6
Adopted at the 13th plenary meeting, on 11 June 2010, by
consensus.

RC/Res.6
The crime of aggression

The Review Conference,

Recalling paragraph 1 of article 12 of the Rome Statute,

Recalling paragraph 2 of article 5 of the Rome Statute,


2014, No. 23 International Criminal Court Amendment 7

Recalling also paragraph 7 of resolution F, adopted by the United
Nations Diplomatic Conference of Plenipotentiaries on the
Establishment of an International Criminal Court on 17 July 1998,

Recalling further resolution ICC-ASP/1/Res.1 on the continuity of
work in respect of the crime of aggression, and expressing its
appreciation to the Special Working Group on the Crime of
Aggression for having elaborated proposals on a provision on the
crime of aggression,

Taking note of resolution ICC-ASP/8/Res.6, by which the
Assembly of States Parties forwarded proposals on a provision on
the crime of aggression to the Review Conference for its
consideration,

Resolved to activate the Court’s jurisdiction over the crime of
aggression as early as possible,

1. Decides to adopt, in accordance with article 5, paragraph 2, of the Rome Statute of the International Criminal Court
(hereinafter: “the Statute”) the amendments to the Statute
contained in annex I of the present resolution, which are subject to
ratification or acceptance and shall enter into force in accordance
with article 121, paragraph 5; and notes that any State Party may
lodge a declaration referred to in article 15 bis prior to ratification
or acceptance;

2. Also decides to adopt the amendments to the Elements of Crimes contained in annex II of the present resolution;

3. Also decides to adopt the understandings regarding the interpretation of the abovementioned amendments contained in
annex III of the present resolution;

4. Further decides to review the amendments on the crime of aggression seven (7) years after the beginning of the Court’s
exercise of jurisdiction;


8 International Criminal Court Amendment 2014, No. 23

5. Calls upon all States Parties to ratify or accept the
amendments contained in annex I.

Annex I

1. Article 5, paragraph 2, of the Statute is deleted.
2. The following text is inserted after article 8 of the Statute:
Article 8 bis
Crime of aggression

1. For the purpose of this Statute, “crime of aggression” means the planning, preparation, initiation or execution, by a
person in a position effectively to exercise control over or to
direct the political or military action of a State, of an act of
aggression which, by its character, gravity and scale,
constitutes a manifest violation of the Charter of the United
Nations.

2. For the purpose of paragraph 1, “act of aggression” means the use of armed force by a State against the sovereignty,
territorial integrity or political independence of another State,
or in any other manner inconsistent with the Charter of the
United Nations. Any of the following acts, regardless of a
declaration of war, shall, in accordance with United Nations
General Assembly resolution 3314 (XXIX) of 14 December
1974, qualify as an act of aggression:
(a) The invasion or attack by the armed forces of a State of the territory of another State, or any military
occupation, however temporary, resulting from such invasion
or attack, or any annexation by the use of force of the territory
of another State or part thereof;

(b) Bombardment by the armed forces of a State against the territory of another State or the use of any weapons
by a State against the territory of another State;


2014, No. 23 International Criminal Court Amendment 9

(c) The blockade of the ports or coasts of a State by the armed forces of another State;

(d) An attack by the armed forces of a State on the land, sea or air forces, or marine and air fleets of another
State;

(e) The use of armed forces of one (1) State which are within the territory of another State with the agreement of the
receiving State, in contravention of the conditions provided
for in the agreement or any extension of their presence in such
territory beyond the termination of the agreement;

(f) The action of a State in allowing its territory, which it has placed at the disposal of another State, to be used
by that other State for perpetrating an act of aggression against
a third State;

(g) The sending by or on behalf of a State of armed bands, groups, irregulars or mercenaries, which carry out acts
of armed force against another State of such gravity as to
amount to the acts listed above, or its substantial involvement
therein.

3. The following text is inserted after article 15 of the Statute:
Article 15 bis
Exercise of jurisdiction over the crime of aggression
(State referral, propriomotu)

1. The Court may exercise jurisdiction over the crime of aggression in accordance with article 13, paragraphs (a) and
(c), subject to the provisions of this article.

2. The Court may exercise jurisdiction only with respect to crimes of aggression committed one (1) year after the
ratification or acceptance of the amendments by thirty States
Parties.


10 International Criminal Court Amendment 2014, No. 23

3. The Court shall exercise jurisdiction over the crime of aggression in accordance with this article, subject to a
decision to be taken after 1 January 2017 by the same majority
of States Parties as is required for the adoption of an
amendment to the Statute.

4. The Court may, in accordance with article 12, exercise jurisdiction over a crime of aggression, arising from an act of
aggression committed by a State Party, unless that State Party
has previously declared that it does not accept such
jurisdiction by lodging a declaration with the Registrar. The
withdrawal of such a declaration may be effected at any time
and shall be considered by the State Party within three (3)
years.

5. In respect of a State that is not a party to this Statute, the Court shall not exercise its jurisdiction over the crime of
aggression when committed by that State’s nationals or on its
territory.

6. Where the Prosecutor concludes that there is a reasonable basis to proceed with an investigation in respect of a crime of
aggression, he or she shall first ascertain whether the Security
Council has made a determination of an act of aggression
committed by the State concerned. The Prosecutor shall notify
the Secretary-General of the United Nations of the situation
before the Court, including any relevant information and
documents.

7. Where the Security Council has made such a determination, the Prosecutor may proceed with the
investigation in respect of a crime of aggression.

8. Where no such determination is made within six (6) months after the date of notification, the Prosecutor may
proceed with the investigation in respect of a crime of
aggression, provided that the Pre-Trial Division has
authorized the commencement of the investigation in respect


2014, No. 23 International Criminal Court Amendment 11

of a crime of aggression in accordance with the procedure
contained in article 15, and the Security Council has not
decided otherwise in accordance with article16.

9. A determination of an act of aggression by an organ outside the Court shall be without prejudice to the Court’s
own findings under this Statute.

10. This article is without prejudice to the provisions relating to the exercise of jurisdiction with respect to other crimes
referred to in article 5.

4. The following text is inserted after article 15 bis of the Statute:

Article 15 ter
Exercise of jurisdiction over the crime of aggression
(Security Council referral)

1. The Court may exercise jurisdiction over the crime of aggression in accordance with article 13, paragraph (b),
subject to the provisions of this article.

2. The Court may exercise jurisdiction only with respect to crimes of aggression committed one (1) year after the
ratification or acceptance of the amendments by thirty States
Parties.

3. The Court shall exercise jurisdiction over the crime of aggression in accordance with this article, subject to a
decision to be taken after 1 January 2017 by the same majority
of States Parties as is required for the adoption of an
amendment to the Statute.

4. A determination of an act of aggression by an organ outside the Court shall be without prejudice to the Court’s
own findings under this Statute.


12 International Criminal Court Amendment 2014, No. 23

5. This article is without prejudice to the provisions relating to the exercise of jurisdiction with respect to other crimes
referred to in article 5.

5. The following text is inserted after article 25, paragraph 3, of the Statute:

3 bis. In respect of the crime of aggression, the provisions of
this article shall apply only to persons in a position effectively
to exercise control over or to direct the political or military
action of a State.

6. The first sentence of article 9, paragraph 1, of the Statute is replaced by the following sentence:

1. Elements of Crimes shall assist the Court in the interpretation and application of articles 6, 7, 8 and 8 bis.

7. The chapeau of article 20, paragraph 3, of the Statute is replaced by the following paragraph; the rest of the
paragraph remains unchanged:

3. No person who has been tried by another court for conduct also proscribed under article 6, 7, 8 or 8 bis shall be tried by
the Court with respect to the same conduct unless the
proceedings in the other court:

Annex II

Amendments to the Elements of Crimes

Article 8 bis
Crime of aggression

Introduction
1. It is understood that any of the acts referred to in article 8 bis, paragraph 2, qualify as an act of aggression.


2014, No. 23 International Criminal Court Amendment 13

2. There is no requirement to prove that the perpetrator has made a legal evaluation as to whether the
use of armed force was inconsistent with the Charter of
the United Nations.

3. The term “manifest” is an objective qualification.
4. There is no requirement to prove that the perpetrator has made a legal evaluation as to the
“manifest” nature of the violation of the Charter of the
United Nations.

Elements
1. The perpetrator planned, prepared, initiated or executed an act of aggression.

2. The perpetrator was a person in a position effectively to exercise control over or to direct the
political or military action of the State which committed
the act of aggression.

3. The act of aggression - the use of armed force by a State against the sovereignty, territorial integrity or
political independence of another State, or in any other
manner inconsistent with the Charter of the United
Nations - was committed.

4. The perpetrator was aware of the factual circumstances that established that such a use of armed
force was inconsistent with the Charter of the United
Nations.

5. The act of aggression, by its character, gravity and scale, constituted a manifest violation of the Charter of
the United Nations.

6. The perpetrator was aware of the factual circumstances that established such a manifest violation
of the Charter of the United Nations.

14 International Criminal Court Amendment 2014, No. 23

Annex III

Understandings regarding the amendments to the
Rome Statute of the International Criminal Court
on the crime of aggression

Referrals by the Security Council

1. It is understood that the Court may exercise jurisdiction on the basis of a Security Council referral
in accordance with article 13, paragraph (b), of the
Statute only with respect to crimes of aggression
committed after a decision in accordance with article 15
ter, paragraph 3, is taken, and one (1) year after the
ratification or acceptance of the amendments by thirty
States Parties, whichever is later.

2. It is understood that the Court shall exercise jurisdiction over the crime of aggression on the basis of
a Security Council referral in accordance with article
13, paragraph (b), of the Statute irrespective of whether
the State concerned has accepted the Court’s
jurisdiction in this regard.

Jurisdiction rationetemporis

3. It is understood that in case of article 13, paragraph (a) or (c), the Court may exercise its jurisdiction only
with respect to crimes of aggression committed after a
decision in accordance with article 15 bis, paragraph 3,
is taken, and one (1) year after the ratification or
acceptance of the amendments by thirty States Parties,
whichever is later.

Domestic jurisdiction over the crime of aggression

4. It is understood that the amendments that address the definition of the act of aggression and the crime
of aggression do so for the purpose of this Statute only.

2014, No. 23 International Criminal Court Amendment 15

The amendments shall, in accordance with article 10 of
the Rome Statute, not be interpreted as limiting or
prejudicing in any way existing or developing rules of
international law for purposes other than this Statute.

5. It is understood that the amendments shall not be interpreted as creating the right or obligation to exercise
domestic jurisdiction with respect to an act of
aggression committed by another State.

Other understandings

6. It is understood that aggression is the most serious and dangerous form of the illegal use of force; and that
a determination whether an act of aggression has
been committed requires consideration of all the
circumstances of each particular case, including the
gravity of the acts concerned and their consequences, in
accordance with the Charter of the United Nations.

7. It is understood that in establishing whether an act of aggression constitutes a manifest violation of the
Charter of the United Nations, the three (3) components
of character, gravity and scale must be sufficient to
justify a “manifest” determination. No one (1)
component can be significant enough to satisfy the
manifest standard by itself.”.

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The International Criminal Court Amendment Act 2014 is
administered by the Ministry of Justice and Courts Administration.