Professor Leanza observed that the conclusion of the Conference was approaching and that a lot of work had been done already, both within the Conference Committees and in the many informal groups in the past few weeks. The issues discussed were highly complex and difficult and there were differences of opinion on political and legal issues of a substantial nature.  He noted that the atmosphere in general was a positive one, with a frank and open dialogue and that differences of opinion among delegations did exist. He stressed that delegations had all been aiming at responding to the widespread expectation of vast sectors of public opinion for the establishment of an International Criminal Court and had in this way,  avoided a confrontational attitude on crucial aspects of the Statute.

He informed the media that a good number of articles had been referred to the Drafting Committee.  They concerned the establishment of a Court, the general principles of criminal law, the crime of genocide, the composition and administration of the Court, the pre-trial and prosecution stages. Other chapters of the Statute were still being discussed.  He observed that there were more sensitive issues concerning jurisdiction and functioning of the Court and that so far most delegations have confirmed their well-known position on these sensitive issues. " It was time to move to a strictly negotiating stage, which would allow to reach an agreement on these highly sensitive issues and to achieve the main objective: the finalization of a Statute to be open for signature on 18 July in the Capitol in Rome" he said.  Pr. Leanza stressed the need to intensify negotiating efforts to deal with both legal and political issues for which one should aim at wide consensus on the text of a Statute. He added that these negotiations should never set aside the need for the court to be independent, effective and credible. These criteria were necessary and crucial for the Court to be able to judge the most serious international crimes committed by individuals.

He stated that Italy had had a leading role among the States that intended to codify new rules for international co-existence and wanted the respect of international law to be pursued through adequate tools. His delegation was aware that public opinion wanted a stand against the many intolerable violations of human rights that have occurred in this century and was therefore actively engaged in the work of the committees as well as in the many formal and informal meetings.  These efforts were aimed at overcoming the difficulties related to this almost revolutionary scope of change that would be involved both in international law and in national law because of the establishment of the International Criminal Court.  Pr. Leanza observed that contributions by the like-minded countries, whose number was constantly increasing, as well as by the non-governmental organizations were important.  However, his delegation was convinced that in the coming days they would have to work hard on the still unresolved controversial issues for the Conference to move forward, such as: direct or indirect jurisdiction of the Court, the principle of complementarity of the Court vis-a-vis national courts, the powers of the Prosecutor and of the pre-trial chamber, crimes against humanity and war crimes, with particular reference to non-international armed conflicts,  judicial cooperation and assistance, and on whether or not reservations were admissible.

Pr. Leanza declared that on all these issues his delegation would follow a policy based on the goals of a universal, independent, impartial and effective Court.  He assured the media that members of his delegation had been working in close cooperation with other like-minded countries and that specific proposals and packages for compromise would be submitted and carefully examined. He stressed that these packages would include acceptable formulations in the light of the principles he had just formulated and which were crucial to his delegation.  He stated that the Italian delegation was convinced that this Diplomatic Conference must necessarily be concluded with the establishment of an International Criminal Court and he stressed that the Italian delegation could in no way accept a second Conference. This would involve a vague and indeterminate and unacceptable delay, whereas future mass violations of human rights were to be expected.  Consequently, the Italian delegation would work hard to ensure that in the coming days the work of the Conference did focus on seeking a solution to political issues. These could be summed up as follows: definition of crimes; aggression and relation with the Security Council; States' consent or inherent jurisdiction of the International Criminal Court; complementarity between the Court jurisdiction and national jurisdictions; and powers of the Prosecutor and of the pre-trial chamber.

Pr. Leanza reiterated that none of these issues was impossible to solve.  He pointed out that the most important is reaching an agreement on these issues while respecting the principles of independence and effectiveness of the Court.  "We feel a moral duty to be successful and we shall make every possible effort to this end" he said.

Question: I would like to ask you if you could tell us a little bit more about the articles that have already been referred to the Drafting Committee, the five points you listed.

Professor Leanza: There are 30 articles that have already been referred to the Drafting Committee, and they concern the establishment of the Court, the general principles of criminal law, the crime of genocide, the composition and administration of the Court, the pre-trial stage and the prosecution. These are -- and the indictment criteria -- these are the chapters which include the articles already referred to.

Question: Could you tell us what the articles referred to the Drafting Committee say?

Professor Leanza: These articles reflect the draft Statute as prepared by the Preparatory Committee and codified in the Zutphen meeting.  They had not been substantially modified compared to their original version.  These were the easiest articles because there were no big disagreements or differences of opinion among participant States on these issues. I cannot go into great detail here but you can just examine the draft Statute on these issues and you will be aware of this.

Question: You are trying to get a text by 17 July.  Given the amount of disagreements that still exist, would you be comfortable with a Statute whose pending issues would have to be referred to a Prepcom?

Minister Panocchia: Italy and many other countries want the Conference to respond to the mandate of the General Assembly of the United Nations, which is to establish a Court and approve a Statute for it.  The idea to postpone to a later stage the adoption of the Statute is an idea that we are not even considering, that is not worth considering and I believe that, apart from all the differences, there is a common opinion among all delegations.  We are sensitive to the pressure of public opinion, we cannot end this Conference in Rome without the creation of an International Criminal Court. The problem we are faced with, and which must be solved in the next two weeks, is that the Court should remain as strong an institution as we want it to be while, at the same time, we should find a great number of countries that can feel represented by the Court. Effectiveness and independence are crucial points and, we must, on 17 July, have a final act of the Conference that approves the final Statute..

Question: A sort of Pandora's box has opened here, so many crimes, for example the question of the economic embargo against Cuba, the problem of forced pregnancies, there are many crimes that were not discussed before and that are on the table here at the Conference. And the list of these crimes might become the main problem that hinders a final agreement. These crimes were not defined on the previous negotiations and are being discussed a lot in the working groups, do you think that these crimes will be included or do you think they might be discussed at a later stage?

Professor Politi: You have mentioned an important point, that is, where we stand in terms of crime definition. Here we must make a difference between the kind of problems that I, at least, consider to be crucial, and for which we have not yet come to a solution, but which are about to be solved through acceptable compromises. We should distinguish between this and other new proposals or different proposals that have come up in this final stage and, frankly speaking I would not be so pessimistic. You mentioned the inclusion of certain types of crimes against humanity or war crimes and the question of forced pregnancies.  That is not a new. It came up in the Preparatory Committee already.

But let me focus on what I believe to be the most important issues concerning crime definition.  We have to look at the essence of the most important crimes.  For war crimes the two most important issues are: first, whether or not to extend the notion of war crimes to armed conflicts which are not of an international nature (sections c and d) and whether to include the list of indiscriminate prohibited weapons, that is nuclear weapons, basically. These are the two basic issues. For the rest, I am fairly optimistic that we can find a compromise solution.

Even on these very important and highly sensitive issues that I mentioned, I think that there is a sincere ongoing effort towards a compromise and not just any compromise but a compromise, a world safeguard, as Professor Leanza said, meaning that the Court must be effective and be able to have an impact on the punishment and prevention of crimes. This concerns war crimes. Coming to the issue of aggression, the fate of aggression in this Statute is somewhat uncertain. We have always supported the idea that aggression should be included amongst the crimes listed in the Statute otherwise it would be a step backward compared to the Nuremberg Trials, which did include aggression as a crime against peace. However, there were major problems right from the start,  concerning the definition of the crime of aggression.  As far as aggression is concerned, when it comes to defining aggression by a State against another State, you have a definition of the UN General Assembly, which we can refer to. But the problem is how the definition of aggression is to be used in terms of assessing the criminal responsibility of individuals at the international level. Of course, it would be difficult to say who is right or wrong, but there are quite clear differences in opinion as to the kind of definition and its inclusion or not.  The relation between the Court and the  Security Council, is a highly sensitive issue too, because the Security Council has specific responsibilities under the United Nations Charter in defining when there is aggression of a State against another State.  You have to see whether or not this decision by the Security Council should be a preliminary condition before the Court can take a position on the criminal responsibility of individuals. We, in Italy, have always supported the independence of the Court and we have always stated that in terms of criminal responsibility of individuals, the Court should be absolutely independent.

On the crime of aggression there is a discussion on a sentence which does safeguard the independence of the Court, and this is based on an Italian proposal which was drafted a year and a half ago.  In this proposal, we wanted to stress the importance of the independence of the Court whatever its relations with the Security Council. But, as to the crime of aggression, there is still a debate going on. We do not know whether it will be included or not and in which way, and whether a system can be found, so that at least next time, not in the next Conference, but when it comes up for review or something, it can be included.

As to genocide, there are no major issues here. Crimes against humanity are fairly well defined. There are some issues that are yet to be solved, but I am fairly optimistic that in the next two or three days the text will be finalized.  The picture is to some extent positive. We have to have caution, but I do think those issues will be settled in the coming days and we will come to a good definition of the three core crimes, whereas as far as aggression is concerned I cannot make a forecast.

Question:I would like to ask you what is meant by a pre-trial chamber, what is the kind of role and relationship with the Security Council and with the Prosecutor?

Professor Leanza: This is a chamber of the Court, corresponding to what in Italy is the GIP, the investigating magistrate. This chamber controls the work of the Prosecutor. In other words, the action of the Prosecutor must to some extent be approved, authorized by the pre-trial chamber. There is clearly an advantage in having this chamber because in this way the action of the Prosecutor is under judicial control by a chamber.  Even though this is a small chamber, this is an internal form of control of the Court itself on the work of the Prosecutor.

Professor Politi: It is a system that you find in the most advanced legal systems. In Italy it is the GIP, the investigating magistrate. I would like to add something on this point which is very important: relations between the Prosecutor and the pre-trial chamber. The question of whether or not the Prosecutor should have the power to initiate investigations -- ex-officio, proprio motu -- is open for debate, but the number of States that are in favour of this has increased in recent days and some days ago we had consultations showing that there is an increasing number of States in favour of a proprio motu Prosecutor, who can initiate investigation and prosecution. We have been fighting for this, supporting this idea. The fact that the Prosecutor should have ex-officio powers to prosecute is a sort of ... (unintelligible) point between an International Court that is really independent and a Court that is sort of a chamber based on State consent and operating only on the basis of the political will of States. We are actively engaged in asserting the independent role of the Prosecutor but, of course, there must be guarantees and the States that are more skeptical on a proprio motu Prosecutor must be reassured. We must assuage their fears that the power of the Prosecutor could be used for political considerations and against States, hence the function of the pre-trial chamber. A consensus could be reached, for instance, when the Prosecutor is informed of a crime and intends to initiate investigations.  The Prosecutor must then ask the pre-trial chamber to be authorized to investigate. This is, of course, some form of control of the Prosecutor, but it is from within the Court and not from the part of a State.  We think that this kind of control can be accepted as a counter balance to the proprio motu powers of the Prosecutor to initiate investigation and prosecution.
 
Question:

To whom the pre-trial chamber will respond to? You have the same problem, just like you have problems in the relationship between the Prosecutor and the Security Council, you would have a problem between the relations between the Security Council and the pre-trial chamber. This is my first question.  Second question, which States are following you along this line, since you mentioned there is a larger number of States now in favour of greater powers for the Prosecutor?

Professor Politi:

There is not a specific problem in relations between the pre-trial chamber and the Security Council. There is a general problem of relations between the Court and the Security Council. The pre-trial chamber is one of the chambers of the Court. The problem is the relations between the Court and the Security Council and here we have specific problems at stake. The possibility for the Security Council to refer cases to the Court, and everyone agrees on that. There is a problem of  jurisdiction of the Security Council on aggression, to decide when there is an aggression,  a point I mentioned earlier. There is a larger problem of whether the Security Council can stop Court initiatives on matters that fall under Chapter VII of the United Nations Charter, and here we are all aware that Singapore has formulated a proposal on this issue which sort of softens the original proposal of the International Law Commission, stating that the Court could not intervene if the matter was under examination by the Security Council under Chapter VII. The Singapore proposal has limited this power, because it makes it possible for the Security Council to ask the Court to suspend initiatives for twelve months concerning matters that fall under Chapter VII. Now, on the Singapore proposal, there is a debate that we are highly interested in and very active, and, as Professor Leanza was saying, we are ready to accept acceptable compromise solutions, but we are also very sensitive to the content of the kind of compromise. In our opinion this power of the Security Council to ask the Court to suspend investigations is a power that cannot be renewed indefinitely. There must be a very clear time limit and, after a reasonable time, the suspension must be over. We have also asked that the decision of the Security Council should not be taken through informal consultations, but should be a formal decision of the Security Council to this effect. We have also supported a Belgian proposal, according to which during the time when the Court investigation is suspended, the Prosecutor and the Court should be able to preserve elements of evidence, items of evidence to be used when the Court decides to investigate a case. On the proprio motu, on the powers of the Prosecutor, I am always cautious not to mention names of countries that have expressed their opinion within confidential consultations, but I can tell you that the countries that have changed their position are countries that were originally very critical of these powers of the Prosecutor to initiate prosecution, although they do want guarantees. There are countries that oppose this proposal and we should not forget that the road is not easy, but this will be the object of an inevitable final negotiation with some trade-off, which is always inevitable in this kind of conference.

 
Question:

You mentioned that Italy will be  actively engaged in the coming two weeks to support  positions and you mentioned you are supporting a Belgium proposal. Is there an agreement position within the European Union in this effort for the coming two weeks?

Minister Panocchia:

You remember that in the last meeting in  the European Heads of State and Government in Cardiff the statement adopted  included a passage concerning the establishment of the International Criminal Court. Let us say that there is a common position concerning the establishment of the Court and up to now the European positions are not one and the same; we do not have a common European position on every issue. There is a good number of European countries that share the same position, but there are some countries in the European Union that have not yet come to their position. In the coming weeks and days we should work hard to support and sponsor this kind of European convergence, certainly to have the 15 European Union countries speaking with one voice in a forum that is an important effort, not only in legal and diplomatic terms, it would be highly important but, I must say that, despite statements of principle and goodwill so far this common European Union  position is a hope rather than a reality.

Question:

What is the current status of jury trials for accused and,  will the creation of an International Criminal Court require a revision of  the United Nations Charter, since the original Charter refers to international events between countries but not internal nor individuals?  Do you foresee perhaps a revisit to the original United Nations Charter?

Professor Politi:

I will respond to this last question. I am not an expert on jury trials,  although I can say that one of the most important issues in the Statute is the rights of the defendant, of  the accused and we have devoted a lot of time, my colleagues who have dealt with procedural matters have devoted a lot of time to this question. The essence of the International Criminal Court is that there is no jury trial. This is the only thing I can say for the moment, but certainly we have devoted long hours and an extensive number of articles to the question of the protection of the rights of the accused. On the question of the revision of the United Nations Charter, I don't think there is any need to revise, to review or to amend the United Nations Charter for establishing the International Criminal Court. I do not see any reason for that, the principles on which the International Criminal Court will be based are the principles of the United Nations Charter. Maybe the only point on which the question of the establishment of the International Criminal Court touches  upon the United Nations Charter is the question of the methods of establishing the Court. There was an extensive discussion about whether the Court should be one of the organs of the United Nations, or whether the relationship between the United Nations and the Court should be a relationships based on an agreement. I think this latter solution was considered the best and so the problem of adding another principle organ or another organ of any kind to the structure of the United Nations Charter is not there anymore.
 

Question:

It is useless to deny that the countries that are members of the Security Council have a voice that is heavier than that of other countries. Supposing that Italian positions were to be adopted in terms of a final Statute, will the United States sign this document?

My second question is the following: with the ad hoc tribunal for the former Yugoslavia the United Nations, or the countries that have supported the establishment of this Court, were unable to arrest an individual like Mr. Karadzic. Now, if the International Criminal Court is established, who will have the task to arrest criminals? Will the situation be different, will it be easier than with the ad hoc tribunals or we would have exactly the same problem?

Professor Leanza:

First of all we should say that the positions that we have just expressed in the course of this press conference and that we have been expressing within the Diplomatic Conference were also expressed in the Preparatory Committee and are not positions held  by Italy alone. These positions are shared by a vast number of States that are participating in the Conference, namely the States that we call like-minded countries. As I said at the beginning,  the number of like-minded countries is already quite large, and is increasing all the time. This is a group of countries which has now reached a number like 60 countries. We cannot tell you what the United States will do when certain proposals are submitted, we know that the United States have objections on some issues. There  are concerns by the United States as by other countries, but I would like to stress one thing that is very important in my opinion, this Court will be established under the principle of complementarity, which means complementarity  between the jurisdiction of  the International Criminal Court and national jurisdictions. Complementarity means that the Court jurisdiction will become operational only when the local judicial system has collapsed, or the national judicial system has collapsed or is unavailable to solve matters. It seems to me that the principle of complementarity is a guarantee, a universal guarantee, and is particularly a guarantee, a safeguard for those countries which undoubtedly have highly technical profiles and very strong judicial systems. What do I mean by that? That the concerns put forward, at least by some States, are to some extent excessive. The second comment I would like to make: there is a big difference between ad hoc Tribunals and a permanent Court. The difference is, while ad hoc Tribunals were established when crimes had already been committed, hence they only have a repressive function, on the contrary a permanent Court has first of all a preventive function because of the very existence of the permanent Court will be a deterrent or can be a deterrent against massive commission of crimes. Of course this does not mean that the problems relative to how to prevent criminals or how to find where these criminals are do not exist. These problems are to be dealt with but in the general framework I just mentioned.

Mr. de Mistura:

Allow me to make a comment on this point.  I would like to suggest to you to interview Mr. Karadzic  and ask him what his life is like today and he will tell you that he finds it difficult to go out and buy a packet of cigarettes without having problems and he does smoke a lot. If that is a position of Mr. Karadzic now with a Court which is not very strong , which is not preventive and which is not very effective at the moment in apprehending indicted criminals, you can imagine what the moral power, the moral weight of permanent Court will be with a preventive role against future candidates to become like Mr. Karadzic.

Question:

This is in specific reference to the debate on crimes against humanity. As you know there has been some dispute about whether they will be defined as crimes that are widespread or systematic or crimes that are widespread and systematic. I was wondering, given that in recent days a compromise seems to be emerging most particularly with the language submitted by Canada, how hopeful is Italy that there is now language that your country as well as the countries that have been wanting to restrict the scope of crimes against humanity to things that are both widespread and systematic, how hopeful are they  that a compromise can emerge that will satisfy all the parties?

Professor Politi:

We have always advocated the formula of widespread or systematic and this is in accordance with the most recent developments of State practice, in accordance with the idea of enlarging as much as possible the concept of crimes against humanity and also cutting the linkage, any kind of linkage with armed conflicts as you know. There was an opposition to that, there were many countries attached to the formula: widespread and systematic. There is a Canadian proposals which is a very cleverly drafted proposal, which maintains the widespread or systematic but gives additional guarantees by defining attack against any civilian population. This formula has attracted  widespread consent, although not unanimity yet. So we are confident that, on the basis of this formula, an agreement can be found, although it is not the perfect definition for us. We would like to have widespread or systematic,  but if this Canadian formulation would help to overcome the difficulties on the chapeau of crimes against humanity, we will be willing to accept and to live with this compromise.