Analysis of Issues in the draft statute

INTRODUCTION
The idea of creating an international criminal court has been in existence for almost 100 years. It was first suggested after the First World War and surfaced again after the abominations committed during the Second World War. The end of the Second World War saw the creation of the Nuremberg and Tokyo war crimes tribunals to bring to justice the individuals who were responsible for the worst crimes against humanity -- crimes which killed more than fifty million people and shattered the lives of millions more. The international community felt that a permanent mechanism should be established, which could hold individuals accountable for violations of international law.

The Convention on the Prevention and Punishment of the Crime of Genocide, adopted by the United Nations General Assembly on 9 December 1948, in its Article 6, called for acts of genocide to be tried "by such international penal tribunal as may have jurisdiction with respect to those Contracting Parties which shall have accepted its jurisdiction". But no such court existed.

In 1948, the General Assembly mandated the International Law Commission, a United Nations General Assembly body, to study the possibility of establishing a permanent International Criminal Court. However, the prevailing international political climate during the 1960s, 70s and 80s made it difficult to make any progress in this field. It was only at the end of that period that the idea received more attention and that suggestions by several delegations, in particular that of Trinidad and Tobago, for the establishment of an international criminal court resurfaced. Subsequently the General Assembly, in its resolution 47/33 of 25 November 1992, requested the International Law Commission to draft a statute for a permanent International Criminal Court for submission by July 1994.

In the meantime, more than 2 million people in Cambodia lost their lives because of widespread atrocities and brutality committed from 1975 to 1978; ethnic cleansing tore Yugoslavia apart and caused the death of a half million people; and an estimated 800,000 Tutsis and moderate Hutus were massacred in Rwanda in a genocide at the hands of extremist Hutus.

"Many thought, no doubt, that the horrors of the Second World War -- the camps, the cruelty, the exterminations, the Holocaust -- could never happen again. And yet they have. In Cambodia, in Bosnia and Herzegovina, in Rwanda. Our time -- this decade even -- has shown us that man's capacity for evil knows no limits".

-- Kofi Annan
United Nations Secretary-General

These horrifying acts prompted the United Nations Security Council to establish two ad hoc War Crimes Tribunals: one for the Former Yugoslavia in 1993 and another one for Rwanda in 1994. The tribunals, the first to be set up since the Nuremberg and Tokyo trials after the Second World War, have issued indictments and international arrest warrants. Undoubtedly, a permanent International Criminal Court could deter dictators from committing genocide against their own populations and send a strong message that these acts would not go unpunished.

In 1994, the International Law Commission submitted a draft statute to the General Assembly. The General Assembly decided to establish an Ad Hoc Committee on the Establishment of an International Criminal Court "open to all States Members of the United Nations or members of specialized agencies, to review the major substantive and administrative issues arising out of the draft statute" (GA resolution 49/53). In 1995, the General Assembly, in its resolution 50/46, established a Preparatory Committee, mandating it with "preparing a widely acceptable consolidated text of a convention for an International Criminal Court as a next step towards consideration by a conference of plenipotentiaries".

On 16 December 1996, on the recommendation of the International Law Commission, the General Assembly in its resolution 51/207 decided that "a diplomatic conference of plenipotentiaries . . . be held in 1998, with a view to finalizing and adopting a convention on the establishment of an international criminal court."

"There can be no global justice unless the worst of crimes -- crimes against humanity -- are subject to the law. The establishment of an international criminal court will ensure that humanity's response will be swift and will be just".

-- Kofi Annan
United Nations Secretary-General

This conference is all the more significant in that it is being held in 1998 and coinciding with the fiftieth anniversary of two important human rights instruments adopted by the United Nations: the Convention on the Prevention and Punishment of the Crime of Genocide and the Universal Declaration of Human Rights.

A Preparatory Committee met six times during the past three years (25 March-12 April 1996, 12-30 August 1996, 11-21 February 1997, 4-15 August 1997, 1-12 December 1997, and 16 March-3 April 1998) to prepare for the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court. These preparatory meetings provided an opportunity for government representatives and relevant organizations to study the issues and contribute to the drafting of the statute. The basis for discussion in the Preparatory Committee was the draft statute submitted by the International Law Commission. The Preparatory Committee conducted its work mostly in working groups which dealt with the following issues: listing and definition of crimes, general principles of criminal law, complementarity and trigger mechanisms, procedural matters, international cooperation and judicial assistance, penalties, composition and administration of the Court, and establishment of the international criminal court and its relationship with the United Nations. The draft statute submitted to the Rome Conference is divided into 13 parts and is composed of 116 articles covering various issues. The statute would enter into force when it is ratified by a specified number of States to be determined by the Conference.

Intense discussions and negotiations have taken place between States in order to come up with a widely acceptable consolidated text, taking into account the various views and suggestions expressed by the States, that will be considered at the Conference in Rome. The following are some of the most important issues dealt with in the draft statute.

PART I: ESTABLISHMENT OF THE COURT
Part I of the draft statute covers Articles 1 to 4 and addresses the establishment of the International Criminal Court and its relationship with the United Nations.

The establishment of the Court and its relationship with the United Nations
There is general agreement on the importance of the Court having a close relationship with the United Nations. During the discussions, it was felt that such ties would enhance its effectiveness and ensure its international character and its moral authority. Four possible methods of establishment for the Court, which would affect its relationship with the United Nations, were considered:

As noted previously, in 1996 the General Assembly decided to convene a diplomatic conference of plenipotentiaries to finalize and adopt a convention on the establishment of the Court. Thus the Court will be established by treaty and its relationship with the United Nations will be addressed in a subsequent agreement to be negotiated by the Court and the United Nations.

PART II: JURISDICTION, ADMISSIBILITY AND APPLICABLE LAW
Part II contains Articles 5 to 20 and deals with the jurisdiction of the Court, the admissibility of cases and the law to be applied by the Court in deciding the cases that come before it.

Crimes of concern to the Court
Article 5 of the draft statute addresses the nature of crimes to be considered by the Court. There is wide agreement to include a number of "core crimes", i.e. the most serious crimes of concern to the international community. The original draft statute proposed by the International Law Commission, included the following: aggression, war crimes, genocide and crimes against humanity. The definitions for war crimes and genocide included in the present draft statute were inspired by a number of international instruments, such as the 1948 Convention on the Prevention and Punishment of the Crime of Genocide and the Geneva Conventions of 1949, among others. According to provisions in the draft statute, crimes against humanity -- whose definition is largely based on the Nuremberg Charter and the Statutes of the Tribunals for the former Yugoslavia and for Rwanda -- include acts such as murder, extermination, enslavement, deportation or forcible transfer of populations, torture and rape or other sexual abuse.

As to the crime of aggression, some delegations expressed the view that aggression is one of the most serious crimes of concern to the entire international community. They wished to see it included in the draft statute in order to deter the commission of such crimes and to avoid the impunity of the responsible individuals by providing a forum for their prosecution. Others felt that aggression should not be included because there was no generally accepted definition of the crime for the purpose of determining individual responsibility and there was no precedent for individual criminal responsibility for acts of aggression as opposed to wars of aggression. Moreover, it was estimated by these delegations that considerations of acts of aggression fell within the competence of the Security Council according to the UN Charter, and that some kind of linkage would be necessary. Other delegations pointed out the need to avoid a situation in which the use of the veto might impede the prosecution by the Court of persons responsible for acts of aggression.

At the Preparatory Committee stage there was no agreement regarding the inclusion in the draft statute of such crimes as the illicit traffic in narcotic drugs and psychotropic substances, terrorism, and crimes against United Nations and associated personnel. As far as the issue of illicit drug trafficking is concerned, some delegations expressed the view that particularly serious drug trafficking offences which involve an international dimension should be included as they have serious consequences on the world population. There was also no unified system for addressing these crimes, because of divergences in national laws. Others considered that these crimes could be more effectively investigated and prosecuted by national authorities under existing international cooperation agreements rather than by the International Criminal Court.

Crimes against United Nations personnel have been on the rise in recent years. Since 1992, almost 300 civilians have lost their lives in the service of the United Nations. Military peacekeeping personnel are also the target of assault, kidnapping and murder. Such an alarming situation prompted the United Nations General Assembly to adopt, on 9 December 1994, the Convention on the Safety of United Nations and Associated Personnel. The Convention sets out the rights and duties of States parties and of United Nations and associated personnel, and affirms individual criminal responsibility for attacks against such personnel. Some delegations were of the opinion that the issue of attacks against United Nations personnel should receive special attention, since the attacks were committed against people who represented the international community and protected its interests. Furthermore, United Nations personnel were generally in countries where national law-enforcement or criminal justice systems were not fully functional.

The Jurisdiction of the Court
Articles 8 and 9 of the draft statute provides for jurisdiction of the Court only in respect of crimes committed after the date of entry into force of the statute.

Discussions are still under way as to whether a State that becomes a party to the statute accepts the jurisdiction of the Court with respect to the above-mentioned crimes. Some delegations favoured the "opting in" approach which emphasized the importance of the voluntary acceptance of the jurisdiction of the Court. This approach distinguishes acceptance of the statute from acceptance of its jurisdiction. It means that, at the time of ratification or later, a State could indicate its willingness to accept the Court's jurisdiction for certain crimes. States would also have the possibility to "opt out" of accepting the jurisdiction of the Court for specific crimes.

The Role of the Security Council
It has been proposed that the Court should not deal with a situation being dealt with by the Security Council under Chapter VII of the Charter, which relates to the maintenance of international peace and security. Some delegations were concerned that such a role for the Council might interfere with the independent functioning of the Court. It has also been suggested that the Court should proceed with the consideration of any situation. Should the Council, however, feel that consideration of a situation would interfere with its primary role of maintenance of international peace and security, the Council would communicate its concern to the Court not to deal with that situation.

The role of the Prosecutor
According to Article 12 of the draft statute, the Prosecutor may initiate an investigation in two situations:

Some delegations were of the opinion that the trigger mechanism should be expanded to allow the Prosecutor to be more independent. He/she should be able to initiate an investigation based on his/her findings or on information obtained from any source, independently of a Security Council referral or a State complaint.

Complementarity
The issue of admissibility of cases to the Court is based on the principle of complementarity, meaning that the International Criminal Court would not supersede national courts but rather would complement them. Article 15 of the draft statute stresses that a case is admissible to the Court when a State is "unwilling or unable genuinely" to carry out the investigation or prosecution and when a State has decided not to prosecute the accused and this decision resulted from the unwillingness or inability of the State to prosecute.

PART III: GENERAL PRINCIPLES OF CRIMINAL LAW
Part III of the statute contains Articles 21 to 34, which deal with general principles of criminal law. Article 21 addresses the principle of nullum crimen sine lege, according to which an individual may be punished for a crime only if, prior to its commission, it has been made punishable. Article 22 addresses the principle of non-retroactivity, which means that a person is not criminally responsible under this statute for conduct committed prior to its entry into force.

Individual criminal responsibility
The principle of individual responsibility for crimes under international law was recognized in the Charter and the Judgment of the Nuremberg Tribunal. The recognition of this principle has made it possible to prosecute and punish individuals for serious violations of international law. The Nuremberg precedent also established a number of other important related principles aimed at ensuring individual accountability for crimes under international law, such as the exclusion of the official position of an individual, including a head of State or other high-level official, or the mere existence of superior orders, as valid grounds for relieving an individual of responsibility for such crimes. In 1946, the General Assembly unanimously affirmed the principles of international law recognized in the Charter and the Judgment of the Nuremberg Tribunal. At the request of the Assembly, the International Law Commission prepared a formulation of these principles. The Assembly took note of this work and further requested the Commission to take it into account in preparing the draft code of crimes against the peace and security of mankind. In 1996, the Commission completed the draft code which reflects the Nuremberg principles relating to individual criminal responsibility. At the request of the Assembly, the Preparatory Committee took into account the draft code in preparing the draft statute for the International Criminal Court.

Under Article 23 of the draft statute, a person who commits a crime covered by the statute is individually responsible and liable for punishment. Some delegations favoured the view that criminal responsibility is individual and cannot go beyond the person concerned and his/her possessions. Delegations are divided on the question of the inclusion in the statute of criminal responsibility of legal persons (corporations). Those who favour its inclusion hold the view that it should be extended to such legal entities as well. According to Article 24, the statute should apply to all persons without any discrimination whatsoever. It specifies that no capacity, including head of State or Government, should exempt a person from his/her criminal responsibility or should constitute a ground for reduction of the sentence.

Article 28, on actus reus (act or omission), provides that conduct for which a person may be criminally responsible and liable for punishment as a crime could constitute either an act or an omission, or a combination. It also provides that a person could be criminally responsible and liable for punishment in cases where he/she intentionally or knowingly failed to avoid the result of an offence. Article 29 addresses the issue of mens rea which takes into consideration the fact that the person committed a crime with intent and knowledge and was aware of the consequences of his/her acts.

Possible grounds for excluding criminal responsibility
Under Article 31 of the draft statute, a person may not be held criminally responsible if:

PART IV: COMPOSITION AND ADMINISTRATION OF THE COURT
Part IV of the draft statute includes Articles 35 through 53, which deal with the composition and administration of the Court. Under Article 35, the Court would consist of a Presidency, an Appeals Chamber, the Office of the Prosecutor and a Registry. There are several options as to whether some of the judges should serve on a full-time or part-time basis.

Qualification and election of judges
It was generally agreed that the judges should be persons of high moral character and impartiality and have some experience in criminal law and recognized competence in international law. Article 37 of the draft statute states that the judges should be elected by secret ballot. Agreement was not reached as to whether judges should be elected by a majority vote of the Assembly of States Parties, the United Nations General Assembly or the Security Council. No two judges may be nationals of the same State. In electing judges, equitable geographical distribution and the representation of the principal legal systems of the world should be taken into account. Some delegations considered that gender balance in the membership of the Court and expertise on issues relating to sexual and gender violence and violence against children, among others, were also significant and should be included. The length of the term of office has not yet been determined. In performing their duties the judges should be independent and dedicated to their functions. They should not engage in any other occupation of a professional nature.

The Presidency
Article 39 of the draft statute states that the President and the First and Second Vice-Presidents should constitute the Presidency. They should be elected by an absolute majority of the judges. They should serve for a three-year term and could be re-elected only once. They should be responsible for the administration of the Court.

Office of the Prosecutor
Article 43 of the draft statute provides that the Office of the Prosecutor, headed by the Prosecutor, should be a separate, independent organ of the Court. The Prosecutor is required to be impartial and to have experience in criminal law, recognized competence in international law and expertise on issues relating to sexual and gender violence and violence against children. It was proposed that the Prosecutor should not engage in any activity which is likely to interfere with his/her prosecutorial functions.

Office of the Registrar
Article 44 of the draft statute provides that the Registry should be responsible for the non-judicial aspects of the administration and servicing of the Court. Agreement has not yet been reached regarding the length of term of office of the Registrar. The Registrar should be elected by an absolute majority by secret ballot and should serve on a full-time basis. Some delegations were of the view that the Registrar should set up within the Registry a Victims and Witnesses Unit that would include staff with expertise in trauma, including trauma related to crimes of sexual violence. The Registrar would advise the organs of the Court on adequate measures of protection to victims and witnesses.

PART V: INVESTIGATION AND PROSECUTION
Part V contains Articles 54 to 61 which deal with the investigation and prosecution aspects of the criminal justice process.

Investigation of alleged crimes
Article 54 provides that, once the jurisdiction of the Court has been activated, the Prosecutor would be able to initiate an investigation unless he/she decides that there is no reasonable basis for a prosecution under the Statute of the International Criminal Court. He/she may request the presence of suspects, victims and witnesses and may question them. He/she may also collect documentary and other evidence. Whenever necessary, the Prosecutor may take adequate measures to ensure the protection of persons or the confidentiality of information obtained.

The rights of suspects
The draft statute also guarantees certain rights for persons suspected of a crime. A person suspected of a crime has the right to remain silent, without such silence being taken into account in the determination of guilt or innocence. He/she has the right, among others, to obtain legal assistance, to be questioned in the presence of counsel and not to be tortured or subjected to cruel, inhuman or degrading treatment or punishment.

PART VI: THE TRIAL
Part VI of the statute includes Articles 62 to 74, which deal with various aspects of the trial proceedings. As a general rule, the accused should be present during the trial. Nevertheless, delegations have suggested exceptional considerations that might be taken into account in deciding whether to proceed with the trial in the absence of the accused.

The rights of the accused
Under Article 67, the draft statute guarantees certain rights to the accused. It is provided that he/she should be entitled to a fair hearing by an independent and impartial tribunal and should be fully informed of the nature, cause and content of the charge. The accused has the right to communicate freely and in confidence with counsel of his/her choice and to have adequate time and facilities to prepare for his/her defence. He/she has the right to conduct his/her defence in person or through legal assistance. He/she also has the right to examine or have examined the prosecution witnesses and to obtain the attendance and examination of witnesses for the defence under the same conditions as witnesses for the prosecution. He/she cannot be forced to testify or to confess guilt and has the right to remain silent, and such silence should not be considered in the determination of his/her guilt or innocence.

Protection of victims and witnesses
Article 68 of the draft statute addresses the issue of the rights of victims. Under the draft statute, the Court could take measures to protect victims, witnesses and the accused. As a consequence, the Court could conduct closed proceedings or allow the presentation of evidence by electronic or other special means. The draft statute provides that the Court should take appropriate measures to protect the privacy, the dignity, the physical and psychological well-being and the security of victims and witnesses, especially when the crime involves sexual or gender violence.

Article 44 of the draft statute also provides for the establishment of a Victims and Witnesses Unit to render legal advice as well as trauma counselling and medical attention to the victims and their families.

Reparation to victims
Article 73 of the draft statute addresses the issue of reparation to victims. A guilty person could be ordered to make reparation, including restitution, compensation and rehabilitation to victims of violations, in which case the Court could, upon request, determine the scope and the extent of any damage, loss and injury to the victims. In the case of reparations to be made by a State, several options have been suggested. Some delegations feel that it is the duty of the Court to order Governments involved in perpetrating crimes to make reparation, while others would prefer the Court to make recommendations only.

PART VII: PENALTIES
Part VII of the statute includes Articles 75 to 79 and concerns the penalties to be imposed on a person convicted of a crime covered by the statute.

Applicable penalties
Several proposals concerning applicable penalties have been put forward and are still being debated. According to Article 75 of the draft statute, the Court may impose on a convicted person the following penalties: life imprisonment or imprisonment for a specified number of years; death; disqualification from seeking public office; forfeiture of proceeds, property and assets obtained by criminal conduct; and fines.

The issue of fines applicable to a legal person (corporation) is dealt with in Article 76 of the draft statute. Some delegations were of the view that a legal person could incur one or more of the following penalties: fines; dissolution; prohibition, for a period to be determined by the Court, from exercising any kind of activities; closure, for a period to be determined by the Court, of the premises used when committing the crime; and forfeiture of proceeds, property and assets obtained by criminal conduct.

PART VIII: APPEAL AND REVIEW
Part VIII of the draft statute includes Articles 80 to 84, which address issues relating to the appeal and review of judicial decisions.

Appeal against judgement or sentence
According to Article 80 of the draft statute, the convicted person or the Prosecutor may bring an appeal based on a procedural error, an error of fact, an error of law, or any other ground that affects the fairness or reliability of the proceedings or decision. During the consideration of this question, some delegations were of the view that the Prosecutor should not be entitled to appeal against a conviction, but instead could merely draw the attention of the Appeals Chamber to a point of law which requires interpretation or clarification.

Compensation for wrongful detention or conviction
Under Article 84 of the draft statute, a person who has been wrongfully detained or convicted is entitled to compensation from the Court, in accordance with the Court's rules. This issue is subject to further consideration.

PART IX: INTERNATIONAL COOPERATION AND JUDICIAL ASSISTANCE
Part IX of the draft statute includes Articles 85 to 92 which deal with matters relating to the international cooperation and judicial assistance between States and the Court.

Cooperation and judicial assistance
It is recognized that States parties to the draft statute should cooperate with the Court when it investigates and prosecutes crimes under its jurisdiction. The types of assistance to be provided to the Court may include transfer of prisoners; identification of the whereabouts of persons or the location of items; the taking of evidence, including testimony under oath; the questioning of any suspect; and the conduct of on-site investigations, among others. Agreement is still pending with regard to States Parties' failure to comply with a request by the Court. Some delegations suggested that the Court should refer the matter to the Assembly of States Parties. Others favoured referring the matter to the United Nations General Assembly or to the Security Council.

PART X: ENFORCEMENT
Part X includes Articles 93 to 101, which deal with issues relating to the enforcement of the judgements of the Court.

Enforcement
Article 94 of the draft statute provides that States parties should enforce the judgements of the Court. Several options have been presented as to the role of States in enforcing sentences of imprisonment. Some delegations were of the view that a sentence of imprisonment should be served in a country designated by the Court from a list of States which have indicated their willingness to accept convicted persons. Others suggested that in designating a country, the Court should allow the person sentenced to provide views as to his/her personal security. Some delegations considered that conditions of detention should be governed by the laws of the State of enforcement and should be consistent with internationally recognized standards governing the treatment of prisoners.

Under Article 97, upon completion of the sentence, the prisoner should be released into the custody of the State of his/her nationality or another State that has agreed to accept him/her. The State of enforcement may also agree to allow the prisoner to remain in its territory following the completion of the sentence.

PART XI: ASSEMBLY OF STATES PARTIES
Part XI of the draft statute includes Article 102, which deals with the Assembly of States Parties.

Assembly of States Parties
Under Article 102 of the draft statute, the Assembly of States Parties would have the power,inter alia, to provide management oversight to the Presidency, the Prosecutor and the Registrar regarding the administration of the Court; consider and approve the budget for the Court; and consider reports and activities of the Bureau of the Assembly. As to the composition of the Bureau of States Parties, it is provided that such a Bureau would consist of a President, a Vice-President and a number of members elected by the Assembly for a three-year term. Delegations were of the view that each State party should have one vote and that decisions on matters of substance should be taken by consensus in the Assembly and in the Bureau. It is yet to be determined how decisions on matters of substance would be approved if consensus cannot be reached.

PART XII: FINANCING OF THE COURT
Part XII of the draft statute contains Articles 103 to 107 and deals with the financing of the Court.

Financing of the Court
Several proposals were submitted regarding the funding of the Court. Some delegations suggested that the Court should be funded out of the regular budget of the United Nations. This decision would be subject to the approval of the General Assembly. Others considered that it should be funded from contributions by States parties and by other voluntary contributions from Governments, international organizations, individuals, corporations and other entities. Still others favoured a combination of the above.

PART XIII: FINAL CLAUSES
Part XIII of the draft statute contains Articles 108 to 116 which deal with the final clauses. These provisions address issues relating to reservations and amendments of the statute, review of the statute, and its ratification and entry into force.

Reservations and amendments
Under Article 109, several options were presented regarding the possibility of States parties making reservations to the statute. Some delegations felt that no reservations should be made to the statute. Others were of the view that no reservations should be permitted unless expressly provided for in specific articles of the statute. Another option put forward was to allow a State which has made reservations to withdraw all or part of its reservation at any time, by simply notifying the United Nations Secretary-General in writing. The draft statute also provides for amendment of the statute, after a number of years (yet to be determined) following its entry into force.

Signature, ratification, acceptance, approval or accession
Article 112 states that once the statute is adopted it should be open for signature on the last day of the Conference by all States, first in Rome, until a certain date yet to be determined. Thereafter, the statute would remain open for signature in New York, at United Nations Headquarters, until 31 December 2000. It is also stated that instruments of ratification, acceptance, approval or accession should be deposited with the Secretary-General of the United Nations.

Withdrawal
Under Article 115 of the draft statute, a State party could withdraw from the statute by notifying, in writing, the Secretary-General of the United Nations. It was agreed that the withdrawal should take effect one year after the date of receipt of the notification, unless the notification specifies a later date. In case of withdrawal, delegations agreed that a State should not be discharged from its financial obligations which accrued while it was a party to the statute. The withdrawal also should not affect the duty of that State to cooperate with the Court for criminal investigations and proceedings which started prior to its withdrawal.

* *** *

Background Info | Info for Participants | Info for Media |
Daily Programme | Speeches/Statements |
Press Releases | Documents | Photo Gallery |
Radio News | Main Page | UN Website | Feedback |

Prepared by the United Nations Department of Public Information
May 1998