PREPARATORY COMMITTEE ON ESTABLISHMENT OF INTERNATIONAL CRIMINAL COURT CONCLUDES WORK BY ADOPTING DRAFT STATUTE19980403
The Preparatory Committee on the Establishment of an International Criminal Court concluded its work this afternoon following two years of deliberations.
At its sixth and final session, which began on 16 March, the Committee continued to consider the legal provisions and political implications involved in the creation of a permanent tribunal to effectively deal with war crimes. It concluded its work by adopting a draft statute on the establishment of an international criminal court, and the drafts organization of work, final act and rules of procedure of the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, to be held later this year in Rome, from 15 June to 17 July.
The Conference is expected to finalize and approve a convention to establish the court. The draft will then be submitted to the General Assembly later this year for its consideration.
Among the highlights of the three-week session was agreement that the court should be an independent, permanent institution open to States parties, and that it will have an international legal personality, with the power to bring persons to justice for the most serious crimes of concern to the international community, in complementarity to national jurisdictions. There was no agreement on the funding of the court; however, agreement was reached on the establishment of an assembly of States parties. There was also agreement on the establishment of a preparatory commission, which will be responsible for laying the groundwork for the formal opening of the court.
Key issues still outstanding include whether or not State consent would apply within inherent jurisdiction of the court; whether the prosecutor would be able to initiate criminal action independently of the Security Council or State complaint; whether the United Nations Security Council could stop the course of investigation or prosecution if it considered it a matter of international peace and security; and the definition of war crimes.
At its final meeting, the Committee also took note of the candidates nominated for the following positions:
-- President of the Conference, Giovanni Conso (Italy), a former President of the Italian Constitutional Court and a former Minister of Justice of Italy, who was nominated by Portugal, on behalf of the Western European and Other States Group;
-- Chairman of the Committee of the Whole, Adriaan Bos (Netherlands), who was the Chairman of the Preparatory Committee, and was also nominated by Portugal; and
-- Chairman of the Drafting Committee, Cherif Bassiouni (Egypt), of the International Institute of Higher Studies in Criminal Sciences of Siracusa, Italy, who was a Vice-Chairman of the Preparatory Committee and was nominated by Lesotho, on behalf of the African Group of States.
In other action, the Committee adopted the report of the session, introduced and orally amended by its Rapporteur, Masataka Okano (Japan). The draft provisional rules of procedure for the Rome Conference were adopted with the exception of some provisions, pending further consultations, to be held on 9 April, among the Under-Secretary-General for Legal Affairs, Hans Corell, and representatives of the regional groups.
During its just-concluded session, the Permanent Representative of the Netherlands, Jaap Ramaker, recalling The Hague's tradition as the "judicial capital of the world", reiterated his Government's offer to host the seat of the proposed international criminal court. The offer was first made by the Netherlands Minister for Foreign Affairs during the annual general debate of the fifty-second session of the General Assembly last September. The premises for the court would be offered rent-free for a period of 10 years in the hope of facilitating a sound financial basis for the court's operations.
The representative of Italy said the completion of the mandate of the Preparatory Committee had special meaning for his delegation. It marked the end of the work aimed at paving the way to Rome Conference. During the various sessions of the Ad Hoc Committee and of the Preparatory Committee, the old saying "All roads lead to Rome" had been heard many times. But without the hard work of all delegations and understanding among them, there would not have been a road to Rome. Italy would do its best to make the Conference a success. The opportunity should not be missed to establish a landmark in international legislation that would avoid impunity for the most serious crimes that offended the very conscience of mankind.
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Drawing attention to a document circulated by his delegation, the representative of the United States said it continued to believe that the inclusion of an annex to the draft which laid out criminal elements was a fundamental requirement for a successful statute. It understood that different criminal justice systems functioned with different levels of specificity, but if the international criminal court was to enjoy the widespread acceptance, recognition and respect that it must have to function appropriately, it must not have standards of criminal justice that were less rigorous than those of its member States.
Considering the seriousness of the crimes and penalties in those cases, he said specificity became an issue of fundamental fairness. The United States did not believe that the court should become operational before the elements were adopted. That was also true about the need to adopt rules of evidence and procedure before the court became operational. The United States proposal was designed to create a truly viable and effective permanent court that deserved the authority and responsibility it was given.
In closing remarks, ADRIAAN BOS (Netherlands), Chairman of the Preparatory Committee, said that after nine weeks of intensive negotiations much work had been achieved. Many painstaking efforts had been undertaken for which the spirit of commitment of many delegations had been very instrumental. Delegations now had before them a revised text of the statute. In many areas, the way for a solution of outstanding issues was very clear. Many elements needed action. The international community was watching and participants at the Rome Conference must ensure that work on the statute was completed. He thanked all delegations for their cooperation. He particularly commended the officers of the Preparatory Committee, the Legal Counsel and the staff of the Codification Service of the Secretariat for their hard work. He hoped the mandate set for the Committee would finally be completed in Rome.
The representative of India noted the great change that had taken place in the number of participants from the different geographical regions since the process of drafting the statute had begun. He also noted the educational role of the Preparatory Committee process in the past several years. The differences over some provisions of the rules of procedure could be resolved in the period before Rome. The Asian Group had welcomed the nominees of the Western European and Other States Group for the post of President of the Conference and Chairman of the Committee of the Whole.
The representative of Portugal, speaking on behalf of the Western European and Other States Group, congratulated the Chairman for the way he had conducted the sessions of the Preparatory Committee. It came as no surprise, as the Chairman was from a country with great traditions of international law, he added.
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The representative of Lesotho, speaking on behalf of the African Group, assured the Chairman of the Group's support in the future. He also praised the Legal Counsel and the Codification Service of the Secretariat for their cooperation. He commended the non-governmental organizations for their cooperation with the African Group.
The representative of Costa Rica, on behalf of the Latin American and Caribbean Group, also paid tribute to the Chairman and the Secretariat.
The representative of Slovakia, on behalf of the Eastern European Group of States, paid tribute to the exemplary work of the Chairman. The time had now come for decisions to be taken at Rome, he said.
Mr. CORELL, the Under-Secretary-General for Legal Affairs, thanked delegations for the kind words directed to the Secretariat, particularly the Codification Service staff. Two missions had been sent to Rome for discussions with the host Government and with the Food and Agriculture Organization (FAO). The Secretary-General was deeply committed to the process of establishing the court and had mentioned it in his reform programme, as well as in speeches around the world.
Background on International Criminal Court
The international criminal court is intended to be a permanent court with the power to investigate and bring to justice individuals who commit the most serious crimes of concern to the international community, such as genocide, war crimes and crimes against humanity.
The idea of a permanent court began with the unsuccessful attempt to establish an international tribunal after the First World War. Following the Second World War, the Nuremberg and Tokyo war crimes tribunals set the stage for efforts to create a permanent court. It was first considered at the United Nations in the context of the adoption of the 1948 Convention on the Prevention and Punishment of the Crime of Genocide. Further development of the notion was effectively forestalled by differences of opinions for many years.
In 1992, the General Assembly directed the International Law Commission to elaborate a draft statute for an international criminal court. Further public interest was created by the Security Council's establishment of the International Criminal Tribunals for the Former Yugoslavia in 1993 and for Rwanda in 1994.
In December 1994, the General Assembly established an ad hoc committee opened to all Member States and members of specialized agencies to review the final version of the International Law Commission's draft statute. In December 1995, the General Assembly created a preparatory committee to "discuss further the major substantive and administrative issues arising out of the draft statute prepared by the International Law Commission and ... to draft texts,
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with a view to 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".
The first session of the Preparatory Committee took place at Headquarters from 25 March to 12 April 1996, and the second in New York from 12 to 30 August of that year. On 17 December 1996, the General Assembly renewed the Committee's mandate and decided that the diplomatic conference should be held in 1998. The Government of Italy renewed its offer to host the conference, proposing June 1998. In 1997, the third session of the Preparatory Committee was convened in New York from 11 to 21 February, followed by the fourth from 4 to 15 August, and the fifth, from 1 to 12 December.
Highlights of Session
Among the highlights of the three-week session was agreement that the court should be an independent, permanent institution open to States parties. It shall have an international legal personality, with the power to bring persons to justice for the most serious crimes of concern to the international community, which shall be complementary to national jurisdictions. Also, its jurisdiction and functioning shall be governed by its own provisions.
There was no agreement on the funding of the court; however, agreement was reached on the establishment of an assembly of States parties which will, among other functions, provide management oversight to the presidency of the court, prosecutor and registrar regarding the administration of the court.
There was also agreement on the establishment of a preparatory commission, which will be responsible for preparing the groundwork for the formal opening of the court. It was understood that membership of the preparatory commission would be open to all invitees to the Diplomatic Conference in Rome, thus ensuring that non-State parties to the statute could also participate in its activities.
Another achievement was a simplification of the Zutphen text provisions contained in articles 29 to 44 and covering, among others, organs of the court, qualification and election of judges, judicial vacancies, chambers, the registry, privileges and immunities, procuracy and rules of the court. There was agreement that there should be one appeals chamber consisting of judges selected from among judges of the court. Subsidiary instruments of the court will determine the allocation of other judges to the other chambers.
Also, there is now a text governing the two types of subsidiary instruments to the statute, namely, rules of procedure and evidence, and regulations of the court. The two instruments will be under the charge of the State parties and the judges of the court respectively.
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Agreement was also reached, to a large extent, on an expedited mechanism for States parties to agree to an increase in the number of judges for the court, although differences of view still remain over whether the same mechanism could be used to reduce their number.
During consideration of the issue of qualification of the judges, views were expressed that they should be of the highest moral character, with a mix of international and criminal law backgrounds, and that geographical representation and gender balance should be taken into account. According to the draft text, the judges of the court shall be persons of high moral character and impartiality. Other qualifications and recognized competence in specified areas of law remain in square brackets for final resolution at the Rome Conference. There was no agreement during the session on the number of judges to serve on the court nor on their term of office.
Also a positive outcome of the last session was the simplification of language concerning procedural matters, including investigation and prosecution, the trial, and penalties. The new texts were characterized by delegations as constituting a better basis for further discussion at the Rome Conference.
The Committee also was able to take major steps towards bridging the gaps in some provisions. In that connection, of particular importance was the proposal presented by a group of States representing many different legal systems which sought to establish a simplified and coherent alternative text for articles 51 through 54. The provisions in those articles cover the investigative phase of the proceedings; arrest proceedings in a custodial State; initial proceedings before the court; and confirmation of charges before trial.
Key issues still outstanding include whether or not State consent would apply within inherent jurisdiction of the court; whether the prosecutor would be able to initiate criminal action independently of the Security Council or State complaint; and whether the Security Council could stop the course of investigation or prosecution if it considered it a matter of international peace and security. Other unresolved issues are definition of war crimes and how much of such definition would include the 1977 Protocol which amended the four Geneva Conventions.
Outline of Draft Statute
When it began its session on 16 March, the Committee had before it a consolidated text compiled by its officers and coordinators on the basis of all the texts that it had worked out or that had been submitted to it (document A/AC.249/1998/L.13). The compilation was the product of an informal meeting held in Zutphen, Netherlands, in January and was used as a basis for the work of the Committee.
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The Committee conducted its work through working groups on the following subjects: procedural matters, chaired by Silvia Fernández de Gurmendi (Argentina); composition and administration of the court, chaired by Lionel Yee (Singapore); establishment of the court and relationship with the United Nations, chaired by Rama Rao (India); applicable law, chaired by Per Saland (Sweden); on ne bis in idem, chaired by John Holmes (Canada); jurisdictional issues, chaired by Erkki Kourula (Finland); and enforcement, chaired by Molly Warlow (United States). The final clauses were considered at the informal meetings under the chairmanship of Mr. Bos (Netherlands), Chairman of the Committee.
Following is an overview of the draft statute as adopted by the Preparatory Committee for submission to the Rome Conference (documents A/AC.249/1998/CRPs.6 to 18).
In the preamble, States parties to the statute would express their desire to further international cooperation to enhance the effective prosecution and suppression of crimes of international concern, and for that purpose to establish an international criminal court. It is emphasized that such a court is intended to exercise jurisdiction only over the most serious crimes of concern to the international community as a whole, and that it is intended to be complementary to national criminal justice systems in cases where such trial procedures may not be available or may be ineffective.
Part 1 of the draft statute concerns the establishment of the court. By article 1, the international criminal court would be established with power to bring persons to justice for the most serious crimes of international concern, and which shall be complementary to national criminal jurisdictions. Article 2 states that "the court shall be brought into relationship with the United Nations by an agreement to be approved by the States parties to this statute and concluded by the President on behalf of the court". Article 3 states, in part, that the court may exercise its powers and functions on the territory of any State party and, by special agreement, on the territory of any other State.
Part 2 concerns jurisdiction, admissibility and applicable law. Article 5 lists as crimes within the jurisdiction of the court the following: genocide, aggression war crimes and crimes against humanity. (The term "Aggression" occurs in brackets to indicate a area where there is no agreement.) For the purpose of the statute, the crime of genocide refers to intent to destroy, in whole or in part, a national, ethnical, racial or religious group. Language on the crime of aggression is entirely bracketed, and there are three options for its definition.
The definition of war crimes covers over 10 pages in the current draft text, with several options for many provisions. They cover grave breaches of the Geneva Conventions of 12 August 1949, other serious violations of the laws and customs applicable in international armed conflict, and "in case of an armed conflict not of an international character", serious violations of article 3
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common to the four Geneva Conventions, which refers to acts committed against persons taking no active part in the hostilities.
The definition of crimes against humanity is heavily bracketed and has reference, among others, to: murder; extermination; enslavement; deportation or forcible transfer of population; deprivation of liberty; torture; rape or other sexual abuse or enforced prostitution; persecution against identifiable group or collectivity on political, racial, national, ethnic, cultural or religious groups, with reference to gender remaining bracketed; enforced disappearance of persons; and other inhumane acts or serious injury to body or to mental or physical health. The draft as it stands now contains in brackets proposals concerning the inclusion in the statute of crimes of terrorism, crimes against United Nations and associated personnel, and crimes involving the illicit traffic in narcotic drugs and psychotropic substances.
Articles 6 to 9, which are heavily bracketed, concern the issue of the jurisdiction of the court. An over five-page article 10, with many brackets and many options, addresses matters related to the Security Council's role and its relationship with the court. Article 11, which also has many options and footnotes, concerns admissibility, and article 12 refers to challenges to the jurisdiction of the court or the admissibility of a case.
Article 13, ne bis in idem (the prohibition of double jeopardy), states, in part, that, except as provided in the statute, no person shall be tried before the court with respect to conduct which formed the basis of crimes for which the person has been convicted or acquitted by the court. Also, no person shall be tried before another court for a crime referred in article 5 above, for which that person has already been convicted or acquitted by the court. The article still has many brackets and alternative approaches. Article 14, on applicable law, states in one of its options that the application and interpretation of law must be consistent with internationally recognized human rights, which include the prohibition on any adverse distinction founded on gender, age, race, colour, language, religion or belief, political or other opinion, national ethnic or social origin, wealth, birth or other status, or on any other similar criteria.
Part 3 of the draft statute addresses general principles of criminal law. Article 15 contains language concerning the principle of nullum crimen sine lege, according to which an action may only be punished, if, prior to its commission, it has been made punishable. Article 16, on non-retroactivity, states that a person shall not be criminally responsible under the statute for conduct committed prior to its entry into force.
Article 17, on individual criminal responsibility, states that the court shall have jurisdiction over natural persons, and that a person who commits a crime under the statute is individually responsible and liable for punishment.
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In brackets, the text states that criminal responsibility is individual and cannot go beyond the person and person's possessions. However, in brackets is language stating that the court shall also have jurisdiction over legal persons, with the exception of States, when the crimes were committed on their behalf.
A footnote states that there is deep divergence of views as to the advisability of including criminal responsibility of legal persons in the statute. Many delegations are strongly opposed, whereas some strongly favour its inclusion; those who favour hold the view that this expression should be extended to organizations lacking legal status. Unbracketed language states that the fact that the present statute provides criminal responsibility for individuals does not affect the responsibility of States under international law.
Article 18, on irrelevance of official position, states that the statute shall be applied to all persons without any discrimination whatsoever. No capacity, including head of State or government, shall exempt a person from his criminal responsibility nor shall constitute a ground for reduction of sentence. Article 19, heavily bracketed, addresses the question of responsibility of superiors, or commanders, over subordinates. Article 20 provides several suggestions for the age of responsibility for a criminal act, ranging from 12 to 21. There are five proposals for article 21, on the question of the statute of limitations.
Conduct for which a person may be criminally responsible and liable for punishment as a crime can constitute either an act or an omission, or a combination thereof, states article 22, on actus reus (act and/or omission). Unless otherwise provided, a person is only criminally responsible and liable for punishment for a crime under the statute if the physical elements are committed with intent and knowledge, states, in part, article 23, mens rea (mental elements). The following articles address mistake of fact or law (article 24), and grounds for excluding criminal responsibility (article 25).
Article 26 concerns the matter of a person's conduct pursuant to an order of a government or of a superior, and the issue of criminal responsibility. Articles 27 and 28 concern other grounds for excluding criminal responsibility.
Part 4, from article 29 to article 43, concerns composition and administration of the court. It states that the organs of the court should be a Presidency; an Appeals Chamber, Trial Chambers and, in brackets, a Pre-Trial Chamber or Chambers. There are different versions concerning whether the judges should serve on a full-time or part-time basis. There are several options on language concerning the qualification of the judges, age at the time of election and length of term of office.
The office of the prosecutor shall act independently as a separate organ of the court, it is stated. The prosecutor shall head the office and be assisted by deputy prosecutors, and they may not be over 65 years of age at
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the time of election, or, in brackets, appointment. The registry shall be responsible for the non-judicial aspects of the administration and servicing of the court. There is no agreement on the length of the term of office of the registrar. The article on the rules of procedure and evidence, among many brackets, provide that they will be adopted later, probably by the Assembly of States parties.
Part 5, from article 47 to 54, concerns investigation and prosecution. It has many brackets and several options. Among issues covered are contentious matters, including commencement of prosecution and arrest. Articles 55 to 67, part 6 of the draft statute, cover the trial. Among the many provisions, the articles address questions of presumption of innocence, rights of the accused, protection of victims and witnesses, and the question of evidence, which, according to a footnote, many delegations think would be more appropriate to include in the rules of procedure and evidence. There are over four pages containing several options for an article concerning "sensitive national security information". Also heavily bracketed is language concerning reparation to victims. Part 7, articles 68 to 72, concerns penalties. The inclusion of the death penalty remains in brackets, the question of fines has been, in principle, agreed upon; however, details are still to be considered.
Part 8, on appeal and review, covers from article 73 to 76. It contains provisions stating that anyone who has been subject to arrest or detention in violation of the statute or international human rights law shall have a right to compensation from the court. Part 9, articles 77 to 84, concern international cooperation and judicial assistance and has 21 pages of many options. The words surrender, transfer and extradition remain in brackets throughout the text, pending further negotiation.
Part 10 concerns enforcement and has five articles, including language on pardon, parole and escape. Part 10 bis, article 90 bis, addresses matters related to the assembly of States parties. Part 10 ter concerns financing of the court. There are three options for the funds of the court: assessed contributions by States parties; funds borne by the United Nations, subject to the approval of the General Assembly; and a combination of the two versions, with a proviso that during the initial phase, the expenses of the court would be provided by the United Nations, subject to approval by the General Assembly.
Part 11 contains the final clauses and covers from article 91 to 99. It addresses issues such as reservations and amendments, which are still to be agreed upon. It also states that the statute shall be open for signature by all States in Rome at the headquarters of the Food and Agriculture Organization (FAO) on 17 July 1998, a date that remains in brackets. There is also no agreement yet on when the statute should enter into force.
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The officers of the Committee are the following: Chairman, Adriaan Bos (Netherlands); Cherif Bassiouni (Egypt), Silvia Fernandez de Gurmendi (Argentina) and Peter Tomka (Slovakia) are Vice-Chairmen; and Masataka Okano (Japan) is Rapporteur.
The Preparatory Committee is open to all United Nations Member States, members of the specialized agencies and members of the International Atomic Energy Agency (IAEA).
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