PREPARATORY COMMITTEE ON ESTABLISHMENT OF INTERNATIONAL CRIMINAL COURT TO HOLD SIXTH SESSION AT HEADQUARTERS, 16 MARCH-3 APRIL
Press Release
L/2858
PREPARATORY COMMITTEE ON ESTABLISHMENT OF INTERNATIONAL CRIMINAL COURT TO HOLD SIXTH SESSION AT HEADQUARTERS, 16 MARCH-3 APRIL
19980313 Background Release The Preparatory Committee on the Establishment of an International Criminal Court convenes its sixth and final session at Headquarters from 16 March to 3 April. At its three-week session, the Committee will continue to consider the legal provisions and political implications involved in the creation of a permanent tribunal to effectively deal with war crimes.The outcome of the forthcoming session will be submitted to the United Nations Conference of Plenipotentiaries on the Establishment of an International Criminal Court, to be held in Rome from 15 June to 17 July. The Conference is expected to finalize and approve a convention to establish the court, which will then be submitted to the General Assembly later this year for adoption.
Among the key issues to be discussed by the preparatory body, in addition to the draft rules of procedure of the Conference, are the relationship between the international criminal court and the United Nations and the financing of the court.
During its final session, the Preparatory Committee will conduct its work in plenary meetings and by means of eight working groups, two of which will convene for the first time.
The session will examine a report of an inter-sessional meeting held in Zutphen, Netherlands, in January (document A/AC.249/1998/L.13) which contains a complete set of articles that consolidate negotiations on the court's statute carried out over the past two years, and which are based on a draft statute submitted by the International Law Commission (ILC) to the General Assembly in 1994. The original 60-article ILC draft statute has been expanded -- it is now a 99-article text -- and its structure has been modified.
The Zutphen meeting was convened at the initiative of the Chairman of the Preparatory Committee, Adriaan Bos (Netherlands), and included the officers of the Preparatory Committee and the chairmen of its working groups, as well as coordinators and Secretariat officials.
The report, which suggests that the document to be submitted to the Rome Conference be entitled "Statute for the International Criminal Court", is
divided into 11 parts covering, among other issues, the establishment of the court; jurisdiction, including the question of the crimes the court would prosecute; general principles of criminal law; composition and administration of the court; and matters related to investigation, prosecution, trial, penalties and enforcement.
The report contains two supplementary documents -- one dealing with the "final act of the Conference", which would consist of a summary of its background and proceedings and would not be part of the statute; and the other suggesting elements of a resolution to be considered by the Conference if it is deemed necessary to establish a preparatory commission to make practical arrangements for the court's establishment and coming into operation.
Also before the Preparatory Committee is a document on the final act and the establishment of a preparatory commission, and on the final clauses of the draft statute -- including reservations, signature, ratification and entry into force (document A/AC.249/1998/L.11). The text sets the date of 20 July for the court's statute to be open for signature. Among the various other provisions is wording stipulating that no reservations may be made to the statute and providing for amendments to be proposed at any time after entry into force. There is also a provision allowing for a review of the statute at a special meeting of States parties if requested by a two-thirds majority.
Other documents to be discussed include a Secretariat paper on the court's relationship with the United Nations (document A/AC.249/1998/L.10). It envisages four possible types of association: a principal organ of the United Nations; a subsidiary organ of a United Nations body; an independent international organization; or a treaty body of the United Nations.
Structure of New Draft Statute
Part 1 of the new draft statute concerns the establishment of the court and its relationship with the United Nations, which will be the main topic for consideration by a new working group 8, to be chaired by Rama Rao (India). Issues involved include the financing of the court; States parties meetings and their organizations; and oversight mechanisms for dealing with administrative and financial matters, including the seat of the court.
Part 2 of the text deals with jurisdiction, admissibility and applicable law -- issues being considered by working groups 1 (list and definition of crimes), 3 (complementarity and trigger mechanism) and 4 (procedural matters). Part 2 addresses matters which are at the heart of the negotiations, including the role of the Security Council.
Working group 1, which is led by the Chairman of the Preparatory Committee, Mr. Bos (Netherlands), has reached broad agreement on the
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definition of genocide and crimes against humanity, although both definitions still contain bracketed language, which indicate lack of consensus. The group has also debated text for the definition of war crimes, where no consensus was reached. One issue on which there was near unanimous agreement was to refer in the statute to the crime of rape, sexual slavery, enforced prostitution, enforced pregnancy, enforced sterilization and other forms of sexual violence not only associated with crimes against personal dignity. Also among contentious issues remaining are the inclusion of aggression under the criminal court's jurisdiction, as well as of the crimes of terrorism, drug trafficking and attacks against United Nations and associated personnel.
The issues of complementarity -- involving the relationship between the court and national jurisdictions -- and of the trigger mechanisms -- which refer to the question of what, or which actors, could initiate or "trigger" court proceedings (Member States, the Security Council and/or the court prosecutor) -- are being addressed by working group 3, chaired by John Holmes (Canada). Language on these provisions remain heavily bracketed. The role of and relationship between the Security Council and the court are also major issues of contention.
Working group 4, chaired by Silvia Fernandez de Gurimendi (Argentina), is also discussing matters involving the complementarity of the court in relation to national courts, and challenges to the court's jurisdiction. At the forthcoming session, it will consider, among other things, the investigation of alleged crimes, as well as procedures for collecting evidence.
Working groups 3 and 4 are also considering part 5 of the draft statute, on investigation and prosecution. This involves discussion of the key issue of the role of the prosecutor. Working group 4 is also considering part 6 of the draft statute, on the trial. Evidence, offenses against the integrity of the court, confidential information and quorum and judgement will be further discussed by that group at the forthcoming session. In addition, group 4 is considering part 8, on appeal and review. This section includes the issues of appeal against judgement or sentence and compensation to the suspect/accused.
Part 3 of the draft statute concerns general principles and criminal law. These matters are being considered by working group 2, chaired by Per Saland (Sweden), which is facing the task of synthesizing principles of criminal law from different legal systems. In previous sessions, it concentrated on the topic of criminal responsibility, including the grounds to exclude it. Consensus was reached on the defence of insanity and involuntary intoxication. However, work still remains to be done on the definition of self-defence, duress and sudden or extraordinary events. At the forthcoming session, the role of national law and general legal principles will be considered.
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Part 4, on the composition and administration of the court will be the topic of the new working group 7, to be chaired by Lionel Yee (Singapore). It will consider, in addition to the question of the final clauses, part 11 of the draft statute, the composition and administration of the court, including the organs of the court, qualification and election of judges, the chambers, the procuracy and the registry.
Part 7 of the draft statute, dealing with penalties, is among the topics before working group 6, chaired by Rolf Einer Fife (Norway). It deals with penalties to be imposed by the court, including length of sentences, imprisonment of minors, levying of fines, reparations and compensations and disqualification from holding public office.
Part 9 of the draft, on international cooperation and judicial assistance, is the topic of working group 5, chaired by Pieter Kruger (South Africa). It concerns extradition and transfer of suspects to the court, as well as provisional arrest and other forms of cooperation. It also involves discussion on limits on the use of evidence as well as on proceedings against surrendered persons. Working group 5 is also in charge of part 10 of the draft, on enforcement.
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
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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, 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. 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.
Officers, Membership
Officers of the Committee, in addition to the Chairman, Mr. Bos (Netherlands), are Vice-Chairmen Cherif Bassiouni (Egypt), Silvia Fernandez de Gurmendi (Argentina) and Marek Madej (Poland). 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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