UN DIPLOMATIC CONFERENCE TO ESTABLISH INTERNATIONAL CRIMINAL COURT TO CONVENE IN ROME, 15 JUNE - 17 JULY

8 June 1998

Press Release
L/2867

UN DIPLOMATIC CONFERENCE TO ESTABLISH INTERNATIONAL CRIMINAL COURT TO CONVENE IN ROME, 15 JUNE - 17 JULY

19980608 Background Release Historic Meeting Seeks To Create Global Jurisdiction To Try Individuals for War Crimes, Crimes against Humanity

The creation of a permanent judicial institution with a global jurisdiction to try individuals for war crimes and crimes against humanity is the challenge before a United Nations Diplomatic Conference convening in Rome on 15 June.

This highly complex political, legal and practical endeavour is the outcome of two years of preparatory work at United Nations Headquarters, though for the last 50 years, it has been a notion considered sporadically by United Nations bodies. The idea now is to create such a court by agreement among States in the form of an international treaty.

Secretary-General Kofi Annan will open the Conference to be held at the headquarters of the Food and Agriculture Organization at 10 a.m. (local time) on Monday, 15 June. Following the election of the Conference President, a four-day general debate will begin, with representatives of Member States, intergovernmental and non-governmental organizations taking part. The plenary is scheduled to reconvene during the final week of the Conference to consider the outcome of the deliberations. A Committee of the Whole is expected to begin its work on the draft statute for the international criminal court on Tuesday, 16 June, and may set up smaller groups to expedite its work. A Drafting Committee, which will finalize the text and report to the Committee of the Whole, is scheduled to hold its first meeting on Friday, 19 June.

The 13-part, 116-article draft statute for the international criminal court contains, among many square brackets signifying areas of disagreement, legal provisions for the creation of a permanent tribunal with power to bring persons to justice for the most serious crimes of international concern, and which shall be complementary to national criminal jurisdictions.

Most of the draft's unresolved issues, however, are political in nature. 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 the complaint of any State; whether the Security Council could stop the course of investigation or prosecution if it considered it a matter of international peace and security; the definition of war crimes; and whether or not to include the crime of aggression under the jurisdiction of the court.

The Conference is expected to finalize and approve a draft convention to establish the court -- a text which will then be submitted to the United Nations General Assembly later this year for its consideration. The statute contains provisions for the establishment of a preparatory commission, which would be responsible for laying the groundwork for the formal opening of the court.

The Under-Secretary-General for Legal Affairs and United Nations Legal Counsel, Hans Corell, is the Representative of the Secretary-General to the Conference. The Director of the Codification Division of the Office of Legal Affairs, Roy Lee, is the Executive Secretary of the Conference.

A summary of outstanding issues before the Conference -- whose full title is United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court -- and an overview of the draft statute for the court follow.

Outstanding Issues

The Preparatory Committee for the Rome Conference was successful in completing its principal mandate: to prepare a comprehensive draft statute to be submitted to the Diplomatic Conference. A great deal of work, however, remains to be done, as States taking part in the negotiations continue to have markedly different views on the fundamental nature of the court, particularly on the political issues critical to its independence and effectiveness.

The question of the subject matter over which the court should have jurisdiction is among these outstanding issues. There is broad agreement that the court's jurisdiction should cover at least three of what are called "core crimes": genocide, war crimes and crimes against humanity. There are differences of opinion over whether to include the crime of aggression in the court's statute, particularly due to the Security Council's role in relation to that crime. Also in question is whether the court will have jurisdiction over crimes against humanity irrespective of the existence of an armed conflict, and over war crimes committed during internal armed conflict.

The issue of whether State consent will be necessary for the court to exercise its jurisdiction also remains contentious and the draft statute has four options addressing the matter. There are also differences over the concept of complementarity, which defines the relationship between the international court and national courts. It has been agreed that the court

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should be complementary to, but not replace domestic courts. A case would be admissible before the court if the prosecutor demonstrated that domestic courts were either unwilling or unable to prosecute impartially. A consensus text on the matter was adopted by the August 1997 session of the Preparatory Committee. However, the issue was reopened by the introduction of a proposal by the United States at the Committee's last session, which would have the prosecutor defer an investigation to a State which announces its intention to exercise jurisdiction over a matter being investigated by the court.

The scope of the prosecutor's powers is another contentious issue and relates to the "trigger mechanism" -- that is, which processes would initiate action by the Court. The authority of the prosecutor to initiate cases is at the heart of the debate on the role of the court in the international legal system. The resolution of that issue will define the authority of the court to actively look for violations to redress, rather than simply respond, to the political assessment of States and of the Security Council.

Still another outstanding issue, on which there were no developments at the last session of the Preparatory Committee, is the question of the role of the Security Council in the future of the international criminal court. That issue is key because it relates to the independence of the court and its prosecutor. The principal question is the authority of the Council to authorize or stay proceedings in situations that are in its agenda under Chapter VII of the Charter which concerns action by the Council "with respect to threats to the peace, breaches of the peace and acts of aggression", and provides for the use of force to maintain or restore international peace and security.

A large number of States are calling for a strong and impartial court, free to investigate crimes referred to it, with no role for the Security Council, except the ability to refer matters to the court's prosecutor. Others would prefer more involvement of the Security Council in authorizing or staying proceedings on situations which are on its own agenda. Singapore has put forward a proposal that would give the Council the authority to order a stay of proceedings on issues it was dealing with under the enforcement provisions of the Charter's Chapter VII. The agreement of all five permanent members of the Council would be required for a stay of proceedings.

The issue of judicial cooperation and compliance with decisions of the court, which was dealt with at the Preparatory Committee's December 1997 session, cropped up again at the final session during discussions of measures to address non-compliance. The question is to be discussed further in Rome, as well as the issue of protection of sensitive national security information for which three proposals have been presented. A French proposal would have States invoke national security exception, while the United Kingdom has set out a detailed procedure to evaluate claims of national security before the court can issue a binding order. A United States proposal would leave it up

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to each Member State to decline an order of the court on the basis of a claim that it would harm its national security.

The possible sources of funding for the court and its relationship with the United Nations were considered at length during the final session of the Preparatory Committee and will be taken up again in Rome. There is general agreement that the court should be established by treaty and that it would not be a United Nations organ, but would have an independent international personality. It was also agreed that its relationship with the United Nations would be formalized by agreement similar to those the Organization has established with other international bodies, such as the International Seabed Authority.

Proposals on the funding of the court, expected to be considered by the Diplomatic Conference, include financing through the United Nations regular budget; financing by assessed contributions from States parties; and a proposal whereby the United Nations would pay only for the establishment of the court, with States parties assuming responsibility after a set number of ratifications. There are suggestions that the Security Council should bear the costs of cases it refers to the court. Funding from voluntary contributions has also been mentioned as a possibility.

Another issue which has not yet been settled deals with the prohibition of double jeopardy, article 18 (ne bis in idem) of the latest version of the draft statute. It 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 under the court's jurisdiction for which that person has already been convicted or acquitted by the court. That article contains many brackets, indicating divergence of views.

The Diplomatic Conference will also have to tackle the question of the entry into force of the treaty establishing the court, by specifying how many ratifications will be necessary for that purpose. Some States favour many ratifications to demonstrate that the court enjoys true international support, while others fear that setting the target number of ratifications too high will delay the treaty's entry into force.

During consideration of the issue of qualification of the judges, it was felt that the jurists 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 statute, 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

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Rome Conference. There was no agreement on the number of judges to serve on the court nor on their term of office.

The seat of the court will also be decided at Rome. To date, only the Government of the Netherlands has offered to host it.

Overview of Draft Statute

Following is an overview of the 13-part, 116-article draft statute for the international criminal court to be considered by the Conference (document A/CONF.183/2/Add.1 and Corr.1 and 2).

In the preamble to the text, 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 establish an international criminal court. Such a court, it is emphasized, would be intended to exercise jurisdiction only over the most serious crimes of concern to the international community as a whole, and the court would be complementary to national criminal justice systems in cases where such trial procedures were not available or might be ineffective.

A footnote -- which throughout the text is also used to replace square brackets, indicating language still subject to negotiation and agreement -- states that delegations have asked that the latter provision be made consistent with article 1 of the draft, and state solely that the court "shall be complementary to national criminal jurisdictions".

Part 1, articles 1 to 4 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 would 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 declares, 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, articles 5 to 20, concerns jurisdiction, admissibility and applicable law. Article 5, covering 19 pages, addresses the crimes within the jurisdiction of the court. There is wide agreement on the inclusion of the so-called "core crimes", the most serious crimes of concern to the international community: genocide, war crimes and crimes against humanity. Still under consideration are the inclusion of the crime of aggression, crimes of terrorism, crimes against United Nations and associated personnel and crimes involving the illicit traffic in narcotic drugs and psychotropic substances.

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For the purpose of the statute, the crime of genocide refers to acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group. A footnote states that the Preparatory Committee took note of the suggestion to examine the possibility of addressing "social and political" groups in the context of crimes against humanity.

Language on the crime of aggression is entirely bracketed, and there are three options for its definition. A footnote states that a large number of delegations expressed the view that the crime of aggression should be included in the statute. During the preparatory work, those opposing the inclusion of aggression cited, among other issues, the lack of a generally accepted definition of the crime for the purpose of determining individual responsibility; the lack of precedent for individual criminal responsibility for acts of aggression as opposed to wars of aggression; and the fact that under the United Nations Charter, acts of aggression fall within the competence of the Security Council.

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 four Geneva Conventions adopted on 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 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.

Articles 6 to 9, also containing numerous brackets, concern the issue of the jurisdiction of the court. Apparently already agreed is the principle that the court would have jurisdiction only in respect of crimes committed after the date of entry into force of the statute, as stated under article 8 on temporal jurisdiction. Bracketed language still remains, however, and the interrelationship between that article and article 22, on non-retroactivity, is noted. Among the contentious points under those articles is whether a State that becomes a party to the statute automatically accepts the jurisdiction of the court with respect to the crimes mentioned above. There are different approaches being proposed, distinguishing in different ways acceptance of the statute from acceptance of its jurisdiction.

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Article 10, with many brackets and many options, addresses matters related to the Security Council's role and its relationship with the court. The main controversy centres around the question of whether the court should deal with a situation the Security Council is considering under Chapter VII of the Charter. Article 11 concerns the referral of a situation by a State.

Article 12 concerns the role of the prosecutor and is also in dispute. Among other provisions, it states that the prosecutor could initiate an investigation when the Security Council refers a matter to the court, and when a State party that has accepted the jurisdiction of the court files a complaint. During the preparatory process, some delegations were of the opinion that the trigger mechanism should be expanded to allow the prosecutor to be more independent. Article 13 addresses the question of information submitted to the prosecutor.

Article 14 states that the court shall satisfy itself that it has jurisdiction in any case brought before it.

Article 15 addresses issues of admissibility. A note states that the text does not represent agreement on the eventual content or approach to be included in that article. The article elaborates on how the court shall determine that a case is inadmissible. Articles 16 and 17 address other matters regarding admissibility.

Article 18, 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 contains many brackets and alternative approaches. Article 19 further elaborates on the matter.

Article 20, 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 of 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 21 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 22, on non-retroactivity, states that a person shall not be criminally responsible under the statute for conduct committed prior to its entry into force.

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Article 23, 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. 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 points to 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. Agreed 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 24, 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 criminal responsibility nor shall constitute a ground for reduction of sentence. Article 25, on which there is considerable disagreement, addresses the question of responsibility of superiors or commanders over subordinates. Article 26 provides several suggestions for the age of responsibility for a criminal act, ranging from 12 to 21. There are five proposals for article 27, 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 28, 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 29, mens rea (mental elements). The following articles address: mistake of fact or law (article 30), and grounds for excluding criminal responsibility (article 31). The question of superior orders and prescription of law is addressed by article 32, and possible grounds for excluding criminal responsibility specifically referring to war crimes is the topic of article 33.

Part 4 of the draft statute, from articles 35 to 53, 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 non-agreed text, a Pre-Trial Chamber or Chambers; the Office of the Prosecutor; and a Registry. There are different views as to whether 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.

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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 the time of election or (another non-agreed provision) 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 articles 54 to 61, concerns investigation and prosecution. It has many alternative texts. Among issues covered are contentious matters, including commencement of prosecution and arrest. Articles 62 to 74, 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 75 to 79, concerns penalties. The inclusion of the death penalty remains to be agreed; the question of fines has been, in principle, agreed upon; however, details are still to be considered.

Part 8, on appeal and review, covers articles 80 to 84. 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 85 to 92, concerns international cooperation and judicial assistance and has many options. The words "surrender", "transfer" and "extradition" remain in brackets throughout the text, pending further negotiation.

Part 10 concerns enforcement and has nine articles, including language on pardon, parole and escape. Part 11, article 102, addresses matters related to the Assembly of States Parties. Part 12 concerns financing of the court, and has five articles, from 103 to 107. Among the options: funds for the court are 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 13 contains the final clauses and covers articles 108 to 116. 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

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Organization on 17 July, a date that remains in dispute. There is also no agreement on when the statute should enter into force.

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 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 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 of that year. On 17 December 1996, the General Assembly renewed the Committee's mandate and decided that the diplomatic conference would 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, the fifth, from 1 to 12 December, and the sixth and last from 16 March to 3 April.

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Nominations, Participation

At its final meeting, the Preparatory Committee for the Conference 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 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 the Western European and Other States Group; however, due to illness Mr. Bos will not be available and to replace him the Group has nominated Philippe Kirsch, Legal Adviser to the Foreign Ministry of Canada; 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.

The Conference is open to all United Nations Member States, members of the specialized agencies and members of the International Atomic Energy Agency.

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