MEETING OF KEY CONFERENCE COMMITTEE SHOWS CONTINUING DIFFERENCES ON IMPORTANT PROVISIONS OF INTERNATIONAL CRIMINAL COURT STATUTE

Press Release
L/2884

MEETING OF KEY CONFERENCE COMMITTEE SHOWS CONTINUING DIFFERENCES ON IMPORTANT PROVISIONS OF INTERNATIONAL CRIMINAL COURT STATUTE

(Reissued as received from an Information Officer.)

ROME, 13 July -- Divergent views on important provisions of the draft statute of the future International Criminal Court, such as definition of the crime of aggression, jurisdiction of the Court and the roles of the Security Council and the prosecutor emerged again this morning, as the United Nations Diplomatic Conference on the Establishment of the Court entered its final week.

The Conference's Committee of the Whole met to hear views of delegations on a proposal by the officers of the Conference on Part 2, concerning jurisdiction and admissibility, which was made available on Friday afternoon, 10 July.

After hearing the views of 13 speakers this morning, the Chairman of the Committee of the Whole, Philippe Kirsch (Canada), said it was evident that the proposal by the officers of the Conference was still a discussion paper, which needed perfection. The comments by delegations on its inadequacies had been fair and helpful, he added. Noting that the officers had been carrying out negotiations, a process that was usually the work of delegations, he said "give us slack if you like, but do some work too". Urgent consultations were required.

Also this morning, the Committee heard more reports from its working groups.

The Committee will meet again at 3 p.m. today to continue to hear views of delegations on the proposal by the officers of the Conference.

Summary of Bureau Proposal

The bureau's proposal for Part 2 of the draft Statute -- on jurisdiction, admissibility and applicable law (document A/CONF.183/C.1/L.59), containing over eight pages of options for article 5 (Crimes within the jurisdiction of the Court).

The introduction to article 5 states that the jurisdiction of the Court should be limited to "the most serious crimes of concern to the international community as a whole", and lists genocide, crimes against humanity and war crimes.

A comment by the bureau on this provision states that if generally accepted provisions are not developed by interested delegations by the close of the day today on the crime of aggression and one or more of the treaty crimes (terrorism, drug trafficking and crimes against United Nations personnel), it will propose that the interest in addressing these crimes be reflected in some other manner, for example, by a protocol or review conference.

Article 5 bis defines the crime of genocide as any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group: killing members of the group; causing serious bodily or mental harm to members of the group; deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; imposing measures intended to prevent births within the group; and forcibly transferring children of the group to another group.

Article 5 ter defines crimes against humanity as any of the following acts when committed as part of a "widespread or systematic" attack directed against any civilian population and with knowledge of the attack: murder; extermination; enslavement; deportation or forcible transfer of population; imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law; torture; persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender or other grounds that are universally recognized as impermissible under international law; enforced disappearance of persons; the crime of apartheid; and other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health.

A comment on the first paragraph of article 5 ter, states that other proposals have been made on the topics of terrorism and economic embargoes, and further discussion may be required. "Crimes of sexual violence" is included in the list but it is noted that drafting requires further discussion.

Paragraph 2 of article 5 ter, contains definitions of the acts listed as crimes against humanity. For example, "extermination" includes the intentional infliction of conditions of life, among others, the deprivation of access to food and medicine, calculated to bring about the destruction of part of a population; and "enforced disappearance of persons" means the arrest, detention or abduction of persons by, or with the authorization, support or acquiescence of, a State or a political organization, followed by a refusal to acknowledge that deprivation of freedom or to give information on the fate or whereabouts of those persons,

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with the intention of removing them from the protection of the law for a prolonged period of time.

Article 5 quater, on war crimes, has two options: option 1 has one three- line paragraph; option 2 has four sections and over 5 pages.

By option 1, "The Court shall have jurisdiction in respect of war crimes 'only' when committed as part of a plan or policy or as part of a large-scale commission of such crimes."

In option 2, the word "only" is replaced by the words "in particular", and a listing of acts follows. Section A concerns grave breaches of the Geneva Conventions of 12 August 1949, and there is reference to eight acts against persons or property protected under the provisions of the relevant Geneva Convention, including wilful killing and taking of hostages.

Section B concerns other serious violations of the laws and customs applicable in international armed conflict, including the following: intentionally directing attacks against personnel, installations, material, units or vehicles involved in a humanitarian assistance or peacekeeping mission in accordance with the Charter of the United Nations, as long as they are entitled to the protection given to civilians or civilian objects under the law of armed conflict; and the transfer, directly or indirectly, by the Occupying Power of parts of its own civilian population into the territory it occupies, or the deportation or transfer of all or parts of the population of the occupied territory within or outside this territory.

Subparagraph (o) of section B defines as a war crime "employing the following weapons, projectiles and material and methods of warfare which are of a nature to cause superfluous injury or unnecessary suffering or which are inherently indiscriminate in violation of international humanitarian law". The list of such weapons, projectiles and methods includes poisoned weapons, poisonous gases, "bullets which expand or flatten easily in the human body, such as bullets with a hard envelope which does not entirely cover the core or is pierced with incisions", biological agents or toxins, chemical weapons, and "such other weapons or weapons systems as become the subject of a comprehensive prohibition, subject to a determination to that effect by the Assembly of States Parties, in accordance with the procedure laid down in article 111 of this Statute". This latter provision is followed by a comment stating it will be subject to further discussion. The same comment is made on a provision referring to crimes of sexual violence.The list also includes "conscripting or enlisting children under the age of 15 years into national armed forces or using them to participate actively in hostilities".

The text goes on to state that section C applies to armed conflicts not of an international character and thus does not apply to situations of internal disturbances and tensions, such as riots, isolated and sporadic acts

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of violence or other acts of a similar nature. The list of acts under that category includes the passing of sentences and the carrying out of executions without previous judgement pronounced by a regularly constituted court.

Section D, applies to armed conflicts that take place in a territory of a State Party between its armed forces and dissident armed forces or other organized armed groups. Among the acts included under that section are: intentionally directing attacks against personnel, installations, material, units or vehicles involved in a humanitarian assistance or peacekeeping mission in accordance with the Charter of the United Nations; intentionally directing attacks against buildings dedicated to religion, education, art, science or charitable purposes, historical monuments, hospitals and places where the sick and wounded are collected, provided they are not military objectives; pillaging a town or place, even when taken by assault; and conscripting or enlisting children under the age of 15 years into armed forces or using them to participate actively in hostilities.

The bureau's proposal states that "nothing in sections C and D shall affect the responsibility of a Government to maintain or re-establish law and order in the State or to defend the unity and territorial integrity of the State, by all means consistent with international law".

An article "xx", on elements of crimes, states in part that "elements of crimes shall be adopted by the Assembly of States Parties in accordance with its Rules of Procedure, and shall be an annex to this Statute".

An article "Y" states that "nothing in this part of the present Statute shall be interpreted as limiting or prejudicing in any way existing or developing rules of international law for purposes other than this Statute".

Article 6, on exercise of jurisdiction, states that the Court may exercise its jurisdiction with respect to crimes referred to in article 5 when a situation is referred to the Prosecutor by a State Party or by the Security Council acting under Chapter VII of the Charter of the United Nations. It may also act when the Prosecutor has initiated an investigation in accordance with article 12. (Article 12, which concerns the role of the Prosecutor, has not yet been adopted.)

Article 7, addresses preconditions to the exercise of jurisdiction over the different categories of crimes.

Article 7 bis, on acceptance of jurisdiction, has two options: automatic jurisdiction over all three core crimes (option 1), and automatic jurisdiction for genocide and opt-in for crimes against humanity and war crimes (option 2).

Article 7 ter concerns acceptance by non-States Parties. It provides for consent to the exercise of jurisdiction by the Court with respect to the crime

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in question by a State that is not a party to the Statute through a declaration lodged with the Registrar.

Article 8 elaborates on temporal jurisdiction and non-retroactivity based on the principle that a person should not be criminally responsible under the Statute for conduct prior to its entry into force.

Article 10 provides three options for the role of the Security Council.

Option 1 states that "No investigation or prosecution may be commenced or proceeded with under the Statute for a period of 12 months after the Security Council, in a resolution adopted under Chapter VII of the Charter of the United Nations, has requested the Court to that effect; that request may be renewed by the Council under the same conditions." The proposal notes that the question of the need for preservation of evidence requires further discussion.

Option 2 states that "In the event that the Court is requested by the Security Council, acting by resolution adopted under Chapter VII of the Charter of the United Nations, to suspend its investigation or prosecution of a situation for a specified period of time, then the Court shall suspend such activity for such a period of time; that request may be renewed by the Security Council under the same conditions."

Option 3 would have that article deleted.

Article 11, on referral of a situation by a State, provides for referral by a State Party to the Prosecutor of situations in which one or more crimes within the jurisdiction of the Court appear to have been committed, requesting the Prosecutor to investigate and determine whether one or more specific persons should be charged with the commission of such crimes.

Article 12, on the Prosecutor, has two options.

Under option 1, the Prosecutor may initiate investigations proprio motu (on his own initiative) on the basis of information on alleged crimes within the jurisdiction of the Court obtained from States, organs of the United Nations, international intergovernmental and non-governmental organizations, victims, associations on their behalf, or any other reliable source. If the Prosecutor concludes that there is a reasonable basis to proceed with an investigation, he or she should submit to the Pre-Trial Chamber a request for authorization of an investigation, together with any supporting material collected. Victims may make representations to the Pre-Trial Chamber, it adds.

If the Pre-Trial Chamber, the article goes on, considers that there is a reasonable basis to proceed with an investigation, it shall authorize the commencement of the investigation. The refusal of the Pre-Trial Chamber to

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authorize the investigation shall not preclude the presentation of a subsequent request by the Prosecutor based on new facts or evidence pertaining to the same situation.

Option 2, would provide for additional safeguards before the Prosecutor can act.

Article 15, on issues of admissibility, has three paragraphs and seven subparagraphs. It states in part that the Court shall determine that a case is inadmissible, among other reasons, when the case is being investigated or prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable genuinely to carry out the investigation or prosecution; when the State has decided not to prosecute the person concerned; the person concerned has already been tried for conduct which is the subject of the complaint; or the case is not of sufficient gravity to justify further action by the Court.

The article further states criteria to determine unwillingness in a particular case, including a situation in which a national decision was made for the purpose of shielding the person concerned from criminal responsibility for crimes within the jurisdiction of the Court. The third paragraph states that in order to determine inability in a particular case, the Court shall consider whether, due to a total or partial collapse or unavailability of its national judicial system, the State is unable to obtain the accused or the necessary evidence and testimony or otherwise unable to carry out its proceedings.

Article 16, on preliminary rulings regarding admissibility, has seven paragraphs and details a step-by-step procedure for action by the Court, including that when a situation has been referred to the Court or the Prosecutor initiates an investigation, and it is determined that there would be a reasonable basis to commence an investigation, the Prosecutor shall notify all States parties and, where applicable, any non-States Parties that may have jurisdiction, on a confidential basis. Within one month of the receipt of such notice, a State may inform the Court that it is investigating those criminal offences. In the case of a State that has jurisdiction and was not notified by the Prosecutor or if the State was notified but failed to inform the Prosecutor of its investigation within one month of the notification, the Prosecutor may defer to the State's investigation.

Article 18, on ne bis in idem, the prohibition of double jeopardy, states, in part, that "except as provided in this 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."

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Discussion

At the outset of the meeting, Mr. KIRSCH (Canada) asked delegations to focus their comments on the question of acceptance of jurisdiction, automatic or the opt-in approach; the issue of pre-conditions for the exercise of jurisdiction; suspension of an investigation by the Security Council; the need for additional safeguards for the role of the Prosecutor; and on whether the provision on elements of crimes should be binding or exist as guidelines. The formula based on the Singapore proposal on whether the Security Council can interrupt action by the Court was received, generally, in a positive way. Some delegations, however, noted that a complementary role for the Security Council did not appear in the proposal, and others stressed that the Statute could not add or subtract to the powers of the Council under the Charter.

The importance of maintaining the independence of the prosecutor was emphasized by many delegations.

Several delegations, including the representative of the European Union, supported the bureau's proposal that if generally accepted provisions on the inclusion of the crime of aggression in the Statute were not developed by interested delegations by the end of today, the bureau would propose that the interest in addressing that crime should be reflected in some other manner, for example, by a protocol or review conference. However, other delegations -- including Iran, Syria, Ghana and Croatia -- considered unacceptable the non-inclusion of the crime of aggression, which, some recalled, was part of a decision of the Non-Aligned Movement in its recent ministerial meeting in Colombia. Describing aggression as "the mother of all crimes", Iran, spokesman for the Non-aligned Movement, said the non-aligned countries were ready, despite the limited time left, to work constructively to find ways of including it in the statute.

Another stated position of the Non-Aligned Movement, which was recalled by speakers this morning, was the inclusion of nuclear weapons among those methods of warfare which were of a nature to cause superfluous injury or unnecessary suffering or which were inherently indiscriminate in violation of international humanitarian law. The proposal by the bureau does not list nuclear weapons. India said it was a "shameful compromise" not to include such weapons in order to ensure wide acceptance of the Statute. Samoa also expressed disappointment over the deletion of nuclear weapons from the list.

India also stated, in the context of treaty crimes, that it was irresponsible not to address the crime of terrorism, and the Holy See called for an effort to be made to included "as practically as possible" the crime of illicit drug trafficking.

The United States said a critical question was the overall threshold for war crimes, which were different from genocide or crimes against humanity; not

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all war crimes were necessarily very serious, much less atrocities. An individual instance of looting, or unlawful detention could be a grave breach of the Geneva Conventions, but isolated instances, even of an extreme nature, did not rise to the level of serious international concern that should motivate an International Criminal Court. Non-armed international conflict was a paramount reason why the Court should be constituted, as such conflict made up the bulk of today's conflicts. The change of the threshold of section D (on other serious violations of the laws and customs applicable in armed conflicts not of an international character) should be rejected, as delegations would be sending a wrong message to the civilian victims of internal conflicts that their voices might not be heard by the Court.

The Statute provision (article 7) on the Court's jurisdiction again emerged at the heart of the debate. The bureau proposals stipulated automatic jurisdiction of the Court for the crime of genocide. Some delegations insisted on opt-in jurisdictions for all other core crimes: crimes against humanity and war crimes. In their view, the territorial State and the State of custody must grant consent before the Court could exercise its jurisdiction. Another safeguard such as the provisions of the statute on complementarity should be strengthened.

Another view was that the Court should not have universal jurisdiction. It should only have jurisdiction over the nationals and officials of non-party States with the consent of the affected State. Considering the nature of the core crimes, there should be consent from the State of which the accused or suspect was a national, and the State in the territory of which the crime occurred.

As the depository State of conventions on protection of war victims, said Switzerland, there should be no need for threshold limiting the Court's jurisdiction over core crimes.

Divergent views were expressed on the article "xx", on the question of elements of crimes, which was seen by some as an effort towards compromise and by others as disturbing and an attempt to create a bad precedent.

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