UN DIPLOMATIC CONFERENCE CONCLUDES IN ROME WITH DECISION TO ESTABLISH PERMANENT INTERNATIONAL CRIMINAL COURT
Press Release
L/2889
UN DIPLOMATIC CONFERENCE CONCLUDES IN ROME WITH DECISION TO ESTABLISH PERMANENT INTERNATIONAL CRIMINAL COURT
19980720 Statute of Court Adopted by Non-Recorded Vote of 120 in Favour, 7 Against, 21 Abstentions(Reissued as received from a United Nations Information Officer.)
ROME, 17 July -- A major step in forging a missing link in the international legal order was taken this evening as a United Nations Diplomatic Conference decided to establish a permanent International Criminal Court with power to exercise its jurisdiction over persons for the most serious crimes of international concern. Those crimes are genocide, crimes against humanity, war crimes, as well as the crime of aggression, once an acceptable definition for the Court's jurisdiction over it is adopted.
As it concluded in Rome five weeks of deliberations, the Conference adopted, by a vote of 120 in favour to 7 against, with 21 abstentions, the Statute for the Court. The non-recorded vote was requested by the United States.
Addressing the Conference after the Statute's adoption, the Representative of the Secretary-General to the Conference, Hans Corell, conveyed the congratulations of the Secretary-General to participants and said that the Secretary-General was on his way to Rome to join in the celebration. The Conference's collective efforts to establish the Court had been a challenge for the United Nations for more than 50 years. Today marked a genuine step in human rights law, he said, expressing the hope that in the next few months the international community would witness measures being taken at the national level to have States joining the Court. He also recognized the important role played by non-governmental organizations (NGOs) in that process.
Addressing the final plenary of the Conference, several delegations stressed that although the Statute was far from perfect, it was a giant step in the history of mankind. The non-inclusion of nuclear weapons in the list of serious violations of the laws and customs applicable in international conflict was deplored by several speakers. However, the Statute was seen by all as a good instrument for later perfection, and for that reason national positions had been put aside in the spirit of flexibility and compromise.
Immediately after the adoption of the text, whose formal title is Rome Statute of the International Criminal Court, the text, as well as the Final Act of the Conference, were opened for signature at the headquarters of the Food and Agriculture Organization (FAO). One hundred and twenty-seven delegations signed the Final Act and 10 signed the Statute which will also be available for signature at a special ceremony to be hosted by the Mayor of Rome on Saturday, 18 July, at the Campidoglio.
Explanations of vote after the vote were made by the representatives of India, Uruguay, Mauritius, Philippines, Norway, Belgium, United States, Brazil, Israel, Sri Lanka, China, Turkey, Singapore and the United Kingdom.
General concluding statements were made by the representatives of Italy, Austria (on behalf of the European Union and associated States), Venezuela, Mexico, United States, Cuba, Trinidad and Tobago, Sudan (on behalf of the Arab Group of States), Sierra Leone, Japan, Egypt, Botswana, Algeria, Sweden (on behalf of the Western European and Other States Group), Pakistan, Germany, France, Bangladesh, Russian Federation, Afghanistan, Benin, Holy See and Andorra.
Representatives of the International Committee of the Red Cross (ICRC), as well as of the NGO Coalition for an International Criminal Court and Amnesty International also spoke.
Prior to the adoption of the Statute for the Court in the plenary meeting, the Committee of the Whole of the Conference adopted the draft Statute following two votes on non-action motions that rejected attempts by India and by the United States to introduce amendments to the draft Statute before the Committee for action.
One amendment by India concerned provisions in the Statute allowing the United Nations Security Council to refer situations to the Court and/or to defer their consideration for a period of 12 months, under its Chapter VII powers. The other would have added to the list of weapons whose use is considered a serious violation of the laws and customs of international armed conflict language referring to "weapons of mass destruction, i.e. nuclear, chemical and biological weapons". The non-action motion was also proposed by Norway and supported by Malawi and Chile. It was adopted by a vote of 114 in favour to 16 against, with 20 abstentions.
The proposal by the United States concerned the issue of jurisdiction of the Court with respect to States not party to the Statute, which would be allowed only if the State had accepted that jurisdiction. The non-action motion was also proposed by Norway. Sweden and Denmark spoke in favour, and Qatar and China spoke against. The non-action motion was adopted by a vote of 113 in favour to 17 against, with 25 abstentions.
- 3 - Press Release L/2889 20 July 1998
At the outset of the meeting of the Committee of the Whole, the Chairman of the Preparatory Committee for the Conference, Adriaan Bos (Netherlands), addressed the Committee. Although recommended by the Preparatory Committee to chair the Conference's Committee of the Whole, Mr. Bos had to withdraw his candidature due to illness. He told the Committee that he was successfully recovering from his illness and called on the Committee to adopt the draft Statute by consensus, as that would be a hopeful sign for mankind.
Introducing the draft Statute, the Committee Chairman, Philippe Kirsch (Canada), said it should be considered as a whole, as it was "a very delicate balance". Speaking after adoption of the Statute, without a vote, he said the Committee had accomplished its task. It was the Committee's finest hour and hopefully some day the international community would be able to say it had been also humankind's finest hour.
Participating in the Conference were delegations from 160 countries, 17 intergovernmental organizations, 14 specialized agencies and funds of the United Nations, and 124 NGOs. In addition, 474 journalists were accredited to cover the event.
An overview of the Court's Statute follows the account of the final plenary meeting.
Explanations of Vote
India: The Statute gives to the Security Council a role in terms that violate international law. The Charter did not give the Council the power to set up international criminal courts. What the Council seeks to do through the Court is the power to block and the power to bind non-State Parties. It is truly unfortunate that a Statute drafted for an institution to defend the law should start out straying from established international law. Before it tries its first case, the Court would claim its first victim -- the Vienna Convention on the Law of Treaties. As a nuclear-weapon State, India tabled an amendment to list nuclear weapons among those whose use is banned for the purposes of the Statute. This was not accepted. The message this sends is that, at the level of plenipotentiaries, the international community has decided that the use of nuclear weapons is not a crime. What is worse, the Statute does not list any weapon of mass destruction among those whose use is banned as a war crime.
Uruguay: Provisions Uruguay has put forward, such as one dealing with the question of admissibility, have not been accepted. Powers have been given to the Prosecutor without sufficient checks. Not enough time was given to the Conference to resolve many issues. Nevertheless, the international community is taking a historic step forward by adopting the draft Statute.
- 4 - Press Release L/2889 20 July 1998
Mauritius: Let us not underestimate the achievement of the Conference, including rethinking new concepts. It was an ambitious process. The "road to Rome" begins with the Statute and Mauritius will sign it.
Philippines: The Statute contains the vital elements for establishing the International Criminal Court, including the fact that the Prosecutor will have proprio motu powers. For the victims, it has provisions for restitution, compensation and rehabilitation. The Philippines has voted in favour of the Statute.
Norway: The challenge was how to accommodate the views of 160 different countries and create a Court credible in the eyes of the world. The answer is a global solution, a historic compromise. Norway will undertake the necessary measures to sign the Statute.
Belgium: Belgium has voted in favour of the Statute. Concerns may exist in regard to the Court just established. Article 111 bis is a disturbing juridical construct which might delay establishing the Court.
United States: The United States does not accept the concept of jurisdiction in the Statute and its application over non-States parties. It voted against the Statute. Any attempt to elaborate a definition of the crime of aggression must take into account the fact that most of the time it was not an individual act, instead wars of aggression existed. The Statute must also recognize the role of the Security Council in determining that aggression has been committed. No State party can derogate from the power of the Security Council under the United Nations Charter, which has the responsibility for the maintenance of international peace and security.
The United States will not support resolution "e" in the final act. Including crimes of terrorism and drug crimes under the Court will not help the fight against those crimes. The problem is not one of prosecution, but of investigation, and the Court will not be well equipped to do that.
Brazil: Brazil strongly supports for the establishment of the Court. Brazil decided not to pursue certain elements in the drafting of the Statute in the spirit of flexibility. However, it is concerned that article 87, on surrender of persons to the Court, might not be consistent with Brazilian law. Also, the Brazil Constitution prohibits life imprisonment.
Israel: Israel has reluctantly cast a negative vote. It fails to comprehend why it has been considered necessary to insert into the list of the most heinous and grievous war crimes the action of transferring population into occupied territory. The exigencies of lack of time and intense political and public pressure have obliged the Conference to by-pass very basic sovereign prerogatives to which we are entitled in drafting international conventions, in favour of finishing the work and achieving a Statute on a
- 5 - Press Release L/2889 20 July 1998
come-what-may basis. We continue to hope that the Court will indeed serve the lofty objectives for the attainment of which it is being established.
Sri Lanka: We recognize the great importance attached to the establishment of an International Criminal Court, but regret it had to abstain because the crime of terrorism was not included in the Statute.
China: We have made many positive efforts to establish a fair and effective International Criminal Court. We have always held the view that the Court should be an effective system, playing a supplementary role in international cooperation in judicial affairs. State consent should be the legal basis for the Court's jurisdiction. China cannot accept the universal jurisdiction accorded to the Court over core crimes. Granting the Prosecutor the right to initiate prosecutions places State sovereignty on the subjective decisions of an individual. The pre-trial chamber provisions to check those powers fall short. The adoption of the Statute should have been on consensus, and not by vote. China voted against the draft Statute.
Turkey: Turkey supported the establishment of the Court throughout the preparatory work and the Conference itself. However, it had wanted to have seen the crime of terrorism included in the Statute under crimes against humanity. A formulation should be found allowing the opt-in, opt-out approach for States. For war crimes, it would have been better to have language stating that the future Court will not have anything to do with internal matters of States, as those actions it must take to root out terrorism. Also, Turkey did not support the proprio motu powers of the Prosecutor. Turkey abstained on the vote on the Statute's adoption.
Singapore: Singapore abstained. It always supported a strong Court; however, in the last hours, provisions were drafted which involved just a small group of countries. There was a strange fix for the question of jurisdiction which had appeared for the first time at the last minutes of the Conference. To our dismay, chemical and biological weapons have been inexplicably dropped. The non-inclusion of the death penalty was also a negative aspect. That will not affect national jurisdiction on that issue, however.
United Kingdom: The Security Council should determine that an aggression has been committed. With regard to terrorism and drug-trafficking, it should be understood that the resolution did not prejudge a future decision on whether those crimes should be included in the Statute.
Declaration by President of Conference
Responding to a recommendation by the Working Group on Penalties, the President read out a declaration regarding the non-inclusion of the death penalty in the Statute. The declaration said: "The debate at this Conference
- 6 - Press Release L/2889 20 July 1998
on the issue of which penalties should be applied by the Court has shown that there is no international consensus on the inclusion or non-inclusion of the death penalty. However, in accordance with the principles of complementarity between the Court and national jurisdictions, national justice systems have the primary responsibility for investigating, prosecuting and punishing individuals, in accordance with their national laws, for crimes falling under the jurisdiction of the International Criminal Court. In this regard, the Court would clearly not be able to affect national policies in this field. It should be noted that not including the death penalty in the Statute would not in any way have a legal bearing on national legislations and practices with regard to the death penalty. Nor shall it be considered as influencing, in the development of customary international law or in any other way, the legality of penalties imposed by national systems for serious crimes."
The plenary then took note of the report of the Committee of the Whole.
General Statements
Italy: It has been a great honour to host this Conference which established an important institution in the history of mankind. The text adopted provides a satisfactory basis for the functioning of the Court, particularly its independence, which is an essential prerequisite. The crimes included could not be underestimated, including those which were committed also in situations of non-armed conflicts. The work has led to positive results. Despite the vote, a major step forward has been taken, and the hope of future generations has seen the light of the day here in Rome.
Austria (on behalf of the European Union): The international community has now gone a long way in the attempt to establish an permanent International Criminal Court to deter the commission of the most heinous crimes and to eliminate a state of impunity for such crimes. The world needs such a Court. The European Union has always affirmed the need for a Court in which it could have faith; the Statute of such a Court must be generally acceptable so that it can become an effective institution. A considerable number of thorny and extremely sensitive issues have been resolved -- issues linked with the exercise of national criminal jurisdiction, with matters of national security and sovereignty. Concessions have been made from all sides to reach a consensus. Many difficult legal issues of highly political and extremely technical nature had to be solved. Not all the tasks have been accomplished. We have still to prepare other instruments within the Preparatory Commission, as well as the ratification in a sufficient number so that the Court can start its work. The European Union stands ready to do its utmost to contribute to the accomplishment of this task.
Venezuela: One of the most complex tasks faced by the international community has been completed with the decision to establish the Court, which was a good beginning for the new millennium. The Statute, although not
- 7 - Press Release L/2889 20 July 1998
perfect, was a balanced one. Venezuela's Constitution prohibits the death penalty and life imprisonment.
Mexico: The creation of the Court is fully justified as part of the work to eliminate impunity and to punish the authors of the most serious international crimes. However, more work will be required before the international community can perfect it. For that reason, Mexico abstained in the vote. The package submitted by the Bureau contained a clause prohibiting reservations. Accepting reservations does not dilute the content of a treaty. A clearer definition of complementarity was also lacking. Mexico also has problems with the non-inclusion of nuclear weapons in the Statute and in the first review conference of the Statute, it will reintroduce that matter. The elimination of reference to the custodial State is also regrettable. The complexity of the subject required the greatest transparency of the negotiations. The vote in the plenary demonstrated the fact that had not been satisfactory. Mexico also had reservations on references to the Security Council on the Statute.
United States: We deeply regret that some of our concerns have not been addressed. The United States is committed to bringing to justice those who commit such crimes. We commend the tireless efforts of the Bureau and so many delegations. We hope we will work together in the future. The contributions of the United States to the Statute would stand.
Cuba: In joining with the majority, Cuba has demonstrated flexibility and understanding. The world is beginning to be aware of the atrocities committed daily, and the need to deal with them. Cuba would have wished for a more vigorous response to such crimes so as to bring about a more just world. Cuba participated in the negotiations in a constructive spirit. It regrets that destructive weapons of mass destruction were not included in the Statute. Subordinating the Court to the Security Council would render the Court ineffective. Economic embargoes were a form of extermination. Cuba's support for the Statute did not in any way diminish its struggle against the unjust economic war waged against his country.
Trinidad and Tobago: The high level of participation in the Conference is proof that the Court was long overdue. Trinidad and Tobago has shown flexibility accepting to have the crime of drug trafficking to be included at a later stage. It was a great honour for his delegation to have been responsible for initiating that process. Due to the non-inclusion of the death penalty, Trinidad and Tobago will not sign the Statute at this point, but only the Final Act, and will continue its efforts to have the death penalty included in the Statute and drug trafficking included in the list of crimes under its jurisdiction. The Court can only be effective and successful if it has wide membership. Trinidad and Tobago regrets that it had to abstain in the vote for the adoption of the Statute.
- 8 - Press Release L/2889 20 July 1998
Sudan (on behalf of the Arab Group of States): The Arab States came to the Conference with great hope of achieving a great document, the signing of which will be a great moment for humankind. The Court must try every criminal that commits a crime against humanity. The Arab States are not happy with the document. It was regrettable that just reference to aggression was included, as aggression is "the mother of all crimes". Also, nuclear weapons should also have been included. Any future list of weapons of mass destruction must include those weapons. The Prosecutor should also be under reasonable and logical control and not be ex-efficio only. The Statute might even increase the power of the Security Council, and for that reason the Arab States have tried to have a role for the General Assembly under the Statute, but those hopes had been destroyed. Reservations should also have been allowed.
Sierra Leone: While Sierra Leone was disappointed about the inclusion of an opt-out provision for war crimes in international and internal armed conflict, it noted with great pleasure that the Statute preserved jurisdiction over internal armed conflict. It is also happy to note the inclusion of a proprio motu Prosecutor. A message was being sent to the international community that crimes against humanity, genocide, aggression and war crime would no longer go unpunished. The success of the Statute would depend on State cooperation; States should ensure that the Statute entered into force soon.
Japan: This should be a moment for a sober reflection of how much has been achieved and how much remains to be achieved. What the international community still has to do to conclude that task is immense. Throughout the work of the Conference, Japan had attempted to close the gaps between conflicting positions of delegations. Japan appreciates the fact that its suggestions concerning the financing of the Court had been included in the final text. Continued political commitment to the establishment of the Court is essential.
Egypt: Egypt was among the first States which called for the establishment of the Court, and had participated in the preparatory work. The Arab world had need for such a Court, as acts of the perpetrator went unpunished. Egypt accepted the text in toto as a package, although some provisions had not been dealt with satisfactorily. It had stated time and again the need for inclusion of the use of weapons of mass destruction such as nuclear weapons. It had hoped for a definition of aggression which should conform to that of the General Assembly. The determination of aggression should be extended also to the General Assembly. The Prosecutor should not be able to initiate investigations ex officio. With regard to the issue of reservations, a general declaration should be adopted in the future.
Botswana: The Statute was clearly a landmark in the history of the United Nations and mankind. Botswana supported the adoption of the Statute because it reflected consensus, and believed future generations should be able
- 9 - Press Release L/2889 20 July 1998
to perfect it. Delegations should reflect on the text and seek to improve it when it came up for review.
Algeria: Algeria always longed for such a Court, and had always been committed to its achievement. Algeria had given a great deal without achieving all that it had wanted. It had some fears and regrets. It hoped the signing of the text would augur well for the future.
Sweden (on behalf of the Western European and Other States): The Conference decision sent a message. The Group was deeply grateful to the Italian Government for the hospitality offered.
Pakistan: Pakistan strongly supports the establishment of the Court. It is a duty of every State to not allow crimes to go unpunished. The principle of complementary is the basic principle of the Court, which should not supplant but complement national legal systems. The sovereignty of States should not be infringed upon. In that respect, some of the provisions of the Statute are reason for concern, including the issue of proprio motu powers of the Prosecutor and the role of the Security Council in relation to the Court. Pakistan also has serious difficulties with the text on provisional arrest.
Germany: The Statute ensures that there will be a strong Court by laying sound foundations for its creation. In the future, heinous crimes, including the crime of aggression, will not go unpunished.
France: France endorses the statement of Sweden on behalf of the Group of Western European and Other States. It welcome the first step taken in establishing a regime to punish perpetrators of heinous crimes and will work tirelessly towards that end. It would continue to play its role in the implementation of the Statute.
Bangladesh: Bangladesh is gratified that the principle of automatic jurisdiction has been vindicated. It regrets that the Conference has not been able to deal with the issue of weapons of mass destruction.
Russian Federation: Today marks the end of an important effort to reconcile different legal systems. It was a reason for satisfaction that a compromise package has been crafted that the Russian Federation has been able to support. It was regrettable that it had been adopted by vote. With respect to aggression, the Russian Federation's understanding was that the powers of the Security Council on that issue would not be affected.
Afghanistan: If such a court existed 20 years ago, Afghanistan would not have been victim of so many aggressions. Thus, its establishment was most welcome. While voting in favour of the Statute, it believes that retributive justice is not the only way to achieve the rule of law. Efforts towards reconciliation must always be made.
- 10 - Press Release L/2889 20 July 1998
Benin: The adoption of the Statute was historic. Benin would have preferred action by consensus. Africa would welcome the adoption of the Statute as it had for centuries suffered the most heinous crimes, such as slavery. The text adopted was not a perfect one. Benin was not entirely satisfied with the provisions on war crimes. It was also concerned about the role given to the Security Council under the Statute. Was it fair that the Council should be able to block investigations of the Court? Benin would have preferred that nuclear weapons were formally banned by its inclusion in war crimes provisions of the Statute. Benin hoped all would work together for the effective implementation of the Statute.
Holy See: On the eve of the Conference, Pope John Paul II expressed the hope this gathering might constitute a historic moment; thus the Holy See welcomes the outcome of the Conference. The Holy See has called for an International Criminal Court that would protect the dignity of the human being and the institution of the family. It is a source for satisfaction to see those principles reflected in the preamble of the Statute. Human dignity from the unborn to the elderly must never be violated.
Andorra: The Statute is a "delicate mosaic". Andorra had received many refugees from war throughout many years; thus it is satisfied with the results of the Conference.
International Committee of the Red Cross (ICRC): The ICRC attached importance to an effective International Criminal Court. The task of the Statute was substantial and should enable perpetrators of heinous crimes at last to be brought to justice. The exclusion of weapons of mass destruction from the Statute is hard to understand. The Court should be given the means to be effective. The key to its success is to prove its competence. The great criminals should be tirelessly pursued and brought to book. The ICRC was available to help the Preparatory Commission being established under the Statute with the implementation of the Statute.
Coalition for NGOs: Today was a great day. Establishment of the Court represents a monumental advance. Succeeding generations would wonder why it took the international community so long. The Court would save millions from unspeakable sufferings.
Amnesty International: Eight hundred NGOs shared the common goal of creating an effective, independent and just International Criminal Court. Tonight that goal was nearer. Amnesty International was disappointed that a few powerful countries appeared willing to hold justice hostage by threatening and bullying other States and were all along more concerned to shield possible criminals from trials rather than producing a charter for victims. From tomorrow, members of the coalition would mobilize to ensure that the Court fulfilled its true purpose. The ultimate goal of an international community dedicated to ending impunity must be universal jurisdiction of the Court.
- 11 - Press Release L/2889 20 July 1998
Amnesty International would work to ensure that the Court responded to the cries of all victims everywhere.
Overview of Statute
The preamble to the Statute refers to "common bonds" that unite peoples and to a "shared heritage" formed by their cultures; recalls the millions of children, women and men who, during the twentieth century, "have been victims of unimaginable atrocities that deeply shock the conscience of humanity; and recognizes that such grave crimes threaten the peace, security and well-being of the world.
The preamble also affirms that "the most serious crimes of concern to the international community as a whole must not go unpunished" and that their effective prosecution must be ensured by measures at the national level and by enhancing international cooperation. The determination to put an end to impunity for the perpetrators of these crimes thus contributing to their prevention is set forth and the duty of States to exercise their criminal jurisdiction over those responsible for international crimes is recalled.
For the sake of present and future generations, the preamble continues, an independent permanent International Criminal Court is established, in relationship with the United Nations system, "with jurisdiction over the most serious crimes of concern to the international community as a whole". Emphasizing that the Court shall be complementary to national criminal jurisdictions and expressing its resolve to guarantee lasting respect for and the enforcement of international justice, participants have agreed on the Statute that then follows the preamble.
In part 1, on establishment of the Court, the text establishes an International Criminal Court as a permanent institution with power to exercise its jurisdiction over persons for the most serious crimes of international concern, as referred to in the Statute, and which is complementary to national criminal jurisdictions.
It states that the Court shall be brought into relationship with the United Nations through an agreement to be approved by the Assembly of States Parties to the Statute and concluded by the President of the Court on its behalf.
The seat of the Court shall be established at The Hague, states the Statute, but it may convene elsewhere, whenever it considers it desirable.
The Statute declares that the Court shall have international legal personality and may exercise its functions and powers on the territory of any State party and, by special agreement, on the territory of any other State.
- 12 - Press Release L/2889 20 July 1998
Part 2 of the Statute concerns on jurisdiction, admissibility and applicable law.
On crimes within the jurisdiction of the Court, the Statute states that the jurisdiction of the Court shall be limited to the most serious crimes of concern to the international community as a whole. It has jurisdiction in accordance with the Statute with respect to the following crimes: genocide; crimes against humanity; war crimes; and the crime of aggression.
It adds that "the Court shall exercise jurisdiction over the crime of aggression once a provision is adopted in accordance with articles 110 and 111 defining the crime and setting out the conditions under which the Court shall exercise jurisdiction with respect to this crime. Such a provision shall be consistent with the relevant provisions of the Charter of the United Nations."
The following provisions define those crimes for the purpose of the Statute:
The term "genocide" means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: 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.
The term "crime against humanity" means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, 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; rape; sexual slavery; enforced prostitution; forced pregnancy; enforced sterilization, or other form of sexual violence of comparable gravity; 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, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court; 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. The provision goes on further to define those terms, including the following:
-- "Extermination" includes the intentional infliction of conditions of life, including the deprivation of access to food and medicine, calculated to bring about the destruction of part of a population;
- 13 - Press Release L/2889 20 July 1998
-- "Deportation or forcible transfer of population" means forced displacement of the persons concerned by expulsion or other coercive acts from the area in which they are lawfully present, without grounds permitted under international law;
-- "Forced pregnancy" means the unlawful confinement of a woman forcibly made pregnant, with the intent of affecting the ethnic composition of any population or carrying out other grave violations of international law; this definition shall not in any way be interpreted as affecting national laws relating to pregnancy; 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, with the intention of removing them from the protection of the law for a prolonged period of time.
The last subparagraph states that "For the purpose of this Statute it is understood that the term 'gender' refers to the two sexes, male and female, within the context of society. The term 'gender' does not indicate any meaning different from the above.
A text on war crimes states that the Court shall have jurisdiction in respect of war crimes in particular when committed as a part of a plan or policy or as part of a large-scale commission of such crimes.
For the purpose of this Statute, it goes on, "war crimes" means:
A. Grave breaches of the Geneva Conventions of 12 August 1949, namely, any of a list of acts against persons or property protected under the provisions of the relevant Geneva Convention, which is included in the Statute, including wilful killing and taking of hostages.
B. Other serious violations of the laws and customs applicable in international armed conflict, within the established framework of international law, which includes acts such as intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities; 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.
Also under the serious violations list are the following provision:
-- "Employing poison or poisoned weapons";
- 14 - Press Release L/2889 20 July 1998
-- "Employing 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";
-- "Employing the 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 the international law of armed conflict, provided that such weapons are the subject of a comprehensive prohibition and are included in an annex to this Statute, by an amendment in accordance with the relevant provisions set forth in the Statute.
-- Committing rape, sexual slavery, enforced prostitution, forced pregnancy, as defined in the Statute, enforced sterilization, or any other form of sexual violence also constituting a grave breach of the Geneva Conventions.
C. In the case of an armed conflict not of an international character, serious violations of article 3 common to the four Geneva Conventions of 12 August 1949, namely, any of the following acts committed against persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention or any other cause.
A subparagraph states that those provisions apply to armed conflicts not of an international character and thus do not apply to situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence or other acts of a similar nature.
D. Other serious violations of the laws and customs applicable in armed conflicts not of an international character, within the established framework of international law, including conscripting or enlisting children under the age of 15 years into armed forces or groups using them to participate actively in hostilities.
An article on elements of crimes, states that such elements shall assist the Court in the interpretation and application of relevant articles within the Statute. They shall be adopted by a two-thirds majority of the members of the Assembly of States parties. Amendments to the elements of crimes may be proposed by any State party, the judges acting by an absolute majority, and the Prosecutor.
Another provision states that nothing in this part of the Statute shall be interpreted as limiting or prejudicing in any way existing or developing rules of international law for purposes other than this Statute.
- 15 - Press Release L/2889 20 July 1998
The text also emphasizes that the Court has jurisdiction only with respect to crimes committed after the entry into force of the Statute. If a State becomes a party to it after its entry into force, the Court may exercise its jurisdiction only with respect to crimes committed after the entry into force of the Statute for that State, unless that State has made a declaration under its provisions elsewhere in the Statute.
An article concerning preconditions to the exercise of jurisdiction provides that a State, by becoming a party to the Statute, accepts the jurisdiction of the Court with respect to the crimes mentioned in its provisions. When a situation is referred to the Prosecutor by a State party or the Prosecutor has used its proprio motu powers, the Court may exercise its jurisdiction if one or more of the following States are parties to the Statute or have accepted the jurisdiction of the Court in accordance with a paragraph below:
-- The State on the territory of which the act or omission in question occurred or, if the crime was committed on board a vessel or aircraft, the State of registration of that vessel or aircraft;
-- The State of which the person being investigated or prosecuted is a national.
The paragraph described above reads as follows: "If the acceptance of a State which is not a party to this Statute is required under paragraph 2, that State may, by declaration lodged with the Registrar, accept the exercise of jurisdiction by the Court with respect to the crime in question. The accepting State shall cooperate with the Court without any delay or exception in accordance with Part 9."
The Statute states that the Court may exercise its jurisdiction with respect to a crime referred to in part 2 in accordance with the provisions of this Statute if:
-- A situation in which one or more of such crimes appears to have been committed is referred to the Prosecutor by a State party;
-- A situation in which one or more of such crimes appears to have been committed is referred to the Prosecutor by the Security Council acting under Chapter VII of the Charter of the United Nations; or
-- The Prosecutor has initiated an investigation in respect of such a crime.
Under other provisions, a State party may refer to the Prosecutor a situation in which one or more crimes within the jurisdiction of the Court appear to have been committed requesting the Prosecutor to investigate the
- 16 - Press Release L/2889 20 July 1998
situation for the purpose of determining whether one or more specific persons should be charged with the commission of such crimes.
The Prosecutor may initiate investigations proprio motu on the basis of information on crimes within the jurisdiction of the Court. The Prosecutor shall analyse the seriousness of the information received, and may seek additional information from States, organs of the United Nations, intergovernmental or non-governmental organizations, or other reliable sources that he or she deems appropriate, and may receive written or oral testimony at the seat of the Court. If the Prosecutor concludes that there is a reasonable basis to proceed with an investigation, he or she shall 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, in accordance with the Rules of Procedure and Evidence.
If the Pre-Trial Chamber, upon examination of the request and the accompanying material, considers that there is a reasonable basis to proceed with an investigation, and that the case appears to fall within the jurisdiction of the Court, it shall authorize the commencement of the investigation, without prejudice to subsequent determinations by the Court with regard to the jurisdiction and admissibility of a case.
The refusal of the Pre-Trial Chamber to authorize the investigation shall not preclude the presentation of a subsequent request by the Prosecutor based on new facts or evidence regarding the same situation. If, after the preliminary examination referred to above, the Prosecutor concludes that the information provided does not constitute a reasonable basis for an investigation, he or she shall inform those who provided the information. That shall not preclude the Prosecutor from considering further information submitted regarding the same situation in the light of new facts or evidence.
A text on deferral of investigation or prosecution, provides 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".
A provision on issues of admissibility, states that the Court shall determine that a case is inadmissible where: 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; the case has been investigated by a State which has jurisdiction over it and the State has decided not to prosecute the person concerned, unless the decision resulted from the unwillingness or inability of the State genuinely to prosecute; the person concerned has already been tried for conduct which is the subject of the complaint, and a trial by the Court is not permitted by
- 17 - Press Release L/2889 20 July 1998
other provisions of the Statute; and the case is not of sufficient gravity to justify further action by the Court.
In order to determine unwillingness in a particular case, the Court shall consider having regard to the principles of due process recognized by international law, the article goes on. In order to determine inability in a particular case, the Court shall consider whether, due to a total or substantial 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.
A seven-paragraph article contains provisions relating preliminary rulings regarding admissibility, including that when a situation has been referred to the Court and the Prosecutor has determined that there would be a reasonable basis to commence an investigation, or the Prosecutor initiates an investigation, the Prosecutor shall notify all States parties and those States which, taking into account the information available, would normally exercise jurisdiction over the crimes concerned. The Prosecutor may notify such States on a confidential basis and, where the Prosecutor believes it necessary to protect persons, prevent destruction of evidence or prevent the absconding of persons, may limit the scope of the information provided to States.
On challenges to the jurisdiction of the Court or the admissibility of a case, the text states that the Court shall satisfy itself that it has jurisdiction in any case brought before it. Challenges to the admissibility of the case or challenges to the jurisdiction of the Court may be made by an accused or a person for whom a warrant of arrest or a summons to appear has been issued; a State which has jurisdiction over a case, on the ground that it is investigating or prosecuting the case or has investigated or prosecuted; or a State from which acceptance of jurisdiction is required.
A provision on ne bis in idem, the prohibition of double jeopardy, states 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. Also, no person shall be tried before another court for a crime referred to in the Statute for which that person has already been convicted or acquitted by the Court.
In addition, no person who has been tried by another court shall be tried by the Court with respect to the same conduct unless the proceedings in the other court:
(a) Were for the purpose of shielding the person concerned from criminal responsibility for crimes within the jurisdiction of the Court; or
- 18 - Press Release L/2889 20 July 1998
(b) Otherwise were not conducted independently or impartially in accordance with the norms of due process recognized by international law, and were conducted in a manner which, in the circumstances, was inconsistent with an intent to bring the person concerned to justice.
A text on applicable law states that the Court shall apply in the first place, the Statute and its Rules of Procedure and Evidence; and in the second place, applicable treaties and the principles and rules of international law, including the established principles of the international law of armed conflict. Failing that, general principles of law derived by the Court from national laws of legal systems of the world including the national laws of States that would normally exercise jurisdiction over the crime, provided that those principles are not inconsistent with this Statute and with international law and internationally recognized norms and standards.
It adds that "the application and interpretation of law pursuant to this article must be consistent with internationally recognized human rights, and be without any adverse distinction founded on grounds such as gender, age, race, colour, language, religion or belief, political or other opinion, national, ethnic or social origin, wealth, birth or other status".
Part 3 concerns general principles of criminal law and encompasses the general provisions of criminal law contained in the Statute. It addresses the basic principle of legality -- nullum crimen sine lege --recognized in several international instruments and according to which an action may only be punished if, prior to its commission, it was made punishable. It further states that "the definition of a crime shall be strictly construed and shall not be extended by analogy". In case of ambiguity, it goes on, the definition shall be interpreted in favour of the person being investigated, prosecuted or convicted. A related provision, on nulla poena sine lege, states that a person convicted by the Court may be punished only in accordance with penalties set out in the Statute.
The Statute provides for the non-retroactivity of individual criminal responsibility, stating that "no person shall be criminally responsible under this Statute for conduct prior to the entry into force of the Statute. In the event of a change in the law applicable to a given case prior to a final judgement, the law more favourable to the person being investigated, prosecuted or convicted shall apply, it adds.
The provisions elaborating on the jurisdiction of the Court over natural persons are dealt with in an article on individual criminal responsibility. It states that a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court if he/she commits such a crime; orders, solicits or induces the commission of such a crime; aids, abets or otherwise assists in the crime commission; or in any other way contributes to the commission or attempted commission of such a crime by a
- 19 - Press Release L/2889 20 July 1998
group of persons acting with a common purpose, including, among other provisions, directly and publicly inciting others to commit genocide. It concludes by stating that "no provision in this Statute relating to individual criminal responsibility shall affect the responsibility of States under international law."
A related article states that the Court shall have no jurisdiction over any person who was under the age of 18 at the time of the alleged commission of a crime.
The text declares that the Statute shall apply equally to all persons without any distinction based on official capacity. It adds that official capacity as a Head of State or Government, a member of a Government or parliament, an elected representative or a government official shall in no case exempt a person from criminal responsibility under the Statute, nor shall constitute a ground for reduction of sentence. Immunities or special procedural rules which may attach to the official capacity of a person, whether under national or international law, shall not bar the Court from exercising its jurisdiction over such a person.
This matter is further elaborated in an article which addresses the responsibility of commanders and other superiors. It states that a military commander or person effectively acting as a military commander shall be criminally responsible for crimes within the jurisdiction of the Court committed by forces under his or her effective command and control. Also responsible is a military commander or person who either knew or should have known that the forces were committing or about to commit such crimes, and those in that capacity who failed to take all necessary and reasonable measures within his or her power to prevent or repress their commission or to submit the matter to the competent authorities for investigation and prosecution. In addition, a superior shall be criminally responsible for crimes within the jurisdiction of the Court committed by subordinates under his or her effective authority and control, as a result of his or her failure to exercise control properly over such subordinates.
The Statute provides for non-applicability of statutes of limitations. It states that a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court only if the material elements are committed with intent and knowledge.
Grounds for excluding criminal responsibility includes mental disease or defect and a state of intoxication that destroys that person's capacity to appreciate the unlawfulness or nature of his or her conduct, or capacity to control his or her conduct to conform to the requirements of law. In relation to the latter, it does not exclude criminal responsibility if a person has become voluntarily intoxicated under such circumstances that the person knew, or disregarded the risk that, as a result of the intoxication, he or she was
- 20 - Press Release L/2889 20 July 1998
likely to engage in conduct constituting a crime within the jurisdiction of the Court. Other grounds, include some acts of self-defence or defence of another person or, in the case of war crimes, property which is essential for the survival of persons or essential for accomplishing a military mission. Also excluded is conduct which has been caused by duress resulting from a threat of imminent death or of continuing or imminent serious bodily harm.
A mistake of fact shall be a ground for excluding criminal responsibility only if it negates the mental element required by the crime. A mistake of law as to whether a particular type of conduct is a crime within the jurisdiction of the Court shall not be a ground for excluding criminal responsibility, unless it negates the mental element required by such a crime, or as provided for in an article which concerns superior orders and prescription of law.
That article states that the fact that a crime within the jurisdiction of the Court has been committed by a person pursuant to an order of a Government or of a superior, whether military or civilian, shall not relieve that person of criminal responsibility. There are exceptions, however, including that the person was under a legal obligation to obey orders of the Government or the superior in question; that the person did not know that the order was unlawful; and that the order was not manifestly unlawful. It further states that "For the purposes of this article, orders to commit genocide or crimes against humanity are manifestly unlawful".
Part 4 concerns composition and administration of the Court. It states that the organs of the Court are the Presidency; an Appeals Division, a Trial Division and a Pre-Trial Division; the Office of the Prosecutor; and the Registry.
The text provides that all judges shall be elected as full-time members of the Court and shall be available to serve on that basis from the commencement of their terms of office. The judges composing the Presidency shall serve on a full-time basis as soon as they are elected. The Presidency may, on the basis of the workload of the Court and in consultation with its members, decide from time to time to what extent the remaining judges shall be required to be available at the seat of the Court. The financial arrangements for judges not required to be available full-time at the seat of the Court shall be made in accordance with an article dealing with salaries, allowances and expenses.
The Statute provides for 18 judges of the Court, chosen from among persons of high moral character, impartiality and integrity who possess the qualifications required in their respective States for appointment to the highest judicial offices.
- 21 - Press Release L/2889 20 July 1998
As for qualifications, every candidate for election to the Court shall have established competence in criminal law and procedure, and the necessary relevant experience, whether as judge, prosecutor, advocate or in other similar capacity, in criminal proceedings; or have established competence in relevant areas of international law such as international humanitarian law and the law of human rights, and extensive experience in a professional legal capacity which is of relevance to the judicial work of the Court. Nominations of candidates for election to the Court may be made by any State party to the Statute and should be accompanied by a statement in the necessary detail specifying how the candidate fulfils the qualification requirements.
The Assembly of States Parties may decide to establish, if appropriate, an Advisory Committee on nominations, the text goes on. The Committee's composition and mandate shall be established by the Assembly of States Parties. Procedures for the election are then detailed, including that judges shall be elected by secret ballot at a meeting of the Assembly of States Parties convened for that purpose. Elections should be by the highest number of votes and a two-thirds majority of the States Parties present and voting. No two judges may be nationals of the same State.
The election, the text continues, should take into account the representation of the principal legal systems of the world; equitable geographical representation; and a fair representation of female and male judges. States Parties shall also take into account the need to include judges with legal expertise on specific issues, including, but not limited to, violence against women or children.
Judges shall hold office for a term of nine years and shall not be eligible for re-election. At the first election, one third of the judges elected shall be selected by lot to serve for a term of three years; one third of the judges elected shall be selected by lot to serve for a term of six years; and the remainder shall serve for a term of nine years. A judge who is selected to serve for a term of three years shall be eligible for re-election for a full term. A judge assigned to a Trial or Appeals Chamber shall continue in office to complete any trial or appeal, the hearing of which has already commenced before that Chamber.
The text relating to the Presidency states that the President and the First and Second Vice-Presidents shall be elected by an absolute majority of the judges. They shall each serve for a term of three years or until the end of their respective terms of office as judges, whichever expires earlier. They shall be eligible for re-election once. The President, together with the First and Second Vice-Presidents, shall constitute the Presidency, which shall be responsible for the proper administration of the Court, with the exception of the Office of the Prosecutor.
- 22 - Press Release L/2889 20 July 1998
The judges shall be independent in the performance of their functions, and shall not engage in any activity which is likely to interfere with their judicial functions or to affect confidence in their independence. Judges required to serve full-time at the seat of the Court shall not engage in any other occupation or a profession.
A nine-paragraph article on the Office of the Prosecutor states, in part, that the Office of the Prosecutor shall act independently as a separate organ of the Court. A member of the Office shall not seek or act on instructions from any external source.
The Office will be headed by the Prosecutor, who will have full authority over its management and administration, including the staff, facilities and other resources thereof. The Prosecutor shall be assisted by one or more Deputy Prosecutors, who shall be entitled to carry out any of the acts required of the Prosecutor under the Statute. The Prosecutor and the Deputy Prosecutors shall be of different nationalities and serve on a full- time basis. They shall be persons of high moral character, be highly competent in and have extensive practical experience in the prosecution or trial of criminal cases and have an excellent knowledge of and be fluent in at least one of the working languages of the Court.
The Prosecutor shall be elected by secret ballot by an absolute majority of the members of the Assembly of States Parties. The Deputy Prosecutors shall be elected in the same way from a list of candidates provided by the Prosecutor, who should nominate three candidates for each position of Deputy Prosecutor to be filled. Unless a shorter term is decided upon at the time of their election, the Prosecutor and the Deputy Prosecutors shall hold office for a term of nine years and shall not be eligible for re-election. Neither the Prosecutor nor a Deputy Prosecutor shall engage in any other occupation of a professional nature. The Prosecutor shall appoint advisers with legal expertise on specific issues, including, but not limited to, sexual and gender violence and violence against children.
The Registry, under terms of the Statute, is to be responsible for the non-judicial aspects of the administration and servicing of the Court and headed by the Registrar, as the principal administrative officer of the Court. The Registrar exercises his or her functions under the authority of the President of the Court. The judges elect the Registrar by an absolute majority in a secret ballot, taking into account any recommendation by the Assembly of States Parties. The Registrar is to serve a five-year term, renewable once, on a full-time basis.
The Registrar is to set up a Victims and Witnesses Unit within the Registry to provide, in consultation with the Office of the Prosecutor, protective measures and security arrangements, counselling and other appropriate assistance for witnesses, victims who appear before the Court and
- 23 - Press Release L/2889 20 July 1998
others who are at risk on account of testimony given by such witnesses. The Unit is to include staff with expertise in trauma, including trauma related to crimes of sexual violence.
A four-paragraph article on the staff provides for the Court to employ, in exceptional circumstances, the expertise of gratis personnel offered by States Parties, intergovernmental organizations or non-governmental organizations to assist with the work of any of the organs of the Court. The Prosecutor may accept any such offer on behalf of the Office of the Prosecutor. Such gratis personnel shall be employed in accordance with guidelines to be established by the Assembly of States Parties.
The remaining articles of Part 4 deal with other aspects of the administration of the Court, including an article on salaries, allowances and expenses.
The official languages of the Court are to be Arabic, Chinese, English, French, Russian and Spanish; working languages are English and French. The Rules of Procedure and Evidence shall determine the cases in which other official languages may be used as working languages.
Rules of procedure and evidence shall enter into force upon adoption by a two-thirds majority of the members of the Assembly of States Parties. Amendments to the rules may be proposed by States parties; the judges acting by an absolute majority; or the Prosecutor, and will enter into force upon adoption by a two-thirds majority of the members of the Assembly of States Parties. In the event of conflict between the Statute and the Rules of Procedure and Evidence, the Statute shall prevail.
Part 5 concerns investigation and prosecution. It provides for such matters as the initiation of an investigation by the Prosecutor and also states that the Prosecutor may at any time reconsider a decision whether to initiate an investigation or prosecution based on new facts or information.
Other issues addressed are the duties and powers of the Prosecutor with respect to investigations, including that he or she agrees not to disclose, at any stage of the proceedings, documents or information obtained on the condition of confidentiality and solely for the purpose of generating new evidence, unless the provider of the information consents,
The rights of persons during an investigation are also addressed, including that in respect of an investigation under the Statute, a person shall not be compelled to incriminate himself or herself or to confess guilt; and shall, if questioned in a language other than a language the person fully understands and speaks, have, free of any cost, the assistance of a competent interpreter and such translations as are necessary to meet the requirements of fairness.
- 24 - Press Release L/2889 20 July 1998
The role of the Pre-Trial Chamber in relation to a unique investigative opportunity is also addressed, as is its functions and powers. Among other provisions, it states that in orders for rulings under certain articles of the Statute, the Pre-Trial Chamber must be concurred in by a majority of its judges. In other cases, a single judge of the Pre-Trial Chamber may exercise the functions. The Pre-Trial Chamber may also authorize the Prosecutor to take specific investigative steps within the territory of a State party without having secured the cooperation of that State under Part 9 if it has determined that the State is clearly unable to execute a request for cooperation due to the unavailability of any authority or any component of its judicial system competent to execute the request for cooperation.
Other issues addressed are the issuance by the Pre-Trial Chamber of a warrant of arrest or a summons to appear, arrest proceedings in the custodial State, initial proceedings before the Court and confirmation of the charges before trial.
Part 6 of the Statute concerns the trial. It states that "unless otherwise decided, the place of the trial shall be the seat of the Court". Also, the accused shall be present during the trial. The Trial Chamber shall ensure that a trial is "fair and expeditious" and is conducted with full respect for the rights of the accused and due regard for the protection of victims and witnesses.
It further states that "everyone shall be presumed innocent until proved guilty before the Court in accordance with the applicable law", adding that the onus is on the Prosecutor to prove the guilt of the accused. In order to convict the accused, the Court must be convinced of the guilt of the accused beyond reasonable doubt.
In the determination of any charge, it goes on, the accused shall be entitled to a public hearing, having regard to the provisions of the Statute, and to a fair hearing conducted impartially. The Court shall take appropriate measures to protect the safety, physical and psychological well-being, dignity and privacy of victims and witnesses, it stresses. Before testifying, each witness shall, in accordance with the Rules of Procedure and Evidence, give an undertaking as to the truthfulness of the evidence to be given by that witness.
One of the articles concerns any case where the disclosure of the information or documents of a State would, in the opinion of that State, prejudice its national security interests. It says, in part, that if a State learns that information or documents of the State are being, or are likely to be, disclosed at any stage of the proceedings, and it is of the opinion that disclosure would prejudice its national security interests, that State shall have the right to intervene in order to obtain resolution of the issue under the Statute's provisions.
- 25 - Press Release L/2889 20 July 1998
Under requirements for the decision, it is stated that all the judges of the Trial Chamber shall be present at each stage of the trial and throughout their deliberations. The Presidency may, on a case-by-case basis, designate, as available, one or more alternate judges to be present at each stage of the trial and to replace a member of the Trial Chamber if that member is unable to continue attending.
Another article provides that the Court shall establish principles relating to reparations to, or in respect of victims, including restitution, compensation and rehabilitation. On that basis, in its decision, the Court may, either upon request or upon its own motion in exceptional circumstances, determine the scope and extent of any damage, loss and injury to, or in respect of, victims and will state the principles on which it is acting. The Court may make an order directly against a convicted person specifying appropriate reparations to, or in respect of, victims, including restitution, compensation and rehabilitation. Where appropriate, the Court may order that the award for reparations be made through the Trust Fund provided for elsewhere in the Statute.
On sentencing, an article states that "In the event of a conviction, the Trial Chamber shall consider the appropriate sentence to be imposed and shall take into account the evidence presented and submissions made during the trial that are relevant to the sentence". It adds that the sentence shall be pronounced in public and, wherever possible, in the presence of the accused.
Part 7 concerns penalties. On applicable penalties, the text states that the Court may impose one of the following penalties on a person convicted of a crime under the provisions of the Statute: "imprisonment for a specified number of years, which may not exceed a maximum of 30 years; or a term of life imprisonment when justified by the extreme gravity of the crime and the individual circumstances of the convicted person".
In addition to imprisonment, the Court may order: "a fine under the criteria provided for in the Rules of Procedure and Evidence; a forfeiture of proceeds, property and assets derived directly or indirectly from that crime, without prejudice to the rights of bona fide third parties".
An article on determination of the sentence, states, in part, that when a person has been convicted of more than one crime, the Court shall pronounce a sentence for each crime and a joint sentence specifying the total period of imprisonment. The Statute establishes a Trust Fund by a decision of the Assembly of States Parties for the benefit of victims of crimes within the jurisdiction of the Court, and of the families of such victims. The Court may order money and other property collected through fines or forfeiture to be transferred, by the order of the Court, to the Trust Fund, which shall be managed according to criteria to be determined by the Assembly of States Parties.
- 26 - Press Release L/2889 20 July 1998
Part 8, on appeal and revision, contains five paragraphs providing details for such situations. On appeal against decision of acquittal or conviction or against sentence, the text states, in part, that the Prosecutor may make an appeal in any of the following grounds: procedural error, error of fact or error of law. The same grounds as well as "any other ground that affects the fairness or reliability of the proceedings or decision" can be used by the convicted person or the Prosecutor on that person's behalf. This part of the Statute also states that a legal representative of the victims, the convicted person or a bona fide owner of property adversely affected by an order under the Statute may appeal against the order for reparations, as provided in the Rules of Procedure and Evidence. The text states that "anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation".
Part 9 of the Statute concerns international cooperation and judicial assistance. It sets out provisions on the general obligation of States parties to cooperate fully with the Court in its investigation and prosecution of crimes within its jurisdiction.
Among general provisions on requests for cooperation, the Statute states that "the Court shall have the authority to make requests to States Parties for cooperation. The requests shall be transmitted through the diplomatic channel or any other appropriate channel as may be designated by each State party upon ratification, acceptance, approval or accession". It further states that the Court may invite any State not party to the Statute to provide assistance on the basis of an ad hoc arrangement, an agreement with such State or any other appropriate basis. In addition, where a State not party to the treaty, which has entered into an ad hoc arrangement or an agreement with the Court, fails to cooperate with requests pursuant to any such arrangement or agreement, the Court may so inform the Assembly of States Parties.
Moreover, where a State party fails to comply with a request to cooperate by the Court, thereby preventing it from exercising its functions and powers under the Statute, the Court may make a finding to that effect and refer the matter to the Assembly of State Parties.
On the subject of surrender of persons to the Court, the text provides for the Court to transmit a request for the arrest and surrender of a person, together with the material supporting the request, to any State on the territory of which that person may be found, and shall request the cooperation of that State in the arrest and surrender of such a person. States Parties shall, "in accordance with the provisions of this Part and the procedure under their national law", comply with requests for arrest and surrender. A State party may deny a request for surrender only if it has not accepted the jurisdiction of the Court over the crime in question. If a request for surrender is denied, the requested State party shall promptly inform the Court of the reasons for such denial.
- 27 - Press Release L/2889 20 July 1998
According to a provision on competing requests, a State party which receives a request from the Court for the surrender of a person, if it also receives a request from any other State for the extradition of the same person for the same conduct which forms the basis of the crime for which the Court seeks the person's surrender, should notify the Court and the requesting State of that fact. By the terms of another article, a request for arrest and surrender shall be made in writing. In urgent cases, the Court may request the provisional arrest of the person sought, pending presentation of the request for surrender and the document supporting the request, another article states.
Under other forms of cooperation, the Statute says that States parties shall, in accordance with its provisions and under procedures of national law, comply with requests by the Court to provide several types of assistance in relation to investigations or prosecutions. The Court may grant a request for assistance from a State which is not a party to the Statute.
By another article, the Court may not proceed with a request for surrender or assistance which would require the requested State to act inconsistently with its obligations under international law with respect to the State or diplomatic immunity of a person or property of a third State, unless the Court can first obtain the cooperation of that third State for the waiver of the immunity.
Another provision of this article enjoins the Court from proceeding with a request for surrender which would require the requested State to act inconsistently with its obligations under international agreements pursuant to which the consent of a sending State is required to surrender a person of that State to the Court, unless the Court can first obtain the cooperation of the sending State for the giving of consent for the surrender.
Part 10 deals with enforcement. On the role of States in enforcement of sentences of imprisonment, the text provides that a sentence of imprisonment shall be served in a State designated by the Court from a list of States which have indicated to the Court their willingness to accept sentenced persons. In exercising its discretion to make that designation, the Court shall take into account, among other things, the views of the sentenced persons, their nationality, and other factors regarding the circumstances of the crime or the person sentenced. If no State is designated, the sentence of imprisonment shall be served in a prison facility made available by the seat of the Court ("host State").
It is further provided that the sentence of imprisonment shall be binding on the States parties, which shall in no case modify it. The Court alone shall have the right to decide any application for appeal and revision. The State of enforcement shall not impede the making of any such application by a sentenced person.
- 28 - Press Release L/2889 20 July 1998
Another article stresses that the enforcement of a sentence of imprisonment shall be subject to the supervision of the Court and shall be consistent with widely accepted international treaty standards governing treatment of prisoners. Communications between a sentenced person and the Court shall be unimpeded and confidential.
The Statute states that "If a convicted person escapes from custody and flees the State of enforcement, that State may, after consultation with the Court, request the person's surrender from the State in which the person is located pursuant to existing bilateral or multilateral arrangements, or may request that the Court seek the person's surrender, it may direct that the person be delivered to the State in which he or she was serving the sentence or to another State designed by the Court".
The State of enforcement shall not release the person before expiry of the sentence pronounced by the Court, states another article. The Court alone shall have the right to decide any reduction of sentence, and shall rule on the matter after having heard the person. When the person has served two thirds of the sentence, or 25 years in the case of life imprisonment, the Court shall review the sentence to determine whether it should be reduced. Such a review shall not be conducted before that time.
Part 11 consists of an article which establishes the Assembly of States Parties, on which other States which have signed the Statute or the Final Act may take part as observers.
Among other functions, the Assembly shall consider and adopt recommendations of the Preparatory Commission; provide management oversight to the Presidency, the Prosecutor and the Registrar regarding the administration of the Court; consider and decide the budget for the Court; decide whether to alter the number of judges; and consider any question relating to non- cooperation.
The Assembly shall have a bureau consisting of a President, two Vice- Presidents and 18 members elected by the Assembly for three-year terms, which shall be representative of the principal legal systems of the world. The President of the Court, the Prosecutor and the Registrar or their representatives may participate in meetings of the Assembly and of the bureau. The Assembly shall meet at the seat of the Court or at the Headquarters of the United Nations once a year and, when circumstances so require, hold special sessions.
Each State party shall have one vote in the Assembly, the article continues. Every effort is to be made to reach decisions by consensus. If consensus cannot be reached, except as otherwise provided in the Statute, decisions on matters of substance must be approved by a two-thirds majority of those present and voting, provided that an absolute majority of States Parties
- 29 - Press Release L/2889 20 July 1998
constitutes the quorum for voting, and decisions on matters of procedure shall be taken by a simple majority of States Parties present and voting.
A State party which is in arrears in the payment of its financial contributions towards the costs of the Court shall have no vote in the Assembly and in the bureau, if the amount of its arrears equals or exceeds the amount of the contributions due from it for the preceding two full years. The Assembly may, nevertheless, permit such a State party to vote in the Assembly and in the bureau if it is satisfied that the failure to pay is due to conditions beyond the control of the State party.
Part 12 concerns financing and contains six articles. It states that except as otherwise specifically provided, all financial matters related to the Court and the meetings of the Assembly of States Parties, including its bureau and subsidiary bodies, shall be governed by the Statute and the Financial Regulations and Rules adopted by the Assembly of States Parties. Expenses of the Court and the Assembly of States Parties, including its bureau and subsidiary bodies, shall be paid from the funds of the Court.
The expenses of the Court and of the Assembly of States parties, it goes on, shall be provided by the following sources: assessed contributions made by States parties, and funds provided by the United Nations, subject to the approval of the General Assembly, in particular in relation to the expenses incurred due to referrals by the Security Council. It also provides that the Court may receive and utilize, as additional funds, voluntary contributions from Governments, international organizations, individuals, corporations and other entities, in accordance with relevant criteria adopted by the Assembly of States Parties.
The contributions of States parties shall be assessed in accordance with an agreed scale of assessment, based on the scale adopted by the United Nations for its regular budget and adjusted in accordance with the principles on which that scale is based. The records, books and accounts of the Court, including its annual financial statements, shall be audited annually by an independent auditor.
Part 13 is entitled Final Clauses. Under terms of an article on settlement of disputes, the Statute provides that "any dispute concerning the judicial functions of the Court shall be settled by the decision of the Court". Any other dispute between two or more States parties relating to its interpretation or application which is not settled through negotiations within three months of their commencement shall be referred to the Assembly of States Parties. The Assembly may itself seek to settle the dispute or make recommendations on further means of settlement of the dispute, including referral to the International Court of Justice.
- 30 - Press Release L/2889 20 July 1998
On amendments, the article states that after the expiration of seven years from the entry into force of the Statute, any State party may propose amendments to it. The text of any proposed amendment shall be submitted to the Secretary-General of the United Nations, who shall promptly circulate it to all States parties. No sooner than three months from the date of notification, the next Assembly of States Parties shall, by a majority of those present and voting, decide on whether to take up the proposal. The Assembly may deal with the proposal directly or convene a Review Conference if the issue involved so warrants.
Another article addresses the issue of the Statute's review and provides that seven years after its entry into force, the Secretary-General of the United Nations is to convene a Review Conference to consider any amendments to it. Such review may include, but is not limited to the list of crimes listed under the jurisdiction of the Court. The Conference shall be open to those participating in the Assembly of States Parties and on the same conditions. At any time thereafter, at the request of a State party, the Secretary-General of the United Nations shall, upon approval by a majority of States parties, convene a Review Conference.
An article on transitional provision concerns acceptance of jurisdiction. It provides for a State, on becoming a party to the Statute, for a period of seven years after its entry into force at that State to declare that it does not accept the jurisdiction of the Court over war crimes, as defined in the Statute, when a crime is alleged to have been committed by its nationals or on its territory. A declaration under this article may be withdrawn at any time.
The Statute shall be open for signature by all States in Rome, at the headquarters of the Food and Agriculture Organization of the United Nations on 17 July. Thereafter, it shall remain open for signature in Rome at the Ministry of Foreign Affairs of Italy until 17 October. After that date, the Statute shall remain open for signature at United Nations Headquarters until 31 December 2000.
The final clauses further state that the Statute shall enter into force on the first day of the month after the sixtieth day following the date of the deposit of the sixtieth instrument of ratification, acceptance, approval or accession with the Secretary-General of the United Nations.
It provides that a State party may, by written notification addressed to the Secretary-General of the United Nations, withdraw from the Statute. The withdrawal shall take effect one year after the date of receipt of the notification, unless the notification specifies a later date.
An addendum to the Statute contains the Final Act of the Conference. It is narrative of events which led to its convening, including the mandate it
- 31 - Press Release L/2889 20 July 1998
received from the United Nations General Assembly, a list of participants, its officers and its proceedings, which led to the drafting of the Rome Statute of the International Criminal Court.
Five resolutions are annexed to the Final Act:
-- By the first text the Conference expressed its deep gratitude to the International Law Commission for its outstanding contribution in the preparation of the original draft of the Statute, which constituted the basis for the work of the Preparatory Committee.
-- Under terms of the second text, the Conference paid tribute to the participants of the Preparatory Committee on the Establishment of an International Criminal Court and its Chairman, Adriaan Bos (Netherlands), for their outstanding and hard work, commitment and dedication.
-- The third text expressed the Conference's deep appreciation and gratitude to the people and the Government of Italy for making the necessary arrangements for the holding of the Conference in Rome, for their generous hospitality and for their contribution to the successful completion of the work of the Conference.
-- The fourth resolution expressed the Conference's appreciation and thanks to Giovanni Conso (Italy), President of the Conference; Philippe Kirsch (Canada), Chairman of the Committee of the Whole; and Cherif Bassiouni (Egypt), Chairman of the Drafting Committee; who, through their experience, skilful efforts and wisdom in steering the work of the Conference, contributed greatly to its success. -- The Conference, under the fifth resolution, decided to establish a Preparatory Commission for the International Criminal Court. The Secretary- General of the United Nations was asked to convene the Commission as soon as possible, at a date to be decided upon by the United Nations General Assembly.
The Commission, this text continues, shall consist of representatives of States which have signed the Final Act of the Conference and other States which have been invited to participate in its proceedings. It is to elect its Chairman and other officers at its first meeting, adopt its rules of procedure and decide on its programme of work. The Commission is asked to prepare proposals for practical arrangements for the establishment and coming into operation of the Court, including the draft texts of the following: Elements of Crimes and the Rules of Procedure and Evidence, on a priority basis; a relationship agreement between the Court and the United Nations; basic principles governing a headquarters agreement to be negotiated between the Court and the host country (The Hague, the seat of the Court); financial regulations and rules; an agreement on the privileges and immunities of the Court; a budget for the first financial year; and the rules of procedure of the Assembly of States Parties.
- 32 - Press Release L/2889 20 July 1998
The Commission is to remain in existence until the conclusion of the first meeting of the Assembly of States Parties, according to the resolution. It is to prepare a report on all matters within its mandate and submit it to the first meeting of the Assembly of States Parties. The Secretary-General of the United Nations is requested to provide to the Commission, which is to meet at United Nations Headquarters, such secretariat services as it may require, subject to the approval of the United Nations General Assembly.
Highlights of General Debate
The Conference, which convened on 15 June, was opened by United Nations Secretary-General Kofi Annan. It heard more than 150 general statements over a period of four days on the establishment of an International Criminal Court.
Addressing the inaugural meeting, the President of Italy, Oscar Luigi Scalfaro, stressed that the Court should guarantee the rights of the defendant and of the international community as a whole. United Nations Secretary- General Annan urged the Conference not to flinch from creating a strong and independent International Criminal Court which must be "an instrument of justice not expediency" and be able "to protect the weak against the strong". The President of the Conference stated that the establishment of an international court would be an unmistakable message to perpetrators that there is no impunity and that no one is above the law.
The historic importance of the task before the Conference was emphasized by several speakers. There were many references to the new millennium that is fast approaching and to the achievements and failures which will give historians cause to reflect upon the "schizophrenia of the twentieth century". The meeting in Rome was an historic opportunity to confront the darkest side of the human experience and to take a concrete step to defeat it.
Among those addressing the plenary of the Conference was Benjamin B. Ferencz, a former prosecutor at the Nuremberg War Crimes Trials, who declared that excluding aggression from the crimes under the jurisdiction of the Court was to grant immunity to those responsible for "the supreme international crime". Ever since Nuremberg, he added, it had been undeniable that aggressive war was not a national right but an international crime. Many speakers noted that the Conference would be taking a step backwards if, after the Nuremberg Trials, the crime of aggression was not included within the jurisdiction of the Court.
There was broad agreement that the Court should be an independent, fair, impartial, effective and broadly representative international criminal judiciary, and that it should be free from political or other influences. It was also emphasized that the Court should not become a tool of political struggles or a means of interfering in other countries' internal affairs.
- 33 - Press Release L/2889 20 July 1998
The relationship between the Court and the Security Council was another major theme addressed by many speakers, included the permanent members of the Council. China called for a practical and prudent attitude to be adopted in dealing with such a relationship. The United States called for an International Criminal Court that would operate in coordination, not in conflict, with the Security Council and that would be fiscally and administratively independent from the United Nations.
The first Chief Prosecutor of the former Yugoslavia and Rwanda Tribunals, Justice Richard Goldstone, declared that the International Criminal Court would have no credibility and international justice would be seriously compromised, if the Court or its Prosecutor were made subject to the control of political bodies, whether the Security Council or State parties. And if those in favour of such types of control succeed, he had serious doubts as to whether the Court should be established at all.
The plenary meeting also heard several calls for the inclusion of the use or threat of use of nuclear weapons, anti-personnel mines, blinding laser weapons and other weapons of mass destruction under the Court's definition of war crimes, as they were methods of warfare that caused unnecessary suffering or were inherently indiscriminate. Their non-inclusion, it was noted, would create an "absurd" result whereby the Court would have jurisdiction if someone killed one civilian with a poisoned arrow or dum-dum bullet, but would not be able to act if the person incinerated a hundred thousand civilians with a nuclear weapon.
During the four days of deliberations, the Conference heard a unanimous call by the international community to break with the past and put an end to impunity. As many stated, there could be no peace without justice.
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.
- 34 - Press Release L/2889 20 July 1998
In 1992, the United Nations 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 of 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 in March/April 1996, and the second in August. In December of the same year, the General Assembly renewed the Committee's mandate and set 1998 as the year for the Conference. In February 1997, the third session of the Preparatory Committee was convened in New York, followed by the fourth, held in August; the fifth, in December, and the sixth and last in March/April of this year.
The Preparatory Committee submitted for consideration by the Conference a 13-part, 116-article draft statute for the International Criminal Court -- with over 1,500 square brackets, signifying areas of disagreement -- containing 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 to be complementary to national criminal jurisdictions.
Officers, Membership
The President of the Conference was Giovanni Conso (Italy). The following were Vice-Presidents: Algeria, Burkina Faso, Kenya, Malawi, Nigeria, Gabon, Egypt, United Republic of Tanzania, Japan, Samoa, China, India, Pakistan, Bangladesh, Iran, Nepal, Latvia, The former Yugoslav Republic of Macedonia, Russian Federation, Slovakia, Costa Rica, Chile, Colombia, Trinidad and Tobago, Uruguay, Austria, France, Germany, Sweden, United Kingdom and United States.
Philippe Kirsch (Canada) was Chairman of the Committee of the Whole of the Conference. Phakiso Mochochoko (Lesotho), Silvia Fernandez de Gurmendi (Argentina) and Constantin Virgil Ivan (Romania) were Vice-Chairmen. Yasumasa Nagamine (Japan) was the Rapporteur.
- 35 - Press Release L/2889 20 July 1998
Cherif Bassiouni (Egypt) was Chairman of the Conference's Drafting Committee. The other members of the Committee were as follows: Cameroon, China, Dominican Republic, France, Germany, Ghana, India, Jamaica, Lebanon, Mexico, Morocco, Philippines, Poland, Republic of Korea, Russian Federation, Slovenia, South Africa, Spain, Sudan, Switzerland, Syria, United States, United Kingdom and Venezuela.
The Under-Secretary-General for Legal Affairs and United Nations Legal Counsel, Hans Corell, was the Representative of the Secretary-General to the Conference.
The Conference was open to all United Nations Member States, members of the specialized agencies and members of the International Atomic Energy Agency (IAEA).
* *** *