PREPARATORY COMMISSION FOR INTERNATIONAL CRIMINAL COURT BEGINS FIRST SESSION

16 February 1999

Press Release
L/2907

PREPARATORY COMMISSION FOR INTERNATIONAL CRIMINAL COURT BEGINS FIRST SESSION

19990216 Two Working Groups Established Proposals on Rules of Procedure and Evidence, Elements of Crime Introduced

The Preparatory Commission for the International Criminal Court began its first session this morning with a call by Secretary-General Kofi Annan for all States, whether or not they voted for adopting the Court's Statute, to play an active part in its work.

Opening the 11-day session, the Secretary-General said to help overcome the reluctance of some States to become parties to the Statute, the Commission should discuss ways to enhance the Court's effectiveness and acceptance. That was crucial because the Court's effectiveness would depend on the number of States that supported it. The establishment of the Court would be a fitting way to inaugurate the new millennium. It would put the world on notice that crimes against humanity would not go unpunished in the next millennium. The best chance humankind had ever had to end the culture of impunity was within grasp", he said, stressing "We must not let it fall."

Seventy-five States have signed the Statute which was adopted by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of the Court held in Rome from 15 June to 17 July 1998. Senegal has become the first to ratify the Statute. Sixty ratifications are required for the Statute to enter into force. The Statute will remain open for signature until 31 December 2000.

Also addressing the opening meeting, Hans Corell, United Nations Legal Counsel, said the actual establishment of the International Criminal Court and its initiation were monumental tasks which would have manifold effect on international law and international relations. The Commission had a heavy agenda.

The Preparatory Commission, which is scheduled to meet three times this year, will be discussing arrangements for the operation of the Court, whose headquarters will be in the Netherlands. At the current session, scheduled to conclude on 26 February, the focus of the Commission's work will be on the rules of procedure and evidence and the elements of crimes.

The work of the Commission during this session will be conducted primarily in two working groups. Silvia Fernandez de Gurmendi (Argentina) was appointed Coordinator of the Working Group on Rules of Procedure and Evidence; and Herman van Hebel (Netherlands), Coordinator of the Working Group on the Elements of Crime.

The representatives of Australia and France introduced written proposals on the rules of procedure and evidence. The representatives of the United States and Switzerland introduced proposals on elements of crime.

At the outset of the meeting, the Commission elected Philippe Kirsch (Canada) as Chairman. Muhamed Sacirbey (Bosnia and Herzegovina) and Medard Rwellamira (South Africa) were elected Vice-Chairmen; Salah Suheimat (Jordan) was elected Rapporteur.

Also this morning, the Preparatory Commission adopted its provisional agenda for the session. It also agreed to apply the rules of procedure of the General Assembly to its work.

The next plenary of the Preparatory Commission for the International Criminal Court will be announced in the Journal.

Preparatory Commission Work Programme

The Preparatory Commission for the International Criminal Court met this morning to start work on arrangements for the operation of the Court once the Statute to establish the Court enters into force.

The Statute, adopted by the United Nations Diplomatic Conference held in Rome from 15 June to 17 July 1998, will come into force after 60 States have ratified it. On 2 February, Senegal became the first country to do so. Seventy-five States have signed the Statute. (For background information, see Press Release L/2906 of 12 February).

Statements

Secretary-General KOFI ANNAN said the adoption of the Rome Statute was a gift of hope to future generations and a giant step forward in the march towards universal human rights and the rule of law. The Statute was now deposited with the Secretary-General and was open for signature until

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31 December 2000. Seventy-five States had signed it so far, and this month Senegal became the first to ratify it. That was very encouraging, but 60 ratifications were needed before the Statute could come into force.

He said the Preparatory Commission for the International Criminal Court was charged with producing a number of documents, among them it needed to elaborate clear unambiguous rules on the practice of the Court, and on the elements of the crimes over which it had jurisdiction. It also needed to draw up proposals on aggression -- the crime which was most profoundly threatening to international order and whose prevention and deterrence was one of the prime objectives of the United Nations.

Some States had expressed reluctance to become parties to the Statute, he added. The Commission could help overcome that reluctance by discussing ways to enhance the effectiveness and acceptance of the Court. That was crucial because the Court's effectiveness would depend on the number of States that supported it. He strongly encouraged all States, whether or not they voted for adopting the Statute, to play an active part in the Commission's work.

He said that only a permanent Court with universal jurisdiction could finally lay to rest the charge that the international community was being selective or applying double standards in deciding which crimes to investigate and punish. The establishment of the Court would be a fitting way to inaugurate the new millennium. It would put the world on notice that crimes against humanity would not go unpunished in the next millennium. "The best chance humankind has ever had to end the culture of impunity is within grasp", he said. "We must not let it fall."

HANS CORELL, United Nations Legal Counsel, said the presence and the statement of the Secretary-General were eloquent testimony of the significance the Secretariat attributed to the work of the Preparatory Commission. The Rome Conference was a historic event. The actual establishment of the International Criminal Court and its initiation were monumental tasks which would have manifold effect on international law and international relations. The Commission had a heavy agenda. He reiterated the Secretariat's commitment to do its utmost to meet the needs of the Commission.

He said that from consultations he had carried out, he understood that there was a general wish for Ambassador Philippe Kirsch (Canada) to serve as Chairman of the Preparatory Commission. Ambassador Kirsch served as Chairman of the Committee of the Whole of the Rome Diplomatic Conference.

The Preparatory Commission accordingly elected Ambassador Kirsch its Chairman.

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PHILIPPE KIRSCH (Canada), newly elected Chairman of the Preparatory Commission, said he intended to follow the negotiating method of the Rome Conference. The Commission's work would be divided among coordinators. That method had proved itself to be useful, considering the large number of issues that had to be negotiated. Coordinators and delegations would have to determine collectively how best to approach the exercise. Flexibility would be required in deciding how to deal with existing texts in a short term, he said, and added that positions would need to be mutually understood and issues sorted out.

In the medium term, however, he believed that it was understood by all that large compilations of proposals, inventories of options and texts overburdened by square brackets served little useful purpose and were extremely time-consuming. Experience had shown that such constructions tended to extend enormously and became rapidly unworkable. Consequently, he intended to ask the coordinators to work with rolling texts whenever they felt it was practicable. As Chairman, he would do all he could to support the coordinators in their work. He would also consult with them and with the Commission's bureau.

The Preparatory Commission agreed to apply to its work the rules of procedure of the General Assembly as applied to the Assembly's Main Committees.

In accordance with resolution F of the Rome Conference, he said the focus of the Preparatory Commission would be on two essential instruments necessary for the functioning of the International Criminal Court: the rules of procedure and evidence and the elements of crimes. With respect to the rules of procedure and evidence, he said the focus would be on the rules relating to Parts 5 (Investigation and Prosecution), 6 (The Trial) and 8 (Appeal and Revision) of the Statute, with the possibility of discussing rules relating to Part 4 (Composition and Administration of the Court) should it seem appropriate.

On the basis of the provisional work plan developed in informal consultations, he said that the Preparatory Commission would take up the question of aggression in the morning of Monday, 22 February. After the discussion of aggression, the Commission would resume its consideration of the Elements of Crime. He urged delegations to avoid repeating their substantive positions on the crime of aggression which were thoroughly debated at the Rome Conference, and to concentrate on how the Commission should structure its handling of that important topic.

The Commission then accepted the provisional work plan outlined by its Chairman.

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Proposals on Rules of Procedure and Evidence

RICHARD ROWE (Australia) said his delegation's proposal had been put forward with the hope of assisting the work of the Commission on the rules of procedure and evidence (document PCNICC/1999/DP.1). It was hoped that the document would promote discussion on those issues. In the course of discussion, there would be many views expressed on structure and substance. It was a complex task and the cooperation of all delegations was needed for a positive outcome. Australia's proposal sought to identify the origins of particular rules and it drew on the procedures used in the International Criminal Tribunal for the Former Yugoslavia.

BEATRICE LE FRAPER DU HELLEN (France) said the objective of France's proposal was enrich the debate on the structure of rules of procedure and evidence. The French text (document PCNICC/1999/DP.2) was composed of an outline of rules and it divided the outline into seven parts. The structure did not digress profoundly from the Statute of the Court adopted in Rome and that Statute remained the guideline for proposals. The Statute was a package that was completely supported by France and many parts of it remained in the rules of procedure and evidence. It seemed indispensable to group together in one part all questions relating to the development of proceedings in the Court. The Statute dealt with those questions in a manner that was dispersed. That should be followed by a stricter logic that allowed for optimal use of the rules of procedure and evidence. Those rules should be an operational guide.

Among the questions relating to rules of procedure, her delegation believed that disclosure of evidence should be done in the pre-trial phase of a case, she said. Trial proceedings should not be disturbed by the issue of disclosure of evidence. Her delegation did have some differences on that issue. Disclosure in the pre-trial phase was foreign to many legal systems, but the Rome Statute created a new court with its own procedures. For the International Criminal Court, the pre-trial phase would be particularly important. France's proposal also dealt with such topics as: the functioning of the court, penalties, enforcement, and cooperation.

Proposals on Elements of Crimes

BILL LIETZAU (United States) said that simply identifying the current state of international law with respect to genocide, crimes against humanity and war crimes, though necessary, was not sufficient. The crimes found in articles 6 (genocide), 7 (crimes against humanity) and 8 (war crimes) of the Statute reflected norms articulated in various treaties, that, when drafted, were oriented towards the States that ultimately joined those treaties.

He said that to a large extent, the Hague and Geneva Conventions, and other relevant treaties, were drafted to reflect general norms that would be

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applied and enforced by States. Negotiations at the Rome Conference identified which of those norms should fall under the jurisdiction of the Court. The Preparatory Commission must recast that law into specific provisions relevant to criminal lawyers and judges. International norms must be translated into criminal provisions. General proscriptions must be reduced to specific elements of proof; and law directed at States must be converted into prerequisites for individual criminal culpability. The United States had attempted to meet those needs in its draft proposal (document PCNICC/1999/DP.4 and Add.1-3).

He said the United States proposal was designed to facilitate efficient negotiations. The goal was to provide a basis for negotiation that was faithful to customary international law, struck a balance accommodating the various concerns of interested States and lent itself to efficient modification as concerns arose. It was also designed to properly meet the needs of nullum crimen sine lege by interpreting the general international law norms with the rigor and specificity appropriate for criminal law.

The United States proposal had six sections, he said. The first two described general comments and defined terminology. The next three detailed elements for articles 6, 7 and 8 and the final section titled "Inchoate offences" explained application of elements when theories of culpability were ordered from the articles. According to the proposal, any question of interpretation must be resolved consistently with the Statute. In some instances, the elements clarified the specific manner in which general principles of criminal law would be applied to a specific offence. Each offence defined as a crime in the Statute was listed in the document with an accompanying set of elements. Unless stated otherwise, all elements listed were cumulative prerequisites to establish guilt.

NICOLAS MICHEL (Switzerland), on the proposal submitted by Hungary and Switzerland (document PCNICC/1999/DP.5), said there was no need to add clarification to the list of crimes contained in the Rome Statute. The way in which those crimes were defined was important because those definitions would have an impact on their application and utilization. The International Committee of the Red Cross (ICRC) had drawn-up a study of war crimes that could be regarded as a reference document and was used in the proposal submitted by Switzerland and Hungary. That proposal dealt primarily with the elements of war crimes. It discussed such topics as: willful killing, torture and inhuman treatment, extensive destruction and appropriation of property, and the taking of hostages.

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