PREPARATORY COMMISSION FOR INTERNATIONAL CRIMINAL COURT CONCLUDES FIRST SESSION AT HEADQUARTERS, 16 TO 26 FEBRUARY
Press Release
L/2912
PREPARATORY COMMISSION FOR INTERNATIONAL CRIMINAL COURT CONCLUDES FIRST SESSION AT HEADQUARTERS, 16 TO 26 FEBRUARY
19990226 The Preparatory Commission for the International Criminal Court this afternoon concluded its first session, hearing reports from its two working groups on matters relating to rules of procedure and evidence and the elements of crimes contained in the Court's Statute.Silvia Fernandez de Gurmendi (Argentina), Coordinator of the working group on rules of procedure and evidence, said it deferred a decision on the final structure of those for the next session of the Commission. The working group considered a number of proposals submitted by delegations on Part 5 of the Statute -- on investigation and prosecution. The group should attempt to complete work on Parts 5, 6 and 8 of the Statute at the next session.
Herman Van Hebel (Netherlands), Coordinator of the working group on elements of crimes, said it completed general discussion on genocide and grave breaches of international law. Further discussion on the topic was necessary in order to design a structure acceptable to delegations. The working group would continue its consideration of the elements of crimes at the next session of the Preparatory Commission.
By a resolution adopted at the Rome Conference on the Court, and by General Assembly resolution 53/105 of 8 December, the Preparatory Commission was to finalize draft texts on rules of procedure and evidence and elements of crimes before 30 June 2000.
The Preparatory Commission is entrusted with laying the groundwork for the operation of the Court, once the Statute enters into force with 60 ratifications. Only one country, Senegal, has so far ratified the Statute which was adopted at the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, held in Rome from 15 June to 17 July 1998. A total of 76 countries have signed the Rome Statute.
During today's meeting, Philippe Kirsch (Canada), Chairman of the Preparatory Commission, said it was essential that every effort was made by
delegations to agree on common approaches to issues before the Preparatory Commission, and to undertake real and effective negotiations early on. The essential objective was to establish an International Criminal Court which functioned fairly and effectively and was widely supported.
The Chairman announced that he had designated Hiroshi Kawamura (Japan) to serve as the contact point for some of the issues to be discussed by the Commission, including: the draft text of financial regulation and rules and the rules of procedure of the Assembly of States Parties. He also announced the designation of Cristian Maquieira (Chile) to serve as the contact point for work on the following topics: a relationship agreement between the Court and the United Nations; a draft text of basic principles governing a headquarters agreement to be negotiated between the Court and the host country; and a draft agreement on the privileges and immunities of the Court.
Also this afternoon, Salah Suheimat (Jordan), Rapporteur of the Preparatory Commission, introduced his draft report on the work of the Commission.
United Nations Legal Counsel Hans Corell said a final text of the Rome Statute would be issued by the next session of the Preparatory Commission.
Other statements were made by the representatives of Italy, Cuba, Haiti, United Arab Emirates, United Kingdom, Bahrain, Cameroon, Egypt, Namibia, Syria, Lesotho and South Africa.
The next session of the Preparatory Commission is scheduled to be held from 26 July to 13 August. A third session is planned for 29 November to 17 December.
Reports of Working Groups
SILVIA FERNANDEZ DE GURMENDI (Argentina), Coordinator of the Working Group on Rules of Procedure and Evidence, presenting an oral report on its work, said it held nine meetings. It deferred decisions relating to the final structure of the rules of procedure and evidence. The group considered a number of proposals submitted by delegations on Part 5 of the Statute. It was suggested that the authors should consult with a view to merging the proposals into one consolidated document. An informal consultation, open to all delegations, was coordinated by the representative of Switzerland. In the end, documents PCNICC/1999/WGRPE/RT.1, 2 and 3 were produced. Another draft text PCNICC/1999/WGRPE/RT.4 was also drawn up to serve as basic document for future discussions.
Document PCNICC/1999/DP.8 and Adds. 1 and 2 were also discussed by the working group, but due to lack of time no single text based on them could be
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produced, she said. Originators of the proposals should meet to arrive at a single draft text. In view of the difficulties encountered, she urged delegations to present them well in advance of the next session for their translation into official languages. At the next session, the working group should attempt to complete work on Parts 5, 6 and 8 of the Statute.
HERMAN VAN HEBEL (Netherlands), Coordinator of the Working Group on Elements of Crimes, in his oral report, said that eight meetings were held. He listed several documents which were before the group, including document PCNICC/1999/WGEC/INF.1 reproducing, on the recommendation of several member States, a document prepared by the International Committee of the Red Cross (ICRC) concerning grave breaches of the 1949 Geneva Conventions.
He said that at the first stage of their discussion, the working group considered the elements for the crime of genocide in article 6 of the Rome Statute, as well as paragraph 2 (a) of article 8 concerning war crimes, on the basis of proposals before it. The working group completed general discussion on genocide and grave breaches. The discussions focused mostly on substantive issues.
Taking account of the views expressed in the working group and the written proposals submitted, and to facilitate the discussion, he had, as Coordinator, prepared discussion papers contained in document PCNICC/1999/WGEC/RTS.1, 2 and 3 for the elements of crime of genocide and for the elements of crimes relating to sub-paragraphs (i), (ii) and (iii) of article 8, paragraph 2 (a) on war crimes. That was particularly relevant in relation to the use of footnotes, comments and introductory general paragraphs. Further discussion was necessary in order to design a structure acceptable to delegations.
The working group would continue its consideration of the elements of crimes at the next session of the Preparatory Commission, he said.
Statement by Chairman
PHILIPPE KIRSCH (Canada), Chairman of the Preparatory Commission, said discussions in the working groups had been of high quality, enriched with many proposals which had helped to advance the Commission's work. Delegates had shown welcome flexibility and cooperation in addressing the important issues before the Commission. He was particularly satisfied that two coordinators had been able to prepare documents which reflected the discussions so far and could serve as a basis for the Commission's work in July/August.
As delegates looked to the future, he said it was important to remember the role and mandate of the Preparatory Commission as set out in
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resolution F of the Rome Conference and General Assembly resolution 53/105. Paragraph 6 of resolution F said the draft rules of procedure and evidence and of the elements of crimes shall be finalized before 30 June 2000. The Chairman said that the necessity to meet that deadline was an obligation. Despite the achievements realized in the working groups, progress had been slow compared to the amount of work to be done. The Commission had done less than half of what it should have accomplished. They must collectively find ways to comply with their obligations.
Outlining ways for the Preparatory Commission to advance its work, he said that first, it must continue the spirit of cooperation and flexibility exhibited at the session; second, delegations with ideas and proposals should endeavour to submit them as soon as possible; and third, although the next session was in July/August delegations should not wait until then to advance discussions. They should use the inter-sessional period to contact each other to discuss proposals and ideas which could facilitate the Commission's work at its next session.
He announced the names of "contact points" to plan for the remaining tasks of the Preparatory Commission assigned to it by resolution F of the Rome Conference and General Assembly resolution 53/105. Following consultations with the bureau, he had designated Hiroshi Kawamura (Japan) to serve as the contact point for the following: the draft text of financial regulation and rules (contained in sub-paragraph 5 (e) of resolution F); a budget for the first financial year (contained in sub-paragraph 5 (g) of resolution F); and the rules of procedure of the Assembly of States Parties (contained in sub- paragraph 5 (h) of resolution F.
He said he had also asked Cristian Maquieira (Chile) to serve as the contact point for the draft text of a relationship agreement between the Court and the United Nations (contained in sub-paragraph (c) of resolution F); a draft text of basic principles governing a headquarters agreement to be negotiated between the Court and the host country (contained in sub-paragraph 5 (d) of resolution F); a draft agreement on the privileges and immunities of the Court (contained in sub-paragraph 5 (f) of resolution F; and the request contained in paragraph 4 of General Assembly resolution 53/105.
Introduction of Report of Session
SALAH SUHEIMAT (Jordan), Rapporteur of the Preparatory Commission, introduced the draft report on the work of the Commission at its first session contained in document PCNICC/1999/L.3. He suggested that there should be a summary of the Commission's proceedings as a point of reference. He also suggested that, for ease of reference, the Preparatory Commission should request the Secretariat to prepare a document on the basis of oral reports of the coordinators of the working groups and to annex it to the draft summary.
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The Preparatory Commission took note of the draft summary report of the Rapporteur.
Statement by Legal Counsel
HANS CORELL Under-Secretary-General for Legal Affairs and United Nations Legal Counsel, said that, due to the unusual urgency in the drafting of the Rome Statute, it was inevitable that errors would occur in the text. That was not due to any shortcoming on the part of the negotiators or the Secretariat, but due to the circumstances themselves. The Depository's attention was drawn to certain obvious errors and discrepancies in the text soon after its adoption. A correction process was commenced and a set of corrections proposals was circulated on 25 September 1998.
Since then, he said, a number of other errors in the different language texts have been brought to his attention. Correction proposals were currently being finalized and those would also be circulated shortly. An official version of the Statute, including the corrections, would be issued at the next session of the Preparatory Commission, assuming there were no more proposals for corrections.
Work Plan for Future Session
Mr. KIRSCH (Canada), Commission Chairman, drew attention to the provisional work plan for the July/August session of the Preparatory Commission circulated yesterday, 25 February. He said the work plan had been prepared in consultation with the various coordinators and had been approved by the bureau of the Commission. The work plan would be formally approved at the commencement of the July/August session and would be adjusted as required throughout that session. The work plan addressed only formal meetings. Provisionally, two meetings of the plenary had been included at which time the coordinator on the question of aggression could report on the result of his contacts on that question.
He also said that all delegations recognized the importance of the forthcoming discussion on the crime of aggression and that satisfactory conclusions could be reached to the satisfaction of all. It was essential that every effort was made by delegations to agree on common approaches to issues before the Preparatory Commission, and to undertake real and effective negotiations early on. More fundamentally, there was need for delegations to remain united in purpose. The essential objective was to establish an International Criminal Court which functioned fairly and effectively and was widely supported.
He said delegations had a chance to develop new concerted and constructive approaches, if they used mechanisms that were conducive to a
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productive dialogue in order to bridge the gap that had separated them. With an eye on the ultimate objective, delegations should work together in a constructive and cooperative atmosphere. For his part, he would continue to make every effort to conduct the work of the Preparatory Commission on that basis and, hopefully, with their support.
Other Statements
The representative of Italy proposed that an inter-sessional meeting be held in Syracuse, Italy, before the next formal session of the Preparatory Commission.
The representative of Cuba said that the definition given to war crimes in the discussion paper added a new condition and a difficult element to the definition of war crimes. The footnote on the sentence, which read that the term "international armed conflict included military occupation", did not reflect the full substance of the views expressed by all the delegations. Her delegation hoped that future discussions will be held on that issue.
The representative of Haiti said that his country had signed the Statute of the International Criminal Court this morning. The Rome Statute should not be amended by the work of the Preparatory Commission and that point should be stressed during the next session of the Commission.
The representative of the United Arab Emirates said his delegation had some difficulty following the work of the Commission in the informal consultations because simultaneous interpretation was not provided during those consultations. That situation should be addressed in subsequent sessions.
The representative of the United Kingdom said that the correction of the Statute was a difficult task. Delegations needed to present the final version of the Statute to their respective parliaments. Possibly a version of the Statute could be released after the current set of corrections were made.
In response, MR. CORELL said there was a procedure for rectifications and those rectifications would be made as quickly as possible. There would be a final version of the text issued as soon as possible.
A number of delegations said that the crime of aggression should be discussed in detail at the next session and that a working group should be devoted to discussing that topic in informal consultations. Speaking in that regard were the representatives of: Bahrain, Cameroon, Cuba, Egypt, Lesotho, Namibia and Syria.
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The delegations of Lesotho and South Africa, however, said that the coordinator that had been assigned to consider the crime of aggression should be given time to complete his duties and a working group should not be assigned to the issue at this time.
Summary of Discussion Papers
The Preparatory Commission took note of the discussion papers proposed by the coordinators of the two working groups. Those papers were intended to reflect as much as possible the discussions in the working groups. Discussions on the topics covered in them, however, would be continued at the next session.
The coordinator of the Working Group on Rules of Procedure and Evidence submitted four discussion papers. The working group focused only on Part 5 of the Rome Statute, which deals with investigation and prosecution.
The first discussion paper (PCNICC/1999/WGRPE/RT.1) deals with the determination by the Prosecutor to proceed an investigation. Among the views presented were that:
-- The Prosecutor may seek additional information from States, organs of the United Nations, intergovernmental organizations, or other reliable sources that he or she deems appropriate, and may receive written or oral testimony.
-- When the Prosecutor decides that there was not sufficient basis for prosecution, he or she shall inform in writing the Pre-Trial Chamber, together with State or States that referred a situation to him or her.
The second discussion paper (PCNICC/1999/WGRPE/RT.2) deals with procedure to be followed in the event of an application or review of a decision by the Prosecutor not to proceed with an investigation or not to prosecute. In that regard, the views expressed included:
-- Where the Pre-Trial Chamber requested the Prosecutor to review his or her decision not to initiate an investigation or not to prosecute, the Prosecutor shall reconsider that decision as soon as possible.
-- Once the Prosecutor has taken a final decision, he or she shall notify the Pre-Trial Chamber in writing. That notification shall contain the Prosecutor's conclusion, the reasons for the conclusion as well as a full explanation of those reasons.
-- The Pre-Trial Chamber may, on its own initiative, review a decision of the Prosecutor and the Pre-Trial Chamber shall inform the Prosecutor of its
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intention to review his or her decision and shall establish a time-frame during which he or she may submit observations.
The third discussion paper (PCNICC/1999/WGRPE/RT.3) deals with proceedings with regard to the confirmation of the charges. In that regard, the views expressed included:
-- A person subject to a warrant of arrest or a summons to appear in the Court shall appear before the Pre-Trial Chamber in the presence of the Prosecutor. At this first appearance, the Pre-Trial Chamber shall set the date on which it intends to hold a hearing to confirm the charges. Between the first appearance and confirmation hearing, evidence shall be disclosed.
-- Victims and their legal representatives, who shall have access to the proceedings, shall be notified of the date of the confirmation hearing. They may also ask to intervene during the hearing, by addressing a written request to that effect to the Pre-Trial Chamber.
-- States wishing to challenge the jurisdiction of the Court or the admissibility of the case before the Pre-Trial Chamber at the time of the confirmation hearing shall make a written request to that effect no later than 30 days before the hearing.
The fourth discussion paper (PCNICC/1999/WGRPE/RT.4) deals with disclosure of evidence. In that regard, the views expressed included:
-- The Pre-Trial Chamber shall hold status conferences to ensure that disclosure takes place under satisfactory conditions. For each case, a pre- trial judge shall be appointed to organize such status conferences.
-- The Prosecutor shall provide the defence with the names of witnesses whom the Prosecutor intends to call to testify at trial and copies of statements made by those witnesses. However, the question of non-disclosure of the identity of witnesses who need to be kept anonymous, needs further discussion.
-- The defence shall notify the Prosecutor of its intent to plead an alibi, in which case the defense shall specify the details of the alibi. The defence shall also give notice to both the Trial Chamber and Prosecutor if it intends to raise a ground for excluding criminal responsibility.
The coordinator of the Working Group on Elements of Crimes submitted three discussion papers. The working group focused only on article 8 (war crimes).
The first discussion paper (PCNICC/1999/WGE/RT.1) deals with
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article 6 (the crime of genocide). That paper states that the crime of genocide was the intent to destroy, in whole or in part, a national, ethnical, racial or religious group. Genocide shall also occur if the accused knew or should have known that his or her actions would destroy a group or the conduct was part of a pattern of similar conduct directed against that group.
The paper goes on to define five different types of genocide crimes:
-- Genocide by killing would occur if the accused killed one or more persons of a group in furtherance of the intent to destroy it.
-- Genocide by harming would occur if the accused caused serious bodily or mental harm to one or more persons of a group in furtherance of the intent to destroy it.
-- Genocide by inflicting conditions of life would occur if the accused inflicted certain conditions of life upon a group or members of a group in furtherance of the intent to destroy it.
-- Genocide by preventing births would occur if the accused imposed measures that were intended to prevent births within a group.
-- Genocide by transferring children would occur when the accused forcibly transferred one or more persons from a group to another group in furtherance of the intent to destroy a group; and if the person or persons were under the age of 18.
The second discussion paper (PCNICC/1999/WGE/RT.2) deals with article 8 (war crimes). It states that war crimes would occur if the conduct took place in the context of and was associated with an international armed conflict; and if the person or persons affected by the conduct were protected under one or more of the Geneva Conventions of 1949 and the accused was aware of the factual circumstances that established this status.
The paper discussed five types of war crimes: the war crime of wilful killing, the war crime of torture, the war crime of inhuman treatment, the war crime of biological experiments, and the war crime of wilfully causing great suffering.
The third discussion paper (PCNICC/1999/WGE/RT.3) deals with suggested comments relating to the crime of genocide. Among the suggestions, the paper states that it is recognized that rape and sexual violence may constitute genocide in the same way as any other act, provided that the criteria of the crime of genocide were met.
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Preparatory Commission Officers
Officers of the Preparatory Commission are Philippe Kirsch (Canada), Chairman; Muhamed Sacirbey (Bosnia and Herzegovina), Medard Rwellamira (South Africa), and George McKenzie (Trinidad and Tobago), Vice-Chairmen. The Rapporteur is Salah Suheimat (Jordan).
The Coordinator for the Working Group on Rules of Procedure and Evidence is Silvia Fernandez de Gurmendi (Argentina), while Herman Van Hebel (Netherlands) is Coordinator of the Working Group on Elements of Crimes.
During the session, the Preparatory Commission agreed to the appointment by the Chairman of additional coordinators. They were: Mr. Rwellamira (South Africa) to coordinate matters relating to Part 4 of the Statute (Composition and Administration of the Court); Rolf Fife (Norway) on Part 7 (Penalties); Phakiso Mochochoko (Lesotho) on Part 9 (International Cooperation and Judicial Assistance); and Tuvalu Manongi (United Republic of Tanzania) on the definition of the crime of aggression.
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