PRESS BRIEFING BY CHAIRMAN OF PREPARATORY COMMISSION FOR INTERNATIONAL CRIMINAL COURT

Press Briefing

PRESS BRIEFING BY CHAIRMAN OF PREPARATORY COMMISSION FOR INTERNATIONAL CRIMINAL COURT

The main function of the Preparatory Commission for the International Criminal Court was to create the conditions that would allow the Court to function effectively as soon as its Statute entered into force, the Chairman of the Commission, Philippe Kirsch (Canada), told correspondents at a Headquarters press briefing today.

Within its mandate, Mr. Kirsch continued, the Preparatory Commission was supposed to develop: a whole series of instruments that would be necessary for the Court to function; an agreement on the relationship between the Court and the United Nations; a headquarters agreement with the Government of Netherlands; and financial regulations, including the first budget for the Assembly of State.

As a priority, the Commission had to complete two instruments by the end of June 2000, Mr. Kirsch continued. One was the rules of procedure and evidence and the other, was the elements of crime. The latter was a document that would help the Court to interpret the crimes that were listed in its Statute. Another part of the Commission's mandate -- given not by the Rome Conference, but by the General Assembly -- was to enhance the effectiveness and widen acceptability of the Court.

Mr. Kirsch said most of the work at the session ending today, had focused on the two priority items which he had mentioned. Good progress had been made on the rules of procedure and evidence. That progress maintained the balance between the different legal systems to be reconciled. "Irrespective of any substantive differences, it is quite difficult to just reconcile civil law and common law for purposes like this", he added.

Continuing, Mr. Kirsch said that among the subjects that had been considered were: the examination of witnesses; the taking of testimony; the development of rules to protect certain types of privileged communications between lawyer and client or clergy and penitent; and ensuring fairness to and protection of the accused.

Mr. Kirsch told correspondents that another subject, which was discussed extensively at the session of the Preparatory Commission now concluding -- and which had been the subject of a seminar in Paris, France a few months ago -- was the role of victims. The focus had been on the participation of victims at various stages of proceedings before the Court and the question of their reparations. All that work, however, would have to be continued at the next session.

Mr. Kirsch informed correspondents that good progress had also been made on the elements of crimes. The focus of the discussion had been on war crimes and a number of elements had been developed pertaining to that issue. The session preceding one now concluding had focused on genocide while the future session would probably focus on crimes against humanity.

Examples of war crimes were attacks against civilians and civilian objects, and on humanitarian and peacekeeping personnel. There was also good progress on the elements of crime in relation to sexual crimes, he continued. Again, this section on war crimes was not completed and some of it would have to be taken up at the next session which would be held in late November for three weeks.

A correspondent wanted to know if any progress had been made in moving the United States away from its hard-line stand detected during the last session of the Preparatory Commission. Mr. Kirsch said he wished to state unequivocally that the United States delegation had been extremely constructive throughout both, the first and second sessions of the Commission, on all the subjects that were discussed including the elements of crime, which was a sensitive area. "Through elements of crime", he said, "you could move towards changing the Statute itself". But that had not happened, and no-one had tried to do it.

Mr. Kirsch said that at the very end of the last session, he had appointed a coordinator for new subjects that were not currently being discussed. The coordinator had the task of addressing the mandate given to the Commission by the Assembly on ways of enhancing the effectiveness and acceptability of the Court. That was directly related to the position of the United States, which was very important. "We all would like the United States to be on board", Mr. Kirsch stressed.

He said it was his understanding that the coordinator had contacted a number of delegations privately during the session now ending. The United States delegation had also had a number of bilateral contacts with other delegations to explore certain ideas and to see what the reactions were.

It was very clear that all delegations were keen to resolve the problem, Mr. Kirsch continued. He could not, however, say much more on the matter now, since no public positions had recently been taken by the United States or any other delegations on specific issues. The recent session was more to "test the waters" and see where progress could be made. The atmosphere and the disposition of the delegations, however, had been good and he was encouraged by that.

A correspondent said that the spokesman for United States Senator Jesse Helms, in a briefing this morning, had used a specific example to explain why the United States Senate would demand 100 per cent protection of its service

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personnel against indictment by the Court. Using the case of the United States attack on Libya, the spokesman had noted that some people could have said that the United States had targeted Muammar Al-Qadhafi of Libya, and that had resulted in the death of one of his children. Such an action could have been brought before an international criminal court under war crimes.

The correspondent said, Senator Helms's spokesman had stated that under the International Criminal Court Statute, the United States would have been required to try the President of the United States and other senior officials, and to make a decision on whether the actions constituted a war crime. If the United States decided that it was not a war crime, then a three judge panel of the International Criminal Court would be given the final right to determine whether "an act of United States national policy " was a war crime or not.

Invited to comment on that example, Mr. Kirsch said it was not part of his function to pass judgement on actions taken by the United States in concrete situations. The question raised a number of different aspects. The first was that there were a variety of different crimes being covered by the Statute -- genocide, war crimes, crimes against humanity and aggression. Of those crimes, aggression was not one with which the Court was actively seized because it had not been defined. Any definition would have a high threshold and would also have to be agreed upon by the United States.

On the point that if the United States courts did not prosecute certain people in certain circumstances, then the matter would go to the International Criminal Court, Mr. Kirsch said, that was part of the principle of complementarity. The first step was for necessary action to be taken by the domestic courts in certain circumstances. If they did not, only then would the court be seized of the matter. It did not mean, however, that the domestic courts had to prosecute people. It meant that they had to go through a process to determine whether a crime had been committed or not.

If the process was fair and the conclusion was that the crime had not been committed, there was no reason why the International Criminal Court would be seized of the issue, continued Mr. Kirsch. That would happen only if it was clear that the State was unwilling or unable to prosecute. However, it was not possible for him, to pre-judge the circumstances where that would apply. Even if such a situation was referred to the International Criminal Court, there were many safeguards in the Statute that would prevent undue politicization of the Court.

For the Prosecutor to initiate an investigation or prosecution, the approval of pre-trial chamber of three judges was needed, said Mr. Kirsch. If the involved State challenged that, then there had to be a second approval by a pre-trial chamber. After that, if the State still contested, then an appeal had to be lodged by the State and an appeal chamber had to pass judgement on the case. There was also the question of the requirements on the

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qualification of the prosecution and the judges. Simply put, it was possible for anyone to try and use any court for political purposes, but that was not to say that the Court itself would act as a political body.

Mr. Kirsch said he was quite satisfied that the Court, once seized of an issue, would act as a fair impartial legal body and not in a political way. The United States had concerns and if there were ways of accommodating those concerns without jeopardizing the integrity of the Statute, which most States found important, then every effort would be made to do that.

A correspondent asked if crimes such as terrorism, drug-trafficking, money-laundering, arms dealing and other types of international crimes were still being discussed. Mr. Kirsch said those crimes were not off the table. The Rome Conference had been pressed for time and some of those issues just could not receive enough attention. On drug trafficking, some States were of the view that the crime belonged to the realm of the "national and international" in the strict sense, and not the International Criminal Court.

Mr. Kirsch said terrorism was extremely difficult to define and delegations in Rome could not agree to a definition. For those reasons, there were no solutions. A resolution was however adopted, which gave the mandate to the first review conference of the Statute (which would take place seven years after it entered into force) to look again at whether crimes such as, terrorism and drug-trafficking should be included in the Statute or not.

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