PRESS BRIEFING BY CHAIRMAN OF ICC PREPARATORY COMMISSION

Press Briefing

PRESS BRIEFING BY CHAIRMAN OF ICC PREPARATORY COMMISSION

The International Criminal Court might come into operation sooner than expected, the Chairman of its Preparatory Commission, Philip Kirsch (Canada), told a headquarters press briefing this morning. He said the Commission’s third session, which ends later today, had made satisfactory progress in drawing up the priority rules necessary for the effective functioning of the Court.

The Preparatory Commission had been given a mandate to put in place a number instruments which would be necessary for the court to function effectively, including an agreement between the Court and the United Nations; a headquarters agreement between it and the host country (Netherlands); and financial rules, the chairman recalled. The two questions given priority by the Rome Conference which adopted the Court’s Statute last year, were the Rules of Procedure and Evidence and the Elements of Crimes, which and to be completed by a deadline of 30 June 2000.

The Elements of Crimes would include a more detailed definition of the crimes listed in the statute, were so that the Court could more easily determine whether a crime had been committed or not, he said. Last week, the General Assembly had given the Preparatory Commission six more weeks within which to meet its deadline; Mr. Kirsch was confident that the Preparatory Commission could complete its that work on both texts by that date.

The Preparatory Commission had already held two sessions this year –- 16 to 26 February and 26 July to 13 August. Mr. Kirsch said the objective of the current third session, concluding later today, was, as he had stated at the opening meeting, to finish a first reading of the two texts; that had been almost completely achieved.

Mr. Kirsch observed that the first aspects of the Rules of Procedure and Evidence concerned such matters as the organization and composition of the Court; the pre-trial and investigation process; the trial; penalties, right of appeal and enforcement of the Court’s decisions. Those issues were not “terribly political” he said, adding that they did not involve the interests of States, although they entailed serious clashes between different legal systems, notably the common law and civil law systems.

The Elements of Crimes dealt with genocide, war crimes and crimes against humanity. On war crimes, he said there was one issue -– left unresolved until the present session -– that had now been settled and might make quite a lot of difference for some States. That was the question of transfer of populations by occupying powers. “It was a difficult; sensitive issue, but it has been resolved”. That, he said,

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could obviously “make life a lot easier for certain States in terms of their position vis-à-vis the Court”.

He said the draft text on war crimes could remain in its current form in many respects. The question of crimes against humanity was more difficult to resolve, because, first of all there was not as much basis for defining them as there was for war crimes, on which there were a number of instruments, such as the Geneva Conventions. In addition, he said, crimes against humanity were committed on the territory of some States even in the absence of armed conflict.

Mr. Kirsch said he had found delegations well prepared and really determined to achieve results. The atmosphere at the negotiations had also been very good, he added.

Turning to the process of ratification of the Rome Statute, he noted that for it to enter into force, 60 ratifications were needed. There were now 91 signatures, which meant there were 91 States preparing their ratification process. There were now only six ratifications. (Ghana had yet to deposit its instrument of ratification with the Secretary-General). He said the Statute was a very complicated legal instrument requiring elaborate domestic legislation. Dozens of States were working simultaneously on bringing that legislation into compliance with the Statute.

He said: “my sense is that, within two years, we would probably see a number of ratifications happening just about the same time, so the Statute may indeed enter into force earlier than we expected by the end of the Rome Conference” Germany and Norway had announced that they had legislation on ratification ready, while Canada had just completed legislation both on ratification and implementation of the Statute. The Australian cabinet had authorized the start of the ratification process.

A correspondent asked how war crimes were distinguishable from crimes against humanity, and how those two were different from the crime of aggression. Mr. Kirsch explained that there were a number of crimes in each category, some of which were very distinct, and some of which overlapped. Certain crimes, such as attacks against civilian populations and use of certain prohibited weapons, could only be committed during times of war. In other cases, it was possible for a crime, such as murder, to be committed in times of armed conflict or in times of peace. Some crimes, such as enslavement and certain sexual offences, were in the category of crimes against humanity that could be committed during armed conflict or in times of peace.

The crime of aggression was basically an armed attack by one State against another, he continued. Although “aggression” had been defined by the General Assembly in 1974, there was clearly a need for another definition for the purposes of the Statute. In the negotiations on the definition, he said some States preferred an expansive definition with a lot of acts that would constitute

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aggression, while others preferred to limit that act to the classical acts accepted as aggression. An additional underlying issue was the potential role of the Security Council. While the Council had the authority under the Charter to determine whether an act of aggression had been committed, the question was whether the Court could try someone if the Council had not previously determined that an act of aggression had occurred.

Asked about the attitude of the United States in the Commission’s session as well as it’s attitude in general, Mr. Kirsch replied that it was playing a very constructive role in the Commission and was contributing a great deal of expertise to the discussions on the Rules of Procedure and Evidence. “With the negotiation on Elements of Crimes –- a much more sensitive subject on which we thought there might be difficulties –- the US has been playing, since February, a very positive role, again bringing a great deal of expertise”, he said. It had come with certain positions to the general debates but the fact that agreements had been reached to the “general satisfaction” of all delegations clearly meant that “there was no attempt in the PrepCom to sabotage the exercise. The role as far as I can see has been positive and is increasingly recognized as being positive, which I think is important in developing a good atmosphere to resolve other problems, he said. “With respect to the other problems, as long as the United States has not put its final position on the table, I don’t think I should do that in its stead.”

“We all know that the general issue for the United States is to ensure that its nationals or, at least, its nationals that work as agents of the States, will not be tried before the ICC”, he continued. “The question is whether that position can be reconciled with the text and objectives of the Statute of the Court, I know, of course, that the United States has had a number of contacts with delegations on that issue and, of course, they have talked to me also. But we will see what kind of proposal they come up with at the next session. They have not yet done so at this session.”

Asked whether anyone would vote in favour of the US attempting to dilute the Statute or to carve out an exception for itself, if the US demanded it, Mr. Kirsch said he couldn’t comment because it was an extremely political question. It was something that had not been addressed. However, he added there was a widespread feeling that the natural position of the US would be on the side of the Court “because when you look at history and the position the United States has taken since World War II, in Nuremberg and Tokyo and the tribunals of Rwanda and the former Yugoslavia, there is a trend of the US wanting punishment of criminals that have committed serious international crimes. I think everyone feels that it is very unfortunate that that particular problem is preventing the US from joining all of us without reservations.” He added, “in terms of approaches and solutions, I think it would be very unwise on my part to speculate.”

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