CRIMINAL COURT'S PREPARATORY COMMISSION WINDS UP SESSION WITH GENERAL AGREEMENT ON KEY TEXTS

Press Release
L/2939

CRIMINAL COURT'S PREPARATORY COMMISSION WINDS UP SESSION WITH GENERAL AGREEMENT ON KEY TEXTS

First Reading of ‘Elements of Crime’ and ‘Rules of Procedure’ Completed

The Preparatory Commission of the International Criminal Court, concluding a three-week session this afternoon, has met its objective of completing preliminary work on two key texts necessary for the functioning of the Court, its Chairman announced.

The Commission's Chairman, Philippe Kirsch (Canada), said that the last two sessions' achievements had been "respectable" but, "today, I am delighted to report that the PrepCom’s performance record, from the scale of 1 to 10, has elevated to an almost perfect 10". Respect for the legitimate concerns and points of view of delegations had paid off and enabled the Commission to meet the challenge of its work plan by completing a first reading of the Elements of Crime and the Rules of Procedure and Evidence.

The Commission could now begin a second reading from a solid basis, he said. [A completed first reading indicates general agreement on the framework and provisions of a text; a second reading is usually devoted to refinement of language of the text, elimination of inconsistencies, and finalization of pending issues.] The texts will be subject to final negotiations over the Commission’s next two sessions, from 13 to 31 March, and 12 to 30 June 2000 (30 June being the Commission’s deadline for completing work on them).

Mr. Kirsch said the remaining tasks of the Preparatory Commission included finalization of financial rules and regulations, a first-year budget for the Court, a relationship agreement between the Court and the United Nations, and a headquarters agreement with the host country (Netherlands). He encouraged delegations and the contact points for those issues to engage in "very informal consultations".

The Preparatory Commission decided to request the Secretariat to prepare an organized and consolidated draft of the two texts on the basis of the proceedings of its first, second and third sessions.

The Preparatory Commission accepted an offer by Italy to host an intersessional meeting at Siracusa, Italy, from 31 January to 5 February 2000 to focus on the Elements of Crime and certain categories of victims -- especially children, the elderly and disabled “to prepare the ground” for a second reading of the Elements of Crimes.

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The representative of Ghana announced that his Government expected to deposit with the Secretary-General next week the instrument of ratification of the Rome Statute, which had been completed on 11 November.

At this session, which started on 29 November, the Commission also began work on a definition of the crime of aggression, discussions on which will continue at a session to be held from 27 to 8 December 2000. Once a definition is agreed upon, it is envisaged that the Court will be able to try individuals for aggression in addition to genocide, war crimes and crimes against humanity.

So far, the treaty establishing the Court -– known as the Rome Statute since its adoption on 17 July 1998 in Rome by the Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court -- has received six of the 60 ratifications needed for it to enter into force and the Court to become operational. The six countries that have ratified are Senegal, Trinidad and Tobago, San Marino, Italy, Fiji and Ghana. Ninety-one countries have signed the treaty.

The Court is to be a permanent judicial body, with jurisdiction only over crimes committed by individuals. It will complement national judicial systems, assuming jurisdiction only when it determines that they are unwilling or unable to prosecute. States parties to the Rome Statute, the Security Council and the Court’s own Prosecutor will all be authorized to bring cases before it.

Participation in the work of the Preparatory Commission is open to all States that were invited to the Rome Conference, including those that have not yet signed the Statute. Representatives of relevant regional intergovernmental organizations and international bodies, including the International Tribunals for the Former Yugoslavia and for Rwanda, may participate as observers. Non-governmental organizations (NGOs) may participate in the Commission’s open meetings.

Progress Reports by Coordinators of Working Groups

HERMAN VON HEBEL (Netherlands), coordinator of the working group on Elements of Crimes, announced that the group had been able to complete its first reading of that text. It hoped that a complete set of the Elements would provide an overview of the content and format of the text the Preparatory Commission had been requested to draft.

The rolling texts prepared during the session, and at previous sessions, contained elements for the crimes of genocide, crimes against humanity and war crimes. In many instances, they reflected a broad consensus among delegations. Some were the result of extensive negotiations and delicately formulated compromises. Others were not yet generally acceptable; by adding footnotes and commentaries to some of those elements, it had been indicated that further discussion was needed to achieve consensus.

He said a still pending question was the relationship between the general principles laid down in Part three of the Statute -– particularly the

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issue of mens rea -- and the elements for each of the crimes. That relationship should be discussed now that the first reading of the Elements of crimes had been finished. He said it would be highly desirable for an intersessional meeting to take place to prepare grounds for a second reading. The relationship between the Elements of Crimes and Part three, and more generally, the structure of the Elements document, might be usefully discussed at such meeting. The outcome of the meeting could serve as a basis for future work on the Elements.

Proposals submitted during the present session were contained in documents PCNICC/1999/WGEC/DP.28 to 45 and PCNICC/1999/WGEC/INF.2/Add.3 and Add 4. The rolling texts proposed by the coordinator on the Elements of Crimes at the present session were contained in the following documents:

-- document PCNICC/1999/WGEC/RT.11, on elements of article 8(2)(b)(viii);

-- document PCNICC/1999/WGEC/RT.12, on elements of article 8(2)(e);

-- document PCNICC/1999/WGEC/RT.13 and Corr.1, on elements of article 8(2)(b)(iv), (v),(ix), and (xxiv);

-- document PCNICC/1999/WGEC/RT.14, on elements of article 8(2)(b)(xxiii) and (xxv);

-- document PCNICC/1999/WGEC/RT.15, on elements of article 8(2)(b)(xvii), (xviii) and (xix); and

-- document PCNICC/1999/WGEC/RT.16 and Corr.1, on elements of article 7.

SILVIA FERNANDEZ DE GURMENDI (Argentina), coordinator of the working group on the Rules of Procedure and Evidence, said it had held four meetings, in addition to various unofficial consultations. The results of those meetings were contained in the following documents: on Rule two (on jurisdiction, admissibility and applicable law), in document PCNICC/1999/WGRPE(2)/RT.1.Add.1; on Part six (on the trial), in document PCNICC/1999/WGRPE(6)/RT.1 and 2; and on Part eight (on appeal and revision), in document PCNICC/1999/WGRPE(8)/RT.1 and 2. The rules contained in the documents represented important progress and would make future discussions easier.

MEDARD RWELAMIRA (South Africa), coordinator of the working group on the Rules of Procedure and Evidence relating to Part four of the Statute (on the composition and administration of the Court), said substantive progress had been achieved. A number of additional proposed rules relating to situations that might affect the functioning of the Court had been considered. The working group also had proposed rules on counsel and witnesses, as well as on other relevant matters.

The result of the work of the group was contained in the following documents:

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-- document PCNICC/1999/WGRPE(4)/RT.1/Add.1 and Corr.1;

-- document PCNICC/1999/WGRPE(4)/RT.2;

-- document PCNICC/1999/WGRPE(4)/RT.2/Add.1;

-- document PCNICC/1999/WGRPE(4)/RT.3;

-- document PCNICC/1999/WGRPE(4)/RT.3/Add.1 and Corr.1

The proposed rules contained in those documents referred to the excusing and disqualification of a Judge, Prosecutor or Deputy Prosecutor; death or resignation of a Judge, Prosecutor or Deputy Prosecutor, Registrar or Deputy Registrar; plenary sessions of the Court; and election and qualifications of the Prosecutor and Registrar. They also contained rules relating to defence counsel, victims and witnesses; amendments to the rules; solemn undertakings; replacements; alternate judges; single judges; publication of decisions of the Court; working languages of the Court; translation and interpretation services; and procedures applicable to the publication of documents of the Court.

He said the proposed rules constituted a thoughtful result of arduous negotiations, which might be considered as a first reading of those articles.

Several footnotes appended to some of the rules pointed to aspects that might need further consideration in second reading. He recommended that, together with other proposed rules relating to Part four and contained in document L.4/Rev.1, they all be included in an organized and consolidated text of the Rules of Procedure and Evidence to be available for the next session of the Preparatory Commission.

ROLF FIFE (Norway), coordinator of the working group on the Rules of Procedure and Evidence relating to Part seven of the Statute (on penalties), said consensus had been achieved on those draft rules. [It was thus understood that there would not be a need for a second reading of those rules.]

PHAKISO MOCHOCHOKO (Lesotho), coordinator of the working group on the Rules of Procedure and Evidence relating to Parts nine and 10 (on international cooperation and judicial assistance and enforcement respectively), said the number of discussion papers produced at the present session of the Commission bore witness to the hard work of participants. The working group had held four formal meetings as well as a number of informal consultations during which substantial progress had been made. As far as the rules connected with Part nine of the Statute were concerned, the outcome of the work undertaken by the group was reflected in the following documents:

-- documents PCNICC/1999/WGRPE(9)/RT.1 and Corr.1 (French only) and Corr.2 (English only); and

-- document PCNICC/1999/WGRPE(9)/RT.2 and Corr.1.

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He said those documents dealt with the rules relating to articles 87 and 89 to 101 of the Statute. They covered such subjects as organs of the Court responsible for the transmission and receipt of communications relating to international cooperation and judicial assistance; channels of communication; language chosen by States Parties and language of requests directed to States not party to the Statute; challenge to admissibility of a case; requests for transit; various matters related to surrender; transfer of a person in custody; and cooperation requested from the Court.

As far as the rules connected with Part 10 of the Statute were concerned, he said, the outcome of the work carried out by the working group was reflected in the following documents:

-- document PCNICC/1999/WGRPE(10)RT.1 and Corr.1

-- document PCNICC/1999/WGRPE(10)RT.2/Rev.1 and Corr.1

-- document PCNICC/199/WGRPE(10)RT.3 and Corr.1 (French only) and Corr.2

He said those documents contained rules relating to articles 103 to 111 of the Statute. They covered such subjects, as: communications between the Court and States; list of States of enforcement; principles of equitable distribution; delivery of sentenced persons to a State of enforcement; changing designation of a State of enforcement; enforcement of a sentence; supervision of enforcement of sentences and conditions of imprisonment; transfer of a person upon completion of fines and forfeiture measures; review by the Court concerning reduction of sentence, and escape.

He said the proposed rules were already sufficiently developed so as to be considered as preliminarily adopted on first reading. It would always be possible on a second reading of the rules to further refine them and to reexamine some aspects which might merit further consideration. He recommended that they be included in an organized and consolidated text of rules of procedure and evidence to be made available for the Preparatory Commission’s next session.

TUVAKO MANONGI (United Republic of Tanzania), coordinator of the working group on the crime of aggression, said that group had held three meetings and a number of very informal consultations. Noting that the group had had various proposals before it, he said informal consultations had led to a reduction of their number, to assist the working group in focusing the discussion. The various options for a definition of aggression and a determination about the jurisdiction of the Court were contained in document PCNICC/1999/WGCA/RT.1. The Group had only been able to hold one meeting to discuss the consolidated proposals and intended to continue its discussion at the March session. “I am neither in a position, nor am I expected to report as ready a first-reading text”, he said, adding that the cooperative attitude of delegates had created a positive atmosphere in the working group.

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Chairman’s Closing Remarks

PHILIPPE KIRSCH (Canada), Chairman of the Preparatory Commission, said that the records of the last two sessions, while respectable, had been far from perfect. However, he said, “today, I am delighted to report that the PrepCom’s performance record, from the scale of 1 to 10, has elevated to almost perfect 10". That perfect record was due to the hard work, perseverance, commitment and cooperation of delegates. “As the coordinators emphasized your respect for each others’ legitimate concerns and points of view have paid off and enabled the PrepCom to meet the challenge of its work plan by completing the first reading of the Elements of Crime and the Rules of Procedure and Evidence", he said, adding that the first reading of those two instruments would allow the Commission to begin their second reading from a solid basis.

He informed the Commission that a work plan for informal consultations would be circulated to delegations at the beginning of March. At that session, every Monday morning there would be a plenary followed by a meeting of the working group on the Crime of aggression.

He noted that the remaining work of the Commission had been divided into two parts, with Hiroshi Kawamura (Japan) serving as the contact point for financial rules and regulations as well as a budget for the Court’s first year; and Cristian Maquieira (Chile) serving as the contact point for a relationship agreement between the Court and the United Nations, a headquarters agreement between the Court and the host country (Netherlands), and an agreement on privileges and immunities of the Court. The purpose of designating contact points was to allow delegations that had specific ideas about those issues to know whom to approach. In addition, the contact points themselves could begin very informally to approach delegations and to plan for the future work of the Commission. “I would therefore encourage the delegations and the contact points to engage in very informal consultations —- that would not require meeting time -- in order to assist the Bureau and the PrepCom to plan ahead and present a preliminary report”, he said.

Officers

The Officers of the Commission are as follows: Philippe Kirsch (Canada), Chairman; Vice-Chairpersons George Winston McKenzie (Trinidad and Tobago), Medard R. Rwelamira (South Africa) and Muhamed Sacirbey (Bosnia and Herzegovina). The Rapporteur is Salah Suheimat (Jordan).

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