PREPARATORY COMMISSION FOR INTERNATIONAL CRIMINAL COURT CONCLUDES THREE-WEEK SESSION AT HEADQUARTERS

Press Release
L/2951

PREPARATORY COMMISSION FOR INTERNATIONAL CRIMINAL COURT CONCLUDES THREE-WEEK SESSION AT HEADQUARTERS

Conducts ‘Second Reading’ of Two Key Texts, Elements of Crimes; Rules of Procedures and Evidence

The Preparatory Commission for the International Criminal Court concluded its three-week session this afternoon during which it conducted a “second reading” of two key texts necessary for the eventual functioning of the Court -- Elements of Crimes and Rules of Procedure and Evidence -- and continued its work on defining the crime of aggression.

The reading of the draft texts, based on a consolidation of the results of the Commission’s three previous sessions, focused on refinement of language, elimination of inconsistencies and finalization of pending issues.

The Commission's mandate calls for completion by 30 June of work on the Rules of Procedure and Evidence and Elements of Crimes. The rules cover such issues as composition and administration of the Court, penalties for crimes, obligations of international cooperation and assistance, as well as enforcement of sentences. On the matter of crimes initially within the Court's jurisdiction -- genocide, war crimes and crimes against humanity -- the Commission is working to identify what elements would constitute those crimes and would need to be proven in order to obtain convictions. In the category of crimes against humanity, it is discussing such crimes as murder, enslavement, extermination, persecution, disappearance and sexual crimes.

Before concluding this afternoon, the Commission heard progress reports from the coordinators of its working groups dealing with various aspects of those two texts. The coordinator for the crime of aggression also reported on the discussions in his group.

Statements were made by the representatives of Argentina, Belgium and the United Arab Emirates. The Special Representative of the Secretary-General for Children and Armed Conflict also spoke. The Commission’s Chairman and Rapporteur also made statements.

The Court, which is to be a permanent judicial body with jurisdiction over crimes committed by individuals, will become operational once the treaty establishing it -- commonly referred to as the Rome Statute -- receives 60 ratifications. So far, 95 countries have signed the treaty and seven have ratified it (Senegal, Trinidad and Tobago, San Marino, Italy, Fiji, Ghana and Norway).

ICC Preparatory Commission - 2 - Press Release L/2951 16th Meeting (PM) 31 March 2000

At the Rome Conference, where the ICC treaty was adopted on 17 July 1998, the Commission was also requested to prepare proposals on the elements and conditions under which the Court could exercise its jurisdiction over the crime of aggression. Once agreement is reached on that crime, the draft text will be presented to an ICC amendment conference, which is expected to take place seven years after the Court becomes operational.

Other tasks that remain to be addressed by the Preparatory Commission include 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 (the Netherlands).

The session, from 10 to 31 March, was one of two additional meetings, the other being from 27 November to 8 December, authorized by the General Assembly in December 1999 in light of the complexity of the tasks assigned to the Commission.

Earlier in the session, the Commission heard from Judge Richard George May (United Kingdom) of the International Criminal Tribunal for the Former Yugoslavia, who described the Tribunal’s practice and experience in some unresolved areas still under discussion within the Commission. He said that a Tribunal paper submitted to the Commission concentrated on technical issues and practical realities, rather than on general principles or broad overviews. The paper focused on: evidence in cases of sexual violence; the role of the Victims and Witnesses Unit; issues arising with respect to defence counsel; and matters relating to the enforcement of sentences.

Also during the session, Brazil, New Zealand, Argentina and Belgium informed the Commission of their decision to proceed with ratification of the ICC treaty.

When established, the International Criminal Court will be a permanent judicial body complementing national judicial systems, with jurisdiction over crimes committed by individuals. States Parties to the Rome Statute, the Security Council and the Court's Prosecutor are authorized to bring cases before the Court, which will be presided over by 18 judges from 18 different countries. It will have an Independent Prosecutor elected through secret ballot by States that have ratified the Statute.

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 also may participate in the Commission's open meetings.

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

The Coordinators of the Commission’s working groups are: Herman Von Hebel (Netherlands), Coordinator for the Elements of Crimes; Silvia Fernandez de Gurmendi (Argentina), Rules of Evidence and Procedure; Medard Rwelamira (South Africa), Rules of Procedure and Evidence relating to Part 4 -— Composition and Administration of the Court; Rolf Fife (Norway), Rules of Procedure and Evidence relating to Part 7 —- Penalties; Phakiso Mochochoko (Lesotho), Rules of Procedure and Evidence relating to Part 9 -— International Cooperation and Judicial Assistance, and to Part 10 -- Enforcement; and, Tuvako Manongi (United Republic of Tanzania), the Crime of Aggression.

In addition, the Commission has appointed two Contact Points for other outstanding issues of the Commission’s mandate: Hiroshi Kawamura (Japan) for financial regulations and rules, a budget for the first financial year, and the rules of procedure for the Assembly of State Parties; and Cristián Maquieira (Chile) for a relationship agreement between the Court and the United Nations, a headquarters agreement between the Court and the host country, an agreement on the privileges and immunities of the Court, and the request contained in paragragh 4 of General Assembly resolution 53/105 and reiterated in paragraph 3 of resolution 54/105 [which, among other things, requests the Commission “to discuss ways to enhance the effectiveness and acceptance of the Court”].

Statement of Special Representative for Children and Armed Conflict

OLARA OTUNNU, Special Representative of the Secretary-General for Children and Armed Conflict, recalled concern raised last year about issues of the protection of victims, especially women and children in situations of conflict. Towards the end of the year, a steering committee was formed on children and the Court. The Committee’s hard work had resulted in the issues considered during the present session.

Statements by Member States

ARNOLDO MANUEL LISTRE (Argentina) said that yesterday the President of the Argentine Republic had sent a draft law approving the Rome Statute to Parliament, following extensive analysis by all government departments concerned. In conformity with Argentina’s legal system, it would be up to the national Congress to consider the draft law. It was hoped that the Statute would be ratified as soon as the Preparatory Commission completed its work. Argentina was convinced that the prompt establishment of the Court was central to ending impunity, enforcing the rule of law and promoting a stable peace.

GERARD DIVE (Belgium) said that the Belgian authorities supported the establishment of the Court and the strengthening of the national machinery to deal with infringements of international law. Belgium had become the first country to adopt legislation recognizing genocide and crimes against humanity as defined by the Rome Statute. The law authorizing ratification of the Rome Statute would be submitted for a final vote in Parliament in the next few days, and it was hoped that Belgium would ratify the Statute in the next few weeks.

ABDELRAHIM YOUSEF AL-AWADI (United Arab Emirates) thanked the Chairman and Rapporteur and the Secretariat. He expressed his country’s satisfaction with the progress made during the session.

Progress Reports on Working Groups

HERMAN VON HEBEL (Netherlands), Coordinator for the Elements of Crimes, said the group had held 18 meetings, 12 of which were informal consultations. In addition, there were numerous hours of “informal” informal consultations and drafting exercises. The working group had decided to concentrate on the second reading of the elements of the crime of genocide and war crimes at the current session and to defer the second reading of crimes against humanity to the next session. The working group had considered a number of issues affecting the substance and structure of the Elements of Crimes.

In relation to substance, the working group had dealt with the complex question of the relationship between the mental element and the material element, he said. The group examined the relationship between the Elements of Crimes and Part 3 of the Statute on General Principles of Criminal Law, in particular with article 30 on mental element, and article 32 on mistake of fact or mistake of law. The group had decided to place a general introduction addressing issues common to all three crimes, such as the existence of intent and knowledge, mental elements involving value judgements and grounds for excluding criminal responsibility. In addition, every crime would have its own introduction addressing issues specific to that crime and common to the elements of that crime.

With regard to the structure, the group had decided to place the elements of crimes in a consistent manner beginning with elements focusing on the conduct, consequences and circumstances associated with each crime, he said. The rolling texts before the Commission were fairly well advanced and should require few changes at the next session.

SILVIA FERNANDEZ DE GURMENDI (Argentina), Coordinator for the Rules of Procedure and Evidence, said that the working group had carried out its work with respect to various parts, including those dealing with investigation and trial, as well as appeal. The results were reflected in working documents debated in the respective working groups. None of the documents were definitive and some parts needed further discussion. Reservations had also been entered with respect to certain texts. Nevertheless, the documents represented substantial progress towards the Preparatory Commission’s ultimate goal.

MEDARD RWELAMIRA (South Africa), Coordinator for Rules and Procedure related to Part 4 on Composition and Administration of the Court, said the group had carried out its work in a substantive number of informal consultations, as well as in several formal meetings. The documents produced by the group represented a great effort in streamlining rules and resolving some pending problems. The group had dealt with rules related to situations that might affect the functioning of the Court, such as a definition of serious misconduct and serious breach of duty, as well as rules on sanctions, including removal from office and disciplinary measures, and the excusing or disqualification of a judge.

Concerning the organization of the Court, the group had dealt with rules on plenary sessions, and on the election and qualifications of the Prosecutor and the Registrar and on the Office of the Prosecutor. New formulations were to be found in the sections dealing with the Office of the Registrar and the rules relating to the victims and witnesses unit. Some modifications were also introduced in the rules relating to counsel for the defence and on a code of professional conduct.

PHAKISO MOCHOCHOKO (Lesotho), Coordinator for the Rules of Procedure and Evidence relating to Part 9 (International Cooperation and Judicial Assistance), said that, following informal consultations and meetings, the group was able to produce coordinators’ papers reflecting substantive progress. He drew attention to papers containing adjustments to certain provisions and additions to some rules. New sub-rules had also been added to a number of rules. It was the general understanding that the working group had completed its work.

TUVAKO MANONGI (United Republic of Tanzania), Coordinator for the Crime of Aggression, said that the group had held four meetings, including one comprising informal consultations. Reaching agreement was no simple task and required frank discussion, consultations and a search for viable solutions. The group had first held a general debate and then decided that it was more useful to have a thematic discussion on the Crime of Aggression, instead of a general discussion on all the issues involved. In order to advance its work, the group had found it useful to clarify specific issues. It was hoped that the group could continue its work in a constructive manner during the June session in order to bring delegations closer together.

Statement of Rapporteur

SALAH SUHEIMAT (Jordan), Rapporteur, recommended that the Preparatory Commission take note of the oral reports of the coordinators. In terms of the written report, the Commission should request the Secretariat to prepare an organized and consolidated text of the Rules of Procedure and Evidence and of the Elements of Crimes on the basis of the proceedings, as at the end of the present session. He drew attention to document PCNICC/2000/L.1 containing the draft summary of the proceedings and recommended that, as in the previous sessions, the Commission only take note of it.

Statement by Chairman

PHILIPPE KIRSCH (Canada), Chairman of the Preparatory Commission, informed delegates that a work plan for the next session had been distributed. He asked delegations to check carefully the language versions of the draft texts of the provisions on Elements of Crimes and Rules of Procedure and Evidence for linguistic corrections to ensure that the versions were consistent.

Turning to the work for the December session, Mr. Kirsch said the Bureau felt it would be useful to hear a very preliminary impression about how to proceed with the remaining issues on the Commission’s mandate at the outset of the June session. Delegations would then have an opportunity to reflect on future work and discuss it with the contacts points in the course of the June session. He added that Cristián Maquieira (Chile) would be unavoidably detained by an important parallel commitment in Geneva during the last week of the June session. Because the issues for which he was the contact point were of transcending importance, and in order to avoid a gap in handling those issues, Mr. Kirsch said Rolf Fife (Norway) had been asked to assist Mr. Maquieira during the next session and to replace him during his brief absence.

Canada had offered to host an inter-sessional meeting for coordinators and sub- coordinators dealing with the Rules of Procedure and Evidence and with Elements of Crimes to review the provisions for consistency and an avoidance of duplication. No changes would be made to the Rules, he said, adding that the coordinators and sub-coordinators would only be making suggestions that would be presented at the June session.

Nine delegations from least developing countries had benefited from the Trust Fund and were able to participate in the work of the Preparatory Commission. He thanked the Holy See and the United Kingdom for their recent contributions to the Trust Fund.

* *** *