PRESIDENT OF FORMER YUGOSLAVIA TRIBUNAL ADDRESSES PREPARATORY COMMISSION FOR INTERNATIONAL CRIMINAL COURT

Press Release
L/2959

PRESIDENT OF FORMER YUGOSLAVIA TRIBUNAL ADDRESSES PREPARATORY COMMISSION FOR INTERNATIONAL CRIMINAL COURT

The Preparatory Commission preparing the groundwork for the functioning of the International Criminal Court should be flexible in drawing up its rules and procedures to enable the Court to deal with inevitable problems, the President of the International Criminal Tribunal for the Former Yugoslavia said this morning.

Judge Claude Jorda said that whatever rules of procedure and evidence the Commission adopted, it was important that those rules were sufficiently flexible to allow the judges of the International Criminal Court to deal with all manner of events which might inevitably arise in cases within their jurisdiction.

The Tribunal's experience had taught it how difficult it was to project and to consider in the abstract, even by recourse to the most carefully formulated rules of procedure, all the difficulties that the international sanction of war crimes and crimes against humanity could demand. If in the future the Court were to be confronted with major problems, it could always turn to the Assembly of State Parties, as the Tribunal today turned to the Security Council for voting on measures required to solve such problems. It was no less important to keep in mind the fact that, in some cases, the judges would be in a better position than any one else to react promptly and effectively to the difficulties inevitably arising from the management of their daily activities, he said

The Preparatory Commission has a mandated deadline of 30 June to complete work on two aspects of the Court's Statute that are essential to its eventual functioning: the Rules of Procedure and Evidence, and Elements of Crimes. Coordinators for working groups on the various issues related to those texts briefed delegates this morning on their progress.

The Court, which is to be a permanent judicial body with jurisdiction over crimes committed by individuals, has received 13 of the 60 ratifications necessary to bring it into being (Senegal, Trinidad and Tobago, San Marino, Italy, Fiji, Ghana, Norway, Belize, Iceland, Tajikistan, Venezuela, France and Sierra Leone). So far, 97 countries have signed the treaty establishing the Court. The treaty remains open for signature until 31 December.

The Rules of Procedure and Evidence 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

ICC Preparatory Commission - 2 - Press Release L/2959 19th Meeting (AM) 19 June 2000

convictions. In the category of crimes against humanity, it is discussing such crimes as murder, enslavement, extermination, persecution, disappearance and sexual crimes.

At its last session in March, the Commission conducted a “second reading” of those two key texts, based on a consolidation of the results of the Commission’s three previous sessions. The Commission is flushing out the legal details of the general principles enunciated in the Statute.

Other tasks that remain to be addressed by the Preparatory Commission, which will remain in existence until the conclusion of the first meeting of the Assembly of State Parties, 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 two contact points appointed for those matters are: 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 paragraph 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”.

The Commission will focus on those logistics at its next session from 27 November to 8 December.

At the Rome Conference, where the Court’s 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 a legal definition of that crime, the draft text will be presented to an International Criminal Court amendment conference, which is expected to take place seven years after the Court becomes operational. In the meantime, the Commission has established a working group that has begun discussions on the subject and will continue until agreement is reached on a definition.

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), 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.

The Commission will meet again in plenary at 10 a.m. Friday, 23 June.

Statement by President of Tribunal

Judge CLAUDE JORDA, President of the International Criminal Tribunal for the Former Yugoslavia, said that whatever rules of procedure and evidence the Commission adopted, it was important that those rules were sufficiently flexible to allow the judges of the International Criminal Court to deal with all manner of events that might inevitably arise in cases within their jurisdiction.

The Security Council had originally entrusted the Tribunal judges with the task of adopting its rules of procedure and evidence. The Tribunal had been able to adapt its rules to the ever-evolving demands of prosecuting and trying the accused. The rules had been selected very quickly, because without them the Tribunal, which had just been set up to contribute towards restoring peace in the Balkans, could not operate and meet the international community's growing expectations.

The rules adopted in 1994 by the Tribunal in the beginning were basically adversarial, with control of the trial's preparatory phase and hearings left to the Prosecutor and the defence under the supervision of the judges. The Tribunal judges could not have suspected at the time that a few years later those rules would not be fully adapted to the needs of rapid and effective management of the cases the Tribunal would hear one day. In the summer of 1998, of the 25 indicted accused, only two had been tried, and none definitely, he said.

It was then that the Tribunal adapted its rules of procedure and, since then, had reformed them, he said. The Tribunal had also redefined the duties of the trial judge by giving him or her greater power over the legal proceedings. New provisions had been put in place for the admission of evidence.

He said the Tribunal judges had reflected in general terms about the ways of trying all the accused persons who were or would be in detention within a reasonable time. He said he would present to the Security Council the results of their reflection, which appeared in a report sent to the Secretary-General on 12 May.

The judges had, in the end, opted for the adoption of a flexible solution that would accelerate the trials without, however, upsetting the current procedures or infringing on the rights of the accused. In addition, the Tribunal's ability to hear cases would be increased by the Member States making available a pool of ad litem judges. Those judges would be called upon to rule on cases determined by the evolution of the Tribunal's future needs. The system, which would require an amendment to the Tribunal's Statute, should make it possible for cases to be completed more quickly.

He said the Tribunal's experience had taught it how difficult it was to project and to consider in the abstract, even by recourse to the most carefully formulated rules of procedure, all the difficulties that the international sanction of war crimes and crimes against humanity could demand. If, in the future, the International Criminal Court were to be confronted with major problems, it could always turned to the Assembly of State Parties, as the Tribunal today turned to the Security Council for voting on measures required to solve such problems. It was no less important to keep in mind the fact that, in some cases, the judges would be in a better position than any one else to react promptly and

effectively to the difficulties inevitably arising from the management of their daily activities.

He again reiterated how important it was for flexible rules to be adopted that would allow the judges themselves to fill in some of the gaps and to correct the imperfections that only judicial practice would bring to light.

Responding to questions, Judge Jorda said that, in principle, it was good for judges to be limited to a time-frame in giving decisions. Progressively, judges had realized that they had to exercise self-control to give a decision on time. It would be dangerous to set a time limit in the rules, as that might set a precedent. There should be flexibility in the rules indicating that judges should give their decisions within a reasonable time limit. Personally, he would not advise setting time limits. There could be technical problems, such as translation problems.

On a question concerning victims, he said he regretted that the issue of victims had not been included in the Tribunal's rules of procedure and evidence. He had proposed a system that would make it possible for victims to be heard. Responding to another question, he said there should be no interruptions in a trial. It was difficult to replace a judge in the middle of a trial. It would be a good idea to have a procedure that would provide for measures to deal with vacancies that might arise during a trial.

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