PREPARATORY COMMISSION FOR INTERNATIONAL CRIMINAL COURT ADOPTS RULES OF PROCEDURE AND EVIDENCE AND TEXT ON ELEMENTS OF CRIMES

Press Release
L/2963

PREPARATORY COMMISSION FOR INTERNATIONAL CRIMINAL COURT ADOPTS RULES OF PROCEDURE AND EVIDENCE AND TEXT ON ELEMENTS OF CRIMES

Commission Concludes Three-Week Session

The Preparatory Commission for the International Criminal Court (ICC) met its deadline of 30 June for finalization of the operational details of the Statute necessary for the eventual functioning of the Court, as it concluded its three- week session this afternoon.

By consensus, the Commission adopted the Rules of Procedure and Evidence for the Court, as well as a text on the Elements of Crimes listed in the Statute as being under the Court's jurisdiction.

The outcome reflected a compromise, Preparatory Commission Chairman Philippe Kirsch (Canada) said. The statements after the adoption were a testament of how difficult it had been to accept some of the compromises reached. For the Court to be effective, though, it must enjoy the widest support possible. It had been the responsibility of the Preparatory Commission to develop instruments to enable the Court to function as fairly and with the widest acceptance possible.

"The Rome Statute is here to stay -- it will not and cannot be changed", he said. The Preparatory Commission had made it clear that the world was united behind the Court while preserving the integrity of the Statute. "This display of unity is a major step forward toward a strong Court."

Several delegates, explaining their positions after action on the texts, addressed a particular rule concerning immunity and consent to surrender that had been intensely debated during the session. The representative of Nigeria said the Statute’s integrity was still intact despite some ambiguities and drawbacks in adopted documents. It was premature to believe that the adoption of rule 9.19 in relation to Article 98.2 of the Statute would open the door to sinister interpretations.

[Rule 9.19, which applies to Article 98.2 of the Statute on cooperation with request to waiver or immunity and consent to surrender, states that "the Court may not proceed with a request for the surrender of a person without the consent of a sending State if, under Article 98, paragraph 2, such a request would be inconsistent with obligations under an international agreement pursuant to which the consent of a sending State is required prior to the surrender of a person of that State to the Court". Included in the report on the Commission's proceedings

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was the following understanding: "It is generally understood that rule 9.19 should not be interpreted as requiring or in any way calling for the negotiation of provisions in any particular international agreement by the Court or by any other international organization or State".]

The representative of Cote d’Ivoire, speaking before the Preparatory Commission took action, said he objected to the adoption of rule 9.19, saying it was in effect an amendment of the Statute. He initially requested a vote on the inclusion of the rule, but after a brief suspension of the meeting for further consultations he withdrew the request.

New Zealand’s representative said rule 9.19 was consistent with Article 98.2 and in no way undermined the Statute.

Portugal’s representative, speaking on behalf of the European Union, said that the formula adopted represented the best compromise possible. The European Union would never accept any interpretation of the rules that ran counter to the spirit of the Rome Statute.

Also speaking in explanation of position were Mexico, Turkey, United Arab Emirates, Cuba, Niger, Singapore, Egypt and Angola.

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 sought to identify the elements that would constitute those crimes and would need to be proven in order to obtain convictions. In the category of crimes against humanity, it discussed such crimes as murder, enslavement, extermination, persecution, disappearance and sexual crimes.

Herman Von Hebel (Netherlands), Coordinator of the Working Group for the Elements of Crimes, and Silvia Fernandez de Gurmendi (Argentina), Coordinator for the Working Group on the Rules of Procedure and Evidence, presented the reports containing those two texts.

Salah Suheimat (Jordan), Rapporteur of the Commission, introduced the report.

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, 98 countries have signed the treaty and 13 have ratified it (Senegal, Trinidad and Tobago, San Marino, Italy, Fiji, Ghana, Norway, Belize, Iceland, Tajikistan, Venezuela, France and Belgium). Sierra Leone announced that it has completed the internal ratification process, but it has not yet registered its ratification with the United Nations, the final step in the process. The treaty is with the Secretary-General and will remain open for signature until 31 December.

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Also this afternoon, Mr. Kirsch (Canada), speaking in his national capacity, said his country’s Parliament had passed the implementing legislation yesterday, opening the way for the Minister of Foreign Affairs to deposit the instruments of ratification next Friday, 7 July.

Also, the representative of Spain announced that his country’s Congress of Deputies had unanimously approved yesterday a draft law authorizing ratification of the International Criminal Court. Given the unanimity of that vote, it was most likely that the Senate would also pass the draft law, and that Spain would ratify the Rome Statute in the fall, before the Preparatory Commission’s next session.

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 a 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 held several discussions on the subject and will continue until agreement is reached on a definition.

In his report this afternoon, the coordinator on the working group on the Crime of Aggression, Tuvako Manongi (United Republic of Tanzania), told the Commission that although progress had been slow, that should not be construed as a negative reflection of the commitments of delegations in finding a solution to an acceptable definition. The limited time during the session had had to be shared with other pressing issues. The group now had a wealth of proposals before it and considered it time to begin actual negotiations on a definition. That move should be welcomed as a necessary next step in the group's work.

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, privileges and immunities of the Court and a headquarters agreement with the host country (the Netherlands).

During this session, the Commission decided that at its next session, from 27 November to 8 December, it would initially limit its focus to negotiating the financial rules and regulations, the privileges and immunities and the relationship agreement.

Also during the session, the Chairman indicated that the Commission would need more time beyond the two-week meeting in November to complete the rest of its work, and he requested delegates to begin considering the matter. The Commission has held five sessions so far.

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

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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 were: 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 the other outstanding issues: 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 13-part Statute of the International Criminal Court, which was adopted by an unrecorded vote of 120 in favour to 7 against with 21 abstentions, gives the Court the authority to investigate and bring to justice individuals who commit the most serious crimes of concern to the international community, such as genocide, war crimes and crimes against humanity. States parties to the Rome Statute, the Security Council and the Court's Prosecutor have the power to bring cases before the Court, which will be presided over by 18 judges. It will have an independent prosecutor elected through secret ballot by States that have ratified the Statute.

The idea of a permanent court began with the unsuccessful attempt to establish an international tribunal after the First World War. Following the Second World War, the Nuremberg and Tokyo war crimes tribunals set the stage for efforts to create a permanent court. It was first considered at the United Nations in the context of the adoption of the 1948 Convention on the Prevention and Punishment of the Crime of Genocide.

In 1992, the United Nations General Assembly directed the International Law Commission to elaborate a draft statute for an international criminal court. Further public interest was created by the Security Council's establishment of the International Criminal Tribunals for the Former Yugoslavia in 1993 and for Rwanda in 1994.

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In December 1994, the Assembly established an ad hoc committee of all Member States and members of specialized agencies to review the final version of the International Law Commission's draft statute. In December 1996, the General Assembly set 1998 as the year for the Conference of plenipotentiaries to consider the establishment of the Court.

Action on Elements of Crimes and Rules of Procedure and Evidence

The representative of Cote d’Ivoire, speaking before action, objected to a proposed rule relating to Article 98.2, which he described as being in effect an amendment to the Article and one which affected the essence of the Statute. He requested a vote on its inclusion.

Australia’s representative then requested that the meeting be suspended so that delegations could consider the statement by Cote d’Ivoire.

The meeting was then suspended.

Following a 30-minute suspension, the representative of Cote d’Ivoire insisted that the proposal amounted to an amendment to Article 98.2. However, his country did not wish to delay the Preparatory Commission’s work and would not insist on a vote. It would, however, insist that its statement be included in the records of the meeting.

The Commission then adopted the Elements of Crimes and the Rules of Procedure and Evidence by consensus.

The representative of Mexico then said that the interpretation of paragraph one on crimes against humanity involved a branch of international law that was still being developed. Hopefully, it would develop on the basis of complementarity with national law.

The representative of Turkey said with regard to the transfer of populations that the term “forcibly” contained in the footnotes was ambiguous and prone to misinterpretation. It had no legal basis in the Rome Statute and required greater clarity and precision. Turkey reserved its position regarding the footnote.

The representative of New Zealand said rule 9.19 was consistent with Article 98.2 and in no way undermined the Statute. Legislation to implement ratification of the Statute was before New Zealand’s Parliament and had undergone its first reading. It was well on track for ratification by the end of the year.

The representative of the United Arab Emirates also said that the footnotes referred to by the Turkish delegate expanded the meaning of forcible transfer, thus violating the Statute.

The representative of Cuba said the international community’s main commitment was not to small countries but to the main international author of the compromise formula just adopted. That country had promised to cooperate with the Court as far as its national security interests would allow. But it had not said

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publicly whether it would be party to the Court. Article 98 of the Statute dealt with agreements between countries, such as extradition or status of forces, but not agreements between international organizations. International organizations should be subordinate.

The representative of Nigeria said the Statute’s integrity was still intact despite some ambiguities and drawbacks in the adopted documents. But those would be resolved through interpretation by the future judges of the Court. Nigeria had signed the Statute on 1 June and all the processes leading to ratification were in place. It was hoped that ratification would take place in the near future. It was premature to believe that the adoption of rule 9.19 would open the door to sinister interpretations.

The representative of Niger stressed the need to adhere to the Rome Statute in line with the Universal Declaration of Human Rights.

The representative of Singapore said the two texts had taken different approaches to the use of footnotes; the document on Elements of Crimes had used footnotes for clarification while the text on the Rules of Procedure contained no footnotes. Referring to the rule on disqualification of judges, the Prosecutor and the Deputy Prosecutor, he cited wording from a draft of an intersessional meeting that stated that, in certain circumstances, nationality could be taken into account in doubting impartiality.

The representative of Egypt said his country had continually stressed the importance of qualifying the term "fundamental rights". Fundamental rights should be those accepted and recognized universally.

The representative of Angola said rule 9.19 should not be interpreted as modifying Article 98.2.

The representative of Portugal, on behalf of the European Union, said he was pleased agreement had been reached regarding Article 98.2. The formula adopted represented the best compromise possible. Any decision taken should respect the integrity of the Statute. The European Union would never accept any interpretation of the rules that ran counter to the spirit of the Rome Statute.

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