FLEXIBILITY MUST BE CORNERSTONE OF ADMINISTRATION OF INTERNATIONAL CRIMINAL COURT, FLEXIBILITY MUST BE CORNERSTONE OF ADMINISTRATION OF INTERNATIONAL CRIMINAL COURT, PREPARATORY COMMISSION TOLD

Preparatory Commission for

International Criminal Court

28^th Meeting (AM)

FLEXIBILITY MUST BE CORNERSTONE OF ADMINISTRATION OF INTERNATIONAL CRIMINAL COURT,

PREPARATORY COMMISSION TOLD

The practicalities of setting up an International Criminal Court represented a considerable challenge even in the best of circumstances, the Registrar of the International Criminal Tribunal for the Former Yugoslavia said this morning as he briefed the Commission laying the groundwork for the effective functioning of the future Court.

Hans Holthuis told the Preparatory Commission for the International Criminal Court that, based on the Tribunal's experience, he foresaw an international criminal court whose administration had the notion of "flexibility" as its cornerstone.

He said the future Court would require, among other things, rules of detention, rules governing the assignment of counsel, models for enforcement of sentences and relocation of witnesses arrangements, and investigation protocols.  Other systems should include codes of conduct for counsel and the handling of evidence, and a code of ethics for interpreters.  He strongly recommended that such systems be set up before the International Criminal Court was asked to face the challenge of its first case.

Also this morning, the Preparatory Commission heard reports from the Coordinators of the working groups on the following topics: the Relationship Agreement between the Court and the United Nations; Financial Regulations and Rules of the Court; Agreement on Privileges and Immunities of the Court; Rules of Procedure of the Assembly of States Parties; and the Crime of Aggression.

The representative of Trinidad and Tobago informed the Commission of workshops held in her country relevant to its work.

The Preparatory Commission began its seventh session, scheduled to conclude on 9 March, on 26 February.  As in previous sessions, much of its work is being conducted in the working groups.

A total of 139 States have so far signed the Rome Statute or treaty of the International Criminal Court and 29 have ratified it.  The Statute was adopted at a Diplomatic Conference of Plenipotentiaries on 17 July 1998 in Rome.  The Court would come into being when 60 States have ratified the treaty.

28^th Meeting (AM)

The International Criminal Court will be a permanent judicial body that will investigate and bring to justice individuals who commit the most serious violations of international humanitarian law, namely, genocide, crimes against humanity, and war crimes and, once defined, the crime of aggression.

The next plenary of the Preparatory Commission will be announced in the Journal.

Background

The Preparatory Committee for the International Criminal Court met this morning for a briefing on the progress made by its five working groups during informal consultations over the past week.  It was expected to hear reports from the coordinators of the working groups on the following: the Relationship Agreement between the Court and the United Nations; Financial Regulations and Rules; Agreement on the Privileges and Immunities of the Court; Rules of Procedure of the Assembly of States Parties; and the Crime of Aggression.

The Committee was also expected to hear from the Registrar of the International Criminal Tribunal for the Former Yugoslavia.

Briefings by Working Group Coordinators

CHRISTIAN MAQUIEIRA (Chile), the Coordinator for the Working Group on the Relationship Agreement between the International Criminal Court and the United Nations, said that over the past week, the group had engaged in many intense but positive discussions.  Those discussions had focused on a detailed reading of the Preamble, as well as articles 12 through 21 of the draft Relationship Agreement (see documents PCNICC/2000/WGICC-United Nations/L.1 and PCNICC/2000/L.4/Rev.1/Add.1).  The consultations had resulted in several revisions, which would be distributed to Committee Members later today.

He went on to say that the group had a general exchange of views in article 8, which refereed to the exercise of jurisdiction over persons enjoying privileges and immunities in connection with their work for the United Nations.  It had also discussed article 13, which referred to requests for advisory opinions, as well as various technical procedures, which must be borne in mind for future discussions.  Overall, he was somewhat optimistic that the group would complete discussions of the issues under its purview during the current session, or very early during the next.

GEORG WITSCHEL (Germany), Coordinator for the Working Group on Financial Regulations and Rules, said the group’s discussions had been carried out in three rounds of informal consultations.  Those consultations had concentrated on a review of articles 11 through 14 of the draft financial rules as well as a second reading of the Preamble (see documents PCNICC/2000/WGFIRR/L.1 and PCNICC/2000/L.4/Rev.1/Add.2).  He was pleased to announce that a second reading of all the regulations had been completed and that the number of open issues had been drastically reduced.  An update paper would be provided to Committee Members later in the week.  The group had also considered the elaboration of criteria for the use of contributions and the establishment of trust funds and other funds.  Regulations on the drafting procedures for the budgets of the Assembly of States Parties would require further consultations.

PAKISO MOCHOCHOKO (Lesotho), Coordinator for the Working Group on the Agreement of the Privileges and Immunities of the Court, said the group had carried out two informal sessions.  One session had focused on a second reading of the Preamble and, based on those discussions, the Coordinator had prepared a paper that would be distributed later.  The group also discovered that article 16 of the draft Agreement on Privileges and Immunities, on the treatment accorded to counsel before the Court (see documents PCNICC/2000/WGAPIC/L.1 and PCNICC/2000/L.4/Rev.1/Add.3), had sparked active debate among many delegations.  Delegations had expressed interest in refining the issues presented in his proposals, but there was the general feeling that more negotiations were needed.  Another round of informal consultations was scheduled for this week.  He was hopeful that the issues regarding the privileges and immunities of the Court could be finalized during the current session.

SAEID MIRZAEE-YENGEJEH (Iran), Chairman of the Working Group on the draft Rules of Procedure of the Assembly of States Parties to the International Criminal Court Statute, said the working group had begun its work on 1 March, considering draft rules 1 through 49.  (The draft text was prepared by the Secretariat (document PCNICC/2001/WGRPASP/L.1).  The working group would continue to consider the remaining rules -- from 50 to 89.  It had had interesting discussions on whether the scope of the Rules should apply to the Assembly only, or to the Review Conference on the Statute as well.  There had been discussion about whether the Assembly should have an independent secretariat. 

SYLVIA A. FERNANDEZ DE GURMENDI (Argentina), Chairperson of the Working Group on the Crime of Aggression, said the group had had three meetings, including two formal ones.  Following general comments by delegations, attention had been focused on a proposal submitted by Bosnia and Herzegovina, New Zealand and Romania (document PCNICC/2001/Rev.1/WGCA/DP1).  She said the proposal did not contain any new definition of aggression, but focused on the basis on which the Court could exercise its jurisdiction over that crime.  The proposal sought to deal with the situation the Court would face in cases where the Security Council did not determine that a crime of aggression had been committed or did not invoke Article 16 of the Charter.  It suggested that the International Criminal Court might notify the General Assembly of the situation it faced and invite the Assembly to request the International Court of Justice to give an advisory opinion.

It was a sensitive issue with legal and political implications, she said.  Delegations indicated that their observations on the proposal were preliminary, and they would have to continue to consult their capitals.  She said she had continuously drawn attention to the need for a definition of aggression.

Statement of Former Yugoslavia Tribunal Registrar

HANS HOLTHUIS, Registrar of the International Criminal Tribunal for the Former Yugoslavia, briefing the Preparatory Commission on the Tribunal's practical experience, said he foresaw an International Criminal Court whose administration had the notion of "flexibility" as the cornerstone of its modus operandi.

He said it had been the Tribunal’s experience that financial regulations and rules which strove for full transparency  -- in itself an essential aim -- did not always tally with the sometimes delicate circumstances under which vulnerable witnesses called by the Court needed financial assistance.  The Tribunal had found that many of the assumptions on the basis of which travel arrangements were made for staff and other persons on mission for the Tribunal rarely applied to that category of persons.

Many of the Tribunal’s witnesses were "victim witnesses" who had suffered greatly as a result of war.  They had lost family members, housing and property, and were often unemployed.  Few of them had travelled by air before, let alone to another country.  Many were also refugees or internally displaced persons, while some were at risk because of the testimony they gave.  In some cases, those witnesses did not even have valid travel documents, and had expressed fear for their national authorities.  It had proven to be very difficult for the Registry to ensure full confidentiality and to obtain all the relevant documentation when arranging services such as travel, temporary housing and medical services for such sensitive witnesses, while at the same time fully complying with established United Nations financial practices.

He reiterated that it was crucial that the Financial Regulations and Rules of the Court, as well as its procurement rules, included specific provisions applicable to victims and witnesses and their unique needs.  There was need for adequate and clear arrangements in the Agreement on Privileges and Immunities, taking into account that many witnesses and victims would not be willing to travel to testify without a family member or friend, or some form of legal representation with them.  He also said the Tribunal had found that the privileges and immunities designed for, and customarily granted to United Nations staff members and State representatives did not always easily translate into a well-defined legal status which could enable a defence team to work effectively.

The Tribunal had been faced with the difficult question of determining who was part of that defence team, and the privileges and immunities they required.  Similar questions of scope could also be asked regarding the special legal status that must be accorded to other categories of persons which were strange to the United Nations mould:  counsel which was not defence counsel; accused persons; and even suspects.  Representatives of non-governmental organizations providing essential services or other assistance to the International Tribunal should be added to that category.  Each of those categories of persons had an essential role in the criminal process, he said, adding that the Tribunal had found it to be of the utmost importance that their legal status was defined as clearly and explicitly as possible.

He said the practicalities of setting up the International Criminal Court were manifold, and represented a considerable challenge even in the best of circumstances.  The International Criminal Tribunal for the Former Yugoslavia had had, from the day of its establishment onwards, a basic system, and people trained to work within that system at its disposal.  There were basic systems in place to deal with the most rudimentary security concerns faced by the Tribunal, even though that system did not in any way take into account the specific information and security requirements needed by a judicial institution with many sensitive witnesses.

He went on to give examples of systems the future Court would require:  a court-archiving system rules of detention, rules governing the assignment of counsel, regulations regarding visits to and communication with detainees, models for enforcement of sentences and relocation of witnesses agreements, and investigation protocols.  Other systems included information security directives, security directives and protocols for field staff, codes of conduct for counsel, procedures and protocols for the handling of evidence, a framework within which to deal with claims by wrongly accused or convicted persons and a code of ethics for interpreters.

He strongly recommended that such systems be set up for the International Criminal Court before it was asked to face the challenge of its first case, which he anticipated would be a sufficient challenge in and of itself.  Based on the

Tribunal's experience, he anticipated that it would take time and effort to put those systems in place.

The International Tribunal was able to piggyback ride on United Nations recruitment procedures, staff rules and to use structures such as the United Nations Joint Staff Pension Fund and the United Nations Administrative Tribunal, he said.  However, the Tribunal had found that the arrangements in place did not sufficiently allow it to address the challenges of the labour market from which an international criminal court must recruit.  The Court would also have to consider that some of the essential expertise it required would be rare.  For example, few pathologists had experience with the exhumation of mass graves in war zones.  Such expertise would have to be obtained and put to the use of the Court in a flexible way which met the demands of the labour market.

He encouraged the Preparatory Commission to be meticulous in detail and planning -- as it had been to date -- to give the International Criminal Court the "engine room it requires for its important work".

Statement

GAILE ANN RAMOUTAR (Trinidad and Tobago) informed the Committee of two seminars recently held in her country which were relevant to the work of the Committee.  The Commonwealth Secretariat and the Government of Canada had sponsored a workshop in December on the promotion and implementation of the Rome Statue of the International Criminal Court.  She added that 12 Caribbean Community (CARICOM) States had participated in that seminar, which had undertaken, among other things, a detailed examination of expectations and obligations under the Statute.  It was hoped that those discussions could provide useful information for the development of legislation within CARICOM as well as the wider international community.

She said that the second seminar, hosted by the International Committee of the Red Cross (ICRC) in January, had focused on the implementation of international humanitarian law instruments in the CARICOM States.  Some of the discussions during that meeting had, of course, turned to consideration of the Court and the work of the Preparatory Committee.  Participants had been updated on the Committee’s work and had expressed interest in the discussions of the various working groups.

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