Preparatory Commission for

International Criminal Court

29^th Meeting (PM)

INTERNATIONAL CRIMINAL COURT PREPARATORY COMMISSION CONCLUDES SEVENTH SESSION

The Preparatory Commission for the International Criminal Court this afternoon concluded its seventh session, having made progress in negotiations on additional instruments relating to the practical arrangements for the effective functioning of the future Court.

The various working group coordinators, in their final briefings for this session, said delegations had worked to bridge differences of opinion on the key issues, including the scope of application of the Rules of Procedure for the Court.

The coordinators for the Working Groups on the Relationship Agreement between the Court and the United Nations, the Financial Regulations and Rules, and the Agreement on the Privileges and Immunities of the Court indicated that their work would be completed at the Commission's next session, scheduled for

24 September to 5 October.  The Working Group on Rules of Procedure of the Assembly of States Parties, and the Working Group on the Crime of Aggression also met during the session.

Philippe Kirsch (Canada), Chairman of the Preparatory Commission, said the session was "exceptionally productive".  He noted that it was apparent that the Commission would need additional time to meet in 2002, as there were a number of practical questions relating to the establishment and early stages of the Court's operation that still had to be dealt with.

He said it had been decided that two additional working groups would be established -- one, on the first year budget of the International Criminal Court, and the other on the Principles of the Headquarters Agreement between the Court, and the Government of the Netherlands which will host it.  That would bring the number of working groups to seven. 

The Preparatory Commission adopted the report of its seventh session, which was introduced by its Rapporteur, Salah Suheimat (Jordan).

The representative of the Netherlands said a suitable location in The Hague had been identified that would fulfil all the requirements for the functioning of the Court.  As host country for the International Criminal Tribunal for the Former Yugoslavia, as well as facilitator of the Lockerbie Trial at Camp Zeist, the Netherlands had gained important insights into the workings of international jurisdictions within its borders.  Those insights would be vital for the establishment of the International Criminal Court.

The representative of Lesotho also made a statement.

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

The Preparatory Commission will continue to meet until the Court enters into force, following the sixtieth State ratification of the Rome Statute.  The Assembly of States Parties, composed of one representative from each State party, will meet for the first time upon the dissolution of the Preparatory Commission.  The first meeting of the Assembly of States Parties will hold a formal vote for adoption of the text discussed and adopted during sessions of the Preparatory Commission.

Highlights of Session

During the session, which began on 26 February, the Commission considered a new item on draft Rules of Procedure of the Assembly of States Parties -- a body of States that have ratified or acceded to the Rome Statute establishing the Court. 

In addition, the Preparatory Commission continued work on a draft relationship agreement between the Court and the United Nations, financial regulations and rules, and draft agreement on the privileges and immunities of the Court.  Work also continued on the preparation of proposals on the elements and conditions under which the Court could exercise 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, expected to take place seven years after the Court becomes operational.

The main challenge, in the draft Relationship Agreement between the Court and the United Nations, concerned the independence of the Court and the mutual recognition of the two institutions.  The text on Financial Regulations and Rules of the Court dealt with the budget, the scale of assessment, the choice of the currency for the Court, and the creation of a trust fund for victims.  Issues involved in the draft Agreement on the Privileges and Immunities of the Court include the extension of that status to defence counsel and victims appearing before the Court.  Witness and experts are also to be given those privileges.

The 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.  It will formally be created once the treaty establishing it -- commonly referred to as the Rome Statute -- receives 60 ratifications.  As of now, 139 countries have signed the treaty, and 29 have ratified it.  The Court will only have jurisdiction over crimes that are committed after the Rome Statute enters into force.

The Preparatory Commission completed the first phase of its work at the end of its fifth session on 30 June 2000, with the adoption of a complementary set of draft Rules of Procedure and Evidence, as well as the draft Elements of Crimes under its jurisdiction.  The deadline was set by the Final Act (Resolution F) of the Rome Conference.

The Preparatory Commission, established by the General Assembly pursuant to Resolution F, held three sessions in 1999 and three in 2000.  Two more sessions are planned for this year, with the next scheduled from 24 September to 5 October.  The Preparatory Commission will remain in existence until the conclusion of the first meeting of the Assembly of States Parties, during which its work will be forwarded to the Assembly for final approval.

Participation in the work of the Preparatory Commission is open to all States that were invited to the Rome Conference, including those which 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 13-part Statute of the International Criminal Court was adopted by an unrecorded vote of 120 in favour to 7 against, with 21 abstentions, on 17 July 1998 at the Rome Conference.  States parties to the Rome Statute, the Security Council and the Court’s Prosecutor will have the power to bring cases before the Court, which will be presided over by judges from 18 different countries.  It will have an independent Prosecutor elected through secret ballot by States that have ratified the Statute.

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

The Coordinators for the various Working Groups are:  Cristian Maquieira (Chile), Relationship Agreement between the Court and the United Nations; Georg Witschel (Germany), Financial Regulations and Rules of the Court; Phakiso Mochochoko (Lesotho), Agreement on the Privileges and Immunities of the Court; Saeid Mirzaee-Yengejeh (Iran), Rules of Procedure of the Assembly of States Parties; and Sylvia Fernandez de Gurmendi (Argentina), Crime of Aggression.

Zsolt Hetesy (Hungary) is the contact point for future issues to be considered by the Commission.

      Presentations by Working Group Coordinators

CHRISTIAN MAQUIEIRA (Chile), Coordinator for the Working Group on the Relationship Agreement between the International Criminal Court and the United Nations, introduced a discussion paper that contained the outcome of the group’s consideration of the draft relationship agreement during the current session (document PCNICC/2001/WGICC-UN/RT.1/Rev.1).  The paper described, among other things, the obligation of cooperation and coordination, cooperation between the Security Council and the Court, rules concerning exchange of information and the protection of confidentiality.  

He said that over the past week, the group had held two formal meetings and six informal consultations.  It had, thus, been able to complete the first reading of the draft relationship agreement.  The group had proceeded to a second reading of the text and had been able to consider articles 1 through 12, as well as the Preamble he had prepared.  It would then consider the structure of the draft relationship agreement.  There were still a number of substantive policy issues to be dealt with, but he believed the group would be able to complete its work at the next session of the Preparatory Committee.  He thanked all delegations for their cooperation and commitment.

GEORG WITSCHEL (Germany), Coordinator for the Working Group on Financial Regulations and Rules, introduced a discussion paper on rules and regulations containing the outcome of the group’s discussions during consultations (document PCNICC/2001/WGFIRR/RT.1/Rev.1).  That paper described relations that would govern the financial administration of the Court.  Those regulations included an outline for setting up the Court’s proposed programme budget for each financial period, the provision of funds and other general financial provisions.  The paper also contained an annex on additional terms of reference governing the audit of the Court.

He said that the discussion papers before the Committee intended to reflect progress that had been achieved during this session in drafting of the financial rules.  They should also be considered as discussion papers for proposed consideration during the next preparatory session.

Overall, he said that the number of difficulties remaining had been drastically reduced.  There were, however, a few pending problems, which needed further discussion.  Most of those problems dealt with issues relating to the General Fund and the Trust Fund, as well as to those dealing with other income and voluntary contributions.  Other pending problems included the question of currency in which the proposed programme budget was to be prepared and contributions to the budget were to be prepared, as well as the manner in which unforeseen expenditures were to be met. 

He drew the Commission’s attention to a draft resolution on the establishment of the Committee on Budget and Finance (document PCNICC/2001/WGFIRR/RT.2/Rev.1).  By that resolution, the Commission would recommend the various parameters –- including composition, responsibility and meeting times –- for the establishment of a Budget and Finance Committee. 

He then drew attention to a draft resolution on relevant criteria for voluntary contributions to the International Criminal Court (document PCNICC/2001/WGFIRR/RT.3/Rev.1).

He felt the group’s work could be concluded at the forthcoming preparatory session if it had a work plan which stressed the need to address remaining open issues such as the finalization of relevant texts of the draft resolutions, and if there was substantial coordination between the group and the Working Group on the First Year Budget of the Court about regulations on the drafting and proceeding of the budget of the Assembly of States parties.  He gave heartfelt thanks to all delegations for their cooperation.

PHAKISO MOCHOCHOKO (Lesotho), Coordinator for the Working Group on the Agreement of the Privileges and Immunities of the Court, introduced a discussion paper describing the various privileges agreed upon by States parties in the round of consultations held during this session (document PCNICC/2001/WGAPIC/Rt.1).  The paper described, among other things, the legal status and judicial personality of the Court, the exercise of the functions of the Court outside headquarters, cooperation with authorities of States parties and various articles on the immunity of the Court, its property, funds and assets.

He said that since his last report to the Committee, the Group had held two additional rounds of meetings and two informal consultations in which delegations had continued to work to bridge the gaps of opinion on the draft agreement.  Issues which required further negotiation included those which dealt with the privileges and immunities of States parties participating in the assembly, of counsel and persons assisting counsel, of experts and of victims.  The issue of waiver of immunities also needed further discussion.

Even taking into consideration the continued negotiations needed on those difficult issues, he still felt that, overall, much progress had been achieved.  To that end, he felt the group would be able to conclude its work at the next preparatory session.  He thanked all delegations for their cooperation.

SAEID MIRZAEE-YENGEJEH (Iran), Coordinator of the Working Group on the draft Rules of Procedure of the Assembly of States Parties to the International Criminal Court Statute, drew the Committee’s attention to a discussion paper on the draft Rules of Assembly of States Parties (document PCNICC/2001/WGRPASP/L.1).  The paper described the rules governing aspects of the Assembly, including composition of the Bureau, modification of the allocation of expenses, and the terms of regular and special sessions.

He said during the group’s four meetings and one informal consultation, it had been able to complete a first reading of the text of the draft agreement.  The group had a fruitful exchange of ideas that would be discussed further at the next session.  Those ideas included the scope of application of the rules of procedure and the relationship of those rules with the Statute, and the relevance of repeating the provisions of the Statute in the rules.  He said there would have to be several technical modifications to the text.  In light of the progress achieved so far, he was confident that the Group would be able to complete its work at the next session.  He thanked all delegations for their spirit of cooperation and compromise. 

SYLVIA A. FERNANDEZ DE GURMENDI (Argentina), Coordinator of the Working Group on the Crime of Aggression, drew the Committee’s attention to a discussion paper on the group’s consultations on the definition of the crime of aggression and the conditions under which the Court would exercise its jurisdiction (document PCNICC/2001/WGICC-UN/RT.1/Rev.1).

She said that the group had held four meetings and two rounds of informal consultations.  During the discussions, it had been recognized that the Charter gave responsibility of determining the crime of aggression to the Security Council.  There was the belief, however, that there was still a question of what mechanism would apply if the Council failed to recognize a crime of aggression had been committed.  Many delegations felt that the Council’s prerogatives were primary, but not exclusive.  Some had proposed that in a case where the Council did not decide such acts had taken place, the Court could ask the General Assembly to recommend whether it should continue with the case.  That, and other proposals, had led to a lengthy and frank exchange of views.

She said that the group had also considered the conditions of the exercise of jurisdiction, as well as the definition of the crime of aggression.  There continued to be a division between those preferring a general definition of the crime of aggression and those desiring a highly detailed list of specific and relevant actions.  Various delegations also took up the issue of individual responsibility.  Others felt the group and the wider Committee should consider intent, as well as the rights of the accused.  She expressed gratitude to all delegations for their cooperation in considering these and other delicate issues.

Following Ms. Fernandez de Gurmendi’s presentation, the CHAIRMAN noted that the definition of the crime of aggression and the conditions for the exercise of jurisdiction by the Court were very complex issues, not only in technical terms but also in terms of very fundamental questions of policy.  He said the Committee should therefore proceed carefully when considering those issues.

Rapporteur's Report

SALAH SUHEIMAT (Jordan), Rapporteur of the Preparatory Commission, introduced a report on the proceedings of the Commission at its seventh session, which began on 26 February, and asked the Commission to take note of it.  He also said the Secretariat should be requested to put together the oral reports of the Coordinators in the final draft summary of the proceedings of the session.

The Commission then heard a briefing by Zsolt Hetesy (Hungary), contact point for future issues to be taken up by the Commission.

Future Programme of Work

PHILIPPE KIRSCH (Canada), Chairman of the Preparatory Commission, outlining its future work plan, said the Commission had not completed the work in any of the working groups' areas, so it would continue with them at the next session.  He said the Commission's bureau had decided to establish two additional working groups:  one on the first year budget of the Court, and the other on the principles of the headquarters agreement.  The bureau had asked the Secretariat to prepare draft texts on the topics to assist the Commission in its discussions.

The Preparatory Commission would have seven working groups at its next session, which was scheduled to take place from 24 September to 5 October.

Noting that the Working Groups on the Relationship Agreement between the Court and the United Nations, the Financial Regulations and Rules, and the Agreement on the Privileges and Immunities of the Court would complete their work at the next session, as indicated by their respective Coordinators, he urged delegations not to reopen issues, but to focus on the main objective of the instruments being drafted.

He said the bureau was aware that there were a number of issues dealing with practical questions of the establishment and early stages of the operation of the Court, as well as the first meetings of the Assembly of States parties, which had to be considered in some fashion by the Preparatory Commission to secure an orderly transition.  The bureau was also aware that the Working Group on Aggression would not be in a position to complete its work by the Commission’s next session.  He therefore thought it unlikely that the Commission could complete its task by the end of the next session.  It was now apparent that it would need additional time to meet in 2002.

He said the bureau would have to consider, comprehensively, all other outstanding questions raised by delegations, to make a recommendation on how to address those issues, and provide a master work plan with a tentative timetable for dealing with them.

Statement by Prospective Host Country

DIRK JAN VAN DEN BERG (Netherlands), representing the host country for the Court, said his Government was pleased with the number of ratifications of the Rome Statute already deposited.  It anticipated more ratifications in the future, which would bring the number to the 60 required for the treaty establishing the Court to enter into force.  His Government anticipated that it would be able to deposit its own instrument of ratification soon.

The Netherlands was preparing for entry into force of the Statute, he said.  A suitable location in The Hague had been identified and Cabinet approval was expected shortly.  The location would fulfil all requirements for the functioning of the Court.

The Netherlands was proud to host the International Criminal Tribunal for the Former Yugoslavia, he said.  It had gained important insights into the workings of an international jurisdiction within its borders that would be vital for the establishment of the International Criminal Court.  In facilitating the Lockerbie Trial at Camp Zeist -- a foreign jurisdiction on its soil -- the Government had added to those insights. 

Short-term preparations for the establishment of the Court were on their way as well, he said.  At the entry into force of the Statute, the Netherlands would provide accommodation for the Court and its staff.  He said that as soon as the first trial commenced, the Netherlands Government would provide necessary facilities, including an appropriate courtroom.  It would also ensure that pre-trial detainees were housed.  The host country would, in cooperation with the Court, ensure full attention was paid to security aspects, he said.  The interim facilities would be sufficiently flexible in order to respond to growing needs of the Court.

The Netherlands would welcome any mechanism that was established on behalf of ratifying nations to set up the operations of the Court, even before the entry into force of the Statute.  Its cooperation could be counted upon, and that cooperation might take the form of the establishment of a planning unit.  The host country could not operate in isolation, and would need the assistance of all concerned, including governments, international organizations, the ad-hoc tribunals, non-governmental organizations and experts.  The Netherlands would initiate a consultation process that ensured maximum assistance to the host country and ensure full transparency.

He said the entry into force of the Statute would be as historic a moment as was the adoption of the Statute in Rome on 17 July 1998.  The Netherlands had pledged to be a worthy host to the Court, and was anxious to start fulfilling that role at the earliest possible date.

Mr. KIRSCH (Canada), Chairman of the Preparatory Commission, said the Commission appreciated the efforts of the Government of the Netherlands as the host Government.  The Netherlands was aware of the importance that everyone

attached to its providing the Court with all necessary arrangements, including appropriate premises which fitted the important status of the Court and what it symbolized, and which were capable of ensuring the Court could function properly. 

MOTLATSI RAMAFOLE (Lesotho), speaking on behalf of the least developed countries, expressed appreciation to the International Human Rights Institute of De Paul University for making it possible for representatives of those countries to attend sessions of the Preparatory Commission and the Rome Conference on the establishment of the Court.  He requested those significant contributions be reflected in the Commission's report.

Mr. KIRSCH (Canada), Chairman of the Preparatory Commission, expressed the Commission's appreciation for the recent contributions to the International Criminal Court Trust Fund by Denmark and the European Commission.  He also expressed appreciation to the International Human Rights Institute of De Paul University and its Director, Professor Bassouni, for providing accommodation for delegates that attended the second, sixth and seventh sessions of the Preparatory Commission.

In closing remarks, he said the seventh session was "exceptionally productive" and paid tribute to the Coordinators and contact points for their hard work.  He also expressed gratitude to secretariat of the Preparatory Commission for their competence and dedication.

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