Preparatory Commission for the

International Criminal Court

33^rd Meeting (AM)

AT EIGHTH SESSION OF PREPARATORY COMMISSION FOR INTERNATIONAL CRIMINAL COURT,

FOUR WORKING GROUPS ANNOUNCE COMPLETION OF ASSIGNMENTS

Four of the seven working groups of the Preparatory Commission for the International Criminal Court, which has the task of negotiating technical arrangements to pave the way for the eventual functioning of the Court, announced the completion of their assignments as the Commission finished up its eighth session this morning.

In addition, four more countries have ratified the treaty establishing the Court –- known as the Rome Statute –- bringing the total to 42 out of the

60 needed for the treaty to enter into force.  During the two-week session which began on 24 September, the Central African Republic, Liechtenstein, Nigeria and the United Kingdom announced their ratifications.

Describing the session as productive, Philippe Kirsch (Canada), Chairman of the Preparatory Commission, said the Commission’s work had moved to an advance stage and that it would focus much attention at its future session on more practical issues relating to the establishment of the Court.

The four texts finalized by the various working groups are a relationship agreement between the Court and the United Nations; financial rules and regulations for the Court; privileges and immunities of the Court; and rules of procedure of the Assembly States Parties.

Two new working groups were set up and focal points were chosen to deal with more practical remaining issues.  Three other working groups will continue their work as well in the next session.  They are dealing with the following issues:  definition of the crime of aggression; a relationship agreement between the Court and the host country of its headquarters (The Hague, Netherlands); and a first-year budget for the Court.

The Court is to 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.  The crime of aggression is to be included in the Court’s jurisdiction once an agreed definition of the crime has been reached.

At its session in June 2000, the Commission met its mandated deadline of

30 June 2000 for finalization of the operational details of the Statute for the Court.  It adopted, by consensus, two key texts, one on Rules of Procedure and Evidence and the other on 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.  Onthe matter of crimes initially within the Court's jurisdiction -- genocide, war crimes and crimes against humanity -- the Commission identified the elements that constituted those crimes.

The Commission, which remains in existence until the conclusion of the first meeting of the Assembly of States Parties, is requesting the authorization of two additional sessions of two weeks at United Nations Headquarters in 2002 to work on issues that had not been originally anticipated.

Mr. Kirsch announced that two more working groups had been established.  One will deal with documents that had to be prepared for the Assembly of States Parties, including such matters as the Bureau of the Assembly, the secretariat of the Assembly; nomination and election procedure for judges and the prosecutor; and a flow chart with detailed timetable and agenda for initial Assembly of States Parties meetings.  Saeid Mirzaee (Iran) would be the Coordinator of that working group.

The other new working group would deal with remaining financial issues, such as the remuneration of judges, prosecutor and registrar and victims’ fund, he said.  Rolf Fife (Norway) would be the Coordinator for the working group.

As provisional rules would be necessary in three areas, focal points had been appointed:  Human Resources and Administration, Phakiso Mochochoko (Lesotho); Budgetary and Finance issues, Christian Much (Germany); and Operational issues, Sivu Maquungo (South Africa). 

Also, a four-member subcommittee was established to act as interlocutor between the Commission and the Netherlands as Host Government.  The members of the Bureau are:  Sylvia Fernandez de Gurmendi (Argentina), Andras Vamos-Goldman (Canada), Zsolt Hetesy (Hungary) and Patricio Ruedas (Spain).  Ms. Fernandez de Gurmendi will serve as Chairperson.

Statements from Coordinators

ZSOLT HETESY (Hungary) said that the working group on the headquarters agreement between the Court and the host country was mandated to prepare a text of principles which would govern the relationship but not to actually draft the headquarters agreement.  One of the challenges was to find the right balance between being not too specific while at the same time including all the relevant principles which could assist the Court and the host Government in their future task.  The completion of the text on privileges and immunities would assist the working group considerably, as a number of paragraphs in the Principles governing a headquarters agreement dealt with issues of privileges and immunities.  During the meetings, some delegations had noted that the Principles should also include those specific issues of privileges and immunities that particularly affected the special relationship between the host Government and the Court.   

ROLF FIFE (Norway), Coordinator of the Working Group on a Draft Budget for the First Financial Year of the Court, said it had approved two papers proposed by the Coordinator.  The first paper reflected a fruitful exchange of views on administrative arrangements for the Court, sessions of the Assembly of States Parties, its Bureau and the Inaugural Meeting of the Court.

The proposed revised outline of sections 1 to V of Part One of the Draft Budget took into account the offers of the Government of the Netherlands to accommodate the essential needs for the effective operation of both the Court and the Assembly of States Parties.

The second paper set out priority guidelines for the preparation by the Secretariat of a revised budget of the Court, and it should facilitate that effort.  It was anticipated that the revised budget should –- rather than envisaging two scenarios as suggested by the Secretariat –- be based on a third approach and, in particular, provide for a stronger capacity for the Court and the Assembly of States Parties to respond to various challenges.

Constructive views of delegations as well as the valuable clarifications and explanations provided by the Registrars of the International Criminal Tribunals for the former Yugoslavia and for Rwanda had helped him draw up the priority guidelines.  They were merely to aid the Secretariat, which should prepare a better paper on the draft revised budget for discussion at the Preparatory Commission’s ninth session next year.

Mr. Fife, speaking now on behalf of the Coordinator of the Working Group on Financial Regulations and Rules of the Court, George Witschel of Germany, said the Group approved three documents:  one on draft financial regulations and two draft resolutions covering the establishment of a committee on budget and finance; and relevant criteria for voluntary contributions to the International Criminal Court.

Financial Rules and Regulations

[By the text of the draft Financial Regulations and Rules of the Court, the Assembly of States Parties shall establish detailed financial rules and procedures to ensure effective financial administration and the exercise of economy.  The regulations shall be implemented in a manner consistent with the responsibilities of the Prosecutor and of the Registrar.

[The financial period shall consist initially of one calendar year unless otherwise decided by the Assembly of States Parties for the first-year budget of the Court.  That for the following financial year shall be submitted to the Committee on Budget and Finance (to be established by the Assembly of States Parties) and to the States Parties as well.

[The funds of the Court shall include assessed contributions made by States Parties, the United Nations and voluntary contributions by governments, international organizations, individuals, corporations and other entities, in accordance with article 115 (5) of the Rome Statute.  Pending the receipt of such contributions, the appropriation may be financed from the Court’s Working Capital Fund.

[The regulations shall take effect on a date to be decided upon by the Assembly of States Parties and shall apply to the initial financial period agreed to by the Assembly of States Parties and to subsequent financial periods.  The Assembly of States Parties can amend the regulations.  Annexed to the financial regulations is “Additional terms of reference governing the audit of the International Criminal Court”.]

CRISTIAN MAQUIEIRA (Chile) said the working group on the relationship agreement between the Court and the United Nations had decided to focus on issues that affected the mutual relationship of the two institutions and not overburden the draft with other matters, in particular with the relationship between the United Nations and the Assembly of States Parties.  The articles had been grouped in four parts.  Part I dealt with general provisions; Part II, articles concerning institutional relations between the Court and the United Nations; Part III, with cooperation and judicial assistance; and Part IV with final provisions.

The question was raised, he said, of how to deal with the dispute settlement provisions of article 119, paragraph 2 of the Statute and the question of the advisory opinion of the International Court of Justice.  Delegations in the working group expressed the view that the matter could be considered by the Assembly of States Parties.  He requested that the report reflect that.

PHAKISO MOCHOCHOKO (Lesotho), Coordinator of the Working Group on an Agreement on Privileges and Immunities of the Court, said the Group approved the draft agreement and recommended its adoption by the Preparatory Commission.

The draft agreement would regulate the privileges, immunities and facilities to be enjoyed by the Court as an independent entity.  It would also cover similar facilities for the various groups of individuals involved in the proceedings of the Court and in meetings of the Assembly of States Parties, its subsidiary organs and its Bureau.

He said the agreement represented a major departure from traditional privileges and immunities agreements.  It recognized the important role and facilitated the participation of experts, witnesses, victims, and other persons required to be present at the seat of the Court by providing the appropriate privileges, immunities and facilities for each category of persons.

By its adoption, the Working Group hoped that its provisions would serve as a useful basis for the corresponding provisions of the future headquarters agreement between the Court and the Host Country.

He drew attention to a particular concern expressed in the Working Group regarding the Court’s inability to register its own frequencies, on which it could independently operate radio and other telecommunications equipment.  In addition to receiving and sending information, an important component of the Court’s work would also entail outreach programmes.  It was essential that the Court communicate freely using its own registered frequencies.  The Working Group felt strongly that the Court’s work would be hampered if it could not register its own frequencies.

The Working Group said the Preparatory Commission should recommend that the Assembly of States Parties authorize the Court to seek a special dispensation with the International Telecommunication Union on the matter.  Alternatively, the Preparatory Commission should consider including a provision in the relationship agreement with the United Nations to allow the Court to operate its radio and telecommunications equipment on United Nations-registered frequencies, as was the case with the International Criminal Tribunal for the former Yugoslavia and the International Criminal Tribunal for Rwanda.

SAEID MIRZAEE (Iran), Coordinator of the Working Group on the Rules of Procedures of the Assembly of State Parties, said the Group had prepared a set of 96 rules to be applied to the work of the Assembly, and to the work of the review conferences.  Two rules were developed to enable the United Nations to participate in the deliberations of the Assembly of States Parties.

The Working Group also discussed the issue of the secretariat of the Assembly of States Parties at length.  Rule 37 outlined its function and duties.  Since the Rome Statute was silent on the secretariat of the Assembly of States Parties, he said the Working Group preferred not to make any recommendations on the subject.  It believed, however, that this was an issue that required careful consideration and appropriate recommendation by the Preparatory Commission.

The rules (92-95) offered “a comprehensive and well-balanced approach” to the question of observers and their participation in the work of the Assembly, he said.  Provision was also made in the rules to enable the Assembly to amend the draft rules if it so desired.

SYLVIA FERNANDEZ DE GURMENDI (Argentina) said the Working Group on crimes of aggression had discussed a consolidated set of texts submitted at the last session, as well as new proposals presented by Bosnia and Herzegovina, New Zealand and Romania.  There was also a new proposal from Guatemala.  The Group had focused its discussion on the proposal that the question of individual criminal responsibility be taken up separately from the definition of aggression by the act of a State.  Delegates expressed satisfaction with the conceptual division, and the separation had fostered an in-depth discussion and better understanding of penal issues.

The Group had also focused on the conditions under which the Court could exercise its jurisdiction over the crime of aggression, she continued.  A proposal had been introduced that would reduce to a three-month waiting period inaction by the Security Council, as well as a provision making it possible for the Court itself to determine an act of aggression, and not just in the context of an advisory opinion.  The proposal had given rise to much discussion.  There were still major differences of opinion concerning the exclusive responsibility of the Security Council to determine when an act of aggression had occurred.  Among the options discussed were according the Security Council primary responsibility, but allowing for other bodies such as the International Court of Justice or the General Assembly or the Court to make that determination as well.

Despite important problems, progress had been achieved at the session.  Although sometimes the Group gave the impression of reopening issues that had already been discussed, that practice had sometimes provided a better understanding of an issue.  For example, she said, there was now a recognition of the need to determine a threshold for an act of aggression.  Another key issue was an assessment of whether the determination of an act of aggression by the Court, or the Security Council, or the International Court of Justice or another source was binding on the Court or left to the discretion of the Court to make a different determination.  The issue would have an effect on the structure and content of a definition of the crime of aggression and on the rights of the

accused.  It was clear that a definition would still require major efforts on the part of delegations as well as a great deal of imagination and patience.  She pointed out that the Working Group could be allotted more time in the future, in particular for informal discussions.

General Statements

PAULA ESCARAMEIA (Portugal), speaking on behalf of Austria, Belgium, Chile, South Africa, Switzerland and her own country on the draft relationship agreement between the Court and the United Nations, said they interpreted article 19 to be without prejudice to the provisions of article 27 of the Rome Statute.  She said there could be no waiver as suggested in the draft text where there were no privileges and immunities.

MOUSSA DIAKITE (Mali) thanked the various organizations which had provided financial assistance to enable certain delegations to participate in the work of the Preparatory Commission.

Officers

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

Documents

The report of the Preparatory Commission containing the finalized draft texts of the Relationship Agreement between the Court and the United Nations, the Financial Regulations and Rules of the Court, the Agreement on the Privileges and Immunities of the Court, and the Rules of Procedure of the Assembly of States Parties is numbered PCNICC/2001/L.4 and Addenda 1 to 4.

The Summary of Proceedings of the eighth session, covering the work of the Commission and information on the other working groups -- crimes of aggression, budget for the first financial year, and a headquarters agreement between the Court and the host country —- is numbered PCNICC/2001/L.3. 

The reports were introduced by the Rapporteur.

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