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The First Five Sessions of the UN Preparatory Commission for the International Criminal Court

Published online by Cambridge University Press:  27 February 2017

Christopher Keith Hall
Christopher Keith Hall*
Affiliation:
Amnesty International
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Extract

On June 30, 2000, at the conclusion of its fifth session, the Preparatory Commission for the International Criminal Court (Preparatory Commission or commission) completed the first phase of its work with the adoption of draft Elements of Crimes and Rules of Procedure and Evidence (Rules). The first five sessions took place from February 16 to 26, July 26 to August 13, and November 29 to December 17,1999, and from March 13 to 31, and J u n e 12 to 30, 2000.

On July 17, 1998, the United Nations Conference of Plenipotentiaries on the Establishment of the International Criminal Court (Diplomatic Conference) had adopted the Rome Statute of the International Criminal Court (Statute). At the same time, it decided “to take all possible measures to ensure the coming into operation of the International Criminal Court without undue delay and to make the necessary arrangements for the commencement of its functions,” purposes for which it established the Preparatory Commission.

Type
Current Developments
Information
American Journal of International Law , Volume 94 , Issue 4 , October 2000 , pp. 773 - 789
Copyright
Copyright © American Society of International Law 2000

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References

1 The corrected text of the Statute as of July 1999, UN Doc. PCNICC/1999/INF/3*, is available online at the United Nations home page <http://www.un.org>. The Office of Legal Affairs hopes to be able to publish a definitive version in 2000. For recent assessments of the Statute, See Jonathan I., Charney, Progress in International Law? 93 AJIL 452 (1999)Google Scholar; Developments in International Criminal Law, 93 AJIL 1 (1999); International Criminal Law: A Commentary on the Rome Statute for an International Criminal Court (Antonio Cassese ed., forthcoming 2001); Commentary on the Rome Statute of the International Criminal Court: Observers’ Notes, Article By Article (Otto Triffterer ed., 1999).

2 Final Act of the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Res. F, pmbl., UN Doc. A/CONF.183/10, annex (1998), obtainable from <http://www.un.org/icc/index.htm>.

3 See id., para. 5(a), (b). In addition, the commission was directed to prepare draft texts of a relationship agreement between the court and the United Nations, basic principles governing a headquarters agreement between the court and the host state (the Netherlands), financial regulations and rules, an agreement on privileges and immunities of the court, a budget for the first year, and rules of procedure for the Assembly of States Parties. See id., para. 5(c)-(h).

4 GA Res. 53/105, paras. 1, 3, 4 (Dec. 8, 1998).

5 Id., para. 4.

6 Id., paras. 6–9.

7 GA Res. 54/105 (Dec. 9, 1999).

8 The dozens of documents that have been submitted by nongovernmental organizations containing detailed recommendations about nearly every subject considered by the Preparatory Commission are too numerous to list here. Many of them are available online through the Web page of the NGO Coalition for the International Criminal Court (CICC) <http://www.iccnow.org>.

9 Paper Prepared by the International Committee of the Red Cross on Article 8, Paragraph (2)(a), UN Doc. PCNICC/1999/WGEC/INF.l, annex (distributed at the request of Belgium, Costa Rica, Finland, Hungary, South Africa, and Switzerland); three papers prepared by the International Committee of the Red Cross on Article 8, Paragraph (2) (b), (c), (e), UN Doc. PCNICC/1999/WGEC/INF.2/Adds.1-3, annexes (distributed at the request of the same states, plus the Republic of Korea). The ICRC also issued an informal paper on February 17, 1999, concerning subjective elements and crimes related to prisoners of war, which was made available at the first session but only formally distributed as a UN document in December at the request of each of these governments except Costa Rica as UN Doc. PCNICC/1999/WGEC/INF/2/Add,4, annex. All UN documents cited herein that are not on the UN or CICC Web sites are on file with the author.

10 Informal Inter-sessional Meeting of the Preparatory Commission for the International Criminal Court, on Elements of Crimes, Held in Siracusa, Italy from 31 January to 6 February 2000, UN Doc. PCNICC/2000/WGEC/INF/1*.

11 Revised Discussion Paper Proposed by the Coordinator, UN Doc. PCNICC/1999/WGRPE/RT.5/Rev.1 & Adds. 1–3.

12 Report on the International Seminar on Victims’ Access to the International Criminal Court, UN Doc. PCNICC/1999/WGRPE/INF/2.

13 No summary records of the Preparatory Commission’s work have been kept. This account is based on the author’s notes, as well as the working papers, government proposals, press releases, confidential team reports by the CICC, and internal daily summaries by the Lawyers Committee for Human Rights.

14 Proposal Submitted by the United States of America: Elements of Offences for the International Criminal Court, UN Doc. A/AC.249/1998/DP.11.

15 All references to the elements of particular crimes as adopted by the Preparatory Commission can be found in the Report of the Preparatory Commission for the International Criminal Court, UN Doc. PCNICC/2000/INF/3/Add.2, obtainable from <http://www.un.org>.

16 Dec. 9, 1948, 78 UNTS 277.

17 Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, Aug. 12, 1949, 6 UST 3114, 75 UNTS 31; Convention for the Amelioration of the Condition of the Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, Aug. 12, 1949, 6 UST 3217, 75 UNTS 85; Convention Relative to the Treatment of Prisoners of War, Aug. 12, 1949, 6 UST 3316, 75 UNTS 135; Convention Relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949, 6 UST 3516, 75 UNTS 287.

18 Opened for signature Dec. 10, 1984, 1465 UNTS 85.

19 Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflict, opened for signature Dec. 12, 1977, 1125 UNTS 3.

20 Despite the use of the term “its,” the perpetrator is an individual who transferred parts of the population of the occupying power.

21 Prosecutor v. Akayesu, Judgement, No. ICTR-96–4-T, sec. 7.7 (Sept. 2, 1998) (“The Tribunal defines rape as a physical invasion of a sexual nature, committed on a person under circumstances which are coercive.”), obtainable from <http://www.ictr.org>; see also Prosecutor v. Delalić, Judgement, No. IT–96–21–T, para. 479 (Nov. 16, 1998) (citing this conclusion), obtainable from <http://www.un.org/icty>.

22 Draft Rule 6.5, Revised Discussion Paper Proposed by the Coordinator, supra note 11.

23 See the discussion of draft Rule 70 in text preceding note 34 infra.

24 The drafters of the Statute intended that the wording of the prohibition of rape and other sexual abuse would make it clear that the prosecutor could additionally charge persons for these acts separately as torture, inhuman treatment, or willfully causing great suffering, or serious injury to body or health, when they also constituted grave breaches of the Geneva Conventions or serious violations of common Article 3. See Christopher, Keith Hall, The Fifth Session of the UN Preparatory Committee on the Establishment of an International Criminal Court, 92 AJIL 331, 333–34 (1998)Google Scholar.

25 UN Doc. PCNICC/1999/WGEC/DP.39.

26 UN Doc. PCNICC/2000/L.1/Rev.1/Add.2.

27 See, e.g., Prosecutor v. Kupreškić, Judgement, No. IT–95–16, paras. 552, 551 (Jan. 14, 2000) (stating that crimes against humanity need “to have at least been tolerated” and noting that the policy “need not be explicitly formulated”), obtainable from <http://www.un.org/icty>.

28 The court will have to determine, given the concerns that gave rise to this text and its drafting history, whether the concept of recognition by the principal legal systems of the world simply means that evidence of state practice and opinio juris in states must come from a wide range of states within each of the principal legal systems of the world or that there must be a novel procedure for recognition.

29 elements of The Elements: A Very Informal Discussion Paper from the Delegation of Samoa (Aug. 1, 1999) [use of lower case was intentional to distinguish the individual elements of crimes from the instrument embodying them]. For the recommendations of the intersessional meeting, see note 10 supra.

30 It is not clear whether the term “material” in Article 30 is meant to include all nonmental elements or only a subgroup of them.

31 The structure is based on a major reorganization of the various drafts of the Rules adopted during the first four sessions that was undertaken at an intersessional meeting of the coordinators and subcoordinators hosted by Canada between the fourth and fifth sessions. Outcome of the Inter-sessional Meeting Held at Mont Tremblant, Canada, from 30 April to 5 May 2000, Circulated at the Request of Canada, UN Doc. PCNICC/2000/WGRPE/INF/1.

32 All references to the draft Rules can be located in the Report of the Preparatory Commission for the International Criminal Court, UN Doc. PCNICC/2000/INF/3/Add.1, obtainable from <http://www.un.org>.

33 Article 68(5) of the Statute, supra note 1, provides:

Where the disclosure of evidence or information pursuant to this Statute may lead to the grave endangerment of the security of a witness or his or her family, the Prosecutor may, for the purposes of any proceedings conducted prior to the commencement of the trial, withhold such evidence or information and instead submit a summary thereof. Such measures shall be exercised in a manner which is not prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial.

34 Id., Article 69(4) provides that

[t]he Court may rule on the relevance or admissibility of any evidence, taking into account, inter alia, the probative value of the evidence and any prejudice that such evidence may cause to a fair trial or to a fair evaluation of the testimony of a witness, in accordance with the Rules of Procedure and Evidence.

35 A trial chamber of the International Criminal Tribunal for the Former Yugoslavia has also recognized this privilege. See Prosecutor v. Simić, Assistance in Securing Documents and Witnesses from the International Committee of the Red Cross, No. IT–95–9–PT (June 7, 2000), obtainable from <http://www.un.org/icty>; Prosecutor v. Simić, Testimony of a Witness, No. IT–95–9–PT (July 27, 1999), obtainable from id.

36 Article 98(2) of the Statute, supra note 1, provides:

The Court may not proceed with a request for surrender which would require the requested State to act inconsistently with its obligations under international agreements pursuant to which the consent of a sending State is required to surrender a person of that State to the Court, unless the Court can first obtain the cooperation of the sending State for the giving of consent for the surrender.

It was added at the initiative of the United States to address its existing agreements with other states on extradition and status of forces.

37 S. 2726, 106th Cong. (2000); H.R. 4654, 106th Cong. (2000).

38 Compilation of Proposals on the Crime of Aggression Submitted at the Preparatory Committee on the Establishment of an International Criminal Court (1996–1998), the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court (1998) and the Preparatory Commission for the International Criminal Court (1999), UN Doc. PCNICC/1999/INF/2 & Add.1.

39 Discussion Paper Proposed by the Coordinator: Consolidated Text of Proposals on the Crime of Aggression, UN Doc. PCNICC/1999/WGCA/RT.1. This paper followed a similar document issued by the CICC at the beginning of the session, which had been welcomed by governments. Coalition for an International Criminal Court, Draft Discussion Aggression Summary (Nov. 29, 1999).

40 Suggestions Made Orally by Italy on 13 March 2000 with Regard to a Structure for Discussion on the Crime of Aggression, UN Doc. PCNICC/2000/WGCA/DP.3; Preliminary List of Possible Issues Relating to the Crime of Aggression: Discussion Paper Proposed by the Coordinator, UN Doc. PCNICC/2000/WGCA/RT.1.

41 GA Res. 3314 (XXIX), UN GAOR, 29th Sess., Supp. No. 31, at 142, UN Doc. A/9631(1974).

42 However, in several respects, the Elements of Crimes fails to satisfy the requirements of Article 9(3) to be consistent with the Statute. For example, both alternatives in the contextual element of genocide impose a higher threshold than in Article 6; the element of gravity in the war crime of sexual violence is more restrictive than intended in Article 8(2) (b) (xxii) and (e) (vi); and the elimination of any temporal or geographic link between the loss of life, injury, or damage in the elements of the war crime defined in Article 8 (2) (b) (iv) and the anticipated military advantage is not consistent with that article.