Report
The Preparatory Commis sio n
for the International Criminal Court
9 th Session
8 - 19 April 2002
United Nations Headquarters
New York City
Report from the Preparatory Com mission for the International Criminal Court, 9 th session 2002
ELSA International
Table of Contents
Introduction
Key infor m atio n
4
1
The ICC process - some highlights
6
Working Group Reports
8
Items of the agenda, 1st - 9th session
9
General docu men t s
13
Assembly of States Parties, Preparatory Documen ts
2
14
The Crime of Aggression
23
3
First Year Budget & Remaining Financial Issues
4
31
Principles governing a Headq uar ter s Agreemen t
5
39
Annex I
The Internation al Criminal Court - an intro du cto ry report
6
44
Guide to the Rome Statute (the ICC treaty)
50
History of the ICC
52
Annex II
Further Reading
Annex III
Election of Judges to Inter national Courts – a compar ative study
55
pdf
1
7
Introd uc to ry chapter s; Espen Rostru p Nakstad (Head of Delegation)
2
The Assembly of States Parties – Prepara tory Docume nt s; report by Matthias Goldma nn, Amardy
Geerdin k, Ines Marinho
3
The Crime of Aggression; report by Patrick Guidon, Sofia
Candeias, Paola Sacchi
4
First year Budget & Remaining Financial Issues; repo rt by Meinhard Schroede r
5
Principles governing a Headq u arte rs agreemen t; repo rt by Jenny Piippo nen
6
Annex I; Espen Rostrup Nakstad, Annex II; Sofia Candeias, Annex III; Matthias Goldman n
7
Annex III is a separate pdf- file available at www.elsa.org, or contact matthiasg old m an n@g mx.de
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Report from the Preparatory Com mission for the International Criminal Court, 9 th session 2002
ELSA International
- A page in the history of humankind is being turned,
said Hans Corell, United Nations legal counsel, after ten
new instruments of ratification were deposited on 11
April 2002.
THE INTERNATIONAL CRIMINAL COURT IS BORN
2002
19
April
Dear friends,
Less than four years ago the interna tio nal com mu ni ty met at the Rome Diplomatic
Confere nce of Plenipote ntia ries in an effort to stre ngt h e n internatio nal justice mecha nis m s
and bring an end to impunity. It was the sum m e r of 1998 and ambitions were sky high; A
perma n e n t and internation al court to try individuals for crime s as serious as genocide,
crime s against huma nity and war crime s. Nothing more. Nothing less.
At the time, the fifty stude n t s repre se nti ng ELSA Interna tional thought it impossible that
five weeks of negotiations would result in the adoption of a treaty. Still, on 17 July 1998,
the Rome Statute of the ICC was indeed adopte d by a vote of 120 to 7, with 21 abste ntion s.
Even with this enorm o u s achieve me n t, pre dic tion s were made that it would be decade s
before enough govern me n t s would make the political com mit m e n t and work throug h the
complex legal issues to bring the trea ty into force. Yet here we are, less than four years
later, having achieved the 60 ratifications require d by the Rome Statute. The treaty will now
enter into force on 1 July 2002, and the Court will begin functioning within approxim at ely
12 month s of that date. Its creation is one of the best exam ple s of what can be achieved
throug h strong coopera tion among govern me n t s, inte rna tional orga niz ation s and civil
society groups. For the ELSA delegation in New York, there was little doubt that a new
epoch in interna tional justice arrive d on 11 April 2002, when ten instru m e n t s of
ratification were simulta ne ou s ly deposite d at a special UN cerem ony.
The Prepara to ry Com mis sion (PrepCom) has continu e d to draft annexe s to the ICC treaty
that will enha nce a swift and fast change into action once the Court is establis he d in The
Hague. The PrepCom remains in existe nc e until the conclusion of the first meeting of the
Assem bly of States Parties (ASP) in Septe mb e r 2002, at which the Parties to the treaty will
adopt recom m e n d a ti on s of the commis sio n and provide manage me nt oversight to the
Presidency, Prosecuto r and Registra r regardi ng the administra tion of the Court. Much work
remains thoug h, to ensure that the Court will be as fair, effective and inde pe n d e n t as
possible. When the centre of events moves to the Hague early next year, the Asse mbly will
continue to discus s import a n t issue s such as its rules of proced u re and budge ts, as well as
the Court’s jurisdiction, stat us and coopera tio n with the Unite d Nations.
3
Report from the Preparatory Com mission for the International Criminal Court, 9 th session 2002
ELSA International
This report has been com pile d in orde r to give both backgro un d knowle dge of the
Intern ationa l Criminal Court and a more detailed pre se n ta tio n of the procee di ngs of the
Com mis sio n at its 9th session in April 2002. It is our hope that lawyers and stu de nt s with a
general interest in interna tion al law and interna tional criminal law will take intere st in the
report. All contribu tion s have been prepa re d by me mbe rs of ELSA’s PrepCo m delegation
and are base d on their individual experie nce s as me mbe r s of NGO legal expe rt tea ms. A
special intro duc t ory report to the ICC and a guide to the Rome statute are include d (Annex
I). We encou rage all reade rs to study these docum e n t s before getting to grips with repo rt s
from the ninth session working groups.
Special tha nks are due to the CICC staff in New York, its conve no r Bill Pace, progra m
mana ge r Jayne Stoyles and legal advisor Jennifer Schence; to Kate Aleksidz e, Vice Preside nt
S&C of ELSA Interna tional, for suppo rti ng the work of the team and for helping to make
ELSA’s contributio n to the ICC project continue; to ELSA’s interna tiona l legal resea rc h
groups who have provide d excellent report s prior to the ninth session; and to all mem be rs
of the ELSA delegations who worke d aroun d the clock an did an incredible job throug ho u t
the duration of the Prepara tory Com mis sio n.
On behalf of the ELSA delegation to the 9 th session of the ICC PrepCom,
Espen Rostru p Nakstad
Head of Delegation
The European Law Students’ Association (ELSA) is the world's largest independent law students'
association.
It comprises a membership in excess of 25 000 students and recent graduates who are
interested in law and have demonstrated commitment to international issues. ELSA operates primarily
through its local groups, which are located at more than 200 universities throughou t 39 countries in Europe.
ELSA is a member of the steering committee of the NGO Coalition for the International Criminal Court.
Key information
First - eight sessio n item s
RPE
June 2000
EoC
2000
ICC- UN
Oct 2001
APIC
Oct 2001
RP/ASP
Oct 2001
FR
2001
HQA
April 2002
Rules of Procedure and Evidence
finalised
Elements of Crimes
finalised June
A relations hip agreeme nt between the Court and the UN
finalised
An Agreement on Privileges and Immunities of the Court
finalised
The Rules of Procedure of the Assembly of States Parties
finalised
Financial Regulations
finalised
Basic principles governing a Headqua rters Agreement
Outstanding issues
8
CA
Proposals for a provision on the Crime of Aggression
10 th session July 2002
8
Ninth session items, will continue to be discu sse d at the 10 th session. Docume n ts;
http:/ / w ww.u n.org / law / icc / p r e p c o m m /
4
Oct
finalised
Report from the Preparatory Com mission for the International Criminal Court, 9 th session 2002
ELSA International
ASP- PD
10 th session
FYB
10 th session
FI- VTF
session July
FI- RJ
session July
Assembly of States Parties - Preparatory Docume nt s
July 2002
Budget for the Court’s first operational year
July 2002
Financial issues - Victims Trust Fund
10 th
2002
Financial issues - Remune ra tion of judges, the Prosecut or and Registrar
10 th
2002
Available docum ent s
UN report
- proceedings of the Preparatory Commi ssion at its 9 th session 8- 19 April 2002
www.un.org
CICC report
- ninth session of the ICC Preparat ory Commission 8- 19 April 2002
www.iccnow.org
ELSA report
- eight session of the ICC Prepara tory Commission 24 Sept - 5 Oct 2001 9
www.elsa.org
ELSA International Delegation – ninth session
Meinhard Schroeder
meinhard schroe [email protected]
Matthias Goldman n
matt hiasgold m a [email protected]
Paola Sacchi
paolasacchi72@hot m ail.com
Amardy Geerdink
ageerdink@hot m ail.com
Patrick Guidon
p [email protected]
Jenny Piipponen
jenny_p_@hotm ail.com
Sofia Candeias
sofia_candeias@hot mail.com
Inês Marinho
inesm [email protected]
Espen Rostrup Naksta d
espenn@hot m ail.com
(Germany)
(Germany)
(Italy)
(The Netherlands)
(Switzerland)
(Sweden)
(Portugal)
(Portugal)
(Norway) - Head of Delegation
The International Criminal Court (ICC) is the world’s first permanent
instit u t io n capable of investigat in g and trying individ uals accused of war
crimes, crimes against humanit y and genocide. The ICC is complemen ta ry to
national courts and its juris dictio n is not retroactive.
The Preparatory Commission (PrepCom) convenes at UN headq uarters to
finalise the work of the ICC treaty conference, draf t annexes to the ICC statute
and develop documents that will enhance a swift and fast change into action
once the Court is established in The Hague.
NGO legal expert teams
9
10
This report (ninth session) is available at www.elsa.org - or contact [email protected]
The teams provide daily oral reports on develop men t s in the PrepCom's working group s, help guide the
Coalition's strategy in resp on di ng to these develop men t s, prod uc e reports on the docu men t progres s
10
5
Report from the Preparatory Com mission for the International Criminal Court, 9 th session 2002
ELSA International
Legal Expert Team
Team leaders
Crime of Aggression:
Jutta Bertram - Nothna gel
Sofia Candeias
Daniel Nsereko
Sacchi
Preparatory Docume nts /
Geerdink
Assembly of States Parties
Deputies
Thordis Ingadot tir
David Donat - Cattin
Headquarters Principles
Lars Van Troost
Jennifer Schense
First Year Budget /
Remaining Financial Issues
John Washburn
Jonathan O'
Donohue
Members*
Patrick Guidon
Paola
Matthias Goldman n
Amardy
Ines Marinho
Jenny Pipponen
Meinhard Schroeder
* all me m bers not
listed
Officers and coordinators of the Preparatory Commis si o n
The Bureau
Chairma n;
Philippe Kirsch (Canada).
Vice- Chairmen;
George Winston McKenzie (Trinidad and
Tobago)
Mirza Kusljugic (Bosnia and Herzegovina).
Rapporte ur;
Salah Suheimat (Jordan).
Working groups
Coordinators
Principles Governing a Headquart ers Agreement;
Zsolt Hetesy (Hungary)
Assembly of States Parties preparatory docume nts; Saeid Mirzaiee - Yengejeh (Iran)
First - Year Budget;
Valentin Zellweger (Switzerland)
Financial issues;
Christian Much (Germany)
Remuneration of judges, the prosecutor and registrar; John Holmes (Canada)
Victims and witnesse s trust fund;
Gaile Ramouta r (Trinidad and Tobago)
The Crime of Aggression.
Silvia Fernande z de Gurmendi (Argentina)
Time - line 2002 - 2003
1. The 10 th meeting of the ICC PrepCom
1- 12 July 2002 (UN headqua rte rs)
achieved and goals yet to be addre sse d by the WGs.
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Report from the Preparatory Com mission for the International Criminal Court, 9 th session 2002
ELSA International
2. The first annual meeting of the ASP
1- 13 Sept 2002 (UN headqua rters)
3. Elections of prosecutor and judges
approx. Jan 2003
4. Swearing in ceremony & election of President
approx. Feb - March 2003
5. Appoint me nt of the Registrar of the Court
ap p rox. Mar - Apr il 2003
6. The ICC in operation
approx. June 2003
THE ICC PROCESS - SOME HIGHLIGHTS
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Report from the Preparatory Com mission for the International Criminal Court, 9 th session 2002
ELSA International
Final countin g of vote s, the Rome Diplo matic
Confer en c e 17 July 199 8. Adoptio n of the ICC
treaty.
ELSA International’s delegation to the InterGovernmental ICC Conference, Rome, July
2000.
Kofi Annan and the ELSA Delegation,
8 th ses sion of the ICC PrepCom, September October 2001
Ratification ma p, gree n; sign at orie s Red; state partie s
CICC strateg y meeting, UN headquarters
6 th ICC Preparatory Commission, 2000
BANKOK POST APRIL 12, 2002:
" A page in the history of humankind is being turned, Corell declared,
before hundreds of diplomats, lawyers and members of non-governmental
organisations burst into prolonged applause and whoops of joy.“
11 April 2002, UN headquarters
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Report from the Preparatory Com mission for the International Criminal Court, 9 th session 2002
ELSA International
Let it be a deterrent to
the wicked and a ray of
hope to the innocent and
helpless
UN Secretary General Kofi
Annan
We're dealing with crimes
here that have a genuine
international flavour, and
that being the case, the
notion of an international
court is more appropriate
Peter Barcroft, legal
adviser to the Irish UN
mission
"The establishment of the ICC has been declared the most
significant advance in international law since the founding
of the United Nations. This Court is capable of ending an
era of impunity and is a symbol of the triumph of law
over violence and brutality."
- William Pace, Convenor of the NGO Coalition for the Internation al
Criminal Court .
"May all this serve our societ y well in the years to
co me"
United Nations.
The best defence
against evil will be a
court in which every
country plays its part
UN Secretary General
Kofi Annan
The Bush administration
is extremely fearful that
any particular decision to
use military force would
end up with US officials
being charged before the
ICC
David Scheffer, former US
ambassador
Many of those who
committed war crimes
believed that they would
never face justice,
because in the history of
the Balkans there was
never such a court
Bosnian ambassador to
the UN, Mirza Kusljugic
- Hans Corell, Under- Secretary General, The
"It is indeed a great day not only for us, but for all
humanity. It is also a great occasi on for the victims
of genocide and other crimes against humanity."
- Arthu r N.R. Robinso n, President of Trinidad & Tobago and a longstanding advocate
for the ICC, speaking before the Prepara tory Commis sion of the ICC
(11 /4 / 0 2)
"The International Criminal Court is potentially the most
important human rights institution created in 50 years. It will be
the court where the Saddam Husseins, Pol Pots and Agosto
Pinochets of the future are held to account,"
- Richard Dicker, Human Rights Watch
"I congratulate the 66 States that have now ratified the Statute. I urge
those who have not done so to follow their example. The best defence
against evil will be a court in which every country plays its part. Let us
make the International Criminal Court an effective instrument. Let it be
a deterrent to the wicked and a ray of hope for the innocent and the
helpless."
- Kofi Annan, Secretary General of
the UN,
at Press Conferenc e in Rome, Italy
(11 / 4 / 0 2 )
"It is an extremely significant moment in world history, the
achievement of this court,"
- David Scheffer, the former ambass ado r at large for war
crimes who led US negotiations for the court under the Clinton
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Report from the Preparatory Com mission for the International Criminal Court, 9 th session 2002
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WORKING GROUP REPORTS
INTRODUCTION
PAGE
ITEMS OF THE AGENDA , 1 – 9 SESSION,
T HE ICC TREATY ENTERS INTO FORCE - FINAL SESSIONS OF
GENERAL DOCUMENTS
ST
9
TH
THE
PREPC OM,
BY ESPEN ROSTRUP NAKSTAD
PREPARATORY D OCUMENTS FOR
A SSEMBLY OF STATES PARTIES
BY
PAGE
14
PAGE
23
MATTHIAS GOLDMANN, AMARDY GEERDINK, INÊS MARINHO
T HE CRIME OF A GGRESSION
BY
THE
PATRICK GUIDON ,
SOFIA
C ANDEIAS, P AOLA SACCHI
FIRST YEAR BUDGET &
REMAINING FINANCIAL ISSUES
BY
MEINHARD SCHROEDER
BASIC PRINCIPLES GOVERNING
HEADQUARTERS A GREEMENT
BY
PAGE
J ENNY PIIPPONEN
10
A
PAGE
39
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ELSA International
INTRODUCTION
ITEMS OF THE AGENDA , 1 – 9 SESSION
OF THE PREPARATORY C OMMISSION
ST
TH
From 1998 - 2001 the PrepCom has been charged, among other things, with the tasks of
preparing docume nt s on;
The Rules of Procedure and Evidence (RPE) 11
The rules cover such issues as
; the comp ositio n and administratio n of the Court;
penalties for crimes,
obligations of interna tion al cooperatio n and assistance,
enforceme n t of sente nces. Adopte d by consens u s 30 June 2000 by the PrepCom.
The Elements of Crimes (EoC)
The elemen ts shall assist the Court in the interpre tatio n and application of articles 6, 7 and 8; genocide,
crimes against hu manity, war crimes (not binding guidelines). By June 2000 the Commissio n identified
the elemen ts that constitu te these crimes. The elements must be adopte d by two - thirds majority in the
Assembly of States Parties.
A relationship agreement between the Court and the United Nation s
(ICC- UN)
The Rome Statute Art.2 states that the Court shall be brought into relation ship with the United Nations
thro ugh an agreeme n t.
Main issues; - the indep en de nc e of the Court, - the int egr ity of the Statute, institu tion al cooperatio n between the UN and ICC.
An Agreement on Privileges and Immunities of the Court
(APIC)
Privileges and immu nities safegua rd the integrity and auton o my of any court. The scope of exploitatio n is
huge (reprisals, prosec utio n) as the ICC will exercise jurisdiction across bord ers, within areas of conflict
and against high level governm en t officials.
Therefore, different levels of privileges and immu nities are provide d depen ding on the risk of und ue
influence and the individual importan ce in the attain men t of a just result.
The Rules of Procedure of the Assembly of States Parties (RP/ASP)
The rules are
applicable to the work of any Review Conference in accorda nc e with article 121,
paragrap h 2, and article 123 of the Statute.
Main
issues; - the observers at the Assembly,
- UN p articipation in the meetings of the Assembly Secretariat
.
Financial Regulation s and Rules
(FRR)
ICC is an indepen d e n t organiza tion established by treaty, which does not enjoy institu tion al sup po rt. It
will therefore need to establish and operate its own financial system.
Except as otherwise specifically provide d, all financial matters related to the Court and the meetings of
the Assembly of State Parties, inclu ding its Bureau and subsidiary bodies, shall be governed by the Statute
and the Financial Rules and Regulation s adopte d by the Assembly of State Parties. (Article 113 of Statute)
11
By Espen Rostru p Nakstad, The European Law Students’ Association Norway - espen n@hotm ail.co m
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Report from the Preparatory Com mission for the International Criminal Court, 9 th session 2002
ELSA International
Main issues; Funding of the Court and the Assembly of State Parties, Criteria of voluntary contribu tio ns,
Other inco me, Funds provide d by the United Nations, the budget in general , Committee on Budget and
Finance, Draft Financial Regulations (e.g. the budgetary indepe nd e nc e of the Prosecu to r ), Unforeseeable
expen se s, Trust fund for victims , Contrib utio ns of the host State.
A Budget for the first year of the Court’s operation
(FYB)
- 9 th session item
A budget is critically importa n t for an operation al ICC. The draft budget was a top priority at the eight
and ninth session
s.
Basic principles governing a headquarters agreement
(HQA)
- 9 th session item
These are a set of principles and not the headq ua rt er s agree me n t itself. Therefore, they do not require
the same degree of precision or detail that the agreeme nt itself will require.
The Crime of Aggression (CA)
item
-
9 th
sessio n
The PrepCom is resp on sible for; - drafting a definition of the crime, - the element s of the crime and, the condition s under which the ICC shall exercise jurisdiction with respect to the crime.
Remaining Financial Issues
- 9 th sessio n
item
These issues cover the remu ne ration of judges, Prosecu tor, Registrar, and the victims’ trust fund.
Asse mbly of States Parties - Preparatory Documents (ASP/PD)
session item
-
9 th
These issues cover; Election of judges, Prosecu tor and Registrar.
INTRODUCTION
T HE ICC
TREATY ENTERS INTO FORCE
FINAL SESSIONS OF THE
PREPARATORY
–
COMMISSION 12
More than fifty years ago the Nure m be rg and Tokyo tribuna ls set the stage for efforts to
create an interna tional criminal court. These military war crimes tribunals came into
existence almost a centu ry after a perma ne n t court was first called for by Mr. Gustav
Moynier in respon s e to the crimes of the Franco - Prussia n war 13 and nearly three deca de s
after the fra mer s of the 1919 Versailles Treaty had envisage d an ad hoc interna tio nal
court to try war criminals. Even thoug h roots go back to the early 19 th Century, and in
spite of repeate d calls for an ICC by the 1948 Genocide Conve ntion, efforts to esta blish a
perma n e n t court were delaye d for decade s by the cold war and refus al of govern m e n t s to
accept an interna tio nal legal jurisdiction. It was only with the establish m e n t of temp ora ry
12
By Espen Rostrup Nakstad, The European Law Students’ Association Norway - espen n@hotm ail.co m
Gustav Moynier was one of the found ers of the Internatio nal Committee of the Red Cross and propo se d
a perma ne n t court in respo n se to the crimes of the Franco - Prussian War in 1872.
13
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ELSA International
ad hoc tribuna ls for the forme r Yugoslavia and Rwanda respec tively, that tables starte d to
turn. 14 Discus sion s on a perma n e n t Court were strengt he n e d furthe r during Prepa ra to ry
Com mitt ee meetings and resulte d in the negotiation < / DIV> < / DIV > adopte d in Rome on
17 July 1998. The treaty was welcome d by an overwhel ming majority of states and by civil
society at large.
The Interna tional Criminal Court (ICC) is a perm a n e n t court capable of investigating and
trying individuals accused of the most serious violations of inte rna tion al huma nita ria n
law, namely war crimes, crimes against huma ni ty and genocide. Unlike the Interna tion al
Court of Justice (ICJ) in the Hague, whose jurisdictio n is restricte d to states, the ICC will
conside r cases against individuals; and unlike the Rwanda n and Yugoslavian War Crime s
Tribunal s, create d to conside r crimes committe d during these conflicts, its jurisdic tion
will not be situatio n specific. It shoul d be emp ha sise d that the ICC will be com ple me nt a ry
to national criminal jurisdiction 15 , and it has jurisdiction only with respect to crimes
committe d after the entry into force of the Statute. 16 States Parties to the Rome Statute,
the Security Council and the Court's Prosecuto r will have the powe r to bring cases before
the Court, which will be compo se d of judge s from 18 diffe ren t countrie s. It will have an
indepe nd e n t Prosec utor elected throug h secret ballot by States Parties to the treaty.
The ICC treaty is name d “the Rome Statute of the International Criminal Court”. It define s
the crimes within the juris diction of the ICC, how the Court will work and what state s
must do to co- opera te with it. Furthe r, it stipula te s that the Court will only come into
existence following the creation of an Asse mbly of State s Parties (ASP) after the 60th
ratifications of the treaty. 17 The require d sixty state ratifications were deposite d by 11
April 2002, less than four years afte r the adoptio n of the Rome Statut e, and the ICC
treaty will enter into force on 1 July 2002.
T HE PREPARATORY COMMISSION
Following the successful negotiation s of an ICC treaty in Rome in 1998, ten Prepara to ry
Com mis sio n meetings were convene d at UN headq ua r te rs with the man da te to finalise the
work of the Rome Diploma tic Confe re nce, draft annexes to the statut e and develop
docu me n t s that will enha nce a swift and fast change into action once the Court is
establishe d. 18 These meetings were monitore d by a worldwide coalition of non govern m e n ta l organisa tion s (the CICC). 19 In accorda nce with the Rome Statute, the
Prepa ra to ry Commi ssio n must comple te its work to be prese n te d to the Asse m bly of
State Parties, which will meet after the 60th ratification. The framework of the Court will
then be put into place and the Court’s senior officials electe d during an approxim at e 12month time period between the entry into force of the Statute and the actual functioning
of the Court.
The Preparat ory Commission remains in existe nce until the conclusion of the first
meeting of the Assem bly of States Parties in Septe mbe r 2002. At its session in June 2000
the PrepCom adopte d two key texts by conse ns u s; one on Rules of Procedure and
Evidence and the othe r on Eleme nts of Crimes. The Rules cover such issues as
compo sition and administ ra ti on of the Court, penaltie s for crime s, obligation s of
14
The Internation al Criminal Tribun al for forme r Yugoslavia - ICTY - establishe d 1993 by the UN
Security Council
The Internatio nal Criminal Tribunal for Rwanda - ICTR - established 1994 by the UN Security Council
15
Article 1 of the Rome Statute
16
Jurisdiction ratione tempo ris - Article 11of the Rome Statute
17
The Statute enters into force on the first day of the month after the 60th day following the date of the
depo sit of the 60th instru me n t of ratification, accepta nce, approval or accessio n with the Secretary General of the UN. (Art. 126)
18
Resolution F of the Final Act of the Rome Diplomatic Conferen ce, July 1998
19
The European Law Students’ Association is a member of the CICC steering committee.
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ELSA International
interna tional coopera ti on and assis ta nce, as well as enforc e me n t of sente nce s. On the
matte r of crimes initially within the Court's jurisdic tion - genocide, war crimes and
crime s against huma nity - the Commissi on identified the eleme nt s that constit ute d those
crime s.
The 2001 - 2002 Prepa rat ory Commission Working Group s have focuse d on the
following: 20 a definition of the crime of aggression; a relations hi p agree me nt betwee n the
Court and the United Nations; a relations hi p agree m e nt betwee n the Court and the host
count ry of its hea dqu a rt e r s (The Hague, Netherla n ds); financial rules and regulation s for
the Court; privileges and immu nitie s of the Court; a first - year budget for the Court; and
rules of proce du re of the Asse mbly of States Parties.
As regard s the Crime of Aggression, the Rome Confere nc e specifically reques te d the
Com mis sio n to prep are propos al s on the eleme nts and conditions unde r which the Court
shall exercise its jurisdictio n over the crime. Once agree me n t is reached on a legal
definition of aggres sion, the draft text will be pre se nte d to an Interna tio nal Criminal
Court amend m e n t confe re nce, which may be convene d seven years after the Court
become s opera tion al. 21 In the meanti me, the working group is discussing various
propos al s on the subject. A review confere nc e of States Parties would also have the
authority to include othe r crime s under its jurisdiction. During the Rome Confere nce,
some speake rs called for such issue s as terroris m, interna tio nal drug trafficking and use
or threat of use of nuclea r weapon s to be covere d by the Court. There was concern,
however, about overtaxing the Court in its initial stage s. A door was left open, though, for
their future inclusion.
T HE A SSEMBLY OF STATES PARTIES
The Assem bly of States Partie s will, in many ways, continue the work of the ICC
Prepa ra to ry Commis sio n. It will function as a legislative body and is respo n sible for
furthe r modification of the rules of proce du r e of the Asse mbly, the Second Year Budget,
and the Court’s Financial Rules and Regulations. Further, the ASP shall consi de r and
adopt recom m e n d a tio n s of the Prepara to ry Commission and provide manage me n t
oversight to the Preside ncy, the Prosecuto r and the Registra r regarding the admi nistra tion
of the Court. It is therefore likely that the Assem bly of States Parties will discus s the
stat us of the Court, its jurisdictio n, and the nat ure of cases brough t to the Court at its
annual meetings. Discussion s on the Court’s coope ra tion with the United Nations and
other states will also continue.
The first ann ual meeting of the Assem bly of States Parties will be conve ne d in New York
3- 13 Septe mbe r 2002, following the tenth session of the PrepCom. 22 From the year 2003,
ASP meetings are likely to be convened in The Hague. Non- govern m e n t a l legal expert
team s will have the same opport u ni tie s to monitor these mee tings as has been the case at
the ICC PrepCo m session s, and the meetings may excee d the PrepCom in terms of
delegates, NGO team s and obse rver s prese nt.
There is little doubt that the road to Rome was a long and conte ntio us one, but the
mome n t u m for the International Criminal Court has been beyond all expecta tions in
recent years. If one considers the govern m e n ta l discussion s in 1995 - 1998, it was
pre su m e d that it would take an estim ate d 20- 25 years to create the Court. Now, only four
years afte r the Statute was adopte d, the instru m e nt s most vital to the treaty have been
successfully comple te d and the required 60 state ratifications are in place. Unfort u na t ely,
this is no guarant ee for an effective and successfull institution. Many other state s will
20
Eight session of the ICC PrepCo m Septe mber - October 2001, ninth sessio n April 2002
The Review Conference, Article 123 of the Rome Statute
22
Eight session of the ICC PrepCo m Septe mber - October 2001, ninth sessio n April 2002
ICC PrepCo m: the Preparato ry Commission for the establish me n t of the Internatio nal Criminal Court
21
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nee d to ratify the treaty to ensure that the Court has the widest possible jurisdiction.
Furthe rm o r e, all states that ratify must ensure that their national laws have been
modified to allow for comple m e n t a rity and full cooperatio n with the Court. This is of
great import a nce.
It is tempting to view the ICC'
s birth as a triu mp h of law over force. In reality, the ICC
comes into the world under tough circum s ta nce s. Some major state s refuse resolutely to
become parties to the statut e, and the ICC prosecut o r could face a hard task in deciding
which crimes to investigate. It is encou raging that, with the nota ble exceptions of the US
and Turkey, most NATO states are parties to the treaty. So are a num be r of significa nt
powe rs elsewhe re, including Argentina, Nigeria and South Africa. The opp ositio n of the
US, however, base d on the fear that a rogue ICC prosec uto r might charge US serviceme n
with war crime s, has been much publicised despite the many safegua rd s in the statut e
that block any atte m p t of politically motivate d prosec ution. What is less known is the
determi na tion of many other importa n t state s, including China and Russia, to avoid the
haz ar ds involved in accepti ng the stat ute.
Law without power is no law. Interna tio nal courts need the supp o rt of major powers if
they are to opera te effectively. The Yugoslav tribu nal in the Hague is a good example of
how importa n t it is to have suitable condition s for the gathering of evidence and,
eventually, the arre st of suspec ts to functio n as inte nde d. As for the ICC’s list of crimes 23 ,
there is wide agree me n t that they make a soun d basis for the Court. These crime s are
based on solid law, and also on precede n t from the Nure m be rg tribunal in 1945 - 6, right
down to the ongoing Yugoslav and Rwanda tribunal s. The key proble m, however, is not
what types of crime s the ICC will investigate, but which partic ula r crime s, and in which
count ries.
The Court is expre ssly barred from purs ui ng a case that is being genuinely investigate d
or prosec ute d within the state concerne d. 24 Therefore, the ICC risk end up tackling a
small numb e r of cases, mainly from third world state s, in the foresee able future. The
Prosec utor will hold the most import a nt and politically sensitive post in the Court 25 and
will, like the UN Security Council, have a delicate task in deciding which cases to
investigate and prosecu te. It could be hard to build up confide nc e in the Court's
impartiality while being unavoida bly selective in investigations; and even harde r to secure
the necessary minimu m of coopera tio n from state s that are not parties to the ICC
At the end of the day, the ICC’s greate st success may well be in getting state s to take their
obligations to implem e n t internatio nal law seriously, and to investigate violations
prope rly within their own legal syste m s, so that their nationals never see the dock in The
Hague. Like the nuclear deterre n t, the ICC may have a function even if it is not used. It
may also trigger furt he r develop m e n t of internation al law and a wider accepta nce of
universal jurisdiction.
“A page in the history of huma nki nd is being turne d”, said UN Under - Secreta ry General
Hans Corell on 11 April 2002, well aware of the giant ste ps take n by 66 state s to ratify
the trea ty, ame nd their constitutio ns and imple me n t new legislation. The result is an
23
24
25
genocide, crimes against huma nity and war crimes
The Rome Statute Article 1
The Court will be comp os ed of the following organs:
The Presidency;
An Appeals Division, a Trial Division and a Pre- Trial Div; The Office of the Prosecuto r; The Registry.
(Art 34, Rome Statute)
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instru m e n t that will s trengt he n internation al justice mecha nis m s concerning crime s that
are universally conde m n e d and help bring an end to centurie s of imp unity. Even though
the Court will have to meet unrealistic expectation s in its first ope rational years, with the
capacity to indict a small num be r of criminals only, it has alrea dy fulfilled its main
objective; perpe t ra t or s can no longer feel safe from prosec u tio n.
April 2002
Espen Rostrup Naksta d
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INTRODUCTION
GENERAL D OCUMENTS
Issued at the ninth session of the Preparatory Com misssion for the
International Criminal Court (8- 19 April 2002)
Symbol
Description
PCNICC/2002 / / L.1
Proceedings of the Preparat ory Commission at
its ninth session.
PCNICC/2002 /L.2
Draft Report of the Preparatory Commission for
the Interna tional Criminal Court.
PCNICC/2002 / INF/ 1
Conclusions of the second Consultation Meeting
of the implications for States members of the
Council of Europe of the ratification of the
Rome Statute of the Interna tional Criminal
Court, Strasbourg, France, 13 and 14 Septem ber
2001 and Declaration on the International
Criminal Court, adopte d by the Committee of
Ministers of the Council of Europe on 10
October
2001
–
Inform ation
docume nt
submit ted by Liechtenstein
PCNICC/2002 / INF/ 2
Note – Outcome of the Inter - sessional meeting
held in The Hague from 11 to 15 March 2002,
circulated at the reques t of the Netherlands.
PCNICC/2002 / INF/ 3
Information docum ent submit ted by Spain:
Declaration by the Presidency on behalf of the
European Union concerning the adoption of the
Common Position on the Interna tional Criminal
Court.
PCNICC/2002 / INF/ 4
Statement by the Preside ncy on behalf of the
European Union – Inform ation docume nt
submit ted by Spain (forthcomi ng)
PCNICC/2002 / INF/ 5
Statement by the Director - General, ICC Task
Force, Ministry of Foreign Affairs of the
Government of the Kingdom of the Netherland s,
Mr. Edmond Wellenstein, on the revised draft
budget for the first financial period of the
International Criminal Court, presente d during
the
ninth
session
of
the
Preparatory
Commission – Informa tion docume nt submitted
by the Netherlands
PCNICC/2002 / INF/ 6
List of delegations (forthcoming)
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WORKING GROUP REPORT
ASSEMBLY OF STATES PARTIES –
PREPARATORY D OCUMENTS 26
INTRODUCTION
At the ninth session of the PrepCom, the working grou p on Preparator y Documen t s
for the Assembly of States Parties (ASP- PD) met for the first time. It had been decided
at the end of the eighth session 27 that a separat e working group would be established
in order to prepar e docu men t s that will be necessary for an early and effective
establish m en t of the Court. 28 Eventually, the following three issues were on the agenda
of the working group: I - the drafting of rules for the election of judges, the
Prosecuto r and the Registrar, II - the Secretariat of the Assembly of States Parties, and
III - a draf t agenda for the first meeting of the Assembly of States Parties. Some of
these issues had already been touched in the previous working group on the Rules of
Proced ure of the Assembly of States Parties. 29
The ASP- PD working grou p held five for mal and five infor mal consultation s, and was
co- ordinated by Mr. Saeid Mirzaee- Yengejeh of the Islamic Republic of Iran, who had
previously been co- ordinator of the working group on the Rules of Proced ur e of the
Assembly of States Parties. As the working group did not complete its work, it will
continue at the tenth session of the ICC PrepCom 1- 12 July 2002. In the following, a
survey will be given on each of the three issues on the agenda.
List of docum ent s
PD/ASP - 9 th session
PCNICC/2 00 2 /WGASP- PD/L.1
Election of judges, the Prosecu tor and the
Registrar of the Intern ation al Criminal Court, 26
February 2002
PCNICC/2 00 2 /WGASP- PD/L.2
Provisional agenda for the First Meeting of the
Assembly of States Parties, 26 February 2002
PCNICC/2 00 2 /WGASP- PD/L.3
Secretariat of the Assembly of States Parties of the
Intern ation al Criminal Court, 5 March 2002
26
I. Introd uction and II. Election of Judges by Matthias Goldma n n, ELSA Würzb urg / ELSA Germa ny
Cf. Proceedings of the Preparat ory Commis sion at its eighth session, UN Doc. PCNICC/200 1 /L.3 /Rev.1
paragrap h 17.
28
Cf. Road map leading to the early establishm en t of the ICC, UN Doc. PCNICC/2 00 1 /L.2 of 26 Septembe r
2001, para. 4.
29
Working group at the seventh and eighth session of the PrepCom.
27
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PCNICC/2 00 2 /WGASP- PD/L.4
Draft resolutio n on the Assembly of States Parties
concerning the provisional arrangeme nt s for the
Secretariat of the Assembly of States Parties, 17
April 2002
PCNICC/2 00 2 /WGASP- PD/DP.1
Election of Judges, the Prosecut or and the
Registrar of the Internation al Criminal Court –
Proposal sub mitte d by Switzerland, 11 April 2002
PCNICC/2 00 2 /WGASP- PD/DP.2
Proposal sub mitte d by Belgium, 11 April 2002
PCNICC/2 00 2 /WGASP- PD/DP.3
Nomination of Prosecu tor – Propo sal sub mitted by
Greece and Switzerlan d, 16 April 2002
PCNICC/2 00 2 /WGASP- PD/RT.1
Provisional arrangeme n ts for the Secretariat of the
Assembly of States Parties – Discussion paper
propo se d by the Coordinat or , 16 April 2002
I – ELECTION
OF
JUDGES, T HE PROSECUTOR
AND
T HE REGISTRAR
GENERAL O VERVIEW
Neither the Rome Statu te nor the Rules of Procedu re of the Assembly of States Parties
has detailed provisions on how the elections of the judges, of the Prosecuto r, the
Deputy Prosecuto rs and the Registrar should be carried out. The Rome Statu te,
however, refers to these issue in articles 36, 37, 42 and 43, and thereby sets up
qualification s and requiremen t s that the judges or the Prosecutor will have to meet
individually, as well as several condition s pertainin g to the composition of the Court
as a whole.
Accor ding to article 36 (5) of the Rome Statute, the Cour t has to be compo sed of at
least five judges with established competence in criminal law and of at least nine
judges with establish ed competence in intern ation al law. Article 36 (8) provides,
tho ug h not in a compuls ory mann er, that the principal legal systems of the world, the
different geographical regions as well as women and men should be equally
represent ed in the Court. The working group now faced the difficulty of reconciling
these and other criteria with each other in a consisten t election procedu r e.
Further m o r e, it had to come to an agreemen t on the timef ram e and on provisions for
trans par ency of the whole proced u re. The Secretariat had prep ar ed a working paper
on this issue. 30 This docu men t was read during four formal meetings. The working
group tackled the issues to be discussed in their order of appearan ce in a table in the
annex of the docum en t, in which the Secretariat had listed in a chronological manner
all impor tan t points on which a decision would have to be made. Thus, all these
points were addressed and discuss ed primarily in an isolated mann er, regardless of
the context of the proced u r e. However, as all the different items like timefra me,
trans par ency, qualificatio n and represen ta tio n are closely interrelated, a holistic
approach might have been more efficient.
The co- ordinato r will now prepar e a rolling text, which will provide a basis for
discussio ns at the next session. The text will be made available sufficiently in advance
to the session.
30
Election of Judges, the Prosecuto r and the Registrar of the Internatio nal Criminal Court – Working
paper by the Secretariat, UN Doc. PCNICC/20 02 /WGASP- PD/L.1 of 26 February 2002.
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ELECTION
OF THE
JUDGES
31
T IMEFRAME
The first meeting of the Assembly of States Parties will be held in Septemb er 2002;
the election of the judges is sched uled for January 2003. This means that there will be
major time const rain ts for the first elections. In discus sing a timefra me, the working
group therefor e decided to make a distinction between the first and subseque n t
elections.
As for the first elections, it was decided that the invitations for nomination s shoul d
be issued during or immediately following the first meeting of the Assembly of States
Parties (ASP), if possible by electronic mean s. The nominatio n period will be opened
soon after the issuance of invitation s and will be closed no later than mid - November,
perhap s even at 1 November 2002. The reason for such an early closing date is that
the Secretariat of the ASP will need some time to translate the curricula vitae and
other docu men t s suppo r ting the candidat u r es. The elections will then take place in
the second or third week of January.
A DVISORY COMMITTEE ON N OMINATIONS
The Rome Statute provides in its article 36 (4) (c) that the ASP may establish an
Advisory Com mit tee on nomination s, whose tasks and comp ositio n would be subject
to deter min atio n by the ASP. This idea, however, could not find much sup po r t among
the delegations. The majority was of the opinion that such a committee could not be
compo sed by indepen d en t exper ts, but only by represent atives of States Parties.
Therefore, they were afraid that the commi ttee would become a highly political body
if it should play a role in the assess me n t of nomination s. On the other hand, if it had
purely administ ra tive function s, it was felt that there would be no need for it. After
shor t consultation s, it was decided that the issue should not be further discu ssed,
also in the light of the fact that it would not be feasible to establish such a com mit tee
before the first election s. However, there is at least one delegation that will raise the
issue again at the next session.
Those in favour of such a com mit tee, mostly NGO represent atives, countered to the
argu me n ts put forwar d against an Advisory Commit tee that there were several
preceden t s of com mit tees of indepen d e nt expert s within internatio nal organisations.
The Internation al Law Commis sion or the Committee on Legal Affairs and Human
Rights of the Parliamen tar y Assembly of the council of Europe were mentioned as
examples. Further, such a com mit tee could monito r the nominatio ns and ensur e that
a sufficien t numb er of qualified candid ates is available to meet the conditions of
article 36 (5) and (8).
A UTHORITY RESPONSIBLE FOR THE NOMINATION PROCEDURE
The working group had to decide which authority should issue the invitation s for
nomination s. This could be done by the Secretary - General of the UN or by the ASP
through its Bureau. Whereas there was disagreemen t with regar d to the first elections,
most delegation s though t it would streng th en the indepen d ence of the Court if the
ASP issued the invitations for subseq uen t elections. – It was fur ther suggested that
the authority to issue the invitations and the one to establish the lists of candidates
should be the same.
31
For a comp ara tive analysis of nomination and election proced u res of judges to internatio nal judiciary
bodies, see FALZON /G OLDMANN/K HUTSISHVILI (EDS.), Nomination and Election of Judges to Intern ation al Courts,
2002; Annex III
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N OMINATIONS BY NON - STATES PARTIES
There was consens u s that states being in the final stage of ratification should be
allowed to sub mit provisional nomination s, provided that the instr u m en t of
ratification of the state in questio n is deposited before the elections. An exact
deadline, however, could not yet be agreed on. On the one hand, the need to know as
early as possible who would be the candidates, and on the other hand the necessity to
give as many states as possible the time to ratify and to put forwar d nominations had
both to be taken into account. Some delegatio ns suggested that the 15 th of December
should be the deadline, while others pointed out that article 36 (4) (a) of the Rome
Statute gave the right to put forward a candidate only to States Parties and that
therefo re the Rome Statute should have entered into force for the nominating state at
the time of the elections. 32 Another suggestio n was that the instr u me n t of ratification
should be deposited before the closing of the nomination period.
C OMPOSITION OF THE COURT
As said above, several criteria will have to be taken into accoun t in the election
proced u re for the judges:
• At least 9 judges with established competen ce in criminal law (elected from list A)
and at least 5 judges with established competence in internatio nal law (elected
from list B) will have to sit in the Court [article 36 (5)].
• The principal legal systems of the world need to be represent ed [article 36 (8) (a)
(i)].
• Attention should further be paid to equitable geograp hic represen ta tio n [article 36
(8) (a) (ii)].
• There should also be fair represen tatio n of female and male judges [article 36 (8)
(a) (iii)].
• Finally, there should be judges with legal expertise on specific issues, such as
crimes against women and children [article 36 (8) (b)].
Accor ding to the Rome Statute, only the first of these criteria is comp ulsory in the
sense that it requires a minim u m number of judges of each kind. Whereas delegations
seemed to be very concerned about geographic represen t ation, only few ones went to
battle for equal gender represen ta tio n.
Different options were discusse d in order to take all the criteria into account and to
achieve a balanced bench. Since no agreemen t was reached, some of the options
discussed will be outlined here:
Option 1: single ballot, compulsory bench m a r ks [NGO proposal]
• Establish m en t of compul sory bench m ar k s, that is minimu m nu mber s of judges
from the differen t region s, of female and male judges, of judges with specific
qualification s.
• All candidates listed on a single ballot
• Voting conducted in accor dance with Rome Statute requirem en t s (two - thir ds
majority of the states present and voting, requiring a quoru m of an absolute
majority of States Parties).
• Establish m en t of a list of candid ates receiving the requir ed majority beginning
with those receiving the highes t num ber of votes
32
According to article 126 (2) of the Rome Statute, the Statute enters into force “on the first day of the
month after the 60 th day following the deposit by such State of its instru me n t of ratification […]”.
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•
•
Application of the bench mar k s: starti ng with those candidates with the most
votes, classification of each candid at e accordin g to the bench mar k criteria. If
inclusion of a candidate render s impossible the fulfilment of the bench m ar k
criteria, this candidate will not be considered elected.
If insufficient numb er of candidates are elected, additio nal ballots will be held in
the above described man ner.
NB: As candidates who have received the required majority might nevert heless be
sorted out because their election would violate the bench mar k criteria, it was
reproache d to this option that it was not fully in line with the Rome Statu te, in
particular with its article 36 (6) (a).
Option 2: “14 + 4” solution [from among the delegates]
• In the first step, each State Party votes for 14 candidat es at the same time: 9 from
list A, 5 from list B
• Contin uing ballots until 9 candidates from list A and 5 from list B are elected.
• If more than 9 candidat es from list A or more than 5 from list B receive the
required majority, those obtaining the highest numb er of votes among the
candidates of each list are consider ed elected.
• In the secon d step, which will take place at least 24 hour s after the end of the first
step, each State Party may vote for 4 candidates, regardless of the list on which
they appear. Those who receive the highest numb er of votes and the required
majority will be considered elected.
NB: This option primarily aims at implemen ti ng the criteria set out in article 36 (5).
Option 3: m ultiple ballots, advisory bench m a r ks [NGO proposal]
• Candidates will be listed on two separate ballots, one for list A and one for list B.
• Balloting will be held first on list A with the goal of electing five judges. Only the
five candidates with the top num ber of votes will be considered elected. The
bureau will notify States Parties of the five candidates elected, reflecting the
balance between female and male judges and the geograp hical balance among this
group.
• Balloting will be held next on list B with the goal of electing three judges. Only the
three candidates with the top num ber of votes will be consider ed elected. The
bureau will notify States Parties of the three candidates elected, reflecting the
balance between female and male judges and the geograp hical balance among all
judges elected so far.
• Balloting will subsequ en tly be held on list A with the goal of electing the last four
judges. Only the four candidates with the top number of votes will be considered
elected. The bureau will notify States Parties of the four candidates elected,
reflecting the balance between female and male judges and the geographical
balance among all judges elected so far.
• Balloting will then be held next on list B with the goal of electing two judges. Only
the two candidates with the top number of votes will be considered elected. The
bureau will notify States Parties of the two candidates elected, reflecting the
balance between female and male judges and the geograp hical balance among all
judges elected so far.
• Finally, a ballot inclusive of candidates from both list A and list B will be held. A
maxim u m of four candidates may be elected from this ballot to reach a total of
eighteen judges.
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NB: This is a modification of option 2. Alternately, option 3 could be conducted in no
less than three or up to eighteen separate ballots. It should further be noted that there
should be sufficient time between each ballot to allow consultation among
govern me n t s and between governm en t s and civil society regarding the bureau’s
notification on gender and geograp hical balance and the impact that balance shoul d
have on succeeding ballots.
Option 4: restricted voting pattern, mini m u m voting requirem e nts [from amon g the
delegates]
• In the first ballot, each State Party would vote for at least two candidates fro m
each regional group, at least 9 candidates from list A and 5 candidates from list B,
and at least for five (six) candidates fro m each gender (minim u m voting
requirem en t s).
• Ballots cast that do not observe the minimu m voting requireme n t s shall be
invalidated.
• After the first ballot, the minim u m voting requirem en t s shall be adjus te d. This
will be done throug h subtracting, list - by- list, region - by- region, and gender - bygender, the nu mber of elected candidates correspo n di ng to a certain criteria from
the minim u m voting requirem en t s for that criteria.
• The adjust ed minimu m voting requirem en t s will be used for the following ballot.
• This proced ur e should be continue d until one of the minim u m voting
requirem en t s cannot be met due to the lack of remaining seats.
NB: This procedu re aims at achieving a compro mise between option 2 and the criteria
set out in article 36 (8). Various mo dificatio ns are possible. Note that no quotas will be
intro du ced by this proced u re, as the minimu m requireme n t s only apply to the casting
of votes, not to the result of the elections.
Although the proposals discussed were quite elaborate, some delegations still
supp or t ed that it should be left to the discretion of the States Parties to take into
account the criteria set out in article 36 (8).
T RANSPARENCY
Transp aren cy was a matter of considerable concer n for many delegation s. A
trans par en t procedu r e will help ensu ring that the criteria of article 36 with regar d to
the Court’s compositio n are met and that only highly qualified candidates are elected.
In this respect it will be impor tan t that infor ma tio n on candidates is made available to
the States Parties as well as to the general public as soon as they are received.
Switzerlan d submitte d a proposal, according to which the nominations and the
accom pan ying statemen t s referred to in article 36 (4) (a), as well as other suppo r ting
docu men t s should be placed on the Internet web site of the Court in any of the official
languages as soon as possible after receipt. 33 This idea was criticised because the
infor mation would be available only in one language, for it would take a long time to
translate all documen t s. Therefore, NGOs suggested that States Parties should include
a “cover sheet” in their nominatio ns containing some basic inform atio n on the
candidate, which could be quickly translated, perhap s even in a comp u ter is ed manner,
and put on the web site of the Court. It seems as if this suggestion will be included in
the rolling text by the co- ordinator.
33
Election of Judges, the Prosecut or and the Registrar of the Intern ation al Criminal Court – Propos al
submitte d by Switzerlan d, UN Doc. PCNICC/20 02 /WGASP- PD/DP.1 of 11 April 2002.
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Accor ding to a propos al by Belgium, 34 the state men t accom panying each nomination
(article 36 (4)) should specify how the candidate fulfils each of the requiremen t s set
out in article 36 (3) (a), (b) and (c). This proposal was also approved by a majority of
delegations.
An issue that could still be considered is wheth er there should be a stand ar dise d form
for the CVs and accom pan ying state men t s. This would make it easier to assess and
compar e candid atu r es. An example for such a stand ar dise d form is the model CV
which has to be filled in by candidates for the European Cour t of Human Rights.
ELECTION
OF THE
PROSECUTOR
While article 42 (4) of the Rome Statute contains a lot of details concer ning the
election of the Prosecuto r, it is silent on the nominatio n procedu r e and on the
nationality of the Prosecutor.
Regarding issues that are of a more for mal natu re, like the issuance of invitatio ns or
the drawing of the list of candidates, the delegates decided that, mutatis muta ndi, the
same procedu r e as for the election of the judges should be applied. Likewise, non States Parties in the process of ratification, which would be allowed to nominate
candidates for the election of judges, should be allowed the same with respect to the
Prosecuto r and according to the same criteria. 35
The Rome Statute does not require that the Prosecuto r be a national of a State Party,
as opposed to the judges. However, the provisions of the Statute can be narrowed by
additional conditio ns. The majority of delegations were of the opinion that the
Prosecuto r should be a national of a State Party for reasons of perso nal respon sibility
and in order to give an incentive to states to ratify the Rome Statute.
Regarding the nomination of the Prosecuto r, Greece and Switzerlan d sub mit ted a
proposal, according to which a candid ate for the post of Prosecutor has to be brough t
forwar d by at least seven States Parties, which represen t at least three different
regional groups. 36 In the discus sion following this proposal, different minimu m
number s were men tio ned. Some delegations though t that three regional groups would
not be represen ta tive enough. Nevertheles s, there was agreemen t that, given the
importa nce of the post of the Prosecutor, the nomination and election should not be
conten tiou s.
ELECTION
OF THE
REGISTRAR
As the Registrar will be elected by the judges (article 43 (4) of the Statu te), delegation s
saw no need to set up rules of procedu r e for the election and will leave this issue to
the Court.
On the other hand, the judges are expected to take into account any recom me n d a tio n
by the ASP. In this context, several delegatio ns emphasised that there should be a
mechanis m or at least a gentlemen’s agreemen t ensuring that the five key positions in
34
Propo sal sub mitte d by Belgium, UN Doc. PCNICC/2 00 2 /WGASP- PD/DP.2 of 11 April 2002.
See above under II.2.d.
36
Nominatio n of the Prosecu tor – Proposal sub mitted by Greece and Switzerlan d, UN Doc.
PCNICC/2 00 2 /WGASP- PD/DP.3 of 16 April 2002.
35
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the Court (Presiden t, two Vice- Presiden ts, the Prosecutor and the Registrar) would be
held by person s from different geograp hic regions.
Even so, agreemen t could neither be reached on the natu re of such recom me n d a tio n s,
nor on the question whether there should be a mechanis m ensuring equal
represent ation of all geograp hic regions.
II – T HE SECRETARIAT
OF THE
A SSEMBLY OF STATES PARTIES
37
GENERAL O VERVIEW
One of the main issues discussed within the Assembly of States Parties – Preparator y
Document s Working Group (ASP- PD) was the question of the Secretariat of the
Assembly of States Parties. The co- ordinator stres sed that the issue needed urgent
consideratio n because of its financial implication s. However, during the five formal
meetings that the Working Group held at this session, this issue was addressed only
once 38 . This is why many issues were left unresolved; however, valuable consens u s was
reached on some points.
At the reques t of the co- ordinator, the Secretariat had prepar ed a docu men t that was
inten ded to serve as a basis for discussion. 39 This is a compr ehe nsive docu men t that
presen ts the structu r e and functioning of the secretariats of compar able treaty
bodies 40 . However, accor ding to the impres sion of many delegates, it did not address
the issue of an independ e n t Secretariat in a satisfacto ry mann er. Indeed, this question
was considered only in two paragr aph s out of 50. 41 Therefore, the docu men t was not
used as a basis for discussio n.
Discussion s focused on two main issues, both of them interco nnected: the nature or
type of the Secretariat and the function s it will have to perfor m.
FUNCTIONS
37
38
39
40
41
OF
THE SECRETARIAT
Part II – Secretariat, by Inês Marinho (ELSA Lisbon /P o rt ug al)
On the first formal meeting, held on 9 April 2002.
UN Doc. PCNICC/20 02 /WGASP- PD/L.3 of 5 March 2002.
Among those is the Internation al Tribu nal for the Law of the Sea.
Cf. PCNICC/200 2 /WGASP - PD/L.3 of 5 March 2002, paragrap h s 49 and 50.
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Regarding the possible functions of the Secretariat of the ASP, discussion s tur ned
aroun d the question whether the Secretariat of the ASP would be entr us te d with
purely administ r ative functions (e.g. conference services) or also with some
substa ntive tasks.
In the course of the discussion it became clear that an exact deter min atio n of the
functions of the Secretariat of the ASP would not be easy, since the Rome Statute is
silent on this point. But there was agreement that rule 37 of the Rules of Procedu re of
the Assembly of States Parties (RPASP)42 would be the main reference in this context;
tho ug h some other provision s of the RPASP also pertain to the functions of the
Secretariat. A final agreemen t on the tasks of the Secretariat could not be reached, but
it was noticed that the general clause contained in Rule 37 43 of the Rules of Procedur e
of the ASP would make it possible to transfer substantial tasks to the ASP Secretariat.
Indeed, the above mentioned general clause clearly indicates that the Secretariat’s
work will be tailored to the needs of the Assembly and of the Bureau, and that its tasks
will probably go beyond mere conference services as listed in the first part of rule 37.
The assistance provided by the Secretariat ma y include the establish m en t of funds, the
man ag e m e n t of the budget process, of the elections and of the com m u nications with
the States and with the Court. The Secretariat may also play an importa nt role in the
man ag e m e n t of the protocol of the Assem bly and in the mecha nism s of participation of
Observer States as well as of regional, international and non - govern m e nt al
organisations.
Having said this, it becomes clear that the Secretariat will have to make decisions on
substa ntial matter s, which increases the need for an indepen de n t Secretariat. The
NGOs tried to raise concern about this problem among the delegates. In this context,
it is impor tan t to note that the Secretariat will be the only perma nen t body of the ASP,
as the ASP itself and the Bureau will meet only a few times in a year. Therefore, the
only way to contact the ASP and the Bureau will be throug h the Secretariat.
T YPE
OF
SECRETARIAT
As for the type / n a t u r e of the Secretariat, the question was whether and to what
extend the Secretariat of the ASP should be indepen den t from the UN. The paper
prepared by the UN Secretariat listed three options: (1) The UN Secretariat could be
entr us te d with the tasks of the ASP Secretariat. This is the case with the meetings of
the States Parties to the Law of the Sea Convention. (2) An indepen d en t Secretariat
could be established, but receive staff and other sup por t from the UN Secretariat. (3)
The ASP could establish an entirely indepen de n t Secretariat.
The Working Group decided that a provisional solutio n should be adop ted for a
transitional period. In this respect, a draf t resolution – which was overwhelmingly
endor sed by the delegates – was adopted by the plenary of the PrepCom, which will be
submitte d to the ASP at its first meeting. 44 According to this resolu tion, the UN
Secretariat will act as a Secretariat of the ASP during the transitional period. That is to
say that during this period there will not be an indepen den t Secretariat. This decision
was made for reasons of efficiency and time constr ain ts. Moreover, there was a
42
UN Doc. PCNICC/20 01 / 1 / A d d.4 of 8 Janu ary 2002.
“The Secretariat shall […] perform all other work which the Assembly or the Bureau may require .”
(highlighted by autho r).
44
UN Doc. PCNICC/2 00 2 /WGASP- PD/L.4 of 17 April 2002.
43
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com mon agreemen t that advan tage should be taken from the experience and exper tise
of the UN Secretariat.
However, the resolutio n sets no limit to the tran sitio nal period. Therefore, it remain s
unclear if this period will include only the first meetings of the ASP. Further, it was
not decided if an indepen den t Secretariat of the ASP should be established at all,
although this idea seems to be suppo r te d by a considerable number of delegations
coming mainly from like- minded countries.
In the view of many from among the NGOs, this issue needs further consider ation at
the next session of the PrepCo m. It migh t be useful to sub mi t a recom m en d at ion to
the ASP, indicating if and when an indepen d en t Secretariat should be established.
In this respect, it should be noted that the draf t First Year Budged (FYB) only provides
for conference services and similar facilities, but not for any other, substan tive
secretariat services. As the FYB covers a period of sixteen month s from September
2002 to December 2003, an early establish me n t of an indepen d en t ASP secretariat will
be most unlikely unless the FYB is further amende d.
CONCLUSION
AND
EVALUATION
The impact that an indepen de n t Secretariat of the ASP will have on the indepen de nce
and integrity of the ICC must not be under rat ed. It is clear that the Secretariat will
have to carry out several substan tial functions, thereby supp or tin g the work of the
ASP. These tasks are of major import ance for the Court. If they are carried out by the
UN Secretariat, this might create a conflict of interest between the United Nations and
the ICC.
However, an immediate establish m en t of an indepen de n t Secretariat of the ASP would
have to face enor mo us practical problems. Therefore it is reasonable to entr us t the UN
Secretariat at least with basic technical tasks for the first few meetings of the ASP. A
possible solution would be to establish a “core” Secretariat as soon as the ASP has
met, consisting only of a small nu mber of experienced staff for the perfor ma nce of
sensitive, subs tan tial tasks.
III - A GENDA
FOR THE FIRST MEETING OF
T HE A SSEMBLY OF STATES PARTIES
45
As the Rome Statute will enter into force on 1 July 2002, the Assembly of States
Parties will hold its first meeting in Septemb er, probably from Septemb er 3 to 13. At
this meeting, the States Parties will mainly have to discus s and adop t several
agreemen t s and resolutions submitte d by the Preparato ry Com mission, elect a Bureau
and adop t a budget for the first financial period.
The Secretariat provided the working group with a paper containing a provisional
agenda for the first meeting of the Assembly of States Parties. 46 This provisional
agenda was discussed in only one formal session, which took place on 17 April 2002.
45
46
Part III - Agenda for the first ASP meeting, by Amardy Geerdink (ELSA Leiden /Th e Netherlan d s)
UN Doc. PCNICC/20 02 /WGASP- PD/L.2 of 26 February 2002.
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Given the date of the docu me nt (26 February 2002), the provisional agenda needed to
be updated. The following points were mentioned in the discussion:
Item 9 (Establishm en t of other subsidiary bodies): Spain noted that the explanator y
note on this point referr ed to the establish m en t of a Committee on Budget and
Finance, indicating docu men t PCNICC/200 1 /WGFIRR/L.2. However, this docum en t
had been replaced by docu men t PCNICC/ 2001 / 1 Annex I, titled: Draft Resolution of
the Assembly of States Parties on the Establish me n t of the Commit tee on Budget and
Finance. It was there fore suggested that this docum en t should be included in item 11
instead of item 9.
Item 10 (Consideration of the repor t of the PrepCo m): Switzerlan d found that this
point was too narrowly formulated, inas mu ch as it referred only to matter s “within
[the] man dat e” of the PrepCo m. Discussions on whether some of the issues contained
in the final repor t of the PrepCom fall within its manda te or not shoul d be prevented.
Item 11 (Consideration of docume n t s recom m en d e d by the PrepCom): It was
suggested that the list of docu men t s to be adopted under this item of the agenda
should not be exclusive as to include further documen ts that the PrepCo m might still
adop t and submit to the ASP.
Item 12 (Adoptio n of nomin atio n and election proced u res for the judges, the
Prosecuto r and the Registrar): This item shoul d also refer to the election of the Depu ty
Prosecuto r s.
Item 13 (Adoptio n of the Budget): Several delegation s felt that the budget for the first
financial period of the Court and the Assembly’s own budget should be considered
under separate items.
There was consen su s that the ASP will have to addres s the issue of the Crime of
Aggressio n at its first meeting. However, it was not clear under which item this issue
would fall.
The provisional agenda, which will have to be adopted by the Assembly of States
Parties, will be held as general as possible and will be updated at the next session of
the Prepar ato ry Commissio n.
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WORKING GROUP REPORT
T HE CRIME OF AGGRESSION
47
“The international legal com m u ni t y is on trial. War - maki ng is illegal and must be curtailed by
law. If none of the (…) options materialize, the world can, and probably will, continue as it has
always done: sovereign states, with ever - increasing ferocity, will continue to slaughter innocent
victims by the millions and those responsible for the aggressions and carnage will never be called
to account before an international bar of justice. Is that the world we want? Decision - makers
must decide.”
Benjamin B. Ferencz
INTRODUCTION
The Crime of Aggressio n 48 is – in accordance with Art. 5 para. 1 of the Rome Statute of
the International Criminal Cour t 49 (hereafter “Rome Statue”) – one of the four core
crimes within the jurisdiction of the Internatio nal Criminal Court. While the
definitions of the first three crimes can be found in Articles 6 – 8 of the Rome Statute,
the delegations of the United Nations Diplomatic Conference of Plenipoten tiar ies on
the Establish m en t of an Internatio nal Criminal Court 50 , which took place in July 1998,
were unable to reach an agreemen t with regard to the definition of the Crime of
Aggressio n and the condition s under which the Internation al Criminal Court shall
exercise its jurisdiction over this crime. Therefore, Resolution F of the Final Act of the
1998 UN Diplomatic Conference of Plenipoten tiaries on the Establish me n t of an
Internatio nal Criminal Court 51 man dates the Preparato ry Commission to “prepare
proposals for a provision on aggression, including the definition and Elements of
Crimes of aggression and the conditions under which the International Criminal Court
shall exercise its jurisdiction with regard to this crime. The com mission shall submit
such proposals to the Assem bly of States parties (Part 11, Article 112) at a Review
Conference, with a view to arriving at an acceptable provision on the crime of
aggression for inclusion in this Statute. The provision relating to the crime of
aggression shall enter info force for the State Parties in accordance with the relevant
provisions of this Statute. ” 52
List of docu me nt s
PD/ASP - 9 th session
47
submitte d by Patrick Guido n (ELSA Switzerland, CICC Deputy Team Leader WGCA)
Detailed inform atio n on this subject can be found in BENJAMIN B. FERENCZ, The Crime of Aggression, in:
GABRIELLE KIRK MCD ONALD / O LIVIA SWAAK- GOLDMAN, Substa ntive and Proced ural Aspects of Internation al Criminal
Law, The Experience of Internatio nal and National Courts, Comme n tary, Volume I, Kluwer Law
Internatio nal, The Hague – London – Boston, p. 37 – 62; see also ELSA Report on the 6 th session of the
Preparato ry Commissio n for the Interna tion al Criminal Court, 27 Novemb er to 08 Decembe r 2000, UN
Headqu ar ter s, New York, p. 5 – 23.
49
Art. 5 para. 1: “(…) The Court has jurisdiction in accordance with this Statute with respect to the
following crimes: (a) The crime of genocide; (b) Crimes against huma nity; (c) War crimes; (d) The crime of
aggression.” See h ttp:/ / ww w.un.org /law / iccc / s t a t u t e / r o m e f ra.ht m.
50
See for detailed inform atio n the confere nce web site at http: / / ww w.u n.org /icc /in d ex.ht m.
51
http: / / w ww.un.org /l aw / icc / s t a t u e / fi n al.htm # re so lution_f.
52
See also Art. 5 para. 2 of the Rome Statute which states that the Court “shall exercise jurisdiction over
the crime of aggression once a provision is adopted in accordance with article 121 and 123 definin g the
crime and setting out the conditions under which the Court shall exercise jurisdiction with respect to this
crime. Such a provision shall be consistent with the relevant provisions of the Charter of the United
Nations.”
48
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PCNICC/2 00 2 /WGCA/L.1
Historical review of develop me n ts relating
aggressio n – Prepare d by the Secretariat
to
PCNICC/2 00 2 /WGCA/L.1 /Ad d.1
Addend u m
PCNICC/2 00 2 /WGCA/DP.1
Propo sal
by
the
Netherlan d s
PCNICC/200 2 /WGCA/RT.1
PCNICC/2 00 2 /WGCA/RT.1
Definitio n of the crime of aggre ssio n and con di tio n s for
the exercise of jurisd ic tion – Discus si o n pape r pro po se d
by the Coordi na t o r
concerning
The Working Group on the Crime of Aggression was established at the 4 th session of
the Preparato ry Commission under the leaders hip of T UVAKU MANONGI (United Republic
of Tanzania). Since the 7 th session, the Working Group has been meeting under the
skilful chair man s hi p of SILVIA FERNANDEZ DE GURMENDI (Argentina). 53 During this time,
several delegations intro du ce d propo sals with regar d to the definition of the Crime of
Aggressio n and the conditions under which the Court shall exercise its jurisdiction. 54
All this proposals are still on the table. Many of them are based on the differen t
sources of intern ation al law touching upo n aggression, 55 including;
a. Article 6 of the Char ter of the Internatio nal Military Tribunal for the
European Axis (Nuremberg Tribunal);
b. Article 5 of the Char ter of the Inter national Military Tribunal for the Far East
(Tokyo Tribunal);
c. Article II, 1 (a) of the Control Council for Germany Law No. 10;
d. the General Assembly resolution 3314 (XXXIX) of 14 December 1974:
Definition of Aggressio n;
e. Principle VI of the Principles of Internation al Law recognized in the Charter
of the Nuremberg Tribunal and in the Judgemen t of the Tribunal; 56
f. Article 16 of the Draft Code of Crimes against the Peace and Security of
Mankind. 57
Like in previous session s of the Commis sion the main questio ns to be resolved
remained the same 58 :
g. whether the definition should include an illustr ative or exclusive list of
acts constitu ting aggression or should be more general (so- called
“generic approach” )59 ;
h. how to differentiate between individual criminal acts versus acts the state as
a whole;
i. whether the Security Council under the Charter of the United Nations
(especially with regar d to Article 39) hold the primary or the exclusive role
to deter mine whether there has been an act of aggression or not.
53
Ms. Fernan de z was previously the Coordinat or for the Prepara tory Commission’s work on the “Rules of
Proced ur e and Evidence”.
Prepare d by the Internation al Law Commission, Yearbook of the Internatio nal Law Commissio n, 1950,
vol. II, p. 376.
54
See PCNICC/20 01 /L.2 /Rev.1 Proceedings of the Preparato ry Commissio n at its seventh session, Annex
1.
55
See the reference docu men t on the Crime of Aggressio n, prepare d by the Secretariat in:
PCNICC/2 00 0 /WGCA/INF/1.
56
Prepared by the Interna tion al Law Commission, Yearbo ok of the Interna tion al Law Commis sion, 1950,
vol. II, p. 376.
57
Prepare d by the Internation al Law Commission, Yearbook of the Internatio nal Law Commissio n, 1996,
vol. II, Part 2, p. 42.
58
See for example Coalition for an Internation al Criminal Court (CICC), Draft Report on the Seventh
Session of the Prepara tory Commis sion, February 26 – March 9, 2001, New York; available at
http: / / w ww.iccnow.org.
59
However, only a few delegation s raised this issue at the 9 th session.
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In addition, some delegates focused again 60 on the potential violation of the rights of
the accused and also of the victims 61 , since criminal proced ur al rules ensuring the due
process rights of the accused would not be applicable in the Security Council nor, for
that matter, in the General Assembly or the Inter nation al Court of Justice. Finally, the
Coordinato r addr es sed, like indicated at the end of the 8 th session of the Preparatory
Com missio n, 62 the question of how negotiation s on aggression will proceed if the
Working Group of the Preparato ry Commission is unable to finish its work before
entry into force of the Rome Statute and the convening of the Assem bly of States
Parties. Despite of the clear call for the exploration of possible options, most of the
delegations stated only their general readiness to continue the work on aggression.
PROCEEDINGS
OF THE
PREPCOM
AT ITS
9
TH
SESSION
The Preparato ry Commission held four formal and two infor mal meetings at its 9 th
session. At the first formal meeting on Monday, April 8, 2002, the Coordinat or of the
Working Group, SILVIA FERNANDEZ DE GURMENDI (Argentina), presen ted a discussio n paper on
the “Definition of the crime of aggression and the conditions for the exercise of
jurisdiction” 63 . This docume n t has been prepared in respon se to concerns consisten tly
expressed in the Working Group on the Crime of Aggression, althoug h the instr uction s
by the represen ta tives of the different national delegatio ns at the 8 th session of the
Preparatory Commis sion had been very contradictory. 64 In light of these views, the
Coordinato r reconciled these objectives in a very short paper, which gives on one hand
not only a compilation and on the other hand does not provide within itself
substan tive solution s.
Reflecting the metho dological appr oach advocated orally by Belgium during the 7 th
session and formally introd uced by the delegatio ns of Bosnia and Herzegovina,
Romania and New Zealand in their well received proposal 65 at the 8 th session, the
discussion paper separates in its paragr ap h s 1 and 2 – in the interests of clarity and
precision – the concept of the Crime of Aggression (paragraph 2), for which there is
individu al respon sibility, from the concep t of aggression of a State (paragrap h 1). The
following paragrap h s 3 and 4 refer to the condition s under which the Internatio nal
Criminal Court will exercise its jurisdictio n over the Crime of Aggression. The main
divergences within this context, i.e. whether the Security Council possesses the
exclusive or only the primary respon sibility 66 for deter mining whether an act of State
aggression has occurr ed, are reflected in the option s 67 contained in the discussio n
paper.
60
See Coalition for an Internation al Criminal Court (CICC), Draft Report on the Eighth Session of the
Preparato ry Commissio n, Septem ber 24 – October 5, 2001, New York, p. 9 and PCNICC/WGCA/2 0 00 / RT.1.
61
See the stateme n t of the delegation of the Philippines on Wednesd ay, April 17, 2002, in: CICC
Aggression Team Report (4), April 17, 2002, p. 21 – 22.
62
See Coalition for an Internation al Criminal Court (CICC), Draft Report on the Eighth Session of the
Preparato ry Commissio n, Septem ber 24 – October 5, 2001, New York, p. 9 – 10.
63
See PCNICC/200 2 /WGCA/RT.1.
64
There were calls that wanted not only a compiling paper, but also wante d a discus sio n paper which
would go beyond the propo sals. Other represe nt atives highlighte d the importanc e of no prejudicing.
65
PCNICC/2 00 1 /WGCA/DP.2.
66
See article 39 UN Charter.
67
See PCNICC/200 2 /WGCA/RT.1, para. 4, opt. 1 – 4.
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At the same meeting the Secretariat, represent ed by Mahnouch Arsanjani, introd uced
two rather lengthy paper s, one of them being PCNICC/2002 /WGCA /L.1, the other
PCNICC/200 2 /WGCA /L.1 /A d d.1. The first paper was prepar ed in respon se to the
reques t of the Working Group on the Crime of Aggression at the 8 th session. Its
pur po se is “to provide an objective, analytical overview of the history and major
develop m e nts
relating
to
aggression.” 68
The
second
paper
PCNICC/200 2 /WGCA /L.1 /A d d. 1 contains the annexes with a series of tables which
repr od uce, parap h r ase or sum ma ri ze the general principles and the specific factors
contained in the constituen t instru m en ts and the jurispr u d e nce of the tribunals that
tried individuals for crimes agains t peace after the Second World War. 69
On Monday, April 15, 2002, the delegation of The Netherlan d s presente d orally a
possible option 5 to the Coordinat or s paper with regard to the conditions governing
the exercise of the jurisdiction of the International Criminal Court. Later, a
correspo n d in g
written
proposal
was
formally
introd uced
as
PCNICC/200 2 /WGCA /DP.1. Further mo r e, the delegations of Cameroo n and France put
forwar d two separate written proposals 70 on Wednesday, April 17, 2002. Finally, the
delegation of Samoa present ed at the inform al meeting on Thursd ay, April 18, 2002, a
so- called “very infor m al Non - Paper” on the elements of the Crime of Aggression.
T HE COORDINATOR ’S D ISCUSSION PAPER
PARAGRAPHS 1
AND
2 (PICNICC/20 0 2 / WGCA /RT.1)
71
At the ninth session of the Preparator y Commis sion, the Coordinato r of the Working
Group
on
Crime
of
Aggression 72
presen ted
a new
discussion
paper;
PCNICC/200 2 /WGCA /RT.1.
This draft text included all proposals that had previously been presen ted to the
working group by various countries. It was present ed as a neutral paper that did not
take any specific sides or any preference for any of the previous proposals. The paper
was organised in a way that took into account some elemen ts already considered; the
definition of aggression (as an act), and the definition of crime of aggression were
presen ted separ ately in paragrap h 1 and 2, respectively. Paragrap hs 3 and 4 were not
dedicated to the definition itself, but to the precon di tion s that need to be respected
and fulfilled by the court, before considering the crime of aggression. Some countries
disagreed on the latter. 73
Paragrap h 1
There was a general consens u s among the delegations on the separation of the
definition of act and crime of aggression. Althoug h the coordinato r prefer red the two
68
PCNICC/2 00 2 /WGCA/L.1, p. 11.
PCNICC/200 2 /WGCA/L.1 /Ad d. 1, p. 2.
70
No docu men t nu mber yet.
71
sub mitte d by Paola Sofia Candeias, ELSA Lisbon / ELSA Portugal
72
Coordinato r; Silvia Fernand e z de Gurme nd i
73
For a better underst an d ing of the article structu re, and in order to under sta n d the differen t position s
sustaine d by some countries in relation to paragra ph s 1 and 2, see the ELSA ICC Reports from PrepCom
VII and VIII
69
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paragr ap h s to contain definitio ns, most delegation s disagreed with this position
because paragrap h 1 is seen not only as containing a definition (even an indirect
definition made by are reference to Resolution 3314), but also, and mainly, as a
prereq uisite. About the reference to resolution 3314, many of the count ries agreed
that this definition should be taken as a startin g point, basically because it is generally
accepted and can be considere d as firmly established custom ary international law.
However, it was also stressed that this resolution is old and therefo re probably no
longer fully appro p riat e.
The other problem raised with regard s to parag rap h 1 refers to the end of the
paragr ap h: “ - and subject to prior deter min ation by the United Nations”. It is not
gener ally agreed by the PrepCom that there is a need for prior deter min atio n by the
Security Council. According to a consider able number of delegations there is no
exclusivity for the Security Council on this definitio n. Examples from jurispr u d e nce
and UN practise (GA resolution s) were refer red to by delegates. Some of the
delegations also suggested removing this part of the sentence, in order to make the
paper more neutral. It should also added that this special part was not generally
considered as consisten t with some of the subpar agr ap h s outlined in paragr ap h 4,
where precon di tion s were consider ed.
Paragrap h 2
Paragrap h 2 relates to the definition of the crime of aggression, as such. Before
analysing this definition, it should be emph asised that we are dealing with a crime that
should be defined and cleared in all its elemen ts, in order to respect the principle of
legality. Some delegations further remarked that the crime should be com mit ted by an
individu al, and not by a person, as presente d in the proposal, in order to be consistent
with language used in the Statu te.
With regard s to the reference “position to exercise control”, most countries regarded it
insufficient and prefer red to add “effective control”. It was argued that, even if
aggression is a leader ship crime, we need to assure that the material leader is
punis hed, and not any formal leader. The reference to the mental elemen t,
intention ally and knowingly, was also questione d because it is already com mo nly
agreed.
The same was repeated in what concern s planning, preparation, initiation or waging an
act of aggression.
With regard s to the options presen ted by the coor dinator, some countr ies though t it
was problematic that all of them referr ed to crimes perfor m ed by States and not by
individu als. As for option 1, it was pointed out as being too narrow. Some delegates
also mentio ned that one could think of a crime of aggression without having a war of
aggression. The lack of a true legal basis was a remar k made to options 1 and 3.
The use of the words “manifest violation” was considered a too wide a thresh old. No
consen s us was reached on the definition, but the non - paper produced by the
delegation of Samoa contained a constr uctive propos al about the criminal content s
and element s that need to be discussed in order to have a true and consisten t crime
definition.
PARAGRAPHS 3
74
AND
4 (PICNICC/20 0 2 / WGCA /RT.1)
submitte d by Paola Sacchi, ELSA Milan / ELSA Italy
33
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The discussio n paper presen ted by the Coordinato r of the Working Grou p on Crime of
Aggressio n, Silvia Fernan de z de Gur men di , proved to be a successf ul attem p t to
sum m ar ize the propo sals presen ted by delegation s at previous sessions.
Paragrap h s 3 and 4 of this docume n t are in fact a reflection of the prop osal sub mi tted
by Bosnia and Herzegovina, Romania and New Zealan d at the eight session of the
Preparatory
Commission,
contained
in
PICNICC/20 01 /WGCA /DP.2
and
PICNICC/200 1 /WGCA /DP.2 Add.1.
This very much welcomed proposal stated not only the distinction between the notion
of an act of aggression com mitte d by the State, and the crime of aggression commi tte d
by the individual for which only the ICC is competen t, but also introd u ced a separate
consideratio n on the condition s of exercise of jurisdiction through references to other
bodies competen t to decide whether aggression has occur red in case the Security
Council fails to make a decision, i.e. the General Assembly and the Inter nation al Court
of Justice. Before going into the details on the provisions of paragrap h 3 and 4,
something should be said about the structu r e of the Coordinato r’s discus sion paper.
Unlike the proposal by Bosnia and Herzegovina, Romania and New Zealand, which
separated “the definition” fro m “the condition s for exercise of jurisdiction” in
differen t provisions, the Coordinato r’s paper provide for them in the same text.
Though t this struct u re has been considered sound in disting uis hin g differen t
paragr ap h s, - the definition of the act, - the definition of the crime, - and the
conditio ns of jurisdiction, there working group did not reach full consens us as some
delegations urged for a full distinction of the definition and the condition s of
jurisdiction s in two differen t articles, and thereby recalling the provisions of the
Statute regar ding the other core crimes.
Paragrap h 3 of the Coordinat or text states: “Where the Prosecutor intends to proceed
with an investigation in respect of a crime of aggression, the Court shall first ascertain
whether the Security Council has made a determi na tion of an act of aggression
com mitted by the State concerned as provided for in parr.1 of this article. If no Security
Council determin ation exists, the Court shall notify the Security Council of the Situation
before the Court so that the Security Council may take action, as appropriate, under
Article 39 of the Charter of the Unite Nations.”
Delegation s generally agreed on this paragr ap h. Only a few comm en ts were made
suggesting minor changes in the wording, i.e. “initiating an investigation” instead of
“proceeding with an investigation ”. As to the wording, the delegation of Netherlan ds
raised the question of how the deter mi nation of an act of aggression should be made
by the Security Council, asking whether this has to be mentioned as a par t of a
resolution or merely mentioned in a pre- amble paragrap h.
The delegation of Austria suggested the inclusion of a sentence for the very simple
case in which the Security Council has made a deter min ation that an act of aggressio n
has occur red, stating that “If a deter mi na tion has been made the Court shall proceed ”.
The delegation of Russian Federatio n questioned the artificiality of a procedu r e
requiring the Court to infor m the Security Council that there is a case of aggression
before it, pointing out that it is difficult to imagine a situation where the prosecuto r is
aware of an aggression while the Security Council doesn’t know anything about it.
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Paragra ph 4 of the Coordina to r text is more complex, as it provide s for four differe nt
options by saying;
“Where the Security Council does not mak e a deter mina tion as to the existence of an act of
aggression or invoke art.16 of the Statute within six months from the date of notification,
(Option 1) - the Court shall proceed with the case.
(Option 2) - the Court shall dismiss the case.
(Option 3) - the Court shall, with due regard to the provisions of art. 12, 14 and 24 of the
Charter, request the General Assembly of the United Nations to make a recom me n d ation
within [12] months. In the absence of such a recom me nd a tion, the Court may proceed with
the case.
(Option 4) - the Court may request the General Asse mbly to seek an advisory opinion from
the International Court of Justice, in accordance with art.96 of the Charter and art.65 of
the Statute of the International Court, on the legal question whethe r or not an act of
aggression has been com mitted by the State concerned. The Court may proceed with the
case if the International Court of Justice either; gives an advisory opinion that an act of
aggression has been com mitted by the State concerned; or makes a finding in proceedings
brought under Chapter II of this Statute that an act of aggression has been committed by
the state concerned.
Favours for one option or anot he r reflecte d the conside ra tio n of States on the role the
Security Council has to play as to the exercise of jurisdiction of the Court. At this session,
as in the others, the variety of positions as to the exclusivity or prima ry role, are the proof
that consen s u s has not yet been achieved.
Those delega tion s conside ri ng the role of the Security Council were not exclusive in
favour of option 1, and pointe d out that practice indicate d that othe r organs are
compe te n t to decide whethe r aggres sion has been exercise d, like the ICJ or singular States
too. Being a political body, the Security Council may not manage to dete rmi ne the
existe nce of aggre ssio n, because of political reaso ns. This is contra ry to the spirit of the
Statute, which aims at stop pi ng impu nity in the interna tiona l comm u nity. Among the se
delegation s, there were also some who were willing to accept option 3 and 4 in orde r to
reach a compro m is e with othe r delegation s, and others which in turn opted just for these
last options, basically for the same reas on, i.e. the security Council can’t be conside re d the
only orga n to have compet e nce in defining the existe nce of an act of aggression.
On the contra ry those delegation that viewed it unacce pta ble to remove the role of the
Security Council because they conside re d its decision a funda m e n ta l prere quisite for
individual respon sibility, sup po rt e d option 2 of paragra p h 4. This topic is strictly relate d
to the inclusion of the “prior deter mi nation by the United Nations Security Council” in the
definition of an act of aggres sion containe d in para.1. Though it is not the re to analyse the
provision of this paragra p h, it must be said that considera tion s ma de on the opport u ni ty
to include such a refe renc e in the definition of „the act of aggressio n“ in para.1, had
consequ e nc e s on parr.3 and 4 too, reflecting the opinion of States as to the role of the
Security Council. In fact some delegations sugges te d to remove, or in certain cases to
amen d, these paragra p hs when they viewed the sus picion of including a political body in
what is sup po se d to be a merely judicial proced u re, and conse que nt ly opte d for an
exclusion of the Security Council at each level.
As a way in the middle, the delegation of the Netherlan d s pro pos e d a fifth option, base d
on considera tion s that option s 1 and 3 bypass the Security Council too easily, that option
2 gives the Security Council exclusivity to establish whethe r an act of aggre ssi on is
committe d by a State, and option 4 because it gives no role to the Security Council in
asking the ICJ for an advisory opinion. The propo sa l made by the Nethe rlan d s containe d
in PCNICC/ 20 02 /W GCA /DP.1 is somewha t similar to option 4 of para.4, but it provide s
for a reques t which the Court should make to the Security Council (“acting on the vote of
any nine me m be rs ”) and not to the General Assem bly for an advisory opinion of the ICJ on
the existe nce of an act of aggression. The Dutch delegation’s emp ha si se d that this
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pro pos al has two advantage s. One of the m in offering a way out if the Security Council is
paralyse d by the use of veto, but still conside ring this matter the exclusive preroga tive of
the Security Council, and the othe r being the fact that when defining the reque s t for an
advisory opinion in a proce d ur al resol ution, the veto would not apply. To make clear that
this optio n shoul d be conside re d as a proce du ra l matte r, PCNICC/20 02 / W GCA/ DP.1
contains a footnot e stating that “this procedural precondition would have to be laid down
in the Relationship Agree me nt between the Court and the United Nations”.
This propo s al has been welcom ed by delegation s that, like the Nethe rla nd s, were not
satisfied with any of the options in paragra p h 4.
O THER
RELEVANT DOCUMENTS ON
A GGRESSION
AT THE
9
TH
SESSION
75
In order to respon se to the request of the Working Group on the Crime of Aggression
at the 8 th session of the Preparatory Commissio n, the Secretariat intro d uced two new
docum en t s 76 :
PCNICC/200 2 /WGCA /L.1 consists of four parts 77 : part I. The Nuremberg Tribunal; part
II. Tribu nals established pursu an t the Control Council Law No. 10; part III. The Tokyo
Tribunal; and par t IV. The United Nations. The main pur pose of the paper is “to
provide an objective, analytical overview of the history and major develop me nts
relating to aggression” 78 . It covers therefore the develop men t s prior to the adop tion of
the Charter of the United Nations, including the constitu en t instru m en t s and the
jurispr u d e nce of the tribu nals that considered the crimes against peace committe d in
Europe and the Far East during the Second World War, 79 and those subseque n t to the
adop tion of the Charter, including the relevant provisions of the Charter which
prohibit the threat or use of force and provide a role for some of its principal organs
with respect to intern ational peace and security. 80 However, the paper does not draw or
suggest any conclusions with regar d to the issues it covers, nor does it suggest
“whether the use of the word “aggression” with regard to a particular act by, for
exam ple, the Security Council or the General Assem bly was or was not intended to be in
the context of Article 39 of the Charter of the UN.”81
PCNICC/200 2 /WGCA /L.1 /A d d. 1 contains the annexes with a series of tables that
repr od uce, parap h r ase or sum ma ri ze the general principles and the specific factors
contained in the constitu en t instru m en ts , and the juris pr u d e nce of the tribunals that
tried individuals for crimes against peace after the Second World War. 82 While the
tables 1 to 4 concer ning aggression by a State are contained in annex I, 83 tables 5 to 9
concer ning individual respo nsibility for crimes agains t peace are contained in annex
II. 84
All delegations warmly welcomed the two docu men t s and expressed their “gratitude
and admiration for the very impressive work undertaken and brough t to spectacular
75
submitte d by Patrick Guido n (ELSA Switzerland, CICC Deputy Team Leader WGCA)
PCNICC/2 00 2 /WGCA/L.1 and PCNICC/2 00 2 /WGCA/L.1 /Ad d. 1.
77
See PCNICC/20 02 / WGCA/L.1, p. 11.
78
PCNICC/200 2 /WGCA/L.1, p. 11.
79
See PCNICC/200 2 /WGCA/L.1, p. 13 – 115.
80
See PCNICC/200 2 /WGCA/L.1, p. 115 – 135.
81
PCNICC/2 00 2 /WGCA/L.1, p. 12.
82
PCNICC/2 00 2 /WGCA/L.1 /A dd . 1, p. 2.
83
PCNICC/200 2 /WGCA/L.1 /Ad d. 1, p. 3 – 30: table 1. Aggressio n by a State: Categories of aggression and
war; table 2. Aggression by a State: Forms of aggression; table 3. Aggression by a State: Factors in
determining the aggressive character of cond uc t by a State; table 4. Aggressio n by a State: Defence claims.
84
PCNICC/200 2 /WGCA/L.1 /Ad d. 1, p. 31 – 98: table 5. Individual criminal respo nsibility: High - level
position; table 6. Individual criminal respo n sibility: Knowledge; table 7. Individual criminal respo nsibility:
Intent; table 8. Individual criminal resp on sibility: Participatio n; table 9. Individu al criminal respo n sibility:
Defence claims.
76
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fruition by the Secretariat” (Greece) 85 and appreciated the “comprehensiveness and
quality of the Secretariat’s Paper” (Italy) 86 . Althoug h almost every delegation regar ded
the two docum en t s as an essen tial contrib ution “to stimulate our thinking and provide
a new focus for the discussion” (New Zealand) 87 , as an impor tan t help “along the
difficult road towards solutions to our problems with regard to aggression” (Greece) and
as extremely useful “for an understan ding of what custo ma r y internation al law is with
regard to the elements and defences” (United Kingdo m) 88 , unfort u n at ely few
delegations made concrete references to the paper s.
On Monday, April 15, 2002, the delegation of The Netherlan d s presente d orally a
possible option 5 in addition to the Coordinat or’s paper. After encouraging statemen t s
by other delegatio ns 89 a corresp on din g written proposal, which deals with the
conditio ns governing the exercise of the jurisdictio n of the Intern atio nal Criminal
Court, was intro d uced for mally as PCNICC/20 02 / WGCA /DP.1 on Wednes day, April 17,
2002.
The proposal tries to offer on the one hand a way out if the Security Council is
paralysed by the use of the veto and underlines on the other hand that the request for
an advisory opinion from the International Court of Justice is a proced ur al resolution,
so that the veto of the five per man en t memb er of the Security Council would not
apply. However, the delegate of The Netherlan d s stressed himself that the main
problem with the proposed option 5 is that “it is for the Security Council to decide
whether a resolution is procedural or substantive” and that it is “crucial that this option
be considered as procedural matter” . 90 It therefor e seems necessary that this
proced u ral precon dition would have to be laid down. In the view of The Netherlan d s
the best place seems to be the Relationship Agreemen t.
On Wednesday, April 17, 2002, the delegations of Cameroo n and France put forward
two separate written proposals 91 .
a) The proposal submitte d by France 92 tries to merger the paragrap h s 1 and 2 of
the Coordinator’s paper PCNICC/2 00 2 /WGCA /RT.1. It does not take up the 3
options of paragr ap h 2 of the discus sion paper submitte d by the Coor din ato r
and provides a (completely) new form ulation with several changes 93 and new
options. The delegate of France stressed that on the one hand the obvious
distinction between Act of Aggressio n and Crime of Aggressio n mus t be drawn
and that on the other hand the reference and the quote from resolu tio n 3314
85
CICC Aggressio n Team Report (2), April 15, 2002, p. 6.
CICC Aggression Team Report (2), April 15, 2002, p. 2.
87
CICC Aggressio n Team Report (2), April 15, 2002, p. 15.
88
CICC Aggressio n Team Report (3), April 16, 2002, p. 16.
89
See for example stateme n t of the delegation of the United Kingdo m: CICC Aggression Team Report (3),
April 16, 2002, p. 17.
90
CICC Aggressio n Team Report (4), April 17, 2002, p. 21.
91
No docu me n t numbe r yet.
86
92
The pro po sal reads as follows: “For the purpose of this Statue, a crime of aggression means an act
committed by a person, who, being in a position to exercise control over direct action of a State,
intentionally and knowingly orders or participates actively in the planning, prep aration, initiation or
perpetration of an act of aggression which (option 1) is understood as the use of armed force by a state
against the sovereignty, the territorial integrity or the political independe nce of a State (option 2) is
understood as per Resolution 3314 (1974) or is any other man ner incomp atible with the charter of the
United Nations and subject to prior deter mination by the United Nations Security Council.”
93
The propo sal does for example not contain the terms “military and political”.
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foreseen in the Coordinat or’s paper can be accepted only as long as the
resolution is accepted as a whole. 94
b) Also the proposal put forwar d by Cameroo n tries to combine paragr aph 1 and 2
of the Coordinato r’s paper in refor m ulating them. However, in contr as t to the
French proposal it avoids the reference to a “prior deter min ation by the United
Nations Security Council” as prerequisite for Court proceedings and adds the
ter m “effectively” to the definition of the Crime of Aggression. Further m or e, the
Cameroon pro po sals does not stop in merging paragr ap h 1 and 2, but provides
also a slightly modified version 95 of the other paragr ap h s contained in the
discussion paper submitte d by the Coordinat or.
Since both prop osals had been submitt ed at the last for mal meeting of the Working
Group on the Crime of Aggression and only in English respectively in English and
French, only a few delegatio ns expressed some preliminary though ts on these
docum en t s. The delegate of Italy highlighted that the proposals deman d “further
reflection and study” 96 .
Finally, the delegation of Samoa presente d at the infor mal meeting on Thurs day, April
18, 2002, a so- called “very infor mal Non - Paper” on the element s of the Crime of
Aggressio n. The paper is a “very tentative first effort to think conceptually about the
Elements of the Crime of Aggression” 97 . It takes the first two paragr ap hs of the
discussion paper proposed by the Coordin ato r and tries to apply the concept ual
str uctu r e contained in articles 30 and 32 of the Rome Statute and utilized in the draft
Element of Crimes 98 . Further mo r e, it assu mes that the Crime of Aggression can be
concep tu alised in ter ms of “mental” element s and “material” elemen ts.
WORKING GROUP REPORT
FIRST YEAR BUDGET & FINANCIAL ISSUES 99
FINANCIAL RULES (I)
REMUNERATION OF JUDGES (II)
VICTIMS TRUST FUND (III)
INTRODUCTION
The Working Group on the Budget for the first financial period of the Court (FYB) had
already been established at the 8 th PrepCom and contin ued its work at this session.
The Financial Issues Working Group was divided into three Sub - Working Grou ps in
accor dance with the main issues that were still to be discusse d after the 8 th PrepCo m; I
94
CICC Aggression Team Report (4), April 17, 2002, p. 6 – 7.
The Cameroo n prop os al does for example not contain option 2 of paragra ph 4 of the Coordinato r’s
Paper.
96
CICC Aggressio n Team Report (4), April 17, 2002, p. 21.
97
See the very informal non - paper from the Delegation of Samoa, Elements of the Crime of Aggression, p.
1
98
PCNICC/2 00 0 / 1 / A d d .2.
99
Report submitte d by Meinhar d Schrö der, ELSA Munich. The author wishes to thank the delegates of ISCICC for their valuable help during the PrepCom.
95
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- Financial Rules, II - the Remuneration of Judges, and III - the Victims Trust Fund.
This repo rt will first sum ma rise the proceedings of the Sub- Working Groups and then
the working group on the First Year Budget.
I – FINANCIAL RULES
The Working Group cond ucted 3 formal sessions and 4 infor mal meetings. In the first
for mal session on Tuesday 9 April the Coordinato r, Mr Christian Much (Germany)
intro du ced a discussio n paper created after an inter - sessional meeting in The Hague
in March. 100 The second formal meeting on Wednesday 10 April was turned into an
infor mal session after the Coor dinato r had infor me d the Working Group that there
was only a very limited nu mber of rules on which there was no agreement yet. These
were discussed and amen ded, especially by a proposal introd uced by the Philippines, 101
during the following infor mal session and in another infor mal on Thursd ay 11 April.
As an outcome of these consultatio ns the Coordinato r present ed a discussion paper 102
that the Working Group adop te d with some moder ate changes. The Working Group
repor t containing these financial rules 103 was adopte d by the Plenary of the PrepCo m
on Friday 19 April.
List of docume nts
Financial Issues - 9 th session; Financial Rules
PCNICC/2002 /WGFI- FR/L.1
Report of the Working Group – Draft Financial
Rules
PCNICC/2002 /WGFI- FR/DP.1
Proposal submitte d by the Philippines
PCNICC/2002 /WGFI- FR/RT.1
Draft
Financial
Rules
- Discussion
propose d by the Focal Point
Paper
PCNICC/2002 /WGFI- FR/RT.1/Rev.1
Draft Financial Rules - Discussion
propose d by the Coordinat or
Paper
PROCEEDINGS
As the Coordinato r of this Working Group pointed out, good adminis tr atio n is based
on rules. The rule of the rule makes an administ ration a good adminis tr ation. The
hierarchy of rules includes; regulation s - rules, - and administ ra tive instru ction s. In
the financial structu r e of the ICC all three categories are needed. At the 8 th Session of
the Preparato ry Com missio n the Financial Rules and Regulations Working Group had
finalised the financial regulation s. Administ r ative instr uction s were discuss ed at an
inter - sessional meeting that took place in The Hague in March.
The middle level – the financial rules – was still missing so far. According to art. 114
of the Rome Statute the metho d of work will be to create a complete set of rules for
the existing regulation s. A proposal for this set of rules had been issued on 21 March
2002 as a discussio n paper. 104
This docume n t is based on the exchange of impressio ns at the inter - sessional meeting
in The Hague, theref ore it contain s some minor differences to the old draf t that was
100
101
102
103
104
PCNICC/200 2 /WGFI- FR/RT.1
PCNICC/200 2 /WGFI- FR/DP.1
PCNICC/200 2 /WGFI- FR/RT.1 /Rev.1
PCNICC/2 00 2 /WGFI- FR/L.1
PCNICC/2 00 2 /WGFI- FR/RT.1
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Report from the Preparatory Com mission for the International Criminal Court, 9 th session 2002
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presen ted there. Basically, the financial rules are inspired by those of other
intern ational institu tion s, such as the UN, the UNDP, the ICTY, ICTR and the
Internatio nal Tribu nal for the Law of the Sea. The main pur poses of the draft are;
- To reconcile flexibility with the integrity of a soun d financial adminis tr ation;
- To avoid parallel str uctu r es;
- To secure checks and balances between the differen t organs of the Court;
- Not to preju dge the final administr ative struct u re of the Court.
A particularly interes ting feature of the discussion paper is Rule 113 that delegates
the authority to amen d the rules from the Assembly of States Parties to the Court to
ensur e the necessary flexibility for changes. Another issue discussed was the issue of
outsour cing procur em en t. Already in the first two infor mal meetings delegates
reached an agreemen t on this issue. In the early stage of the existence of the Court
procu rem en t function s should be outsou rced, since procur em en t needs consider able
experience and is one of the areas where error s and scandals can occur very easily.
It would be har d to deter mi ne until when this outso ur cing should last in ter ms of
time, probably well into next su mm er and maybe longer. However, the Court would
still need certain perso nal resources to iden tify the needs of procure me n t s, and for
quality control. An under s tan d in g was reached that outso ur cing was particularly
interesting, if it was possible to place Court officials in the other entity to gather
knowledge for the Court.
During the infor mal meeting s the Philippines intro du ced a proposal concerning rules
109.1 (b), 109.2, 109.3 (a), 109.4, 109.5 (a). 105 It mainly contained some clarifications
and more detailed requireme n t s for the recording of the investm en t of fund s and of
gains and losses. As the result of discussio ns and delegates’ remark s on this propo sal
the Coordinator drafted the final repor t, 106 which mainly contained the changes
suggested by the Philippines.
In the last formal meeting on Monday 15 April the Working Group adop ted the
financial rules. There was no big discussio n except that the Philippines stated that
they had concern s about rule 109.1 (b). This rule states that investm en t s shall be made
after “selecting repu table financial institution s that offer sufficient safeguar ds against
any investm en t losses” The Philippines suggested to delete “against any invest men t
losses” because the would restrict the invest men t of fun ds too much, since total
security in investm en t s is almost impossible. The rule remained unchanged, since the
Philippines had no inten tion of blocking the consens u s.
With respect to rules 110.10 and 110.11 (writing - off) the Philippines stated that there
might be a possible conflict of interest for the Registrar since he was also respon sible
for the receiving of fund s. They suggested to discuss this issue again in the First Year
Budget Working Group.
CONCLUSION
The Working Group on financial rules has finished its work. The repor t of the Working
Group will be passed on to the Assembly of States Parties for approval.
II - REMUNERATION OF JUDGES
The Working Group cond ucted 3 formal sessions and 2 infor mal meetings. In the first
for mal session on Friday 12 April the Coordinator, Mr John Holmes (Canada)
intro du ced a discussion paper. 107 This was disused infor mally on Monday 15 April and
105
106
107
PCNICC/2 00 2 /WGFI- FR/DP.1
PCNICC/200 2 /WGFI- FR/L.1
PCNICC/2 00 2 /WGFI- RJ/RT.1
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Tuesday 16 April. In the next formal meeting on Thurs day 18 April the Working Group
failed to reach a consens u s on parts of the Working Group report. 108 An additional
for mal session had to be sched uled on Friday 19 April to reach an agreement.
The final repor t 109 of the Working Group was adopted by the Plenary of the PrepCo m
on 19 April.
List of docume nts
Financial Issues - 9 th session; Remunera tion of
Judges
PCNICC/2002 /WGFI- RJ/L.1
WG report - Conditions of service of ICC judges
PCNICC/2002 /WGFI- RJ/L.1 /Rev.1
Revision
PCNICC/2002 /WGFI- RJ/RT.1
Conditions of service of the judges of the ICC
PROCEEDINGS
The discussion paper concerning the conditions of service of the judges of the ICC
intro du ced in the first formal meeting consisted of two parts: par t A deals with
fulltime judges, part B with non - fulltime judges. Whereas section s 1- 3 on salaries and
special allowances for the President and the Vice- Presiden ts were accepted witho ut
discussion, the Working Group discussion s on the issue of non - salary benefits and
allowances were controversial.
The discussion s of para. 5 of the Repor t of the Working Group 110 (pension benefits)
with the original reference to the system s of the ICJ and the Internatio nal Tribunal for
the Law of the Sea lead to the conclusion that Part B (the non - fulltime judges) needed
redr afting. The special requirem en t s for non - fulltime judges as regar ds pension s
should be taken into consideratio n.
Speaking on para. 7 of the docum en t, which deals with travel and relocation costs, the
delegations of Cameroo n, suppo r te d by Senegal, star ted a vehemen t discus sion about
whether the ter m “fulltime judge” implies an obligation for the judge to reside at the
seat of the Court. In their opinion the residence was the only criterion to disting uis h
between fulltime judges and non - fulltime judges. On the other hand many delegations
and the Coordinat or expressed the opinion that – since the Rome Statu te is silent on
the issue of the judges’ residence – it was not up to the Working Group to create such
an obligation. Cameroon finally agreed not to block a consens u s concerning part A of
the docu men t – on the fulltime judges – under the conditio n that a recom m en d a tio n
for the judges to have their residence in The Hague was put in a footnote and that all
benefits for non - fulltime judges were removed from the docu men t in order to create
incentives for the judges to reside in The Hague.
A new docum en t consideri ng these aspects, which is the revised edition of the Report
of the Working Group, 111 was adop ted in the additional formal session of the Working
Group on Friday 19 April. It only deals with the remu ner atio n of fulltime judges and
men tio ns in an annex that the issue of the remun er atio n of part - time judges has to be
dealt with at the next PrepCom.
CONCLUSION
108
109
110
111
PCNICC/2 00 2 /WGFI- RJ/L.1
PCNICC/200 2 /WGFI- RJ/L.1 /Rev.1
PCNICC/200 2 /WGFI- RJ/L.1
PCNICC/200 2 /WGFI- RJ/L.1 /Rev.1
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The Working Group on the Remuner atio n of judges will contin ue its work at the next
PrepCom to finalise the conditions of service of non - fulltime judges. Then the whole
docum en t will be passed on to the Assembly of States Parties for approval.
III - VICTIMS TRUST FUND
The Working Group cond ucte d only one formal session on Friday 11 April 2002. In this
session France presen ted its propo sal regar ding the adminis tr ation of the Fund. 112
The Coordinato r, Ms Gaile Ramo utar (Trinidad and Tobago) discussed the proposal in
the following week in bilaterals. The issue of the Victims Trust Fund will be raised
again at the next PrepCom where several formal and infor mal sessions have already
been sched uled.
List of docume nts
Financial Issues - 9 th session; Remunera tion of
Judges
PCNICC/2002 /WGFI- VTF/DP.1
Proposal submitte d by France on a trust fund
for the benefit of victims
PROCEEDINGS
At the beginning of the formal session the French delegate took the floor to presen t
his proposal. 113 He pointed out that the Victims Trust Fund has two major sources of
income. In the first, which is decisions of the Court (under Art. 75 or 77 of the Rome
Statute), it is the Cour t, which is competen t to decide on the allocation. In this case the
Victims Trust Fund is only the device thro ug h which the Court is operating, but the
Court has the power to decide on the use of funds. As regard s volun tary contribution s
on the other hand, the Cour t doesn’t have full power over that, but the Victims Trust
Fund would be indepen de n t in deciding on their allocation.
The administ ration of the Victims Trust Fund mus t reflect both these tasks. Earlier
proposals had envisaged for this task either the Registry (which would be illogical,
because one organ of the Court should not exercise powers that the Court as a whole
doesn’t have) or the Committee on Budget and Finance (which raised concer ns because
it consist s of financial experts and not of experts on victims’ issues). This is why
France proposed to establish a Board of Directors as sub - organ of the Assem bly of
States Parties according to art. 112 paragrap h 4 of the Rome Statute. It should consist
of 12 memb er s acting on a pro - bono basis. However, France indicated that the number
was open to negotiation.
As administ rative sub - body for the boar d of directo rs France proposed a special unit
within the Registry. To maintain the consistency within the adminis tr atio n, the
Registrar should have a consultative vote in the Board of Directors.
Delegation s expressed their gratitu de to France for the proposal. In the following
discussion several points were raised. Apar t fro m discus sing the size of the board,
delegates wished to obtain more infor mation about the financial implication s of
France’s propo sal and there were concer ns about the workload for the Board of
Directors. Delegates agreed that flexible struct u r es for the adminis tr atio n of the Fund
were one of the param ou n t issues.
The CICC Financial Team generally welcomed the French proposal. However, there
were concerns that not the whole adminis tra tio n should be within the Registry. The
Team suggested to have an executive director for the day - to - day business of the Trust
Fund, elected by and accountable to the Board of Director s.
CONCLUSION
112
113
PCNICC/200 2 /WGFI- VTF/DP.1
PCNICC/2 00 2 /WGFI- VTF/DP.1
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The Issue of the Victims Trust fund will be discussed at the next PrepCom again;
several sessions have already been sched uled. Since delegations expressed their
intention not to create expensive and inflexible additional structu r es and since the
PrepCom already agreed on the establish m en t of the new Victims Participatio n and
Reparation Unit, it seems likely that the administ rative sub - body of the Board of
directors will be within this unit of the registry as proposed by France.
FIRST YEAR BUDGET
The Working Group cond ucted 5 formal sessions and 3 infor mal meetings. During the
first week the Working Group faced the problem that the Secretariat had failed to
prepare the docu men t of the revised draft budget 114 on time. Only an unofficial
advance copy in English was available. The outgoing Coordinato r of this Working
Group, Mr Rolf Fife (Norway), who chaired the first two formal sessions on Monday 8
April and Tuesday 9 April, made up for this delay by presen ting the documen t in
detail, thereby extensively using the benefits of simultaneou s translation.
The new Coordinator of the Working Group, Mr Valentin Zellweger (Switzerlan d), held
for mal meetings on Monday 15 April and Tuesday 16 April and two infor mal sessions
on this paper on Wednesday 17 April. The Working Group concluded its work in a
brief for mal session following the last infor mal session on Thursd ay 18 April.
List of docume nt s
First Year Budget - 9 th session
PCNICC/2002 / WGFYB/L.1
Revised draft budget for the first financial
period of the Court (Secretariat)
PCNICC/2002 / WGFYB/L.2
Draft resolution of the Assem bly of States
Parties on crediting contributions to the UN
Trust Fund to Support the Establishme nt of
the ICC
PCNICC/2002 / WGFYB/DP.1
Proposal sub. by France on the vacancy rate
during the first financial period
PCNICC/2002 / WGFYB/RT.1
Proposal by the Coordinat or – Internal audit
PCNICC/2002 / WGFYB/RT.2
Revised draft budget for the first financial
period of the Court – Text of Part one
propose d by the Coordinat or
PCNICC/2002 / WGFYB/RT.2/Corr.1
Corrigendu m
PCNICC/2002 / WGFYB/RT.3
Task list for the preparation of the discussion
on a draft budget for the first financial period
of the Court at the tenth session of the
Prepara tory Commission – Discussion paper
propose d by the Coordinat or
PROCEEDINGS
The first for mal session consisted of a monologu e of the outgoing Coordinator, Mr
Rolf Fife (Norway). He intro d uced the unofficial advance copy of the draft budget,
114
PCNICC/2 00 2 /WGFYB/L.1
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which was only available in English, thereby making extensive use of the benefits of
simultan eo u s translation.
Basic feature of the draft is that no artificial division between two scenarios is made
(like it was in the draft presen ted at the 8 th PrepCom). The function s of the Court are
the basis of this budget. The budget must be flexible to differen t kinds of task of the
Court and budgetary necessities. Financial control and predictability was one of the
most impor tan t issues (required also by authorities). That concer n had to be
reconciled with flexibility and scalability.
This draft FYB covers in detail the struct ur e, staffing, meeting s, transition
arrangem en t s, and the bureaucr atic relations hip s of the principle parts of the ICC and
the Assem bly of States Parties.
These include, but are not restricted to:
• detailed financial estimates for a first ICC financial period of 16 month s from
Septemb er 2002 to December 2003;
• initial num ber and activities of judges;
• powers, organisation and functions of the Presidency;
• indepen den ce and statu s – higher rank than the Registrar – of the Prosecuto r, both
absolutely and in relation to the Presidency, the Registrar and to the Assembly of
States Parties;
• intern al organisation of the office of the prosecu tor;
• statu s, organisation, staffing and inter nal organisatio n of the Registry; including
the Victims and Witnesses Unit and the Defence Council Unit;
• Com mon Services Division – a large element to ensure the unifor mi ty of services
and infor mation technology;
• closing the gap between entry into force of the Rome Statute and the full
functioning of the Court, especially the early handling of cases, evidence and
infor mation;
• detailed compar ative financial estimates between ICC and Assembly of States
Parties meetings on The Hague or alter natively in New York.
The draft paper provides estimates and a descrip tion for only the conference service
functions of the Secretariat of the Assembly of States Parties. It does not addr ess the
nature, scope and function of the Assem bly of States Parties otherwise because the
PrepCom has not agreed to these. Accordingly this paper has no discussio n and no
estimates about subor din ate bodies of the Assembly of States Parties – except the
Com mit tee on Budget and Finance – including the Trust Fund for Victims.
The Coordinato r stated that to him the paramo u n t issues were the Common Services
Division, unifor mity and high stan dar d of infor m atio n systems (both dictated by
economical reason s) and the immediate ability to deal with incoming infor matio n from
the date of entry into force of the statut e.
In the second formal session, which was still chaired by Mr Fife, the presen tatio n of
the docum en t was completed. In the following, delegations expressed their
appreciation and gratitud e to the Coordinato r for the draf t. Experts from the ICTY also
expressed their approval of the docu men t.
The main issue raised during this session was that the chains of comm an d and
accountability for the Common Services Division were not yet sufficiently defined. The
outgoing Coordinator, and the now Coordinator, Mr Zellweger (Switzerlan d), stated
that the meth od of work for the following week was to fix the general structu r e and
guidelines of the docu men t and to leave the details for the 10 th PrepCom in July.
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The third for mal session on Monday 15 April, which was chaired by Mr Zellweger,
completed the reading of Part One of the then issued docu men t. 115 Delegates, in
gener al, managed to follow the Coordinator’s preference for a general review, but very
few managed to avoid entirely the tem pt ation to refer to details. At the beginning of
the session the govern men t of the complained that the UN Secretariat in preparing the
docum en t had not consulted with the Dutch govern me n t and had therefor e left several
issues open, which in fact the Netherlan d s had already resolved.
There was an undercur r en t thro ug ho u t much of the Netherlan ds state men t that in so
doing the Secretariat had left unrecognised much of the generosity of the Dutch
govern me n t toward the ICC. The delegation made several suggestion s for
incorpo ration of specific references to this generosity in the docu men t.
The delegation listed the following Dutch contrib ution s to the ICC. Interim buildings
for the period up to 2007 - 2008 will be provided at a cost of 33 Million of which 10
million will be devoted to interior layout and design. The Netherlan d s will transfer to
the trust fund for the first meeting of the ASP a contrib ution of 500,000 deductible
from its first assessed contribu tion and will make a non - deductible donatio n of
300,000 to the trust fund. Moreover they will pay fully for the first meeting in The
Hague of the Assembly of States Parties.
The Netherlan d s also listed in detail the furnitu re, workstatio ns, and other equipm en t,
which it will provide in the interim buildings. It therefore requested with some
asperity clarification s of paragr aph s, 106, 107, 149, and 150.
Like several other delegation s the Netherlan d s stated that it regarded the First Year
Budget as an extremely impor tan t core policy documen t for the star t of the ICC. The
delegation echoed the Coor dinato r’s stateme n t that policy should dominate over
budgetary consider ation s.
Spain noted the unforeseen factor s and contingencies listed in Paragrap h s 109 to115
of the docu men t and asked for some additional points on this list. Like many other
delegations, Spain heavily emp hasised the impor tan ce of the Common Services
Division. It called for the staffing of the Division immediately after the first meeting
of the Assem bly of States Parties.
The Coordinator noted at this point that annex 6 of the docu men t has a list of items to
be resolved. He hoped to revise this into a list that will serve as a descriptio n of the
tasks to be taken up in July. He also noted that an infor mal docume n t on inter nal
audit had been circulated and would be discus sed on April 18. 116
A number of subsequ en t statem en t s by delegation s indicated a general feeling that the
budget provides for meetings that are too long and too expen sive. They agreed that
the allocation s for them should therefore be reviewed.
During the discus sion on the Prosecutor, France called for a review of the staffing and
resou rces allocated to the prosecu tion in light of the extensive respon sibilities of the
Prosecutor for investigatio ns and indict men t s.
France also pointed out that the
Prosecutor should have a greater capacity for renderin g legal advice for policy
question s.
At the beginning of the discus sion on the Registry the French delegation introd uced a
long and controver sial proposal concer ning the Victims and Witnesses Unit and the
Defence Counsel Unit. They called for reserving to the Victims and Witnesses Unit only
the respo nsibility for assisting victims during their participation in trials and
investigations by the ICC. A new unit for the participatio n of and reparations to
victims should be established. The basic rationale for this division was that whereas
the Victims and Witnesses Unit was respon sible for victims case by case; the new unit
115
116
PCNICC/2 00 2 /WGFYB/L.1
PCNICC/200 2 /WGFYB/RT.1
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would be respon sible for situations that involved perhap s thousan d s of victims at a
time.
The secon d half of this French proposal called for the inclusion of services for the
lawyers of victims within the mand ate of the Defence Counsel Unit which should be
renamed simply the Counsels Unit. The French delegatio n explained that since both
defence and victims’ lawyers would require the same services, these should come from
a commo n source. Moreover, this would simplify the work of the Registry and would
prom ote a com mo n presence of these lawyers at the court. Finally, since conflicts of
interest were inevitable among defence lawyers and among victims’ lawyers about
their strategies anyway, there was no reason to use these conflicts to justify separ ating
services to victims’ lawyer from services to defence counsel because of possible
conflicts of interest s between them.
In Tuesday’s formal meeting the main issues inclu ded the French propos al regarding
the Defence Counsel Unit. Canada and the Philippines expressed their reservations to
the propo sal because the Rome Statute and the Rules of Procedu re and Evidence
provide certain services and rights only for the Defence Counsel and not for the
victims.
Another issue the Working Group discus sed was the Commo n Services Division.
Delegates pointed out that the Common Services Division should be accessible to all
organs of the Court, but handled administr atively by the Registrar to secure
respon sibility in the chain of comm an d. Delegates emph asised that the host country’s
contribu tio n should be reflected in the next draft in detail.
France propo sed a new division of the budget into chapters. This would create funding
categories within which money could be shifted more easily to respon d to changing
circum st an ces.
The Netherlan ds concluded the formal session by questioning whether the budget
provided for sufficient training. The Chair respo n de d that training was provided for in
certain areas like legal advisory, safety and infor mation technology. He also
emp hasised that during the first year the Court would mainly hire exper ts, which
would minimise the need for training.
Infor mal meeting s reviewed question s and issues raised in the first reading of the
budget in the previous formal sessions. In these, the Working Group came to a
consen s us on two of the outstan di ng issues. After long and deman din g infor mal and
bilateral consultation s arranged to resolve an impasse on the contentiou s French
proposal regar ding the Defence Counsel Unit the Working Group came to the following
decisions.
A unit in addition to the Victims and Witnesses Unit will be establish ed, called the
Victims Participation and Reparation Unit. While the Victims and Witnesses Unit will
provide for com mo n services required by the Statute either only for witnesses or for
both witnesses and victims, this unit would assist in services, which the Statute
requires for victims alone. These would include the handling of repar ation s and
assistance to lawyers of victims. Accordingly victims’ lawyers will not – as originally
suggested by France – be included in the Defence Counsel Unit. This unit will remain
unchanged as provided for in the draft first year budget. Althoug h the French
proposal did not prevail in this issue, they ensur ed that the budget provides for
assistance for victims’ lawyers.
The other agreemen t was on a task list, 117 which consist s of items that the Working
Group agreed to work on during the inter - sessional period and at the next PrepCom.
117
PCNICC/2 00 2 /WGFYB/RT.3
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Althoug h contentiou s at times, the discussio ns proved fruitf ul as a result of the
delegates’ willingnes s to reach comp ro mises. The Netherlan d s contribu te d insightfully
to the progress made in attaining a workable redr aft of the budget by highlighting the
host state’s contribu tio ns and describing realistically and fully the needs and activities
of the transition during 2002 / 2 0 0 3 to bring the Court into full operatio n.
France, althoug h strenuo u s in its propo sals, recognised the need for an agreement on
the Defence Counsel Unit and proved recep tive to criticis m by Canada and the
Philippines.
The establish me n t of the Common Services Division was generally seen as a very
impor tan t step forwar d and was a welcome addition to the administr ation of the
Court.
CONCLUSION
The Coordinato r expressed his pleasur e with the progres s of the Working Group. He
believed that by the end of the next PrepCo m the budget could be completed and
submitte d to the Assembly of States Parties for approval. Therefore the main issues to
deal with at the next PrepCo m are the detailed figures of the budget.
WORKING GROUP REPORT
BASIC PRINCIPLES GOVERNING A H EADQUARTERS
AGREEMENT BETWEEN THE COURT AND THE H OST
COUNTRY 118
118
Submitte d by Jenny Piippone n, ELSA Sweden (special thank s to the ISC- ICC delegates for their help)
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INTRODUCTION
In accordance with article 3 parag rap h 1 of the Rome Statute, the seat of the
Internatio nal Criminal Cour t will be established at the Hague, the Netherlan d s. The
Court shall enter into a headq uar ter s agreemen t with the host State, which has to be
approved by the Assembly of State Parties.
The Rome Conference, in its Resolution F, requested the Preparator y Com missio n to
prepare a draft text containing the principles that shoul d govern a head qu ar te r s
agreemen t to be negotiated and conclud ed between the Netherlan d s ant the ICC. The
draft text was first discussed at the eighth session 119 of the Preparatory Commis sion
and almost finalised, leaving some points left to be completely finalised in the 9 th
sessions of the Preparato ry Commis sion for an Internatio nal Criminal Court 8- 19
April 2002.
The working grou p on the Basic Principles governing a Headquar t er s agreemen t,
coordinated by Zsolt Hetesy (Hungary) met in 2 formal sessions on the 11 and 12 of
April and in three infor mal sessions. Most of the work had been done in the infor mal
sessions and an input paper had been put forwar d by the Coordinato r which was the
basis for the work that needed to be completed.
List of docume nt s
Headqua rters Agreement - 9 th session
PCNICC/2002 / WGHQA /L.1
Report of the Working Group
PCNICC/2002 / WGHQA /RT.1
Basic principles governing an agreement to be
negotiated between the Interna tional Criminal
Court and the kingdom of the Netherlands,
regarding the headqua rte rs of the Court Discussion
paper
propose d
by
the
Coordinator.
PCNICC/2002 / WGHQA /RT.1 /Rev.1
Revision
BACKGROUND
During the 8 th session of the Preparatory Commissio n the first discussio ns on the
Headqu ar ter s Agreemen t took place. A draf t paper was put forwar d by the
Coordinato r, as the basis for the work in the working group. These basic principles
would act as a for m of guidelines, whereas the actual agreemen t would be draf ted by
the Assembly of State Parties. The head qu ar te r s agreemen t would reflect the specific
relationshi p between the Court and the host country. It would also addres s those
issues which are not covered or not sufficiently dealt with in the Statute, the rules of
Procedu re and the Evidence and the Agreemen t on the Privileges and Immunities of
the Court, but that were necessary for the proper implemen t atio n of the provisions set
forth in those instr u m e n t s. The conten t of the agreemen t would for example handle
the Premises of the Court, Privileges and imm uni ties of the Court, Privileges and
immu ni ties of the judges, Prosecutor s etc, and the cooperation between the court and
the host country.
The key issues of the working group at the 8 th session were the Assembly of States
Parties and the agreemen t, the role of the working group in the negotiations, the
experience of the inter natio nal tribu nals, the privileges and immun ities and the
headq uar ter s agreemen t.
119
see ELSA report from 8th Session, 24 Septembe r - 5 October 2001
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The first issue raised during the negotiations of the last PrepCom concer ned the
inclusion of the Assem bly of States Parties into the agreemen t. An agreement was
made that the headq uar t er s agreemen t if it was consisten t with the Statute of the
Court should be limited only to the relations hip between the Court and the host
countr y, and that the Assembly of States Parties if needed, should conclude
arrangem en t s with the host country, in ter ms of privileges and immu nities, and
transits etc.
The Chair man underlined the fact that the working group was sup pose d to draf t the
basic principles of the Headquar t er s agreemen t and not the agreement itself. This
would in tur n be done by the Assembly of State Parties. The principles included in the
draft text cannot bind the hands of either party, but can only serve as a guideline, as a
reference docum en t. The Privileges and immu nities agreemen t would be a legally
binding docu men t, but this would not be the case with the Headquar ter s agreemen t,
since this would only act as a form of guideline.
The Secretariat, the chair man and several delegations were of the opinion that the
experience of the ICTR and ICTY could be helpf ul in the drafting of the text that would
be sub mit ted to the Assembly of State Parties and should theref ore be taken into
account during the negotiation s.
At the end of the session most of the principles concerning the Headqu ar ter s
Agreemen t were generally accepted and a few needed to be redraf ted. Changes also
had to be made after the privileges and immu nities agreemen t would be finished to
ensur e their compatibility. The chair man anno unced that he would put forward a
revised version of the principles before the next session.
Most of the work with the Headquar t er s Agreement was done, leaving some issues to
be finalised at the 9 th session of the PrepCom. These issues will be outlined in the
following.
PROCEEDINGS
OF THE
PREPCOM
AT ITS
9
TH
SESSION
The basis for the working group was docu men t PCNICC/200 2 /WGHQA /RT.1 /Rev.1
Only four issues remained from the 8 th session of the Preparato ry Commission,
namely:
1) Tax- exem ption of the Court
2) Entry into the premises of the Court
3) Visa- related issues
4) General applicability of the agreement
1) Tax exemp tion of the Court:
The first issue on the agenda of the 9 th session in the HQA working grou p was tax
exemption of the Court. The docu me nt as a whole had been adop te d in the first for mal
session of the working group the first day with the exception of subpar ag ra p h 15 B,
concer ning the taxation which was left for the secon d for mal the day after. The
original text prepared by the coor dinator was as follows:
“The court shall be exempt fro m taxes for purchases, for official use, of property, goods
or services”
The Netherlan d s requested that the word “major ” would be inserted into the original
text so it would read : “The court is exemp ted from taxes for official use for majo r
purchases of property, goods and services.”
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France however strongly opposed this additio n, after having received instr uction from
Paris, due to a concern that the establish m en t and mainten ance of the Court would
directly benefit the Dutch govern me n t—an d taking away fro m the overall ICC budget—
through local taxation. However, the delegate from Jordan raised the issue whether
the Dutch govern men t would be bound to renegotiate prior agreement s with other
intern ational organization s, if the Cour t were to be completely exem pt from taxation.
A discussio n was also held on the meaning of the word major. Austria said that the
ter m major or considerable is inter pr eted in a way that amoun ts in more than 250
Euros per invoice. Thy were of the opinion that it did not seem to be a large amoun t
and that all the relevan t purchases would be included in this. The Hungarian
delegation commen t ed that in principle intern ation al organization s should be
completely tax - exempt, but in practice the bureaucratic processes of ensuring the
exemption may, in the end, be inefficient and more expensive.
The British delegatio n propo sed a solution to the impas se by recom me n d in g that “at a
minimu m ” should be inserted into the amen de d text, so as to read: “The court is
exempted from taxes for official use for at a minimu m major purchases of property,
goods and services.” This British proposal was adopted on April 12, during the second
day of the formal discussio ns after many discussion s on the meaning of the wording
at a minim u m . An agreeme n t on the meaning was made and the proposal was adop ted.
2) Entry into the premises of the Court:
The secon d issue discussed in the HQA formal sessions was the entry into the
premises of the Court. In paragrap h 28 d referring to the people taking part in
proceedings before the court and their entry into the premises of the cour t, it reads:
“shall have the right of unim peded entry into, exit fro m and movem en t within the host
country, including unim peded access to the premises of the Court, as appropriate and
for the purposes of the Court, in accordance with the laws and regulations of the host
country”
France requested that the last segmen t of the paragrap h 28 d in the amen ded
agreemen t “in accordance with the laws and regulations of the host country” would be
deleted out of the paragrap h. The Dutch represen ta tive agreed to this deletion but
with the unders tan di ng that it would read: “in accorda nce with the laws and
regulations of the Host country.” when read out. This was agreed by the working
group.
3) Visa related issues:
The third issue on the agenda of the Basic Principles of the Headquar t er s Agreemen t
was the visa related issues in paragr ap h 31 of the text. The text reads as follows, “The
headquar ters agreem en t should provide that the applications for entry and exit visas
for persons taking part in proceedings of the Court are dealt with as speedily as
possible and granted free of charge. It should also provide that the host Govern m e n t
shall make adequate arrange m en ts by which entry and exit visas for family of detained
persons are processed speedily and, where appropriate, free of charge.”
The French delegatio n requested that the last five words in the parag rap h were to be
deleted, so as to allow visas for the entry and exit for families of persons detained by
the Court “free of charge”, even thoug h this was not agreed to by the working group.
Rather, the paragr ap h remained intact, with the issue remaining “or for a reduced fee”
with an under s ta n di ng that those families withou t the financial means to visit their
loved - ones will receive remun er atio n. An issue that was not raised in this session was
the visas for the victims’ families.
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4) General ap plica bility of the agree me nt:
The final issue discu ssed referred to the gener al applicability of the agreemen t, in
paragr ap h 40. Although it was mention ed that the Belgian delegation requested more
time to deliberate on this provision in the infor mal session, no objections were
actually raised during formal discussio ns. Thus, paragrap h 40 was accepted.
The question on the Privileges and Immu nities of the Assembly of States Parties in
gener al, if they meet in The Hague, was also being discusse d. (The stat ute clarifies that
the Assembly of States Parties could meet either in the Hague or in the Headquar t er s
of United Nations.) Spain raised their concern that the text did not address the
privileges and immu ni ties of the Assem bly of States Parties or its subsidiary organ
when meetings are held at the headq uar t er s of the host state. The Spanish prop osal
was put forwar d at the eight sessio n of the Preparato ry Com missio n and the issue was
thoro ughly discus sed in the making of the docum en t for this session.
The chair man pointed out that a conclusion was made in the last session that such
elemen ts would not be advisable to put into the basic principles for the Headquar t er s
Agreemen t. The Headqu ar ter s Agreemen t is an agreemen t between the host country
and the Court. Relationship s regar ding state memb ers should not be includ ed in this
docum en t. Further mo r e, it was pointed out by the Secretariat that the question of
privileges and immu nities would be regulated thor oug hly in the Privileges and
Immu ni ties agreemen t. The chair man suggested that the Spanish recom me n d a tio n
reading as follows “In connection with the discussion on the Basic Principles of the
Headqua rters Agreem en t the question was raised as the relevant principles on the
privileges and im m u nities of the Assem bly of States Parties, however the Working
Group did not have time to resolve this issue. The Assem bly of States Parties is therefore
drawn to this issue with the recom m e n d a tio n that the Assem bly of States Parties review
it.” Would be a recom me n d a tio n of the Prepar ato ry Commission to the Assembly of
States Parties. This recom m en d a tion was read out by the chairm an of the working
group in the plenary and so became part of the 9 th session of the prepar ator y
commissio n.
CONCLUSION
It was agreed that the mand ate of the Preparato ry Commission was to develop only a
gener al agreement. The Assembly of State Parties would address the more detailed
regulation s. The text was adopted as a whole by the working group and the
Headqu ar ter s agreemen t team finalised their work in this session. Several questions
were not discusse d but will hopef ully remain open for futur e discussio ns. One of them
being the visas for the families of the victims, which was not mentioned althoug h the
visa issue was discu ssed when it comes to families of detained people. Another matter
left open, being the futur e of the NGOs working on a long - ter m basis, was not touched
upon.
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________________
End of working group reports - ninth session
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120
ANNEX I
120
UN Secretary General Kofi Annan speaking at a reception organise d by CICC in New York City, October
2001.
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An Introductory Report to
the Preparatory Commission for
the International Criminal Court (ICC PrepCom)
UN Headquarters, New York City 2001
By Espen Rostrup Nakstad
The European Law Students’ Association
espenn@hot m ail.com
Introductory report to the ICC Preparatory Commission for the International Criminal Court 121
The proposed Internation al Criminal Court (ICC) will be the world's first per man en t
intern ational court with jurisdiction to prosecute individuals accused of the most
serious crimes of concer n to internatio nal comm u ni ty, namely genocide, war crimes,
and crimes against hum a nity. 122 Unlike the Inter national Court of Justice 123 (ICJ) in the
Hague, whose jurisdiction is restricted to States, the ICC will have the capacity to
investigate, indict, and bring to justice individuals. A As a per man en t and global court,
the ICC will likewise differ from the special Inter natio nal Criminal Tribunals created
by the UN Security Council for atrocities in the Former Yugoslavia and Rwanda 124 . It
121
By Espen Rostrup Naksta d, ELSA Norway. espen n@hot mail.com - update d version; April 2002
Article 5 par. 2 of the Rome Statute.
123
The Intern ation al Court of Justice - http:/ / w ww.icj - cij.org /
124
The
International
Criminal
Tribun al
for
the
former
Yugoslavia
(ICTY)
http: / / w ww.un.org /ic ty /i n d ex.h tml ;
Internatio nal Tribunal for Rwanda (ICTR) - http: / / ww w.ictr.org /
122
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will not beco me another ad hoc tribu nal but a per m a ne nt institution. The Court's
jurisdiction will not be chronologically limited, althoug h when the ICC takes effect, it
will not be retroactive. The Internatio nal Criminal Court will be complem en ta ry to
national criminal jurisdiction (Art.1 of the Rome Statute).
THE ROME STATUTE 125
The Rome Statu te defines the crimes within the jurisdiction of the ICC, how the
Court 126 will work and what states must do to co- operate with it. The Rome Statute
enters into force once 60 states have ratified the treaty, and the Court will come into
existence following an Assembly of States Parties that have ratified the Statu te.
127
The ICC treaty was negotiated and the Rome Statu te adopted at the United Nations
Diplom atic Conference of Plenipotentiaries on the Establish m en t of an International
Criminal Court 17 July 1998.
The Hague Appeal for Peace (CICC), a major end - of - century campaign and conference
dedicated to the delegimitatio n of war, and concurr en t with the 100 year anniversary
of the first Hague Peace Conference in 1899. - The "Power of Peace" Conference was
the capping stone of ELSA’s 1997 - 99 IFP 128 theme, and took place parallel to the Hague
conference.
THE PREPARATORY COMMISSION
The Preparato ry Commis sion (PrepCom) for the Inter natio nal Criminal Court was
established by the United Nations General Assembly purs uan t to a mandat e, embo died
in Resolution F129 of the Final Act of the Rome Diplomatic Conference which adop ted
the Rome Statute of the Internatio nal Criminal Court on 17 July 1998.
MANDATE OF THE PREPCOM130
The man dat e of the Commis sion (PrepCom) is to prepare proposals for practical
arrange m e n ts for the establish me nt and coming into operation of the Court. The
PrepCom drafts annexes to the Rome Statu te and develops docu men t s that will
enhance a swift and fast change into action once the Court is established, like the draft
texts on "The Elements of Crimes" 131 and "The Rules of Proced ur e and Evidence" that
were app roved the PrepCom on 30 June 2000. The United Nations General Assembly , in
resolution 53 /1 0 5 of 8 December 1998, 132 requested the Secretary - General to convene
the Preparatory Com mission to carry out the man date of the resolu tio n and, in that
connection, also to discuss ways to enhance the effectiveness and acceptance of the
Court . The Assembly of States Parties shall consider and adop t, as appr op riate,
recom m en d ati on s of the Preparato ry Commission. (Art.112.2.a)
THE COURT'S JURISDICTION
125
The Rome Statute of the Interna tion al Criminal Court, 17 July 1998:
http: / / w ww.un.org /l aw / icc / s t a t u t e / r o m e f r a.h tm
126
The Court = The [Internation al Criminal] Court
127
See "UN Diploma tic Conference of Plenipoten tiaries on the Establishm en t of ICC July1998
www.un.org /icc / in d e x.htm
128
IFP - ELSA'
s "Internation al Focus Progra mm e" - see www.elsa.org
129
UN Resolutio n F - See ANNEX I - or http: / / w ww.un.org /la w / icc / s t a t u t e / f in al.ht m# r es olu tio n_f
130
Mandate
of
the
Prepara tory
Commission
See
ANNEX
I
http: / / w ww.un.org /l aw / icc / p r e p c o m m / p r e p f r a.h t m
131
132
Most relevant General Assembly Resolution s, see ANNEX II. Other relevant Resolution s
www.un.org /law / icc / g ar es / g a re sf ra.h tm
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Part 2 of the Rome Statute concer ns crimes within the Court's jurisdiction (Art.5), the
role of the Security Council, the admissibility of cases and the applicable law for cases
coming before the Court. The Cour t initially will have jurisdiction over war crimes,
genocide and crimes against humanity 133 (Art. 6,7, and 8). Additionally, the Court will
exercise jurisdiction over the crime of aggression once agreement can be reached on its
definition at some point in the futu re. The Court has jurisdiction only with respect to
crimes com mit ted after the entry into force of the Statute (Jurisdiction ratione
tempo ri's - Art. 11).
In accordance with Article 12 of the Rome Statu te the Court may exercise its
jurisdiction only if:
the crime has been committ ed in the territo ry of a state party to the Rome Statute
(including crimes commi tted aboard a vessel /aircr af t when the state of registration is
of the above mentioned), or
2. the accused perso n is a national citizen of a State Party to the Statute, or
3. a state which has not ratified the Statute makes a declaration accepting the Court's
jurisdiction over the crime, or
4. when crimes have been committ ed in a situation which threaten s or breaches
intern ational peace and security and the UN Security Council has referred the situatio n
to the Court pur sua n t to Chapter 7 of the UN Char ter. 134
135
The Rome Statu te provides that cases can originate in the Court three differen t ways:
1.The Court's Prosecutor can initiate an investigation into a situation where one or
more of the crimes have been com mitte d, based on infor ma tio n from any source,
including the victim or the victim's family, but only if the Court has jurisdiction over
the crime and individual. (Art 15.1)
2. Situation referred by a State Party: States that have ratified the Statu te may ask the
Prosecutor to investigate a situation where one or more of the crimes have been
committ ed, but only if the Court has jurisdiction. (Art 13.a)
3. Situation referred by the UN Security Council: The UN Security Council, acting
under Chapter VII of the UN Char ter, can ask the Prosecuto r to investigate a situation
where one or more of the crimes have been committ ed. Unlike metho d s 1 and 2, the
ICC will have jurisdiction when the UN Security Council refer s the situation to the
Prosecutor, even if the crimes occurred in the territory of a state that has not ratified
the Rome Statute or was com m itted by the national of such a state . (Art. 13.b)
In each of these situatio ns it is up to the Prosecuto r, not the states or the Security
Council, to decide whether to open an investigation and, based on that investigation,
whether to prosecute subject to judicial appr oval. The Court can only investigate and
prosecute cases which national govern m e n ts are unable or unwilling to prosecute (Art.
17 - "Issues of admissibility").
HISTORY 136
The history of the ICC initiative begins with the unsuccessf ul efforts to establish an
intern ational tribu nal after World War I. After World War II, the Nurember g and Tokyo
military war crime tribun als set the stage for efforts to create a per man en t cour t.
133
The Court will have jurisdictio n over crimes occurring both in interna tio n al and intern al arme d
conflicts and over crimes against hu ma nity such as disap p ear an ce s that occur in the absence of conflict.
134
The UN Charter is available at http:/ / www.u n.o rg /Overview /Cha rt er / c o n t e n ts.h tml
135
Trigger mecha nis ms: Art 13 - 16 of The Rome Statute
136
See "History of the Intern ation al Criminal Court" or "The Rome Conference Report (ELSA)", E. Nakstad,
Dec 2000.
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Though called for in the 1948 Genocide Convention, effor ts to establish a perm anen t
court were delayed for decades by the cold war and refusal of govern me n t s to accept
an inter nation al legal jurisdiction. The establish men t of a tempo r ary ad hoc tribu nal
for Bonsnia - Herzegovina in 1993 strengt he ne d the discus sions for a perm anen t Court.
In 1994 the Rwanda war made the Security Council establish a second ad hoc tribu nal
for Rwanda. In 1994 the Internation al Law Commis sion (ILC)137 present ed a final draft
Statute on the ICC to the General Assembly and recom m en d e d that a conference of
plenipo ten tiaries were convened to negotiate a treaty to enact the Statute. Throug h
resolution 49 / 73 of 9 December 1994 the General Assembly decided to establis h an ad
hoc committee on the ICC to review the draft Statute present ed by ILC. This commi ttee
was open to all State Members of the United Nations or member s of specialised
agencies.
From 1996 - 98 the General Assembly convened six Preparatory Commit tee meetings to
continue draf ting the ICC Statute, leading up to "the United Nations Diplomatic
Conference of Plenipoten tiaries on the establish m en t of an Internatio nal Criminal
Court" 138 in Rome June - July 1998, in which 160 coun tries par ticipated. Member states
overwhelmingly voted in favour of the Rome Statute for the ICC (120 in favour / 7
against / 21 absten tion s). In February 1999 Senegal became the first State Party to
ratify the Rome Statu te, followed by Trinidad and Tobago, San Marino and Italy. As for
April 200 2 the Rome Statute has a total of 139 Signatories and 66 Ratifications .139
The globalisation of justice, led largely by the historic ICC process, mark s a decade of
rapid changes of inter natio nal affairs. However, UN Secretary General Kofi Annan was
more caref ul when he described the establish me n t of the Court at the 1998 Diplomatic
Conference as "a gift of hope to futu re generations, and a march forwar d towar ds
universal Human Rights and the rule of law".
PREPCOM WORK
140
The Commis sion's work is divided into separate working groups, with co ordinato r s for each working group, and meet in formal meetings (open to NGOs) and
infor mal meeting s (closed meetings, no tran slation services, not open to NGOs). The
Com missio n's work is often based on draft texts prepar ed by the UN Secretariat.
Provisional Work Plans are available at http: / / w w w.igc.org / icc / h t m l / . 141
The Bureau of the PrepCom has contin ued its work with the following compo sition;
as Chair man; Mr. Philippe Kirsch (Canada), Vice- Chairmen; Mr. George Winston
(Trinidad and Tobago), Mr. Medar d R. Rwelamira (South Africa), and Mr. Muhamed
Sacirbey (Bosnia and Herzegovina). Rappor teu r: Mr. Salah Suheimat (Jordan).
CICC/ ELSA WORK AT THE PREPCOMS
The NGO Coalition for an Internatio nal Criminal Court (CICC) 142 brings together a broad
network represen ting over 1,000 NGOs, inter nation al law exper ts and other civil
society groups. ELSA is member of the CICC Steering Committee 143 and has been
137
The Internation al Law Commission - http: / / w ww.un.org /la w / ilc / in d e x.ht m
See "UN Diplomatic Conference of Plenipoten tiaries on the Establish me nt of ICC July1998
www.un.org /icc / in d e x.htm
139
Ratification Status, constan tly update d web page: http:/ / w ww.un.org /l aw / icc / s t a t u te / s t a t u s .ht m
140
Mandate of the Prepara tory Commis sion - See ANNEX I - or
http: / / w ww.un.org /l aw / icc / p r e p c o m m / p r e p f r a.h t m
141 th
7 PrepCo m Working Plans - Soon to come: http:/ / w ww.igc.org /icc / h t m l / [scroll down to
www.igc.org /icc / h t ml / 2 0 0 1 ...]
142
Website of the NGO Coalition for an Internation al Criminal Court (CICC): www.iccnow.org
More info: ELSA Synergy Magazine No 2/2 00 0, Previous PrepCo m reports, or www.elsa.org
143
Members of the CICC Steering Committee; See ANNEX VI - or
http: / / w ww.iccnow.org / h t ml / c o a litio n.htm
138
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repr esent ed at Preparatory Committ ee meetings from 1996 to 1998 144 , at the Rome
Conference in 1998, and at all sessions of the Preparato ry Commissio n (1998 - 2002).
The main purp ose of the CICC is to advocate for the creation of an effective, just and
indepen den t Internatio nal Criminal Court. CICC convenor is William R. Pace and the
Secretariat is located on 1 st avenue, 777 UN Plaza.
In between Preparatory Com missions the Coalition works on e not a negotiator.
During Preparatory Com missions the official working groups of the com mission
strategy meetings and
RATIFICATION OF THE ROME STATUTE 145
Is it essential for the success of the ICC that an overwhelming num ber of States ratify
the Rome Statute. The Prosecutor can only initiate an investigation where the crime
has been commit ted in the territo ry of a state par ty to the Statute or the accused
perso n is a national citizen of a state party to the Statute, unless the Security Council
refers a situation to the Cour t. 146 The reluctan ce of the Security Council to establish ad
hoc tribu nals over the past fifty years suggests that it is not likely to refer many
situations to the Court. Therefore, to a great extent the Court's effectiveness will be
measu red by how many and which states ratify the Statu te.
IMPLEMENTATION OF THE ROME STATUTE
THE COURT'S STRENGTH
The Court will not come into existence before 60 states have ratified the treaty (Art.11)
and its strength will, to some extent, be measur ed by geographical represen tatio n and
by how many larger states finally ratify. Moreover, the ICC has certain limitation s to its
jurisdiction. It is based on a treaty that gives the Cour t "Territorial, Personal and
Universal jurisdiction" (Art.12 3a & b of the Rome Statute), which means that the Court
will have jurisdiction only when a conduction occur s on the territo ry of a state that
has ratified the treaty or accepted the jurisdiction of the cour t, or when the accused is
of such nationality, regardless of where the crime is com mit ted . This means that,
unless a situation is referred by the Security Council acting under Chapter VII of the
UN Char ter 147 , non - signatories who neither ratify the treaty nor accep t the Court's
jurisdiction can – to a large extent - act unaffected by the ICC and the rule of
Internatio nal Law within their national borders.
A JUST AND NON - POLITICAL COURT? 148
The Rome Statu te has many safeguar ds to ensure that investigations and prosecutio ns
are purs ued solely in the interest of justice, not politics. Although the Security Council
and States can refer situatio ns to the ICC Prosecutor, it will be up to the Prosecutor to
decide whether to seek authorisation to open an investigation. Moreover, the
Prosecutor will not be depen de n t on Security Council or state referrals, but will be able
to open investigation s based on infor mation from any source. The Prosecuto r mus t
naturally be of high moral character and be highly compete nt and have extensive
144
See the ELSA Report from the 5th PrepCo m Session www.elsa.org
More information on ICC ratifications; see Amnesty fact sheets, link from www.iccnow.org
146
Trigger mechanism s: Art 13 - 16 of The Rome Statute.
147
The UN Charter is available at http:/ / www.u n.o rg /Overview /Cha rt er / c o n t e n ts.h tml
148
More info: Amnesty Internatio nal Fact sheets (www.iccnow.org ) and "The Rome Conferen ce Report"
(Nakstad, Dec 2000)
145
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practical experience in the prosecution or trial of criminal cases. The Prosecutor is
required to act independ en tly and must request authorisation from the Pre- Trial
Cha mb er both to open an investigation and to begin a prosecution, whereby both
requests can be challenged by states.
CHALLENGES
The International Criminal Court is based on an extremely detailed and sup plem en t ed
Rome Statute. It has complicated ties to domestic legislation and a dispu ted territorial,
perso nal and universal jurisdiction. One of the core crimes of the cour t, "the crime of
aggression", has yet to be defined. Moreover, the ICC will be comple men t ar y to one
hun dr ed differen t sets of national criminal legislation, and many states already face
problems with the impleme n ta ti on of the Rome Statute. One could argue that history
doesn't give much credit to the project either, after 50 years of unsuccessf ul attem p t s
to create somet hing like an inter natio nal, indepen d en t court. 149 instr u me n t of
ratification was deposited on 11 April 2002, less than four years after the adop tion of
the Rome Statute.
ELSA AND THE ICC150
The European Law Students' Association 151 has taken part in the process towar d s the
establish me n t of an Inter nation al Criminal Court from the first drafting com mis sion s
began their work eight years ago. ELSA has received gratitu d e for its work in various
meetings over the past years and its participation in the PrepCo ms is highly
appreciated by other NGOs. ELSA curren tly has a special consultative statu s 152 with the
Econo mic and Social Council (ECOSOC) 153 of the United Nations, a statu s based on
Article 71 of the UN charter and ECOSOC resolution 1996 / 3 1 , and is also memb er of
the steering com mi ttee of the Coalition for an Inter national Criminal Court (CICC). The
CICC Steering Committ ee consists of 13 NGOs 154 , among these are Amnesty
Internatio nal, Human Rights Watch, and No Peace Without Justice 155 .
ITEMS OF THE PREPCOM AGENDA
156
ROPE
Rules of Procedure and Evidence
The
(finalised June 2000)
EoC
Element s of Crimes
(finalised June 2000)
ICC- UN
The
A relationshi p agreement between the Court and the UN
(finalised Oct 2001)
APIC
Agreement on Privileges and Immunities of the Court
(finalised Oct 2001)
An
149
150
More info: Synergy Magazine No 2 /20 0 0, Previous PrepCom reports, or www.elsa.org
ELSA Intern ation al web site: www.elsa.org
152
NGOs in consulta tive statu s with ECOSOC; http: / / ww w.u n.o rg / e sa / c o o r d in ation / n g o / f a q .h t m
153
ECOSOC Resolution 1996 / 3 1:
http: / / w ww.un.org / e s a / c o o r din a tio n / n g o / Re s olu tion_19 96_3 1 / in d e x.h tm
154
Members of the CICC Steering Committee; See ANNEX VI - or
http: / / w ww.iccnow.org / h t ml / c o a litio n.htm
155
NPWJ - No Peace Withou t Justice - was organiser of the 2 nd - anniversa ry Rome Confere nce 16- 18 July
2000
156
Docu men ts are available at http:/ / www.u n.o rg /law /icc / p r e p co m m /
151
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RP/ASP
FRR
The Rules of Procedure of the Assem bly of States Parties
(finalised Oct 2001)
Financial Regulations and Rules
(finalised Oct 2001)
FYB
for the first year of the Court’s operation
Budget
HQA
principles governing a headquart ers agreeme nt
(10 th session item, 2002)
Basic
(10 th session item, 2002)
CA
Proposals for a provision on Aggression, including its definition, elements and the
conditions under which ICC shall exercise jurisdiction with respect to the crime.
(10 th session item, 2002)
ASP- PD
Assembly of States Parties - Preparat ory Document s
(10th
session item, 2002)
RFI
Remaining Financial Issues (Rem.of judges, Prosecutor, Registrar, victims trust
fund) (10 th s.)
GUIDE TO
The Rome Statute of The International Criminal
Court 157
The Rome Statute defines the crimes within the jurisdiction of the Interna tion al
Criminal Court, how the Court will work and what states must do to co- opera te
with it. The Statute enters into force once 60 states have ratified the treaty, and the
Court will come into existence following an Assem b ly of States Parties which have
ratified the Statute. 158
Part 1: Establishm ent of the Court
Part 1 of the Statute concern s the establish m en t of the court and its relations hi p with
the United nations. The Court is to be established by a treaty and based in the Hague,
The Netherlan d s. The relationsh ip between the Court and the UN is deter mined by an
agreemen t negotiated by the Preparato ry Com missio n.
Part 2 concern s crimes within the Court's juris diction (Art.5), the role of the Security
Council, the admissibility of cases, and the applicable law for cases coming before the
Court. The Court initially will have jurisdiction over once an agreemen t can be
reached on a definition of this crime at some point in the futur e. Part 2 defines the
crimes within the Cour t's jurisdiction (and, notably, includes rape, sexual slavery,
enforced prostitu tion, forced pregnan cy, enforced sterilisation or other forms of
sexual violence).
157
by Espen R Nakstad, The European Law Student's Association, Norway December 2000
Sources; The Coalition for an Internation al Criminal Court (CICC) - www.iccnow.org , The ELSA Report
fro m the Inter - Govern men tal Conference on the Rome Statute and the ICC, July 2000 (E. Nakstad), Rome
Statute of the Interna tion al Criminal Court - http: / / w ww.un.org /l aw / icc / s t a t u t e / r o m e f r a.h tm
158
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, which makes it possible to prosecu te individu als for serious violations of
intern ational law. Part 3 also addresses the respo nsibility of leaders for actions of
subor dinates, the age of respo nsibility, the statute of limitation s, and an individual's
respon sibility for both an act and an omission.
Part 5: Investigation and Prosecution
Part 5 addresses the investigation of alleged crimes and the process by which the
Prosecutor can initiate and carry out investigations. Part 5 also defines the rights of
individu als suspected of a crime.
Part 7: Penalties
Part 8: Appeal and Review
Part 9: International Cooperation and Judicial assistance
Part 9 addresses inter nation al co- operation and judicial assistance between States and
the Court. It involves the surren d er of persons to the court, the Court's ability to make
provisional arrests, and State responsibility to cover costs associated with request s
from the Court.
Part 10 includes the recognition of judgem en t s, the role of States in enforceme n t of
sentences, the transfer of the person upon completion of a sentence, parole and
comm u t atio n of sentences.
159
Part 11 establishes an Assembly of States Parties, formed by one represen tative for
each State Party, to oversee the various organs of the Court, its budget, repor ts and
activities of the Bureau of the Assembly. Represent atives would have one vote and
decisions would be reached either by consen su s or some form of a majority vote.
(b) fund s provided by the United Nations; and (c) voluntary contribu tio ns from
govern me n t s, internation al organisation s, individuals, corporatio ns and other entities.
160
159
The Assembly of States Parties shall consider and adopt, as approp riate, reco mm en d a ti on s of the
Preparato ry Commissio n,
- Art.112.2.a of the Rome Statute
160
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ELSA International
Rome Statute of the Internation al Criminal Court
http: / / w ww.un.org /l aw / icc / s t a t u t e / r o m e f r a.h tm
United Nations Resolution F http: / / w ww.un.org /l aw / icc / s t a t u t e / f in al.h tm# r es olu tio n_f
ther relevan t General Assembly resolu tio ns
http: / / w ww.un.org /l aw / icc /g a re s / g a re s fra.h tm
The UN Charter is available at;
http: / / w ww.un.org / Overview/C ha rte r / c o n te n t s.ht ml
and
http: / / w ww.un.org / a b o u t u n / c h a r t er /
HISTORY- The International Criminal Court
The history of the ICC initiative begins with the unsucce ssful efforts to establish an
international tribunal after World War I. After World War II, the Nuremberg and Tokyo
military war crime tribunals set the stage for efforts to create a permanent court. Though
called for in the 1948 Genocide Convention, efforts to establish a permanent court were
delayed for decades by the cold war and refusal of governments to accept an international
legal jurisdiction. Howe ver, the establishment of a temporary ad hoc tribunal for Bonsnia Herzegovi na in 1993 strengthen ed the discussions for a permanent Court, and in 1998
governments from all over the world approve d a Statute to establish a permanent
International Criminal Court.
161
The "road to Rome" was a long and often contentious one. 162 While the Court has roots in the
early 19 th Century, the story begins in 1872, when Gustav Moynier, one of the founders of the
Interna tional Committee of the Red Cross, proposed a perma nent court in response to the
crimes of the Franco - Prussian War. The next serious call came after World War I, with the 1919
Treaty of Versailles. Framers of the Treaty envisaged an ad hoc international court to try the
Kaiser and German war criminals. Then, after World War II, the Allies set up the Nuremberg and
Tokyo tribunals to try Axis war criminals. The world, reflecting on the Holocaust, cried "never
again". The call for an interna tional institution to try individuals for the most heinous crimes
resona ted throughout the world - and many thought the founding of the United Nations would
bring the world closer to a perma nent Court. Yet more than 50 years would pass before the
world's leaders would meet to prepa re a treaty establishing a perma nent International Criminal
Court.
The ICC chronology - some highlights
163
Octobe r 194 6 - Soon after the Nuremb erg Judgemen t, an intern atio nal congress meets in Paris and
calls for the adoption of an internation al criminal code prohibiting crimes against human ity and the
prompt establishme nt of an intern atio n al crimin al court (ICC).
9 Decemb e r 194 8 - The UN General Assembly (GA) adop ts the Convention on the Prevention and
Punish me n t of the Crime of Genocide. It calls for criminals to be tried "by such internation al penal
tribun als as may have jurisdictio n" Separately, memb ers ask the Internation al Law Commissio n (ILC)
to stu dy the possibility of establishing an ICC.
10 Decemb e r 194 8 - The GA ado pts the Universal Declaration of Hum an Rights , detailing human
rights and fund ame ntal freedoms.
194 9 - 1954 - The ILC drafts statu te s for an ICC, but opposition from powerful states on both sides
of the Cold War stymies the effort and the GA effectively aban do n s the effort pending agreemen t on
a definition of the crime of aggressio n and an interna tio nal Code of Crimes .
161
the ELSA Report fro m the July 2000 Rome Inter - Governm en tal Conference on the Rome
Statute and the ICC
162
More backgrou n d informatio n on ICC; See the ELSA Report on "The Crime of Aggressio n" - ELSA
Report fro m the 6th Session of the UN PrepCom; www.elsa.org
163
see web links from the Coalition for an Internation al Criminal Court (CICC) home pag e;
www.iccnow.org
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197 4 - The UN General Assembly agrees on a definition of aggressio n, UN Resolution 3314 (1974)
Dec 1981
Crimes .
- The General Assembly asks the ILC to retur n to the questio n s of establishin g a Code of
1989 - The end of the Cold War brings a drama tic increase in the number of UN peace keeping
operation s and a
world where the idea of establishing an Intern atio nal Criminal Court is more viable.
June 19 89 - Motivated in part by an effort to combat drug trafficking, Trinidad and Tobago
resurrect the proposal for an ICC. The GA asks the ILC to prepare a draft statute.
199 2 - The GA reque sts the ILC to complete a draft statute for an Internation al Criminal Court.
199 3 - War in Bosnia - Herzegovin a, clear violations of the Genocide and Geneva Conventions , and the
establish me n t of a tempo rary ad hoc tribun al for Bosnia - Herzegovina (in199 3) streng th e n s the
discussio ns for a perma n en t Court.
June 1993 - Vienna Declaration and Progra m m e of Action expres ses supp ort for the Establish men t
of an ICC.
1994 - War in Rwanda leads the Security Council to establish a second ad hoc tribunal for Rwand a .
199 4 - The Interna tional Law Commissio n (ILC) prese nts a final draft Statute on the ICC to the
General Assembly and recomme n d s that a conference of plenipoten tiaries was convened to negotiate
a treaty to enact the Statute. Thro ugh resolu tion 49 /7 3 of 9 December 1994 the General Assembly
decides to establish an ad hoc committee on the ICC to review the draft Statute presente d by ILC.
This committee is open to all States Members of the United Nations or members of specialised
agencies held
Decemb er 1995
Septe m be r 1997
Decemb er 1997
From 1996 - 98 - The General Assembly convene six Preparato ry Committee meetings to continu e to
draft the ICC Statu te, leading up to "the United Nations Diplomatic Conference of Plenipoten tia ries
on the establish me n t of an Interna tio nal Criminal Court" in Rome June - July 1998.
Januar y 199 8 - Chairs of working grou ps and co - ordinato rs of the PrepCom meet in Zutphe n, The
Netherlands "to facilitate the work of the last PrepCom". The Zutphen Report consolidates the various
draft texts prod uce d over two years of PrepCom meetings.
Februa ry 5 - 6, 199 8 - In Dakar, Senegal, represe n ta tives of 25 African govern men t s meet to
discuss the establishmen t of an ICC. They adopt the Dakar Declaration calling for an effective and
independ e n t Court.
March 26, 1998 - In a letter to Secretary of State, Madeleine Albright, US Foreign Relations
Committe e Chairma n Jesse Helms declares any ICC Statute "dead on arrival" in the US Senate unless
the US has veto control over the court.
17 July 199 8 - 160 countries particip a te at the UN Diplo ma tic Conferenc e of Plenipotentiaries.
Membe r states overwhel mingly vote in favour of the Rome Statute for the ICC (120 in favour / 7
against / 21 abstentions). In February 1999 Senegal become s the first State Party to ratify the Rome
Statute, followed by Trinidad and Tobago, San Marino, and Italy.
164
164
http: / / w ww.benfere nc z.co m
and the ELSA report from the 6
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– ten instru me nt s of raticicatio n are deposited simultan eo u sly during a special UN ceremo ny in New
York, taking the numbe r of state parties of the treaty above the require d 60.
- The Rome Statute enters into force.
The ICC project - why a succes s story?
1. Focus on crimes that are universally condemn ed
2. Complim entarity; States still have the main respon si bility for trying
perpetrators.
3. ICC is a neutral institution focusing on individual respon sibility (no HR
Court).
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ICC WEB LINKS
165
GENERAL INFORMATION – ICC
Main provide r of ICC doc u me n ts an d web links htt p: / / w ww. u n. o rg / l a w / i c c / i n d e x.h t m l
Overview on the ICC htt p: / / w ww. u n. o rg / l a w / i c c / g e n e ra l / o v e r view. ht m
UN Public Inform a ti o n on ICC htt p: / / w ww. u n. o rg / l a w / i c c / g e n e ra l / p u b lic.h t m
UN Website for the ICC htt p :// www.un.o rg / l a w / ic c / i n d e x.h t m l
Intern a tio n a l Crimin al Court fact sheet (pre pa re d by DPI) htt p: / / w ww. u n. o rg / Ne ws / f a c t s / ic c fa ct.h t m
ICC Ratificatio n Statu s (consta n tly upd a te d web page) htt p: / / w ww. u n. o rg / l a w / i c c / s t a t u t e / s t a t u s. h t m
CICC (the NGO Coalitio n for an Intern a tio n a l Crimin al Court)
CICC web page (ICC inform a tio n) CICC Steerin g Comm it te e Coun try - by - coun t ry ratification sta t u s re po rt INDEX of /icc / h t m l
www.iccnow.org
htt p: / / w ww.icc no w.org / h t m l / c o a li tio n.h t m
htt p: / / w ww.icc no w.org / h t m l / c o u n t ry .h t m l
htt p: / / w ww.igc.org / ic c / h t m l /
DOCUMENTS
Rome Statut e of the Intern a tio n al Crimin al Court htt p: / / w ww. u n. o rg / l a w / i c c / s t a t u t e / r o m e f ra . h t m
Unite d Nations Resolu tio n F htt p: / / w ww. u n. o rg / l a w / i c c / s t a t u t e / f i n a l. h t m # r e so l u ti o n_f
Other releva nt Gene ral Asse m bly Resolutio n s htt p: / / w ww. u n. o rg / l a w / i c c / g a r e s / g a r e s f ra .h t m
The UN Charte r htt p: / / www.un.org / Ove r view / Ch a rt e r / c o n t e n t s. h t m l
UN Diplo m a tic Confere nc e of Plenipo te n ti a rie s on the
Establish m e n t of an Intern at io na l Criminal Court, Rome 1998
htt p: / / w ww. u n. o rg / ic c / i n d e x.h t m
Docu m e n t s issue d at the 1998 UN Diplo m a tic Confe re nc e htt p: / / w ww. u n. o rg / l a w / i c c / d o c s. h t m
Final Act of the 1998 UN Diplo m a tic Confere nc e htt p: / / w ww. u n. o rg / l a w / i c c / s t a t u t e / f i n a lfra .h t m
UN ECOSOC
UN Web page on the Economic & Social Council (ECOSOC)
ECOSOC Resolutio n 1996 / 3 1:
htt p: / / w ww. u n. o rg / e s a /
htt p: / / w ww. u n. o rg / e s a / c o o r d in a ti o n / n g o / R e s o l u ti o n_1 9 9 6_ 3 1 / i n d e x. h t m
NGOs in consult a tive sta tu s with ECOSOC:
htt p: / / w ww. u n. o rg / e s a / c o o r d in a ti o n / n g o / f a q . h t m
PREPARATORY COMMISSIONS
Manda te of the Prepa ra to ry Com m issio n
PrepCo m Provisio nal Work Plan
htt p: / / w ww. u n. o rg / l a w / i c c / p re p c o m m / p r e p f r a . h t m
htt p: / / w ww.igc.org / ic c / h t m l / p r e p c o m 2 0 0 0 1 1 2 7 . h t m l
PREPCOM WORKING MATERIAL
6th Sessio n docu m e n t s / d r a f t s (Finance / UN - ICC/ APIC)
htt p: / / w ww. u n. o rg / l a w / i c c / p re p c o m m / s i x t h. h t m
Prepa ra t o ry Com mis sio n docu m e n t s (1999 - > )
Draft texts for the 7th PrepCo m - Soon to come:
htt p: / / w ww. u n. o rg / l a w / i c c / p re p c o m m / d o c s. h t m
htt p: / / w ww. u n. o rg / l a w / i c c / i n d e x.h t m l
ICC RELATED SITES
Intern a tio n a l Law Com m issio n
htt p: / / w ww. u n. o rg / l a w / i lc / i n d e x.h t m
The Interna ti o na l Court of Justice
htt p: / / w ww.icj - cij.org /
Intern a tio n a l Crimin al Tribu na l for the forme r Yugoslavia
htt p: / / w ww. u n. o rg / ic t y / i n d e x. h t m l
Intern a tio n a l Tribu na l for Rwan da
htt p: / / w ww.ictr.o rg /
UN web site on Intern a tio na l Law
htt p: / / w ww. u n. o rg / l a w /
Unite d Nations home pa g e
htt p: / / w ww. u n. o rg /
165
The above listed web sites are upd a t e d and in use fro m Decem be r 2000. New and upd a te d links (e.g. on the 7 th
PrepCo m draft text s) will be foun d by clicking '
ho me 'and searchin g for the new link.
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On - line virtu al tou r thro ug h UN Headq u a r t e r s, New York
htt p: / / www.un.o rg / p u b s / c y b e r sc h o o lb u s / u n t o u r / u n t o u r. h t m
htt p: / / m e m b e r s .a ol.com / b e n f e r e n
ELSA LINKS
ELSA'
s involvem e n t in UN activitie s, web site
More info on ELSA and Hum a n Rights
ELSA Intern a tio n al web site
ELSA Report fro m the 5th Sessio n of the UN PrepCo m
ELSA Report fro m the 6th Sessio n of the UN PrepCo m
htt p: / / w ww.ln s.nl / e l sa /S u p p o r t i n g / i n d e x. h t m l
htt p: / / www.lns. nl / el sa / k e y a r e a s / h u m a n / i n d e x .h t m l
htt p: / / w ww.ln s.nl / e l sa /
htt p: / / w ww.ln s.nl / e l sa /I b / i n d e x .h t m l
htt p: / / w ww.ln s.nl / e l sa /I b / i n d e x .h t m l
European Institutions Webpages
_
_
_
_
_
_
Council of Europe ICC webpage http://www.int/criminal/icc/Default.
UN and other related webpages
International Criminal Court (United Nations' official ICC web page including links to the Preparatory
Commission for the International Criminal Court (1999 Sessions: 16 - 26 Feb 1999; 26 Jul - 13 Aug 199 9; 29
Nov - 17 Dec 1999), the Rome Statute of the International Criminal Court, ratification/status information, and
other related documents) http://www.un.org/law/icc/index.html
The International Criminal Court (Facts About the United Nations: Setting the Record Straight; United Nations
Department of Public Information (UNDPI) briefing paper) http://www.un.org/News/facts/iccfact.htm
UN Diplomatic Conference concludes in Rome with decision to establish permanent International Criminal
Court (UN Press Release, L/ROM/22, 17 July 1998) http://www.un.org/icc/romestat.htm
The High Commissioner's Position Paper on the Establishment of a Permanent International Criminal Court
(Geneva, 15 June 1998,
United Nations High Commissioner for Human Rights (UNHCHR))
http ://www.unhchr.ch/html/menu2/2/iccpp.htm
Other NGOs webpages
International Criminal Court (major ICC web site of the NGO Coalition for an International Criminal Court
(CICC)) http://www.iccnow.org/
_
The Rome Statute of the International Criminal Court (done at Rome, 17 July 19 98; A/CONF.183/C.1/L.76 and
Addendums 1 through 14) http://www.igc.org/icc/rome/html/ratify.html
_
International
Criminal
Court
Campaign
(Lawyers
http://www.lchr.org/lchr/feature/50th/main.htm
_
International Justice: International Criminal Court (Human Rights Watch (HRW) Campaign to Establish an
International Criminal Court/ICC campaign page) http://www.hrw.org/worldreport99/special/icc.html
_
International Criminal Court (United Nations Association of the United States of America (UNA- USA))
http://www.unausa.org/programs/icc.htm
_
Washington Working Group on the International Criminal Court (WWGICC; "a coodinating body for the
Washington representatives of U.S. NGOs working for the establishment of, and U.S. participation in, the ICC;
website
contains
resources,
updates
and
information
about
the
Court)
http://www.wfa.org/issues/wicc/wicc.html
_
Campaign
for
the
Establishment
of
the
International
http://www.politicalresources.net/c - criminal - court.htm
·
CICC- DE (Koalition für einen internationalen Strafgerichtshof - Deutsches Komitee (CICC- DE) - Coalition for
an International Criminal Court - German Committee; see also the Komitee für ein effektives Völkerstrafrecht
or Committee for an Effective International Criminal Law (CoeICL)) http://www.cicc.de/start.html
The International Criminal Court (World Federalist Association WFA's ICC page; includes link to the WFA
Campaign to End Genocide which "will work with members of the International Coalition for the International
Criminal Court and with the Washington Working Group on the International Criminal Court to establish a
strong and effective ICC, to support efforts to achieve the necessary ratifications and to encourage U.S.
signature and ratification") http://www.wfa.org/issues/icc.html
_
66
Committee
for
Criminal
Human
Court
Rights
(Agora
(LCHR))
links)
Report from the Preparatory Com mission for the International Criminal Court, 9 th session 2002
ELSA International
_
Women's Caucus for Gender Justice (site contains information about the Women's Caucus and its work on the
International Criminal Court (ICC) and the Optional Protocol to CEDAW; includes recent papers and
publications, such as position papers distributed at the Preparatory Commissions at the ICC, reports, articles,
newsletter and their recent document on the ICC for the Beijing+5 review)(Women's Caucus)
http://www.iccwomen.org/icc/index.htm
_
International Criminal Court (No Peace Without Justice ICC page; NPWJ; inlcudes PrepCom Reports/post - Rome
documents) http://www.npwj.org/iccrome/index.htm
_
International Criminal Court=Corte Penal Internacional (ICC/CPI; English- and Spanish - language ICC
information and links pages by Derechos and Equipo Nizkor) http://www.derechos.org/nizkor/impu/tpi/
Books, Journal Articles, and Other Resources
Heiko Ahlbrecht, Geschichte der völkerrechtlichen Strafgerichtsbarkeit im 20. Jahrhundert: Unter besonderer
Berücksichtigung der völkerrechtlichen Straftatbestände und der Bemühungen um einen Ständigen
Internationalen Strafgerichtshof (Baden - Baden: Nomos, 199 9)(Juristische Zeitgeschichte, Abteilung I:
Allgemeine Reihe, Bd.2). 502p. ISBN 3 - 7890 - 6047 - X.
Rosanne van Alebeek, "From Rome to the Hague: Recent Developments on Immunity Issues in the ICC Statute", 13
Leiden Journal of International Law 485 (2000).
K. Ambos, "Der neue Internationale Strafgerichtshof - ein Überblick", 51 Neue Juristische Wochenschrift 3743 3746 (no. 51, December 16, 1998).
K. Ambos, "Establishing an International Criminal Court and International Criminal Code: Observations from an
International Criminal Law Viewpoint", 7 European Journal of International Law 519 - 544 (1996).
Kai Ambos, "Les fondements juridiques de la Cour penale internationale," 10 Revue trimestrielle des droits de
l'homme 739 - 772 (1999).
Kai Ambos, "General Principles of Criminal Law in the Rome Statute," 10 Criminal Law Forum 1 - 32 (1999).
Kai Ambos, "Der neue Internationale Strafgerichtshof: Funktion und vorlaufige Bewertung," 2000 Jahrbuch
Menschenrechte 122 - 139.
Kai Ambos, "Zur Rechtsgrundlage des Internationalen Strafgerichtshofs: Eine Analyse des Rom- Statuts", 111
Zeitschrift für die gesamte Strafrechtswissenschaft (ZStW) 175 - 211 (Heft 1, 19 99).
Kai Ambos & Oscar Julian Guerrero, El Estatuto de Roma de la Corte Penal Internacional (Bogotáá: Editor Antonio
Milla, Universidad Externado de Colombia, dept. de Publicaciones, Aptdo. 0341 41, (00571) 3424 94 8, 28260 6 6
ext. 3151; fax: 2869 6 7 6; 1999). 512p.
Scott W. Andreasen, "The International Criminal Court: Does the Constitution Preclude Its Ratification By the
United States?", 85 Iowa Law Review 697 (January 2000, no. 2).
Aref Mohamed Aref, "La Cour pénale internationale: une nouvelle perspective pour le continent africain", 1
International Law FORUM du droit international 30 (1999).
Mahnoush H. Arsanjani, "The Rome Statute of the International Criminal Court", 93 American Journal of
International Law 22 - 43 (199 9).
J. Holmes Armstead, Jr., "The International Criminal Court: History, Development and Status", 38 Santa Clara Law
Review 745 - 835 (Summer 199 8).
Karen Austin & Nell Stewart, "Courting Justice in Rome", 5 Human Rights Tribune 6 - 12 (September 1998)(includes
coverage of children's rights and gender).
Julio Barboza, "International Criminal Law", 278 Recueil des cours 9 - 200 (1999 - 2000).
Gary Jonathan Bass, Stay the Hand of Vengeance: The Politics of War Crimes Tribunals (Princeton: Princeton
University Press, 2000)(Princeton Studies in International History and Politics). 402p. ISBN 069 10 4 92 2X.
M. Cherif Bassiouni, A Draft International Criminal Code and Draft Statute for an International Criminal Tribunal
([2nd rev. & updated ed.], Dordrecht ; Boston : M. Nijhoff, 1987). 492p.
M. Cherif Bassiouni, Draft Statute, International Tribunal = Projet de statut du Tribunal Pénal International =
Proyecto de estatuto del Tribunal Penal Internacional ([Pau, France] : [Toulouse?] : Association Internationale
de Droit Pénal ; Érès, 199 3)(Nouvelles Études Pénales ; 10)(First published in 1992 under title: Draft Statute,
International Criminal Tribunal; English text called 2nd ed., Nouvelles Études Pénales ; 9). 369p.
M. Cherif Bassiouni, "Enforcing Human Rights through International Criminal Law and through an International
Criminal Tribunal," in Human Rights: An Agenda for the Next Century (Louis Henkin & John Lawrence
Hargrove eds., Washington, D.C.: American Society of International Law, 1994)(Studies in Transnational Legal
Policy, no. 26, ISSN: 1057 - 0551). 524p.
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M. Cherif Bassiouni, "From Versailles to Rwanda in Seventy- Five Years: The Need to Establish a Permanent
International Criminal Court", 10 Harvard Human Rights Journal 11 - 62 (199 7).
M. Cherif Bassiouni, "Ha llegado la hora del Tribunal Penal Internacional", 14 Curso de Derecho Internacional 131 166 (1992, Comité Jurídico Interamericano; Washington, D.C.: Secretaría General, Subsecretaría de Asuntos
Jurídicos, Organización de los Estados Americanos; Ediciones Jurídicas de las Américas, 199 6).
M. Cherif Bassiouni, The International Criminal Court : Observations and Issues before the 199 7 - 98 Preparatory
Committee, and Administrative and Financial Implications (Toulouse: Chicago: Érès; International Human
Rights Institute, DePaul University, 199 7) (Nouvelles Études Pénales; 13) (Joint project of: International
Association of Penal Law, International Human Rights Law Institute, DePaul University, International Institute
of Higher Studies in Criminal Sciences, International Law Association, American Branch, Committee on ICC)
(ISBN 1889 00 1 0 2 3). 290p.
M. Cherif Bassiouni, "Policy Perspectives Favoring the Establishment of the International Criminal Court", 52
Journal of International Affairs 795 - 810 (No.2, Spring 1999). Part of "Opposing Views on the International
Criminal Court" section at 781 - 810.
M. Cherif Bassiouni, The Statute of the International Criminal Court and Related Instruments: Legislative History,
1994 - 200 0 (Ardsley, NY: Transnational Publishers, forthcoming 2001). ISBN 1- 5710 5 - 148 - 1. Approx. 1400 1500p. 2v.
M. Cherif Bassiouni, "The Time Has Come for an International Criminal Court", 1 Indiana International and
Comparative Law Review 1- 43 (1991).
M. Cherif Bassiouni & Christopher L. Blakesley, "The Need for an International Criminal Court in the New
International World Order", 25 Vanderbilt Journal of Transnational Law 151 - 182 (1992).
Barbara Bedont, "Gender- Specific Provisions in the Statute of the International Criminal Court", in Essays on the
Rome Statute of the International Criminal Court (Flavia Lattanzi & William A. Schabas eds., Ripa Fagnano
Alto: Editrice il Sirente, 2000)(v.1; v.2 forthcoming). 481p.
Fanny Benedetti & John L. Washburn, "Drafting the International Criminal Court Treaty : Two Years to Rome and an
Afterword on the Rome Diplomatic Conference", 5 Global Governance : a Review of Multilateralism and
International Organizations 1- 37 (No. 1, 1999).
Audrey I. Benison, "War Crimes: A Human Rights Approach to a Humanitarian Law Problem at the International
Criminal Court", 88 Georgetown Law Journal 141 - 176 (1999).
Stuart Beresford & Hafida Lahiouel, "The Right to be Defended in Person or Through Legal Assistance and the
International Criminal Court", 13 Leiden Journal of International Law 949 (2000).
Bradley E. Berg, "The 1994 I.L.C. Draft Statute for an International Criminal Court: A Principled Appraisal of
Jurisdictional Structure", 28 Case Western Reserve Journal of International Law 221 (Spring 199 6).
Morten Bergsmo, "Occasional Remarks on Certain State Concerns about the Jurisdictional Reach of the
International Criminal Court, and Their Possible Implications for the Relationship between the Court and the
Security Council", 69 Nordic Journal of International Law 87 - 113 (no.1, 2000).
Christopher L. Blakesley, "Introduction au Projet de Convention Portant Création d'un Tribunal Pénal International,
62 Revue Internationale de Droit Pénal 345 (1992).
Christopher L. Blakesley, "Obstacles to the Creation of a Permanent War Crimes Tribunal", 18 Fletcher Forum of
World Affairs 77 - 102 (1994).
Jeffrey L. Bleich, "The International Criminal Court: Report of the ILA Working Group On Complementarity", 25
Denver Journal of International Law and Policy 281 (199 7).
Jeffrey L. Bleich, "The International Criminal Court: Report of the ILA Working Group On Cooperation With
National Systems", 25 Denver Journal of International Law and Policy 293 (199 7).
Jeffrey L. Bleich, "Problems Facing The War Crimes Tribunal And The Need For A Permanent International Criminal
Court", 16 Whittier Law Review 404 (1995).
Gideon Boas, "Comparing the ICTY and the ICC: Some Procedural and Substantive Issues", 47 Netherlands
International Law Review 267 - 292 (2000).
Neil Boister, "The Exclusion of Treaty Crimes from the Jurisdiction of the Proposed International Criminal Court:
Law, Pragmatism, Politics", 3 Journal of Armed Conflict Law 27 - 43 (No.1, June 199 8).
John R. Bolton, "Courting Danger: What's Wrong with the International Court", The National Interest, No. 54, Winter
1998, at 60 - 71.
Adriaan Bos, "Dedicated to the Adoption of the Rome Statute of the International Criminal Court 1948 - 199 8: The
Universal Declaration of Human Rights and the Statute of the International Criminal Court", 22 Fordham
International Law Journal 229 (December 199 8).
William Bourdon, La Cour pénale internationale: le statut de Rome (collab. Emmanuelle Robineau- Duverger; préf.
Robert Badinter, Paris: Seuil, 2000)(Points; 426)(ISBN: 2 - 02 - 037 19 4 - 4). 368p.
Theodoor C. van Boven, "The European Union and the International Criminal Court", 5 Maastricht Journal of
European and Comparative Law 325 - 327 (no.4, 1998)(M.J.).
Bartram S. Brown, "Primacy or Complementarity: Reconciling the Jurisdiction of National Courts and International
Criminal Tribunals", 23 Yale Journal of International Law 383 (Summer 199 8).
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mars 199 9, à son adoption par le Congrès du Parlement, Versailles, 28 juin 1999 (Tristan Mage ed., Paris:
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zum Humanitären Völkerrecht: Bd. 35)(ISBN 3 - 8706 1 - 844 - 2). Includes a bibliography and the texts of the
Statute and Rules of the International Criminal Tribunal for the Former Yugoslavia (ICTY) in German,
Germany's ICTY implementing legislation, plus the Rome Statute of the International Criminal Court in
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ICC Ratification and National Implementing Legislation; CPI Ratification et L#233gislation Nationale d'Application;
CPI Ratificación y Legislación Nacional de Actuación (M. Cherif Bassiouni ed., Association Internationale de
Droit Pénal, with support of the International Human Rights Law Institute (IHRLI) of the DePaul University
College of Law; [Toulouse]: Éditions Érès, 1999)(Nouvelles Études Pénales; 13 quater)(ISBN 1- 8890 01 - 04 - X).
159p. 170p. 167p.
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International Crimes, Peace, and Human Rights: The Role of the International Criminal Court (Dinah Shelton ed.,
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House of
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ISBN 1 - 57105 - 016 - 7.
International Criminal Law: A Commentary on the Rome Statute for an International Criminal Court (Antonio
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Criminal Court: A Commentary.
International Criminal Law: Cases and Materials (Jordan J. Paust, Michael P. Scharf, Leila Sadat, M. Cherif Bassiouni,
Jimmy Gurulé, Bruce Zagaris, & Sharon A. Williams eds., 2d ed., Durham, NC: Carolina Academic Press,
September 2000)(ISBN 0 - 8908 9 - 642 - 9). 1140p. Includes a new "Documents Supplement" volume.
International Criminal Law: Cases and Materials (Jordan J. Paust, M. Cherif Bassiouni, Sharon A. Williams, Michael
Scharf, Jimmy Gurulé, & Bruce Zagaris eds., Durham, NC: Carolina Academic Press, 1996)(Carolina Academic
Press Law Casebook Series)(ISBN: 089 08 9 8 9 4 4). 1438p.
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Editoriale scientifica, 1996). ISBN 888 5 37 0 6 7 5. 363p. Proceedings.
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ELSA International
Monroe Leigh, "The United States and the Statute of Rome", 95 American Journal of International Law 124 - 131
(no.1, January 2001).
Matthew Lippman, "The Evolution and Scope of Command Responsibility", 13 Leiden Journal of International Law
139 (2000).
Bryan F. MacPherson, "Building an International Criminal Court for the 21st Century", 13 Connecticut Journal of
International Law 1- 60 (Winter 199 8).
Adel Maged, [The International Criminal Court and National Sovereignty] (in Arabic)(Egypt: Center for Political and
Strategic Studies, Al- Ahram Foundation; available from the Al- Ahram Distribution Agency, Al- Ahram
Newspaper, New Building, 3d Floor, El- Galaa St., Cairo, Egypt; Tel: 002 02 578 6100; Fax: 002 02 575 9388)
(ISBN 977 - 227 - 167 - 2).
Paul D. Marquardt, "Law Without Borders: The Constitutionality of an International Criminal Court," 33 Columbia
Journal of Transnational Law 73 (199 5).
Hilaire McCoubrey, "From Nuremberg to Rome: Restoring the Defence of Superior Orders", 50 International and
Comparative Law Quarterly 386 - 394 (No. 2, April 2001).
Hilaire McCoubrey, "War Crimes Jurisdiction and a Permanent International Criminal Court: Advantages and
Difficulties", 3 Journal of Armed Conflict Law 9 - 26 (No.1, June 1998).
Patricia A. McKeon, "An International Criminal Court: Balancing the Principle of Sovereignty Against the Demands
for International Justice", 12 St. John's Journal of Legal Commentary 535 (1997).
Frédéric Mégret, "Epilogue to an Endless Debate: The International Criminal Court's Third Party Jurisdiction and
the Looming Revolution of International Law", 12 European Journal of International Law 247 - 268 (no.2, April
200 1).
Frédéric Mégret, "The International Criminal Court and State Sovereignty: The `Problem of an International
Criminal Law' Re- examined," in International Humanitarian Law: Challenges Ahead (J. Carey, J. Pritchard & W.
Dunlop eds., forthcoming).
Theodor Meron, "The Court We Want", Washington Post, October 13, 199 8, at A15.
Kristina Miskowiak, The International Criminal Court: Consent, Complementarity and Cooperation (Copenhagen:
DJOF Publishing, 2000). 127p. ISBN 8757 40 3 2 5 2 .
Brook Sari Moshan, "Women, War, and Words: The Gender Component in the Permanent International Criminal
Court's Definition of Crimes Against Humanity", 22 Fordham International Law Journal 154 - 184 (November
1998)(Ninth Annual Philip D. Reed Memorial Issue).
Espen Rostrup Nakstad, “The ICC Preparatory Commission: an introductory report” The European Law Students’
Association International 2001 (Brussels, Belgium, www.elsa.org )
Espen Rostrup Nakstad, “The International Criminal Court: final negotiations at UN headquarters”, - Blunc
(Explorer) Magazine (no 1, June 2002, The European Law Students’ Association Norway).
Ved P. Nanda, "The Establishment of a Permanent International Criminal Court: Challenges Ahead," 20 Human
Rights Quarterly 413.
Aryeh Neier, "Waiting for Justice: The United States and the International Criminal Court", 15 World Policy Journal
33 (Fall 199 8).
Joanna Nowakowska - Malusecka, "Prosecuting War Crimes by the ad hoc Tribunals and by the Future Permanent
International Criminal Court", in Legal Convergence in the Enlarged Europe of the New Millenium 191 - 204
(Paul L. C. Torremans ed., The Hague; Boston; London: Kluwer Law International, 2000). 356p. ISBN
90411 1 3 3 7 1 .
Valerie L. Oosterveld, "The Making of a Gender - Sensitive International Criminal Court", 1 International Law
FORUM du droit international 38 (1999).
Grabriel H. Oosthuizen, "Some Preliminary Remarks on the Relationship Between the Envisaged International
Criminal Court and the UN Security Council", 46 Netherlands International Law Review 313 - 342 (199 9)(no.3).
Jordan J. Paust, "The Reach of ICC Jurisdiction Over Non- Signatory Nationals", 33 Vanderbilt Journal of
Transnational Law (January 200 0).
Jelena Pejic, "Creating a Permanent International Criminal Court: The Obstacles
Effectiveness", 29 Columbia Human Rights Law Review 291 - 354 (Spring 1998).
to Independence
and
Matthew Peter, "The Proposed International Criminal Court: A Commentary on the Legal and Political Debates
Regarding Jurisdiction that Threaten the Establishment of an Effective Court", 24 Syracuse Journal of
International Law and Commerce 177 - 197 (Fall 1997).
Ryszard Piotrowicz, "Crime and Punishment, or the Establishment of a True International Court of Justice", 72
Australian Law Journal 844 - 850 (November 1, 1998).
James Podgers, "War Crimes Court Under Fire: The World Says, `Book `em,' But the U.S. Is Debating What to Do
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in Law and Public Affairs, Princeton University, 2001). 67p. (July 23, 2001; PDF file; publication of the
Princeton Project on Universal Jurisdiction of the Program in Law and Public Affairs of Princeton University's
Woodrow Wilson School of Public and International Affairs; Professor Stephen Macedo, Chairman of the
Princeton Project; per LAPA press release, leading jurists and legal experts intended these principles as a:
- guide the prosecution of war crimes and other serious crimes under
- international law when there are no traditional jurisdictional
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- links to the victims or perpetrators...
The Prosecutor of a Permanent International Criminal Court/Le Procureur d'une Cour pénale internationale
permanente/El Fiscal de una Corte Penal Internacional: International Workshop in co- operation with the
Office of the Prosecutor of the International Criminal Tribunals (ICTY and ICTR), Freiburg im Breisgau, May
1998 (Louise Arbour, Albin Eser, Kai Ambos, & Andrew Sanders eds., Max- Planck- Institut für ausländisches
und internationales Strafrecht: Freiburg i.Br., 2000) (Iuscrim; No. 81). 708p. ISBN 3- 8611 3 - 939 - 1.
Reflections on the International Criminal Court: Essays in Honour of Adriaan Bos (Herman von Hebel, Johan G.
Lammers & Jolien Schukking eds., The Hague: T.M.C. Asser Press, 199 9). 230p. ISBN 90 - 6704 - 111 - 4.
"Report of the International Law Association - American Branch: Committee on a Permanent International Criminal
Court", 25 Denver Journal of International Law and Policy 219 - 421 (1997)(Issue No.2, Winter 199 7; report
published jointly with the Association Internationale de Droit Pénal, 13 Nouvelles Études Pénales 199 7;
includes articles by Leila Sadat Wexler, Christopher L. Blakesley, Jeffrey L. Bleich, Michael P. Scharf, Edward M.
Wise, Jordan J. Paust, Thomas S. Warwick, and M. Cherif Bassiouni)
Revised Draft Statute for an International Criminal Court (Annex to the Report of the Committee on International
Criminal Jurisdiction, 7 U.N. GAOR Supp. No. 11, U.N. Doc. A/2645 (1954), p. 21.
Marie- Claude Roberge, "The New International Criminal Court : a Preliminary Assessment", 38 International Review
of the Red Cross 671 - 683 (no. 325, 1998).
Ken Roberts, "Aspects of the ICTY Contribution to the Criminal Procedure of the ICC", in Essays on ICTY Procedure
and Evidence: In Honour of Gabrielle Kirk McDonald 559 - 573 (Richard May et al. eds., The Hague; Boston:
Kluwer Law International, 2001)(International Humanitarian Law Series; v. 3). 579p. ISBN 90411 1 4 8 2 3 .
Darryl Robinson, "Defining `Crimes against Humanity' at the Rome Conference", 93 American Journal of
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Herwig Roggemann, Die Internationalen Strafgerichtshöfe: Einführung, Rechtsgrundlagen, Dokumente (Berlin: Arno
Spitz, 199 8, 1999)(Quellen zur Rechtsvergleichung; 51, 51a)(ISBN 3870 6 1 5 3 1 1 ). 420p.
Naomi Roht- Arriaza, "Institutions of International Justice", 52 Journal of International Affairs 473 - 491 (No.2,
Spring 1999).
The Rome Statute and Domestic Legal Orders, Volume I: General Aspects and Constitutional Issues (Claus Kreßß &
Flavia Lattanzi eds., Ripa Fagnano Alto, Rome: Editrice Il Sirente; Baden Baden: Nomos, 2000)(ISBN 88 - 878 47 00 - 2). 240p.
The Rome Statute of the International Criminal Court: A Challenge to Impunity (Mauro Politi & Giuseppe Nesi eds.,
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Charles Rominger, La Cour pénale internationale: état des lieux et prospective de la future jurisdiction pénale
internationale permanente (Paris: Université de Paris Panthéon Assas, 1999). 157p.
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article describing the Clinton administration's opposition to the ICC).
Alfred P. Rubin, "A Critical View of the Proposed International Criminal Court", 23 The Fletcher Forum of World
Affairs 139 (No.2, Fall 199 9).
Alfred P. Rubin, "Challenging the Conventional Wisdom: Another View of the International Criminal Court", 52
Journal of International Affairs 783 - 793 (No.2, Spring 199 9). Part of the "Opposing Views on the International
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Guido Ruegenberg, "The Independence and Accountability of Prosecutor of a Permanent International Criminal
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Leila Nadya Sadat & S. Richard Carden, "The New International Criminal Court: An Uneasy Revolution", 88
Georgetown Law Journal 381 - 474 (?) (March 2000).
Leila Sadat, The International Criminal Court and the Transformation of International Law: Justice for the New
Millenium (Ardsley, NY: Transnational Publishers, forthcoming Summer 2001). ISBN 1 - 571 05 - 133 - 3. Approx.
250p.
Danesh Sarooshi, "The Statute of the International Criminal Court", 48 International & Comparative Law Quarterly
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William A. Schabas, Introduction to the International Criminal Court (Cambridge, UK ; New York, NY : Cambridge
University Press, forthcoming August 2001). 336p. ISBN 0- 521 - 8045 7 - 4 (hardback); ISBN 0- 521 - 01149 - 3
(paperback).
William A. Schabas, "Montreal Follow up to Rome: Preparing for Entry into Force of the International Criminal
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Brett D. Schaefer, "The International Criminal Court: Threatening U.S. Sovereignty and Security" (The Heritage
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Michael P. Scharf, "The Draft Statute for an International Criminal Court", in 3 International Criminal Law 637 - 53
("Enforcement" volume)(2d ed., M. Cherif Bassiouni, ed., Dobbs Ferry, NY, USA: Transnational Publishers
1999). ISBN 1 - 571 05 - 019 - 1.
Michael P. Scharf, "From Nuremberg to Bosnia", in Balkan Justice: The Story Behind the First International War
Crimes Trial Since Nuremberg 13 - 17 (Durham, North Carolina: Carolina Academic Press, 19 97)(includes a
brief history of efforts to create an international criminal tribunal).
Michael P. Scharf, "Getting Serious About an International Criminal Court", 6 Pace International Law Review 103 119 (1994).
Michael P. Scharf, "The Jury is Still Out on the Need for an International Criminal Court", 1 Duke Journal of
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Michael P. Scharf, "The Politics Behind the U.S. Opposition to the International Criminal Court", 19 99 New England
International and Comparative Law Annual.
Michael P. Scharf, "The Politics of Establishing an International Criminal Court", 6 Duke Journal of International
and Comparative Law 167 - 173 (1995).
David J. Scheffer, "Challenges Confronting International Justice Issues", 4 New England International and
Comparative Law Annual (1998). Note that this is a PDF file.
David J. Scheffer, "The United States and the International Criminal Court", 93 American Journal of International
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Minna Schrag, "Observations on the Rome Statute", 1 International Law FORUM du droit international 34 (199 9).
"Seeking International Justice: The Role of Institutions" (special topical issue of the Columbia Journal of
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Gerd Seidel & Carsten Stahn, "Das Statut des Weltstrafgerichtshofs: Ein Überblick über Entstehung, Inhalt und
Bedeutung", 199 9 Jura 14.
Sarah Sewall & Carl Kaysen, "The United States and the International Criminal Court: The Choices Ahead (2000;
Committee on International Security Studies, Current Projects and Activities, American Academy of Arts and
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Malcolm N. Shaw, "The International Criminal Court - Some Procedural and Evidential Issues", 3 Journal of Armed
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Craig Silverman, "An Appeal to the United Nations: Terrorism Must Come within the Jurisdiction of an
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Carsten Stahn, "Gute Nachbarschaft um jeden Preis? Einige Anmerkungen zur Anbindung der USA an das Statut
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"Statute of the International Criminal Court", 6 International Human Rights Reports 232 - 284 (January 199 9)
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The Statute of the International Criminal Court: A Documentary History (M. Cherif Bassiouni ed., Ardsley, NY:
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Lyn L. Stevens, "Towards a Permanent International Criminal Court", 6 European Journal of Crime, Criminal Law
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David Stoelting, "Status Report on the International Criminal Court", 3 Hofstra Law & Policy Symposium 233 - 285
(199 9)(symposium papers on "War Crimes and War Crimes Tribunals: Past, Present, and Future").
Lyal S. Sunga, The Emerging System of International Criminal Law: Developments in Codification
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103 Revue générale de droit international public 29 - 45 (No. 1, 1999).
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Immi Tallgren, "Completing the `International Criminal Order': the Rhetoric of International Repression and the
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Le Temps est l'allié des bourreaux (November 1999, Report on the International Criminal Court by the
FIDH/International Federation of Human Rights Leagues). Report No. 283.
Milan Tepavac, "Establishment of a Permanent International Criminal Court", 49 Review of International Affairs
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Vladimir Tochilovsky, "Rules of Procedure for the International Criminal Court: Problems to Address in Light of
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Christian Tomuschat, "Das Statut von Rom für den Internationalen Strafgerichtshof", 73 Die Friedens - Warte 335 414 (No. 3, 199 8).
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Toward an International Criminal Court?: Three Options Presented As Presidential Speeches (Alton Frye, Project
Director; John R. Bolton, Ruth Wedgwood, Anne- Marie Slaughter, & Kenneth Roth, New York, NY: Council on
Foreign Relations, 1999)(A Council Policy Initiative). ISBN 0- 87609 - 261 - X. 94p.
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47 Ars Aequi: Juridisch Studentblad 30 - 34 (1998).
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Philippe Weckel, "La cour penale internationale : présentation générale", 102 Revue générale de droit international
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Ruth Wedgwood, "Fiddling in Rome: America and the International Criminal Court", 77 Foreign Affairs 20 (no.6,
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Ruth Wedgwood, "The International Criminal Court: An American View", 10 European Journal of International Law
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Leila Sadat, The International Criminal Court and the Transformation of International Law: Justice for the New
Millenium (Ardsley, NY: Transnational Publishers, forthcoming Summer 2001). ISBN 1 - 571 05 - 133 - 3. Approx.
250p.
Leila Sadat Wexler, "Committee Report on Jurisdiction, Definition of Crimes, and Complementarity", 25 Denver
Journal of International Law and Policy 221 (1997).
Leila Sadat Wexler, "A First Look at the 199 8 Rome Statute for a Permanent International Criminal Court:
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Leila Sadat Wexler, "The Proposed Permanent International Criminal Court: An Appraisal", 29 Cornell International
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David Wippman, "Can an International Criminal Court Prevent and Punish Genocide?", in Protection Against
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Daniel V. Wright, Strategic Implications of U.S. Non- Support for the International Criminal Court (Carlisle Barracks,
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Andreas Zimmermann, "The Creation of a Permanent International Criminal Court", 1998 Max Planck Yearbook of
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Andreas Zimmermann, "Die Schaffung eines ständigen internationalen Strafgerichtshofs: Perspektiven und
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Marten Zwanenburg, "The Statute for an International Criminal Court and the United States: Peacekeepers under
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Marten Zwanenburg, "The Statute of an International Criminal Court and the United States : Peace without
Justice?", 12 Leiden Journal of International Law 1- 8 (no. 1, 1999).
78