NGO COALITION FOR AN INTERNATIONAL CRIMINAL COURT

REPORT ON 4 AUGUST 1997 MORNING SESSION OF PREPARATORY COMMITTEE ON THE ESTABLISHMENT OF AN INTERNATIONAL CRIMINAL COURT

[note: names of countries in square brackets to be deleted in public version]

Plenary session

The Chair of the Preparatory Committee, Adriaan Bos (Netherlands) proposed that the Preparatory Committee divide into two working groups. He would be the chair of the first, which would meet in the mornings and would address complementarity and trigger mechanisms. Silvia A. Fernandez de Gurmendi (Argentina) would chair the second, which would meet in the afternoons and would address procedural questions. Since the second working group might require more time, so some time allocated to the first might be devoted to the second working group. He expressed a hope that time might be found to address some of the questions concerning general principles of law and defences which had not been discussed at the February 1997 session of the Preparatory Committee chaired by Per Saland (Sweden) due to the limited time available at that session. Therefore, the schedule should be kept as flexible as possible.

He noted that a great deal of work had to be done before the diplomatic conference in Rome scheduled for June and July 1998 and expressed gratitude for the intersessional work done by nongovernmental organizations and governments. He expressed the hope that the session would be used to narrow the differences on the topics and urged delegates to focus on specific texts - namely, the International Law Commission draft statute (ILC draft statute) and the various proposals in Volume 11 of the 1996 Preparatory Committee report, UN Doc. A/51/22. The Chair noted that the International Criminal Tribunals for the former Yugoslavia and Rwanda had offered assistance and that William Fenrick from the Office of the Prosecutor would be present during the first week, Michael Keegan from the same office during the second week and Judge McDonald would be willing to address an informal meeting of the Preparatory Committee on Monday, I I August at 12.30pm. After a clarification sought by one delegation [France] that represe

ntatives of the tribunals would speak in their personal capacity, the Chair's proposed methods of work were accepted and the plenary adjourned.

Working Group One on complementarity and trigger mechanisms

The Chair of the Working Group indicated that the concept of complementary meant to reflect the jurisdictional relationship between the international criminal court (ICC) aid national courts. He suggested that the working group discuss the concept in the context of the Preamble and Articles 4, 26, 34, 35, 36, 42, 51 and 53, beginning with Article 35 (admissibility), using a list of proposals circulated by the Secretariat from Volume 11 and from UN Doc. A/XXX. He noted that there was wide agreement on the following points: (1) that Article 35 should set out all grounds for inadmissibility, (2) that it was for the ICC, not national courts, to decide if a case was admissible or not, and (3) that if the requisite grounds relating to complementarity were present, the case would be inadmissible. He encouraged delegations to meet to combine texts of proposed amendments and made himself available to delegations to facilitate this process.

General points:

One delegation [Germany], expressly supported by another delegation [Lebanon] proposed four specific building blocks for the discussion of complementarity:

(1) the ICC should have inherent jurisdiction over three core crimes: genocide, crimes against humanity and war crimes- it should have inherent jurisdiction over aggression once the Security Council has made a determination that a state has committed aggression-,

(2) the ICC should have the power to decide if a case was admissible;

(3) the prosecutor should have the competence to initiate an investigation ex-officio in the

same manner as the Prosecutor of the two ad hoc tribunals for the former Yugoslavia and Rwanda as such a power was necessary for effective complementarity; and

(4) the Security Council should have explicit competence in Chapter VII cases to submit matters, but it would be inappropriate for it to submit individual cases or to veto a prosecution.

One delegation [Ireland] suggested that the discussion was hampered by the absence of a definition or description of complementarity; others thought that this was not a problem [France] and the Chair indicated that Article 35 of the ILC draft statute spelled out the elements of complementarity. One delegation emphasized that it was a principle which applied to all relevant provisions [India]. Another state reminded the working group that the concept of complementarity was not dear to it [Greece].

Another delegation [Malaysia] emphasized the primary duty of states to prosecute.

One state [Lebanon] emphasized the importance of defining an "interested" state who could challenge admissibility and cited the proposal by Human Rights Watch on this point.

Chapeau of Article 35: Several delegations [France, United Kingdom] thought that this related to procedure and should be discussed in that working group. One state [Japan] said that the term "may" should be replaced with "shall" and that the reference to the Preamble was not clear enough to indicate when the ICC should not act.

Grounds for determining whether a case was admissible or inadmissible:

(1) Article 3 5 (a) - Inadmissible if a case has been "duly investigated" by a state and the decision not to prosecute was "apparently well-founded". Some states thought that "duly investigated" was too vague [Costa Rica, India, Japan, United Kingdom]. One state said that "not duly investigated" was a relatively objective test and that all tests had some elements of subjectivity. Some states thought that "apparently well-founded" was unclear [Costa Rica, Japan,

United Kingdom]. Some states [Canada, Singapore, United Kingdom] thought that this provision put the burden on states to prove that their courts had done proper investigations and that this was inappropriate. One state said that such a burden would not be inappropriate [Greece].

Inadmissible if a state had investigated in "good faith". Some states preferred this test as well understood [Singapore, United Kingdom], but indicated flexibility on this point. Others saw this term as vague [Argentina, Costa Rica, Switzerland], subjective [Argentina, Canada, Costa Rica] or criticized it without indicating the reason [Malaysia]. One state had no strong feelings on this test [Greece].

Inadmissible where the investigation was "not manifestly intended to relieve the person concerned of criminal responsibility". Several states expressly supported this ground [France, Switzerland].

Several states suggested that the "good faith" ground and the "not manifestly intended to relieve the person concerned of criminal responsibility" were very similar and could be merged [Argentina, Brazil, Singapore], while another pointed out that if these were the only tests, neither of the ad hoc tribunals would have been established.

Inadmissible if state judicial systems were available or effective. Several states said that this should be spelled out [Costa Rica, United Kingdom].

Admissible (absent other criteria) if states not able or effective. Some states emphasized this and its difference from unwillingness and suggested that this was an objective test [Argentina, Canada]. One state said that the test should be, would a prosecution be likely to occur [Canada].

Article 3 5 (c) - Inadmissible if "not of such gravity to justify further action by the Court". Several delegations suggested eliminating this ground since the core crimes by definition were grave crimes [Costa Rica, France, Portugal], although other delegations wished to retain it or something similar.

Admissible (absent other criteria) if state judicial system was not impartial. Several states indicated that this should be a consideration [Greece, Italy, United Kingdom]; others thought that this test was too subjective [Argentina].

Unreasonable delay in investigation or request for extradition. Some delegations urged this should be a consideration [Costa Rica, Greece, Italy].

No diligent prosecution. Some delegations urged that a provision similar to that in the Yugoslavia Statute should be included on this point [Greece, Italy].

Lack of respect for fundamental fights. Several delegations urged that this be a criterion [Greece, Italy].

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