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

Working Group four on procedural matters

Opening of the session: 15.05

Remarks of the Chair

The Chair of the Working Group, Mrs. Silvia A. Fernandez (Argentina) started by pointing out that the official working basis would be the ILC draft and Volume 11 of the Preparatory Committee. Since the compilation of Volume 11 has become rather complex because of so many proposals submitted, several governments had prepared at an intersessional meeting an abbreviated compilation, that did not contain any new proposals but only summarizes what had already been said in previous session. It is considered to be only an informal and the delegates were requested to cite the relevant articles in the ILC draft.

The chairperson proposed to start the discussion with article 26 of the ILC draft, as article 25 mainly contained questions which are to be discussed in WG 1 on trigger mechanisms and complementarity.

Discussion on Art. 26 par. 1 and 2 of the abbreviated compilation:

General remarks

All delegations, that took the floor, agreed that the abbreviated compilation was very useful. Most of them agreed that it be translated into the relevant languages.

Most delegations [Israel; India; Italy; Mexico, Portugal, Singapore, UK, USA, South Africa, Spain, Malaysia, Lesotho; Netherlands; Vietnam; Argentina] speaking on the subject agreed that the issue of empowering the prosecutor to initiate an investigation ex officio as mentioned in the first square brackets of para. 1 of Art. 26, should be discussed in Working Group 1 (WG 1) on complementarity and trigger mechanisms. One delegation expressed as well that the X-chamber issue should be discussed in WG 1 [Spain].

Several of the delegations nevertheless expressed their reservation on the ex officio power of the prosecutor [Italy; India].

One delegation pointed out that it would be necessary to clarify certain terms as: prosecutor, investigating judge, x- chamber etc. and what is the interrelationship between them [India].

Paragraph 1 of the abbreviated compilation: ex officio power of Prosecutor

Several delegations [Austria; Germany; Sweden, Spain, Portugal; Lesotho, Malawi] stated that in Art. 26 (1) the bracketed text [authorizing the prosecutor to initiate an investigation ex officio upon any other substantiated information] should be retained.

Certain delegations were reluctant to support for ex officio power [Italy; Venezuela].

Certain delegations wished [USA, Singapore] the standards mentioned in para. 1 bis b i-iv to be higher and they thought that criteria must be further clarified when a prosecutor should investigate. The definition of the concerned state should be clear. One state said that it would be helpful to put these questions in a separate subchapter [USA].

Only one delegation [China] was expressly opposed an ex officio power for the Prosecutor but wanted the cases in which he/she can prosecute be explicitly mentioned in the statute.

One delegation [Argentina] pointed out that it should be possible for the victims to be able to initiate an investigation and that this issue should be discussed further.

One delegation mentioned that it needs a safeguard to prevent the prosecutor from intervening in a sensitive situation and to ensure the maximum cooperation of the states [South Africa].

One delegation [Tanzania] said that it would be the best solution to make it mandatory for the prosecutor to investigate as soon as there is a complaint. The only reason not to investigate would be lack of sufficient evidence. This solution would also eliminate the problem with the examination chamber. It would exist for technical reasons only. One should either chose this solution or chose another body to decide whether investigation should be initiated or not.

Reservation on the triggering of the investigation by the Security Council (Art. 23 (1)) were pronounced [India].

From the point of view of complimentary it must be considered that the decision of the Security Council must be notified to the state concerned before the investigations starts in order to give the possibility to the state to discuss its assistance [France]. One delegation [Tanzania] suggested in para. 1 that prosecution and investigation should be separated.

Paragraph 1 his of the abbreviated compilation:

Several delegations stated that the standards listed in paragraph 1 his were too low and that para. 1 and 1 bis of the abbreviated compilation were not necessarily cumulative. They suggested "reasonable" instead of "possible" (paragraph 1 bis b

i) [USA, Malawi, Samoa]

The threshold question in par. 1 b i should be reserved for further discussions [Malaysia].

One delegation [Portugal] hold the position that the criteria enumerated in par. 1 bis b i-iv are unnecessary or even dangerous

and should therefore be skipped.

1 bis c of the abbreviated compilation:

One delegation [Singapore] made the proposal to introduce a new subparagraph I his c stating "whether prosecution under this statute would be in the interest of justice". There should be introduced some degree of procedural discretion (see paragraph 4 c).

Referring to this proposal another delegation [France] proposed the following wording "in the interest of the victim".

One delegation [Malaysia] had some doubts concerning this proposal on the criteria "in the interest of justice" because of the subjectivity of the test and the danger of politicization of the Tribunal.

One delegation [Portugal] was reluctant to support both proposals mentioned above, because it was not in the scope of the prosecutor to decide it, they therefore favored the original text of the ILC text except for subparagraph f of the abb. version.

One delegation [Ireland] had doubts whether one single person, the prosecutor, was the right person to decide whether a prosecution was in the interest of justice or if it should not be another body (Sec. Counc. or other body) to decide thus issue, concidering the gravity of the crimes.

One delegation was clearly against the two proposals mentioned above [Italy).

Para. 1 quater: (X-Chamber / Entity to be determined) of the abbreviated compilation:

Several delegations [Austria, Singapore] stated that any decision in the pre-trial stage concerning the conduct of the investigation should not be taken by the presidency but by an independent entity to be determined.

There were quite different opinions about the role and function of such an entity to be determined and also how and when it should enter into action:

Several delegations saw it as a mean to ensure the balance between prosecutor and defense as a sort of supervising chamber.(paragraph 2 f) [UK].

Some other delegations [Canada, Spain; Argentina; Netherlands; Lesotho; Egypt; Italy; Mexico, Malaysia] shared this view and pointed out that it should not have the function of a juge d'instruction, but should only insure the equality of weapons. It should not hinder the independence of the prosecutor.

Many delegations [ Netherlands, Malaysia] shared the view, that the chamber should have a role in all cases. One delegation [UK] pointed out that it might be especially important in some cases, for example when the suspect hasn't yet been identified. In such cases the chamber should be involved in an early stage.

One delegation [France] saw this entity as a supervising power and favored a body consisting of three specialized judges building a jurisdictional, independent and impartial body to supervise the investigation. This would make sure that both, the prosecution and the defense had the same chances, equality of arms, but nevertheless it should not hinder the investigations of the prosecutor.

Several delegation [Argentina; Portugal; Mexico] expressed similar concerns about the danger of a failure of the entity because there were two diferent judicial systems that had to be combined. Therefore this examining chamber/entity to be determined should not take the role of an investigation magistrate (in the sense of the French "Juge d'instruction") but more in the sense of a supervising body.

One delegation [Netherlands] stressed the importance of the guarantee of the rights of the accused/suspect in the early stage of the investigation. A judex unus would therefore be sufficient.

The exact position of such a body must still be decided upon. It would be of a special importance in cases where the site to be investigated is far away from the ICC. But the main aim should be to keep the balance between prosecutor and defence. It would also be very important to ensure a proper conduct of the collection of evidence in fi-agile and unsure situations [Argentina].

One delegation [Canada] suggested the functions of such a chamber could be:

Mutual assistance shall be conducted only by request by state to state or the court to the state, not by the defense counsel directly (through the chamber).

Examination of material and preservation of certain evidence.

Supervision of on site investigation because the state might not be secure, to ensure the security of the prosecutor/defense.

Should merely be an assistance, not a supervision to prosecution and defense.

One delegation wanted to know, when the rules of such a chamber were going to be elaborated and who would elaborate it. [Mexico].

One delegation [France] pointed out that the aim of this WG was not to find a compromise between the different judicial systems but to create a tribunal that can work effectively on an international level, it agreed that the prosecutor should have all investigative power, but that the chamber could have some to be determined competence. It stated also that such a chamber would be necessary acting as a filter between the state and the court.

One delegation [Guatemala] expressed concerns about the functioning of the X-chamber, they could not quite see how it should function and operate. There would especially appear certain problems of hierarchy either, or, if it would function merely as a counseling organ, it would be inefficient.

One delegation wanted this issue to be discussed in WG 1 [Malawi].

Paragraph 2 of the abbreviated compilation:

Only one delegation [Samoa] stated that para. 2 of the abbreviated compilation does not go far enough concerning gender issues: special measures and training concerning sexual and gender issues should be contained in this paragraph.

One delegation [Guatemala] made the following proposal: subpara. c does not go together with par. a & b, whereas par. e is merely instrumental. C should therefore better be placed in the opening part of the paragraph or be transferred in subpara. a. subpara. e should be incorporated into the chapeau, as follows: "The Pros. may, as appropriate, seek..." or it should be a new subpara. a and subpara. f should be a separate paragraph.

On-site-investigation:

Concerning the question of on-site-investigation conducted by the prosecutor several delegations [Japan; Singapore, Austria, Egypt, Canada; Mexico] stressed the importance of a cooperation with the concerned countries except there is no civil authority available. Several countries Japan , Singapore] said that investigations should primarily be conducted by national authorities.

One delegation [Japan], doubted whether that the on-site-investigation should be unlimited. They said that they would submit a written proposal.

One delegation favored retaining the second and third bracket of para. 2 c. [Singapore].

One delegation [Germany] favored those two above mentioned proposals. but it questioned whether these proposals went far enough in cases, in which a civil authority does not want to cooperate.

Some delegations [Austria, Argentina] expressed some concerns about para. 2 c, this should be done by legal assistance of the states and it is not sure whether the presidency is the right body to determine this question.

One delegation [Germany] favored these proposals, but pointed out that this issue should be discussed further.

The prosecutor should be given general power for para 2 a-d, but e should be applied to d only, and not to a-d. [Malawi].

One delegation [Canada] said that the issue of the appointment of an examination chamber should be linked to the issue on on-site-investigation.

One delegation [Malaysia] pointed out, that the on site investigation issue in 26 2 b & f might raise questions on complementarity. WG 1 should discuss it and that the examination chamber would be the appropriate body to fulfill the tasks

mentioned in subpara. f .Therefore the following sentence should replace the existing one: the Prosecutor may request the examination chamber to carry out or supervise the act,..."

On site investigation should only be done with mutual consent [Vietnam]. They would only allow another country to investigate if there is a bilateral agreement, the matter has do be studied further.

One delegation emphasized the criteria mentioned in par. 1 ter. c. They pointed out that on site investigation should not be initiated without the assistance and the consent of the state concerned [China].

One delegation [Italy] stated that the respect for basic principles of law must be observed and that they may only be conducted if the pre-trail acts are specified.

One delegation [Netherlands] wanted all the text in brackets be deleted in para. 2 c.

For one delegation [France] the formulation of para 2 seemed to be too vague, as on-site-investigation might to be carried out in countries that are not parties to the statute. But this should be discussed in the chapter on cooperation and judicial assistance.

Before concluding the session the Chair invited Mr. W. Fendrick, from the prosecutor's office of the ICTY:

Mr. William Fendrick:

On site investigation is essential to file an indictment. he pointed out that if the present statute of the ICTY had not provided an independent prosecutor, work would have been far more difficult if not impossible.

Concerning the elaboration of a revised draft of this article the chair said that this might proceed at the end of next week that the translation of the abbreviated compilation would be finished by tomorrow. The discussion of the WG is closely related to WG 1 and that certain repetitions are inevitable. But as most delegates attend both WG it is not that grave. In the end of the second week the WG should present a presentable text and clarify as many differences as possible. The chair-woman also encouraged the delegates, to continue informal discussions.