Draft of Short Report on Preparatory Committee - Working Group #3
Tuesday, August 5, 1997
(States names in italics can be deleted at later date)
I CONTAINING COMPLEMENTARITY IN ONE PROVISION
While only a handful of states said that complementarity was a pervasive theme and could not be limited to one provision, many states expressed the desire to see complementarity contained to one provision, or at most, one chapter. Among these countries are: Austria, Australia, South Africa, Finland, Netherlands, Thailand, Trinidad & Tobago, Egypt, Malaysia, UK, Paraguay.
II. DELETION OR RETENTION OF ART. 35(C)
Most states commented on the need to delete or retain art.35(c)
regarding gravity of crimes as a ground for admissibility. A few believed it should be deleted. Among those who felt it should be deleted were Austria, Guatemala, Finland. Many more states felt strongly that it should be retained to keep out trivial crimes and reserve the court's jurisdiction for only the gravest crimes, and not just singular instances of looting, for example. Those who felt it should remain were China, Korea, US, Indonesia, Venezuela, Russia, Paraguay. Still others wanted to wait to decide about keeping 35(c) intact or even reformulating it, depending on the outcome of discussions regarding crimes within the Court's jurisdiction and a definition of those crimes. These states were Netherlands, Malaysia, Tanzania, UK, Spain.
111. CRITERIA FOR INADMISSIBILITY OF A CASE
Regarding admissibility of cases, a great number of states expressed the need for clear criteria enumerating the cases that would be inadmissible to the Court. Some states, including Finland, Korea, US, wanted to include in this criteria situations in which national mechanisms are unavailable, not simply ineffective. Some pointed to the French or Italian proposals, while others felt that the ILC draft or the UK proposal were adequate. The states who voiced their concerns were China, Israel, Mexico, Korea, Finland, US, Netherlands, Russia, Tanzania, Spain, and Viet Nam.
IV. BURDEN OF PROOF IN DETERMINING INADMISSIBILITY
In response to the UK proposal to reverse the burden of proof in determining the effectiveness of a state judicial system and in turn, the inadmissibility of a case to the Court, many states had very clear views on this. Some believed that the burden should be on the Court to prove that a state's system has failed. These were the UK, and the US & Malaysia. One state, Malaysia, put forth the idea that there should be a rebuttable presumption that a state has done everything in good faith; if it can be shown otherwise, then the Court could take the case. Other states believe that the burden must remain on the states. One country, Austria, clearly articulated that the burden of proof should remain on the states and that the statute should speak in terms of exceptions because it delineates the Court's jurisdiction, and not state's Jurisdiction. One state, Korea, wants the burden to be shared equally.
V. CONCERNS OVER SUBJECTIVITY OF TERMINOLOGY
There was a great deal of dialogue concerning the subjectivity of various terms used in both the ILC draft and the various proposals. Among these terms were "good faith" of the UK proposal, "manifest purpose" and others in the French proposal, and "duly" and "apparently well-founded" in the ILC draft.
Only one country specifically stated that it preferred the ILC wording (Austria), but most states stressed the vagueness of such terms, especially "good faith" which is incongruous with some legal systems. While a few states said they were comfortable with such a term, they expressed their flexibility and openness to other wording. Notably, one state (US) pointed out that the subjective standards could result in the Court second guessing the national judicial systems and therefore, that such a format would be unacceptable to its legislative body. Lastly, one state, Ghana, said that to introduce such new terms into the discussions would only cause further delay.
VI. STATE SOVEREIGNTY AND THE POSSIBILITY OF THE COURT JUDGING NATIONAL SYSTEMS
Along these lines, there was debate regarding the supremacy of the Court over domestic courts, which opened up the larger issue of state sovereignty. One state, the US, expressed the view that the Court should not be an appellate or review court that would second-guess "credible" national judiciaries; but the Court could decide if there are problems with a particular state's system. Similarly, one state, Venezuela, agreed with this view, but added that the Court should not have "secondary competence" and that a balanced text was the solution. Another state, Paraguay, expressed the fear that ICC judges will sit in judgment of national judges. Yet another state, Viet Nam, agreed. One state, Tanzania, pointed out that states were being "greedy" when it came to the sovereignty issue and argued that it is not national judicial systems that will be "on trial" but rather the individuals who are part of that system, and indeed, the acts of these individuals should be questioned by the Court. This state noted t
hat no burden is being placed on states, but that states have a responsibility to be dealing with these kind of cases.
VII. WHO MAY BRING AN APPLICATION CHALLENGING ADMISSIBILITY
There was some dialogue in both directions on this issue - some states wanting to broaden the scope, Austria, and others wanting to limit who may bring an application, the Netherlands. One state, South Africa, suggested the insertion of "the suspect" as well as "accused", in light of art. 28 on provisional arrests. This state also wanted to allow any state entitled to exercise jurisdiction to make an application. One state, Canada, said that an application should be permitted from the accused, a state which has or may have jurisdiction, and the court itself
VIII. AMNESTIES AND TRUTH COMMISSIONS
One state, US, introduced the topic of amnesties and truth commission- and how these will be dealt with by the Court. While not offering an opinion at this stage, it made available a paper on this topic. A few states, such as the Netherlands and Malaysia, responded to this and expressed similar concerns.
ix. MISCELLANEOUS
Two states, Malaysia & Viet Nam, commented on their reservations to the concept of inherent jurisdiction.
Some states called for a precise definition of "complementarity" while others preferred to leave it alone.
In art.35 chapeau, line 1, a few states wanted to change "may ... decide" to "shall ... decide" (Israel, South Africa, Malaysia and Trinidad & Tobago)
Lastly, one state, New Zealand, brought up the point that these discussions need to include a view to practicality and the real world, i.e., how the situation of Pol Pot would be dealt with by the Court, if a national proceeding were to occur.