Report of the 3rd Session of Working Group 3 On Complementarity and Trigger Mechanisms

Chaired by Adriaan Bos (The Netherlands)

A. Comments on Art. 35 ILC Draft Statute

The view was expressed [Ukraine] that the principle of complementarity as the central issue in the process of establishing an ICC requires a balance between the national and international jurisdiction. That could be seen from the Canadian meeting that took place yesterday evening in which five different proposals were submitted. Notwithstanding this the Ukraine prefers the wording as entailed in the ILC draft statute.

According to another position [Norway], concerning the principle of complementarity and in particular with regard to art 35 ILC draft statute it is important to bear in mind that the ICC is not an entity which plays the role of a Human Rights Court which is primarily to protect the rights of individuals. Quite the opposite the ICC is based on the souvereignty of states and national jurisdiction. Therefore, the state. which has jurisdiction, should be protected.

It was also pointed out in this context that the burden of proof whether the ICC is admissible for a case brought before it should not be on the Court itself because to proof whether a national jurisdiction is available or effective is very difficult. This would also absorb too many resources of the Court so that the Court would be overburdened simply for financial reasons.

What regards the criteria for the admissibility of a case brought before the ICC [Norway] it is clear that subjective criteria are not desirable but could not be avoided. The notion of good faith however seems not to be appropriate as a criteria for admissibility which is due to the difficulty to prove it. Therefore, the principle of diligence seemed to be more useful. Also it is quite well established in public international law.

Finally, the view was expressed that the statute should also entail the possibility for a state to ask the Court for assistance in a case before the national jurisdiction.

Other delegations [India, Uganda] expressed its preference for having the criteria of duly,, investigation and unreasonable delay [Uganda] respectively shielding the accused from criminal responsibility [Uganda].

The view was expressed [Philippines] that art. 35 ILC draft statute should allow a binding determination whether states - intentionally or not - failed to exercise their national jurisdiction effectively. Thus art. 35 ILC draft statute should entail the general rule that the ICC can not intervene in a case as long as a national jurisdiction is investigating or prosecuting it. A list should follow which entails, list of criteria indicating what characterizes under which circumstances a national investigation or prosecution should be considered ineffective. This list should entail as exemptions to the general rule as 'stated above a lack of diligence of the investigation or prosecution as well as unreasonable delay of the investigation or prosecution. National amnesties at least as regards amnesties concerning the core c c crimes also should not prevent the ICC from intervening into a case. As far as the criteria of bad faith is concerned it should be clear that an action carried out by an individual in b

ad faith is a crime to which the principle of individual criminal responsibility is applicable. The state as a judicial body is according to the principle of state responsibility responsible for a breach of the statute

Another delegation pointed out [Australia] that the term "interested state" in the chapeau is too broad. Therefore, the meaning of the term must be limited to the custodial state. the state where the crime has been committed. the state the suspect is a national to as well as the state the victim is a national to. In case that another state is requesting the extradition of the suspect. the requesting state should be also viewed as an interested state.

Concerning art. 35 ILC draft statute it has been mentioned [New Zealand] that a discussion on whether the ICC has to respect amnesties granted on the national level is of utmost importance. In this context it has been pointed out [South Africa] that national amnesties could be helpful in order to restore peace, It should be born in mind however that amnesties are granting impunity and thus are available also in order to shield individuals from criminal responsibility. In any case the rights of the victims have to be considered and compensations have to be granted.

B.Comments on Trigger Mechanism (Art. 21 and 22 ILC draft statute)

Introduction made by the chairman

The chairman suggested to structure the discussion on Trigger Mechanism in four parts. The first part should regard the preconditions to the exercise of jurisdiction of the ICC as well as the acceptance of the jurisdiction of the Court for the purposes of art. 2 1. The second part should target the complaint mechanism. Part 3 concerns the relation between the Security Council of the United Nations and the last part of the discussion should deal with the role of the prosecutor.

As the first part dealing with art. 21 ILC draft statute is concerned the chairman pointed out that the International Law Commission followed a concept of a doable approach. That means that there is inherent jurisdiction concerning the crime of genocide whereas for the other crimes there is the requirement that states consent to the jurisdiction of the Court in order to express the acceptance of the Courts jurisdiction. As far as the procedure is concerned in which states could express their acceptance of the Courts jurisdiction. art. 22 entails an opt in system by which states could regarding which crimes they would like to accept the jurisdiction of an ICC. This opting in system is based on art. 36 of the statute for the International Court of Justice.

I Comments on art. 21 ILC draft statute

Some delegations [Rep. of Korea, Samoa, Sweden. Finland, Greece, Costa Rica. Italy. Germany. Singapore, Japan, New Zealand] took the position that art. 21 ILC draft statute fails to establish an effective ICC. Moreover, the concept of inherent jurisdiction should apply on all crimes in the jurisdiction of the ICC as far as the core crimes are concerned. For those delegations [Rep. of Korea] due to the seriousness of all crimes in the jurisdiction of the ICC there is no reason why inherent jurisdiction should not also cover the other crimes in the jurisdiction of the Court. That could be justified also under the practical point of view [Finland] since there is a significant overlap between the crime of genocide and the crimes against humanity. In this context a separate procedure for both crimes was not felt desirable. The position also has been taken [Greece] that the decision of some states not to ratify a statute in which there is inherent jurisdiction should not considered decisive.

Consequently a number of delegations [Rep. of Korea, Samoa. Sweden, Germany] expressed the view that art. 21 @C draft statute should be substituted by proposal I on page 71 of the compilation of proposals.

According to the position of one delegation [Sweden] the second paragraph has to be revised.

One delegation [Singapore] was in favor of an amended version of this proposal. The same delegation proposed to amend the chapeau of art. 21 with regard to the expression "shall have" by the wording "may have".

Some delegations [Costa Rica, Lesotho] expressed its preference of the third proposal of the compilation of proposals regarding art. 21 ILC draft statute.

Regarding art. 21 ILC draft statute another position which has been taken, [Italy, Malawi] was to combine proposal 1 and proposal 4 on page 71. Concerning paragraph I of art. 21 ILC draft statute it has been favored to substitute this paragraph by paragraph I of proposal 4 on page 7 1.

One delegation [Japan] submitted a new proposal regarding art. 21 (.Non - Paper/WG. 3/N-o. 10 from 7 August, 1997).

Other delegations [France, India] however expressed the view that the concept of state consent as envisaged by the ILC draft statute is more appropriate. This due to several reasons. In this context the believe has been expressed that the statute for an ICC should be trustworthy for states, because only if states could trust in the statute states will be willing to cooperate with an ICC. Furthermore the position in favor of a concept of state was reasoned by the principle of complementarity

One delegation [United Kingdom] took the position that inherent jurisdiction could be accepted regarding the crime of genocide. For other crimes than genocide however no final position could be taken. Such a decision will depend on other decisions regarding the design of the statute. Above all such a decision will depend on the outline of the principle of complementary.-

For the negotiations to come it has been felt useful to narrow the available options down on the concept of inherent jurisdiction and a concept based on state consent.

II. Comments on art. 22 ILC draft statute

The view was expressed [Sweden- New Zealand. Costa Rica, Portugal, Italy, Japan. Germany, Finland. Greece. Samoa, Trinidad and Tobago, Denmark] that art. 22 ILC draft statute is on the assumption that the International Criminal Court will have jurisdiction only over the core crimes not needed anymore. If other crimes than the core crimes will be covered by the jurisdiction of the ICC the position was taken that proposal I on page 73 of the compilation of proposals would be the appropriate solution.

Another delegation [Greece] was in favor of proposal 2.

The opposite position has been taken [United Kingdom] however according to which art 22 paragraph 2-4 ILC draft statute should be retained. Only paragraph I of art. 22 ILC draft should be substituted by an I of proposal I on page 73.

With regard to the opting in approach outlined in art. 22 paragraph 2 ILC draft statute some delegations [India, United Kingdom, Malaysia] expressed the view that such a mechanism enables more countries to become a party to the statute of an ICC. Thus. the opting in approach as envisaged by the ILC should be retained.

Another view expressed [Italy, New Zealand, Greece. Trinidad and Tobago] opposed the concept of an opting in approach. In this context it has been mentioned that an International Criminal Court a la carte won, not be desirable.