Report on 8 August 1997 Morning Session of Preparatory Committee on the Establishment of an International Criminal Court

Working Group 1 - Complementarity and Trigger Mechanisms

Articles 21 and 22

The Chair indicated that the PrepCom would continue its discussions on articles 21 and 22 of the International Law Commission's (ILC) draft statute, the additional proposals in vol. 11 of the Report of the PrepCom, and the Rolling Text.

The choices for article 21 in the rolling text included three options. Several states [Tanzania, Malawi, Germany] expressed their support for option I of the rolling text which provided for inherent jurisdiction for the core crimes of genocide, crimes against humanity and serious war crimes.

One delegation suggested that since the word "inherent" had created such misunderstandings, that article I.A.(I) of option I of the rolling text should be amended to remove the word inherent. The effect would still be inherent jurisdiction. [Malawi] One delegation suggested that article 1. B. I (b) of the rolling text should be interpreted liberally to allow non-state parties (if they qualify as interested states) to lodge complaints.

Another delegation suggested that Option I.B.2 should be deleted because it was no longer necessary.

A few states preferred an opt-in consent regime where certain interested states would have to consent to the ICC's jurisdiction for a particular crime before the ICC could go forward with a case [Brunei, Vietnam]. These states explained that the opt-in mechanism was needed for universal participation of states. [Brunei, Vietnam]. One of the states suggested inherent jurisdiction would be ineffective. One delegation also suggested that all three core crimes should be treated the same, i.e. opt-in. [Brunei].

One delegation suggested retaining art. 21(l)(b) and art. 22 of the ILC draft [Vietnam]

Another delegation suggested that art. 2 1 (1) of the French proposal was better.

Article 23 Role of the Security Council

The Chair outlined 4 main types of proposals on this issue:

ILC draft as it stands

complete elimination of ILC draft

and two different amendments of the ILC draft.

The main elements of the article are:

Article 23(l) - Security Council can refer matters to the court under its Chapter VII powers.

Several delegations supported retaining this article in the statute [Singapore, Liechtenstein, United States, Lesotho, Sweden, Niger, Italy, France, Germany, Argentina, Japan]. One frequent argument was that it made sense to allow the Security Council to refers matters to the court rather than having to set up ad hoc tribunals. Another argument was that it gives the ICC Security Council enforcement powers and does away with state consent requirements [Lesotho, France].

Some states argued that the Security Council should also be allowed to refer matters under Chapter VI authority [United States]. Others said they would consider it [Italy].

Korea supported the general thrust of the article, but thought there was room for improvement by using the first half of the ILC draft art. 23(l) and taking the second half of paragraph I of the proposal entitled Role of the Security Council in vol. 11 of the Report.

Some states wanted to add text from vol. 11 that required the Security Council to supply information to the ICC along with a referral. ("As far as possible a referral shall specify the circumstances of the alleged crime and be accompanied by such supporting documentation as is available to the Security Council.") [Italy, France].

Article 23(2) - Security Council would first determine an act of aggression had taken place as a precondition to a complaint to the court of aggression.

Most states, expressed the opinion that this paragraph was, of course, dependent on the inclusion of aggression as a crime under article 20.

Some states expressed the view that aggression should not be included in the court's jurisdiction and therefore this paragraph should be deleted [Liechtenstein, Niger].

Other delegations stated that this paragraph should be retained if aggression was included [Singapore, United States, Sweden, Italy, France, Germany, Russia, China]. Some of these delegations made it clear that once the Security Council had determined an act of aggression had taken place, the Court would be independent in determining whether there was individual responsibility for that act. These delegations favored the inclusion of the alternate proposal 3(b) to that effect [Singapore, United States, Sweden, Italy, France, Germany, Russia, Japan].

Other delegations favored a different proposal, art. 3(a) [Malaysia].

Th Korean delegation proposed allowing both the Security Council and the Court the competence to determine whether aggression had occurred. However, at least one delegation felt this was a violation of the LTN Charter. [Russia]

Other delegations stated that even if aggression was included, this paragraph should be deleted. These delegations felt that the ICC should be able to determined whether an act of aggression had occurred if it was to be independent of political influences [Vietnam].

Article 23(3) - No commencement of prosecution when the Security Council is dealing with the situation under Chapter VII, unless the Security Council decides otherwise.

Some delegations favored the ILC draft article [United States, Niger, France, Russia, China].

An alternate proposal 3(a)(c)&(d) qualifies the exclusion by allowing prosecution to continue if SC doesn't take action within a reasonable time[Malaysia]. However, some delegations opposed this proposal [Niger].

Another alternate proposal was to delete paragraph 3 altogether [Liechtenstein, Korea, Italy, Greece]. Several delegations argued that the International Court of Justice doesn't have to defer to the Security Council, so neither should the ICC [Lesotho, Malaysia].

Singapore had offered a proposal in the August 1996 PrepCom which reverses the assumption of the ILC draft (A/AC.249/WP/5 1). Instead of blocking all cases arising from situations being dealt with by the Security Council under chapter VII unless the Security Council decides otherwise, the Singapore text allows cases to go to the Court unless the Security Council takes an affirmative step to block a case. Some delegations stated their willingness to examine the Singapore version [New Zealand, Sweden, Korea, Italy, Germany, Russia, Greece].

One delegation stated that there would have to be a transparency to the Security Council's decision making [New Zealand]. Another delegation mentioned the efforts to reform the Security Council would include wider representation in Security Council judgments [United States].

Delete article 23 altogether - A few delegations felt any Security Council role in the ICC should be avoided [India, Indonesia].