Courtery of CICC

The United Nations Preparatory Committee on the Establishment of an

International Criminal Court concluded its fifth session after two weeks of

meetings on Friday, December 12, 1997. PrepCom Working Groups dealt with

the following issues: state/ international cooperation and judicial

assistance, general principles of criminal law, procedural matters,

definitions and elements of war crimes, penalties.

Attached are three reports, one prepared by the UN press officers, and two

by expert consultants to the NGO Coalition, based upon notes taken by NGO

observers/members of the Coalition. The UN paper is a summary press

release; the Coalition reports are summaries of the negotiations on the

definition and elements of war crimes, international cooperation and

judicial assistance, the principles of criminal law, and penalties. We are

still preparing a summary of the discussion in the Working Group on

Procedures which will be available in a few days.

An estimated 150 representatives of approximately 80 non-governmental

organizations participated in observing the negotiations, attending

meetings of the NGO Coalition, NGO-government briefings and dialogues. In

addition to the orientation and general strategy meetings, the Coalition

held multiple daily strategy sessions. Also, working groups and caucuses

of the Coalition - such as the Women's Caucus for Gender Justice, the

Victims Caucus, the Faith-based working group, and the Peace/Weapons Issues

caucus - held regular meetings and programs.

One of the most important developments during the PrepCom, though not part

of the official negotiations, was a dramatic shift in the position of the

United Kingdom on the issue of the role of the Security Council. At this

PrepCom, the United Kingdom confirmed it's decision to oppose the provision

in the draft Statute of the ILC which would require prior approval by the

Security Council before the Court could proceed with investigations and

trials. This provision in effect gave the Security Council veto power over

the ICC. Instead the UK indicated it will support a modified formulation

of the "Singapore proposal" which would require a positive decision to be

taken by the Council to prevent or delay or block the ICC, and then only

for a limited length of time.

There was general agreement that the fifth PrepCom achieved slow, but

steady progress. The next and final meetings of the Preparatory Committee

will be from March 15 to April 3, 1998 with two days prior to the meetings

to approve procedures for the treaty conference. This preliminary meeting

will reportedly be held March 12 to 13, 1998.

On December 15, 1997, the General Assembly adopted by consensus the

resolution confirming that the treaty conference will be held in Rome from

June 15 through July 17, 1998.

DEFINITIONS AND ELEMENTS OF CRIMES, WORKING GROUP 1

Summary

Working Group 1 focused on the definition of war crimes, continuing the

discussion on this issue that took place during the Preparatory Committee

meeting held from February 11-21, 1997. The discussion on this subject was

held in the afternoon sessions on January 8 and 9, 1997 and was continued

in several informal meetings during the rest of the week.

In advance of the December 1997 Preparatory Committee meeting, the German

government at the request of the Chairman of the Preparatory Committee, Mr.

Adriaan Bos reportedly held consultations on this issue with other states

that resulted in the compiling of an informal working paper on war crimes

that served as a working base for the discussions

(A/AC.249/1997/WG.1/CRP.8). The states that participated in these

discussions were reportedly the NATO member states.

All delegations were satisfied with the structure of this definition in the

document cited above (section A: Grave Breaches of the Geneva Conventions,

Section B: Serious Violations of the laws and customs applicable in

international armed conflict, Section C: Serious Violations of article 3

common to the Four Geneva Conventions in the case of armed conflict not of

an international character, and Section D: Other Serious Violations of the

laws and customs applicable in armed conflicts not of an international

character).

The final outcome is a rather comprehensive document that includes more

options than were in the original text. Although the text has not been

consolidated in preparation for Rome, it is indicative of the fact that

many delegations shared the view that the original working paper

(A/AC.249/1997/WG.1/CRP.8) had failed to include certain vital provisions.

In addition to the final paper adopted by the Preparatory Committee on this

issue (A/AC.249/1997/WG.1/CRP.9), the German delegation submitted a more

consolidated text (A/AC.249/1997/WG.1/DP.23), based on their original

working paper, as a reference paper on war crimes, suggesting it could be

used as a basis for further work towards a compromise. The status of this

document is somewhat unclear, although reportedly it will form part of the

documentation that goes to Rome. Certain delegations have suggested it as

an attempt on the part of the German delegation to reintroduce the original

Working Paper. This paper is a much shorter, far-less bracketed text that

reflects the views of the majority of the delegations on certain of the key

issues.

Below please find a summary of the key issues debated in this working group:

The Threshold

Introduced at the end of the definition, but to be placed elsewhere in the

statute is a clause, referred to by delegations as the threshold clause.

The first sentence of this clause in Options 1 and 2 states that "The

jurisdiction of the Court shall be limited to the most serious crimes of

concern to the international community as a whole".

Of serious concern to many of the delegations was the second sentence of

this clause. Under Option 1 the Court would have jurisdiction over such

crimes only when committed as part of a plan, policy or as part of a

large-scale commission of such crimes. Under Option 2, the Court would

have jurisdiction over such crimes, in particular when committed as part of

a plan or policy or as part of a large scale commission of such crimes.

Option 3, although not mentioned in the original working paper, but

included in the final text eliminates the threshold altogether. Most

like-minded delegations favored Option 3, arguing that to include such a

threshold would confuse the definition of these crimes with that of crimes

against humanity, that such a threshold was already to be found in the

preamble of the statute and that there was no precedent in international

law to justify the inclusion of such a threshold.

Most delegations agreed that Option 2 could be an acceptable compromise.

Only two of the permanent members of the Security Council remained firm in

their preference for option 1.

The Absence of Certain Crimes in section B

The International Committee for the Red Cross (ICRC) and the United Nations

High Commissioner on Refugees were invited to speak to the PrepCom on this

issue. The ICRC, along with other delegations, pointed out the absence of

certain crimes within the list of international crimes, and called for the

inclusion of language adopted in Protocol Additional 1 to the Geneva

Conventions of 12 August 1949, and relating to the Protection of Victims of

International Armed Conflicts, reminding delegations that 118 states had

ratified this Protocol. Crimes such as the "unjustifiable delay in the

repatriation of prisoners of war and civilians" and "the launching of

attacks against works or installations containing dangerous forces in the

knowledge that such attack will cause excessive loss of life, injury to

civilians or damage to civilian objects" were excluded from the original

working paper. The latter of the two can now be found included in the

final text adopted by the PrepCom. Please be advised that the ICRC's

intervention can be found on-line at www.igc.apc.org/icc.

B (b) "intentionally launching an attack in the knowledge that such

attack will cause incidental loss of life or injury to civilians or damage

to civilian objects or widespread, long-term and severe damage to the

natural environment which is not justified by military necessity".

Certain delegates pointed out that this paragraph failed to take into

account the principle of proportionality. Another option has therefore

been added to the final text that includes this concern.

B (f) "The transfer by the Occupying Powers of parts of its own civilian

population into the territory it occupies".

Certain delegations called for the bracketing of this text, claiming that

it was not generally regarded as being in the category of war crimes. An

option has therefore been included in the final text that calls for the

deletion of this paragraph.

The Weapons Clause

B (o) Two options for this clause were to be found in the original text.

The first was an exhaustive list of weapons, projectiles and materials and

methods of warfare, which are calculate to cause superfluous injury or

unnecessary suffering, excluding however, nuclear weapons, landmines and

blinding laser weapons. The second option was a generic statement

prohibiting the use of weapons that "are of a nature to cause superfluous

injury or unnecessary suffering or which are inherently indiscriminate".

Below please find seven paragraphs drafted by the Lawyers Committee for

Nuclear Policy, summarizing discussions on this issue and the four options

that can now be found in the final text:

The first draft of this section, which was prepared at the February 11-21,

1997 session of the ICC Prep Com, contained many unresolved issues, the

most controversial being which weapons systems would be prohibited and

whether war crimes could apply to internal conflicts.

In February, the U.S. had proposed that the use of expanding bullets,

chemical weapons and biological weapons be prohibited. Syria, with very

little support, proposed that the threat or use of nuclear weapons also be

listed as a war crime.

Aotearoa-New Zealand and Switzerland proposed that no weapons as such be

listed, but that the ICC Statute include a prohibition on "employing

weapons, projectiles and material and methods of warfare of such a nature

as to cause superfluous injury or unnecessary suffering or being inherently

indiscriminate." This has the advantage of allowing the court flexibility

to prosecute individuals for the use of a wide range of weapons which

currently exist or which may be developed in the future, but has the

disadvantage of not specifying clearly which weapons already are prohibited

to use.

At the December Prep Com, Germany submitted a consolidated version of the

February draft on war crimes but kept only the U.S. formulation for weapons

systems. Aotearoa-New Zealand and Switzerland successfully pushed for the

inclusion of their formulation as a second option. Non-Governmental

Organizations, which were present in much larger numbers than in February,

pushed for a third option of having both the Aotearoa-New

Zealand/Switzerland formulation and the inclusion of a list of prohibited

weapons including nuclear weapons and landmines. This proposal, formally

submitted by the Philippines, was forcefully opposed by the powerful NATO

states, but successfully remained as an option (along with the addition of

blinding laser weapons) due to support by most other states.

Samoa speaking to a paper circulated in conjunction with Marshall Islands

and Solomon Islands, noted that it would be ludicrous if the killing of one

person with a poison arrow or expanding bullet could be tried by the court,

but not the killing of hundreds of thousands of people with a nuclear

weapons. Samoa asked whether "The Law is like a spider's web which catches

the little flies but lets the big ones break through?"

A fourth option, proposed by Canada which was surprisingly quiet on the

issue of including landmines, called for the prohibition of expanding

bullets, chemical weapons and biological weapons and "such other weapons or

weapons systems as become the subject of a comprehensive prohibition

pursuant to customary or conventional international law.

All four options will now go to the diplomatic conference in June for the

final decision.

Gender Crimes

B (p) Again, there were originally two options for this text, the first

including rape, enforced prostitution and other sexual violence of

comparable gravity as an outrage upon personal dignity, and the second

option (p bis) referring to "committing rape, sexual slavery, enforced

prostitution, enforced pregnancy, enforced sterilization, and other sexual

violence amounting to grave breaches of the Geneva Conventions" as a

separate crime from that of committing outraged upon personal dignity.

Although an overwhelming number of delegations stated their support for

option p bis, at the insistence of a very small number of delegations, the

first option was maintained in the final text.

For more information on this issue, please contact the Women's Caucus for

Gender Justice (tel: 212 697 7741).

Children as Combatants

B (t) This provision refers to forcing, recruiting or allowing children

under the age of fifteen years to take direct part in the hostilities, or

to be recruited in the armed forces. The inclusion of "allowing" children

to take part in the armed forces" supplements the initial text as another

option, and is seen as a definite improvement from the original text.

For more information on this issue, please contact Yoden Thonden from the

Children's Caucus (tel: 212 972 8400)

Sections C and D apply to armed conflicts not of an international character.

Chapeau of Sections C and D

An issue of concern to many NGOs and several delegations was the inclusion

over sections C and D of a Chapeau that read:

Sections C and D of this article apply to armed conflicts not of an

international character and thus do not apply to situations of internal

disturbances and tensions, such as riots, isolated and sporadic acts of

violence or other acts of a similar nature.

Because certain states mentioned that it was odd and unnecessary to include

this commentary to Protocol II (Protocol Addtional to the Geneva

Conventions of 12 August 1949, and relating to the Protection of Victims of

Non-International Armed Conflicts) in a definitional provision, an option

has been included in the final text that would delete this provision.

Inclusion of non-international armed conflicts within the jurisdiction of

the Court

With regards to Sections C and D, only the delegation from India continued

to state that it was unacceptable to include internal armed conflicts

within the jurisdiction of the Court, and the deletion of sections C and D

has therefore been included as an option in the final text. The Russian

Federation favored the exclusion from the definition of Section D. An

overwhelming number of states however, called for the inclusion of these

sections, stating that they listed well-established offenses of customary

international law, representing a well-balanced compilation of offense

committed in non-international armed conflicts.

Expansion of the list of Crimes within sections C and D

Many states called for the expansion of these sections to include crimes

within the first two sections, arguing that there was no reason to maintain

the artificial distinction between crimes committed in internal armed

conflicts and those committed in international armed conflicts.

Option 3 would therefore include in Sections D the paragraphs that refer to

the intentional starvation of civilians, intentionally launching an attack

in the knowledge that such attack will cause incidental loss of life to

civilians, intentionally launching an attack against works or installations

containing dangerous forces in the knowledge that such an attack will cause

excessive loss of life and slavery and slave trade in all its forms.

GENERAL PRINCIPLES OF CRIMINAL LAW, WORKING GROUP 2

Summary

A. Introduction:

Per Saland from Sweden has been chairing this working group.

i. The February 1997 session: The session had recommended the text of

Articles A to F on General Principles of Criminal Law and Penalties "for

inclusion in the draft consolidated text of a convention for an ICC"

(Topics covered in February 1997 included: Nullum crimen sin lege,

individual criminal responsibility, irrelevance of official position,

command responsibility, mens rea, actus reus, mistake of fact or of law,

age of responsibility, and statute of limitations). Articles L to T,

covering "defences" were not discussed then but there had been a general

debate on the structure of this section.

ii. The August 1997 session: At the opening of the session an excerpt of

relevant articles and proposals (from Vol II ) was distributed for

reference. A paper titled "definition of defences"

(A/AC.249/1997/WG.2/DP.3) was also submitted by Argentina, France,

Germany, Mexico, Portugal and the USA. This document was prepared during

the intersessional period and compiles a number of defences (in L to T of

volume II) in a single Article.

A draft paper (A/AC.249/1997/WG.2/DP.4) entitled "Grounds for the

exclusion of criminal liability or the mitigation of punishment" was

submitted by Singapore. The Singapore document simply gives a non

exhaustive list of defences and empowers the Court to decide " the

relevance, application, scope and effect" of defences, leaving all details

outside of the Statute.

B. Main issues of the discussion:

All countries speaking used DP3 and DP4 as a basis for discussion.

i. DP.3 This covers mental disability, intoxication, self-defense,

necessity and duress, but does not purport to be the only working paper

dealing with defences; Defences are also included in article K on mistake

of fact/law/ lack of mens rea and also include the issue of superior

orders.

ii. DP.4 (The Singapore Proposal) The Singapore proposal gives a list of

defences with no mention of the elements of these defences, leaving the

Court with flexibility and discretion to apply defences if the facts so

present themselves.

iii. main issues:

a. Basis for discussion:

There was a general expression that the role of the court in handling the

defences was clearer in the Singapore proposal (list of defenses with no

evaluation of the elements of these defenses), which gives the Court more

leeway to determine their use or relevance than in DP3. The Many States

spoke in favor of the inclusion of the Singapore language into the main

document (DP3), leaving the ICC with flexibility and discretion to apply

defenses if the facts so present themselves. [Argentina, Niger, Germany,

Cote d'Ivoire, United Kingdom, New Zealand..].

b. Mental disorders:

There are two optional languages in DP3, which are not mutually exclusive;

first, the individual's judgment and control over behavior, which is more

ample. The second deals with his understanding of his conduct.

Along these lines a formulation was suggested; there are two types of insanity:

1) incapacity to understand unlawfulness 2) inability to control actions

Another point expressed was to merge articles a ( dealing with a person

suffering from a mental disease) and b (a person in a state of

intoxication), the second to keep the articles separately. An argument

against merging the two articles was to cover situations where intoxication

leads to temporary insanity.

A comparison between insanity and intoxication was made. The former was

thought to be the person's inability to distinguish between right and

wrong, whereas the latter was the loss of a person's judgment. One

additional point made was that it is the loss of an individual's ability to

distinguish right from wrong that leads into mitigation.

The WG came to agreement, succeeding to draft an unbracketed text that

encludes the two types of insanity described above.

c. Preliminary Conclusion:

The proposal to merge the two articles a and b was not approved by the vast

majority. Concerning the alternative language issue, a clear majority

preferred the one in the second bracket, though some preferred the language

in the first bracket [capacity either to appreciate the criminality of his

or her conduct or conform that conduct or conform that conduct to the

requirements of law] and yet some preferred combining the alternatives.

d. Intoxication defence:

Most countries agreed that only involuntary intoxication should be admitted

as a defense. There was a split in respect of how to express the necessary

"effect" that the inebriation has on the actor. It is hoped that the

debate on the language in sub-paragraph [a] of the defense (insanity) can

resolve the question on the language for {b}, since many countries

expressed the need that these should be similar in this regard.

A number of delegations expressed support for the idea that it is not only

intoxication by alcohol which must be dealt with, but also by drugs and

other substances. The chairman suggested that the new text reefers to

"intoxication by alcohol, drugs, or other means".

In relation to the question of voluntary intoxication, some delegates

suggested deleting the reference to voluntary intoxication altogether.

However, other s recognized the value in stating that voluntary

intoxication is not a defense. The chairman suggested keeping brackets

around the whole reference to voluntary intoxication.

The final text is heavily bracketed, reflecting the divergent positions

with regard to voluntary intoxication. If bracketed text is kept, the

defence would apply in all cases of voluntary intoxication except for those

in which the person became intoxicated in order to commit the crime in an

intoxicated condition. This would probably lead to a great number of war

crimes and crimes against humanity going unpunished. 1

e. Self-defense

Defence would be available too where "the person acts reasonably or in the

reasonable belief that force is necessary, to defend himself or herself

or another person against an imminent and [unlawful] [unjustified] use

and force in a manner not disproportionate to the degree of danger to the

interest protected."(DP3(c))

Some delegates expressed a difficulty with the word "imminent" --wanted it

to reflect the possibility of an attack occurring in the immediate

future.

Other countries expressed difficulty with the concept of self-defense when

talking about

genocide, crimes against humanity , serious war crimes, although it was

acknowledged that some circumstances for the applicability of the defence

could occur.

Some delegates wanted to include defence of property as self-defense.

Utilization of the "Singapore proposal" as a general Chapeau to the Article

will leave it to the court to consider the application of the defense.

Most countries expressed the view that [c] is a good attempt to set down a

general formulation on self-defence.

The final text is heavily bracketed reflecting various language options, in

particular with regard to the proportionality of the acts.

f. Duress

Duress can be used as a defence in cases when a person reasonably believes

that there is a serious threat against him or her and acts reasonably to

avoid that threat.

There was much debate over the terminology "reasonable belief/knowingly".

Knowingly putting oneself in a situation of duress implies personal

consequences of a voluntary decision, according to some countries. The

point was therefore made that it is difficult to conceive anyone putting

oneself knowingly in such a situation. With this regard the point was made

that one should not confuse self-defense and duress and that the standard

under duress must be an objective one.

Other delegations supported the reference to reasonable belief as

considered in Article K, dealing with "Mistake of fact or law". It was

decided to consider this section together with Article K.

Several delegations supported the inclusion of the reference to property or

property interest as an object of threat.

The final text is heavily bracketed and reflects all options, the provision

is itself bracketed.

g. Sudden or extraordinary event:

A debate on the topic of "reasonable belief" arose again . Several

delegations believed that a person could not reasonably assess a situation

beyond his or her control.

The draft proposal reads:" the person reasonably believes that there are

circumstances beyond that person's control which constitute a threat of

[imminent] death or serious bodily arm to that person or another person

and the person acts reasonably to avoid the threat, provided the person

intended to prevent a greater harm and did not intent to cause [and did not

cause] death [provided that there is no other way to avoid that threat]".

An alternative is "there are circumstances beyond the person's control" or

"[the person necessarily acts in response to] circumstances beyond that

person's control.

Few delegations were in favor of bracketing language related to the

consequences of the person's act, for both "and did not intentcause" and

"did not cause", in order to reflect truly military operational threat.

The final text is heavily bracketed and reflects all options, the provision

is itself bracketed.

h. Superior Orders

The main question is the possibility to call upon superior orders etc. as

mitigating circumstances? The general issues were:

military/political/civilian superiors

the degree of insight of the mental wrongfullness

the personal risk of the person's disobeyance of the order

One may distinguish different opinions on this matter; the states that

accepts superior orders as a defense, the states that agree to this defence

within certain military circumstances and those who don't accept superior

orders as a defence at all. However there seems to be an agreement on

seeing certain superior orders as a mitigating circumstance.

The final text on superior orders contains three options: (1) superior

orders do not relieve an individual of criminal responsability; (2) they do

not relieve an individual of criminal responsability if the orders were

known to be unlawful under international humanitarian law; (3) are

manifestly unlawfull under international humanitarian law. Only the first

option is satisfactory with regard to the standard established by customary

international law, as codified, in particular, by the Nuremberg Charter,

the Statutes of the Yougoslavia and Rwanda Tribunals, and the Draft Code of

Crimes against the Peace and Security of Mankind.

Conclusion

Article L

Former articles L (insanity), M (intoxication), N (self-defence), O

(Necessity) and P (Duress) are now conformed into one; "L".2

Article M deals with superior orders, presumption of innocence and

prescription of law.

( An unsuccessful attempt was made at consolidating the two proposals. The

number of brackets was reduced and the text was cut.)

It was decided that former Article S ( exhaustive or enumerative list of

defences; other defences) should go to the rules of procedure, because too

detailed.

Former Article R ( defences specifically refering to war crimes) was

refered to in new [Article N] (Possible grounds for excluding criminal

responsability specifically referring to war crimes) and might be dealt

with in connection with the definition of war crimes.

Former Article T (presumption of innocence) became new Article P, with a

cross-reference to procedural matters.