Please be advised that our summary of this section is not complete as we

are still awaiting the reports from some of our members. We will therefore

supplement this section as soon as we receive the reports.

Working Group 5 dealt with International Cooperation and Judicial

Assistance (Part 7 of the ILC draft statute) and Enforcement (Part 8 of the

ILC draft statute). As a basis for its work, this WG used the abbreviated

compilation that resulted from an intersessional meeting in Siracusa on

this issue (A/AC.249/1997/WG.5.CRP.1). The Working Group was chaired by

Pieter Kruger of South Africa. Much of the original text is still

bracketed as no consensus emerged on many of the issues.

Below please find a summary of the key issues debated in this Working Group.

The practice followed in this Working Group was the introduction of certain

articles by a delegation that would continue to act as the coordinator of

the informal Working Group on those articles.

Article 51 General Obligation to Cooperate

Articles 51 (General Obligation to Cooperate) and 52 (Requests for

Cooperation: General Provisions) were introduced by the delegation from

France. Article 51 lays out the general obligation to cooperate with the

court. States were divided as to whether states should have to "comply

with" or simply "respond to" the Court's request for cooperation. Both

options remain bracketed. Grounds for refusal were addressed in articles 53

("surrender" and "transfer") and 55 ("other forms of cooperation").

Article 52 Requests for Assistance

Article 52 lists the general provisions that apply to requests for

assistance - including which national authorities should receive the

requests, the language of the requests, the confidentiality of the

requests, the cooperation of non-state parties and the measures to be taken

when states fail to cooperate.

Channels of Communication for transmitting requests

Most delegations argued that traditional diplomatic channels should also be

maintained for the transmission of requests. Other delegations preferred

the inclusion of more direct channels of communication such as the

Prosecutor or the Registrar. The final draft calls for the transmission of

requests through "the diplomatic channel or any other appropriate channel

as may be designated by each state party upon ratification".

Language of the Request

Delegations failed to reach agreement on whether the language of the

requests should be in one of the working languages of the Court or in the

language of the requested State.

Failure to Cooperate

Discussed in great detail was the action to be taken in cases of failure to

cooperate by states with requests of the Court. The issue might be

revisited at the next PrepCom in the context of the debate on the

Organization of the Court. With regards to the appropriate body to deal

with a failure to cooperate, the three options remain bracketed: the

Security Council, the Council of State Parties and the General Assembly.

Article 53: Surrender, extradition, transfer of accused or convicted

persons to the Court

The delegation of Lesotho introduced article 53 which deals with the

surrender/transfer/extradition of the accused or convicted persons to the

court. With regards to the terminology to be used in the title of this

paragraph, most delegates spoke in favored of the terms surrender or

transfer, claiming that the use of the word extradition would create

unnecessary complications, the regimes for inter-state practices being of a

different nature to those of the ICC.

Cooperation with IGOs

The French delegate suggested the inclusion of another paragraph that would

allow the Court to call on Inter-Governmental Organizations to provide

documents or information, or for other forms of cooperation and assistance.

This suggestion was supported by a great number of delegates.

Grounds for Refusing a Request for Surrender or Transfer (53 (2))

Of great importance to the effective functioning of the Court, and

discussed at length was the inclusion of grounds for refusal to

transfer/surrender. Many delegations expressed the view that traditional

grounds for refusing extradition should not apply in the case of the

requests issues by the Court. Several delegates stated their support for

the inclusion of no grounds for refusal, and this remains as an option in

the final text. Other delegates stated that if there were to be grounds

for refusal, these should be kept to a minimum. Most of these delegation

agreed that the grounds listed in art. 53(2) Option 2(b) and (d)

("requested person is a national of the requested state" and "the request

is manifestly unfounded") were unacceptable in the context of requests by

the ICC.

Article 53 (5) This article grants the requested person the possibility to

challenge on specific grounds the request for arrest and surrender of the

ICC in a national court. Most delegations favored the inclusion of this

paragraph, although they stressed that the grounds for such a challenge

should be kept to a minimum. Several delegations agreed that the grounds

to be found in the original Working Paper on this issue such as the lack of

jurisdiction of the Court, non bis in idem and evidentiary standards

needed to be discussed further.

Article 54 Provisional Arrest

The delegate from Lesotho introduced article 54. The article deals with

the modalities of transferring a request for provisional arrest, the

information such a request should contain, whether a warrant is required

and the time-frame for detention. The discussion on this article was

deferred to an informal working group.

Articles 55 Other forms of cooperation

Articles 56 Execution of requests under article 55

The delegate from Singapore introduced articles 55 and 56. Article 55

deals with other forms of cooperation, such as the gathering of evidence,

often referred to as minor legal assistance in inter-State relations.

Article 56 deals with the execution of requests under article 55.

The extent to which the compliance and execution of a request to cooperate

is governed by national laws was discussed in detail in the context of

arts. 55(1) and 56(1). Delegations were divided on this issue. The types of

cooperation that may be requested under article 55 (1) was also discussed

at length. Most delegations were against the inclusion of an exhaustive

list. According to a minority of delegations, some forms of cooperation,

like on-site investigations, should be subject to the prior consent of the

requested State.

Many delegations were of the opinion that the transfer of a witness should

be subject to his or her consent.

Grounds for Refusal

With respect to article 55 (2), the grounds for refusal, a similar debate

took place as for article 53 (2), although the view was expressed that

there should be fewer grounds of refusal in this context.

Of concern to certain delegations was whether the court should have an

obligation to cooperate with States when these conduct domestic

investigations (Article 55.6). Many delegations shared the view that

although there should be some form of mutual cooperation between the Court

and the states in the prosecution of perpetrators of international crimes,

the court should have the discretion to comply or not with national

requests.

Article 57 Rule of Speciality

Discussion on article 57 was deferred to an informal working group.

Part 7 Enforcement of Sentences

The main issues of concern in this article were the extent of the duty to

recognize and enforce sentences of the Court, the role of national law with

respect to enforcement of sentences, the conditions under which the

sentences will be executed, the enforcement of other sentences than

imprisonment, the conditions under which parole or pardon may be granted,

the conditions under which the sentence may be commuted, and the role of

national law with respect to pardon, parole and the commutation of

sentences.

PENALTIES, WORKING GROUP 6

Summary

The Working group was chaired by Einar Fife, Deputy Director General and

Head of Section for International Law, legal Department, Foreign Ministry

of Norway. Three sessions of the December 1997 Preparatory Committee were

devoted to the question of Penalties.

The basis for discussion was a document prepared in preparation for the

December meeting by the Coordinator on the Question of Penalties, in

consultation with interested delegations (A/AC.249/1997/CRP.1/Rev.1).

The Chair gave explanatory remarks and comments on the text, noting

potential problems as:

the inclusion of the death penalty

the necessity to reconcile the need to spell out penalties expressly and

need for some flexibility

the need for maximum or minimum years of imprisonment

the fines as supplementary penalties

appropriate forms of reparation (partially discussed), include the general

right of victims to receive reparation and the role of the ICC in order

to facilitate the victims' role when presenting claims in national

jurisdiction; the compensation of a large number of victims, the

establishment of ownership of assets, and civil claims of third parties.

sentencing (aggravating and mitigating circumstances); should discretion

left to the judges be limited within certain maximums and minimums?

The chair announced that several additional topics included in the draft

paper would be dealt with at a later stage, including penalties for legal

persons, the discussion on fines collected by the court and the effect of

judgment.

In addition to the official working sessions, an important part of the

negotiation was conducted through informal consultations.

Much debate took place with regard to the first penalty listed, under the

list of penalties:

(a) Imprisonment. There were very different approaches to the notion of

"life imprisonment" as a penalty. Samoa insisted that this should be

clarified noting that life imprisonment as imprisonment until the person

dies, was debatable since international human rights law may not accept

this penalty any more. Life imprisonment meant at the Tokyo and

Nuremberg trials more or less a decade of detention. A good number of

countries expressed the need to have the term "life imprisonment" spelled

out, or specified , while a number of countries expressed their opposition

or support for the inclusion of the death penalty.

The rest of the discussion on imprisonment concerned the need for maximum

and minimum sentences to be set out and to the need to refer to aggravating

or mitigating circumstances.

As far as minimum and maximum sentences are concerned, several countries

favored defining maximum only, a majority of countries expressed their wish

to see both maximum and minimum sentences clearly spelled out, and finally,

a small group of countries did not wish to see either defined . Minimum

sentences suggested varied between 5 and 20 years and, Maximum from 20

years to 40 years. Suggestion was also made that maximum and minimum be

defined differently for each type of crime.

Regarding the question of aggravating and mitigating circumstances, several

states expressed that it should be left to the Court's discretion. Few

thought it should be dealt with in another paragraph or section of the

Statute. A group of States spoke in favor of having mitigating and/or

aggravating circumstances specifically referred to in this section.

The second part of the discussion on 47 (1 )(a) was devoted to the

question of a specific provision regarding sentencing of minors aged 13 to

18 years at the time of the facts.

Views were expressed that there should be a maximum imprisonment stated in

the Statute for minors, and that minors could not be sentenced to life

imprisonment. The view was expressed that minors should not be "punished"

but rehabilitated. The view was also expressed that there should be no

criminal liability under the age of 18, or that the minors category should

be divided between up to 16, and 16 to 18 years old. A number of states

spoke against the inclusion of such a specific clause in the statute, for

different reasons, in particular, the belief that the ICC should not have

jurisdiction over minors. Other expressed the view that the age of

defendant should be taken into account as a mitigating circumstance.

Issue of fines Article 47(1)(b):

Several delegations expressed the view that fines should only be

supplementary penalties regarding core crimes. Several delegations

stressed that fines as complimentary penalties for core crimes should be

used exclusively for reparation.

Several delegations expressed that fines should be confined to procedural

offenses or

should not be listed as a penalty because of the difficulty of enforcement

by the court and because of the seriousness of the offenses

Suspension of rights, disqualification, confiscation c(i)(ii) (iii):

This section raised two main questions: should these be in the Statute;

and, if yes, is the language adequate?

A number of delegations expressed doubt as to what "a suspension or loss

of right" meant.

Several delegations were in favor of applying "disqualification" "during

and after service of sentence" and extending the language regarding

confiscation to cover seizure of assets accumulated by profiting on the

fact of the crime. A number of delegations agreed to make a link also to

the issue of reparation.

Several delegation suggested dropping the reference to the suspension or

loss of right.

Several delegations noted that the mention of confiscation was good but

raised important problems of implementation.

Several delegations wished to drop the word "confiscation" and make sure

that the interest of third parties would be taken into account.

The final text of c(ii) uses the terms forfeiture of [...] proceeds,

property and assets obtained by criminal conduct, rather than

confiscation. It was suggested that forfeiture not be included as a

penalty, but instead included as a mechanism which the court could request

states to use with regard to execution of an order for reparations3.

Disqualification was included (CRP.6), with a footnote that such a

provision might give rise to difficult issues of enforcement. The

reference to a loss of right was dropped.

Reparations:

The Chair raised the following points for review by the working group:

Is Reparations an issue of penalties or does it belong elsewhere?

Should the text include references to the international standards and

instruments concerning the rights of victims (UN GA declarations and

Commission on Human Rights materials, etc.)?

To what extent should the court facilitate processing of civil claims in

national courts?

Should the Statute have some reference to the need to develop other new

international compensation claims fora?

What direct role can the court have in implementing a reparation regime?

A good number of delegations expressed support for the inclusion of the

issue of reparation in this section of the statute and all agreed that the

court should be concerned with this matter. Several delegations thought

reparation was not a penalty and should therefore not be in this section.

Several delegations were in favor of dealing with this issue in the

framework of the Working Group on Procedural Matters. It was also noted

that reparations had a bearing on rules of enforcement in the ILC Statute,

Part 8. 4

Conclusion :

Much of the drafting was done in informal sessions after the working group

session had identified the main views on each issue. The outcome of the

work of these informals was presented to the plenary. Thirteen Conference

Room Paper address the issues of

Imprisonment (A/AC.249/1997/WG6/CRP.2/Rev.1 and A/AC.249/1997/WG6/CRP.4)

Fines (A/AC.249/1997/WG6/CRP.5)

disqualification (A/AC.249/1997/WG6/CRP.6)

forfeiture (A/AC.249/1997/WG6/CRP.8)

reparations (A/AC.249/1997/WG6/CRP.13)

aggravating and mitigating circummstances (A/AC.249/1997/WG6/CRP.3/Rev.1)

prior detention (A/AC.249/1997/WG6/CRP.7)

applicable national legal standards (A/AC.249/1997/WG6/CRP.9)

sentences of imprisonment for multiple crimes (A/AC.249/1997/WG6/CRP.10)

legal persons (A/AC.249/1997/WG6/CRP.11)

fines and assets collected by the Court (A/AC.249/1997/WG6/CRP.12)

1 CRP 7*, Page 2, footnote 3.

2 Chairman's Text, 3 Dec. 1997

3 see CRP.8, footnote 1

4 see CRP.13, footnote 2.

UNITED NATIONS

GENERAL ASSEMBLY MEETINGS COVERAGE

Department of Public Information * News Coverage and Accreditation Service

* New York

Preparatory Committee on Establishment

of International Criminal Court

December 1997

Fifth Session

55th Meeting (PM)

L/2847

12 December 1997

PREPARATORY COMMITTEE FOR INTERNATIONAL CRIMINAL COURT

CONCLUDES SESSION: TO MEET AGAIN IN MARCH 1998

Considers Definition of Crimes, Criminal Responsibility,

Challenges to Jurisdiction, Transfer of Suspects, Penalties

The Preparatory Committee on the Establishment of an International

Criminal Court concluded its fifth session this afternoon, taking note of

texts approved by its five working groups for inclusion in the draft

consolidated text of the convention for the proposed court.

Among the texts of what it took note was a definition of war crimes,

which would include such offences as wilful killing, torture or inhuman

treatment -- including biological experiments, unlawful deportation or

confinement, and the taking of hostages. The reports of the working groups

also covered procedural matters, questions relating to international

cooperation and judicial assistance, general principles of criminal law,

and the issue of penalties.

In addition to considering the definition of war crimes, the

Committee's working group also addressed such issues as the extent of

criminal responsibility, challenges to the court's jurisdiction, the

surrender and transfer of suspects, and the question of penalties.

Also this afternoon, the Preparatory Committee adopted the

provisional agenda for its next session, to be held from 16 March to 3

April 1998. The topics to be discussed include the composition and

administration of the court, Final Clauses, and the relationship of the

court with the United Nations. The Preparatory Committee would also begin

a general review of the entire text of the court's statute.

The Preparatory Committee's next session will be its last, to be

followed by the diplomatic conference of plenipotentiaries, to be held in

Rome from 15 June to 17 July 1998. That conference will meet to finalize

and adopt a convention to establish the court, which would then be

submitted to the General Assembly.

The Preparatory Committee also noted that pursuant to the General

Assembly's 1996 resolution 51/207, the Secretary-General had established a

trust fund for the participation of the least developed countries in the

work of the Preparatory Committee and in the diplomatic conference of

plenipotentiaries. Guidelines had been established for the administration

of the Fund. The resolution also called upon States to contribute

voluntarily to the fund.

The Chairman of the Preparatory Committee, Adriaan Bos (Netherlands),

announced his intention to convene a meeting of chairmen of the various

working groups as well as the coordinators and members of the Committee's

bureau next January in Zutphen, Netherlands, to compile all the draft texts

before the Committee into a logical form.

He concluded the session by saying that many efforts had been made

by Committee members to contribute to the progress of the session. Despite

the hard work, there remained a very positive commitment to completing the

statute for the international criminal court. The work had shown how

complicated matters were, as well as the vital interests involved in

creation of the court. There was still much to be accomplished.

Throughout its sessions, the Preparatory Committee had been

developing a draft statute on the creation of an international criminal

court. In its original format, the 60-article draft statute prepared by

the International Law Commission address such elements as establishment of

the court and its relationship to the United Nations, its composition,

adminstration, jurisdiction and applicable law, investigations and the

advancement of prosecution, and issues relating to trials, appeals, and

reviews, international cooperation and judicial assistance, and

enforcement.

Introduction of Reports

ADRIAAN BOS (Netherlands), Preparatory Committee Chairman, introduced

the report of the working group on the definitions and elements of war

crimes.

PER SALAND (Sweden), introducing the report of the working group on

general principles of criminal law, said the group had concentrated mainly

on the topic of criminal responsibility, including grounds for excluding

that responsibility. At the next session, the group would discuss the role

of national law and general legal principles.

SILVIA FERNANDEZ DE GURMENDI (Arqentina), introducing the report of

the working group on procedural matters, said the group discussed

procedural matters involving the complementarity of the court in relation

to national courts. It also considered the subject of challenges to the

court's jurisdiction. The group shared the view that crimes required

further definition in the court's statute. It intended to consider such

topics as investigation of alleged crimes and procedures for collecting

evidence at the Committee's next session.

PIETER KRUGER (South Africa), introducing the report of the working

group on international cooperation and judicial assistance, said the group

had considered the surrender and transfer of suspects, as well as

provisional arrest and other forms of cooperation. It also dealt with

articles concerning limits on the uses of evidence, as well as limits on

proceedings against surrendered persons. He said the group's report

represented the highest level of compromise.

ROLF EINAR FIFE (Norway) said the report of the working group on

penalties had considered legal principles which were common to the other

working groups. With respect to penalties, it considered the question of

reparations and compensations which would be paid by convicted persons,

along with disqualification from holding public office and imprisonment.

Future Work Proqramme

Noting that its future work programme was provisional, the Chairman

said that during the first week of its sixth session, beginning 16 March

1998, the Preparatory Committee would discuss subjects which had not yet

been considered: composition and administration of the court, and Final

Clauses. The afternoons of the first week would be used to finish those

subjects left over from the present session, including procedural

questions.

During the second week, discussions would focus on establishment of

the court and its relationship with the United Nations, to be followed by a

general review of the entire text of the court's draft statute. The aim

was to identify issues that touched on several areas for which solutions

might have to be found at the diplomatic conference in Rome. The

Preparatory Committee's task was to recommend to the conference a

consolidated text of the entire statute, to facilitate its work.

At its prior session, the Committee's agenda was divided between its

working groups on trigger mechanisms and procedural matters. The group on

trigger mechanisms discussed the question of what, or which actors, could

initiate or "trigger" court proceedings -- Member States, the United

Nations Security Council and/or the Court Prosecutor.

On procedural matters, the working group presented a text on the

notification of indictment; trial in presence of the accused; proceedings

on an admission of guilt; investigation of alleged crimes; functions and

power of the trial chamber; commencement of prosecution; presumption of

innocence; rights of the accused; and the protection of victims and

witnesses.

Previously, the Committee had worked on the definition of crimes to

be adjudicated by the court and on general principles of criminal law and

penalties. It negotiated the definitions of war crimes to be included

within the court's jurisdiction, as well as general principles of criminal

law. It was also recommended that the text defining genocide and crimes

against humanity be included in the draft of the convention.

Backqround on International Criminal Court

According to the draft statute, the international criminal court will

be a permanent court with the power to investigate and bring to justice

individuals who commit the most serious crimes of concern to the

international community, such as genocide, war crimes and crimes against

humanity.

The idea of a permanent court began with the unsuccessful attempt to

establish an international tribunal after the First World War. Following

the Second World War, the Nuremberg and Tokyo war crime tribunals set the

stage for efforts to create a permanent court. It was first considered at

the United Nations in the context of the adoption of the 1948 Convention on

the Prevention and Punishment of the Crime of Genocide. Further

development of the notion was effectively forestalled through differences

of opinions for many years.

In 1992, the General Assembly directed the International Law

Commission to elaborate a draft statute for an international criminal

court. Further public interest was created by the establishment of the

International Criminal Tribunals for the Former Yugoslavia in 1993 and for

Rwanda in 1994.

In December 1994, the General Assembly established an Ad Hoc

Committee opened to all Member States and members of specialized agencies

to review the major substantive and administrative issues arising from the

International Law Commission's draft statute. The following year it

established the Preparatory Committee, with the mandate to draft a widely

acceptable consolidated text of a convention for an international criminal

court based on the Commission's draft statute.

Officers, Membership

The Chairman of the Preparatory Committee is Adriaan Bos

(Netherlands). Its Vice-Chairmen are Cherif Bassiouni (Egypt), Silvia

Fernandez de Gurmendi (Argentina), and Marek Madej (Poland). The

Rapporteur is Masataka Okano (Japan).

The Preparatory Committee is open to all United Nations Member

States, members of the specialized agencies, and members of the

International Atomic Energy Agency (IAEA).