Notes courtesy of

European Law Students Association

Introduction by chairperson, Sylvia Fernandez:

Australia and France introduced their documents in the morning, these

materials will facilitate our work. Both the delegations emphasised, their

papers are not meant to be exhaustive and both the delegations are flexible

to further discussions. The Rome Statute is the main basis of our work.

First parts 5, 6 and 8 will be discussed.

1. Substantive part 5 of the Statute -- art. 53

Documentation already distributed:

L.2 - references to rules of procedure and evidence

DP. 1 - proposal by Australia - draft of rules of procedure

and evidence

DP. 2 - proposal by France - general outline

DP. 3 - working paper by France related to part 2 of the Statute

DP. 6 - working paper by France related to part 5 of the Statute

DP. 7 - working paper by France related to pre-trial phase

Documentation to be distributed next day:

DP. 8 - working paper by France - pre-trial phase continued

Initial issue: art. 53 of the Statute - decision of the prosecutor not to

proceed

Australian proposal: rules 56, 60

French proposal: rule 54

Authors asked to remind delegations of main points of rules 56, 54.1 and 54.2.

Australia: Prosecutor should be given procedural key steps and

requirements. Art. 53 deals with two different situations:

First one - the Prosecutor decides not to initiate the

investigation on the basis of art. 53, par. 1(c), in this situation the

Prosecutor shall inform the Pre-trial Chamber of his decision as soon as

possible, in writing and he or she will set out the reasons for the

decision.

The other situation - the Prosecutor decides not to continue a

prosecution

France: While the Australian proposal deals particularly with

notification, document DP.6, rule 54.1 deals with determining what kind of

evaluation shall be made, in which way the decision is to be taken. It

deals with the link between articles 15 and 53 and article 19 and article

53. Rule 54.2. which deals with notification is close to the Australian

proposal.

Delegations were then asked to give their comments on rules 56 of

Australian and to 54.1, 54.2 of French proposal.

Spain: The linkage between art. 53 and others is important. So rule 54.1

and 54.2. includes also rule 56 of Australian proposal. Still not all

necessary issues are not covered.

United Kingdom: Rules should not go against nor repeat provisions of the

Statute. Rule 54.1 repeats art. 15 of the Statute, so maybe we could go

without it. Also art. 19/3 is unnecessarily repeated. Both the proposals

Australian and French could be put together. Rule 54.2 does not

differentiate between situations under art. 13, 14 and 15. We advise to

make a special rule for each the situation

Austria: We agree with UK, 54.1 is self-evident, already expressed in

art.15 and art.19. We are not sure whether it would be possible to inform

victims at this stage. Rules 54.2 and 56 could be put together.

Germany: We agree with UK. The Rules should neither be too short nor too

repetitive. 54.1 is at least partly repetitive. In 54.2 France has a good

point in notifying the States and the Security Council.

Colombia: It would be good to put both the proposals together. It is very

relevant to inform victims so that they have opportunity to be represented

.

Cameroon: It would be useful to make a drafting group so that we can make a

sort of consolidated text to avoid ping-pong aspect of the procedure.

Syria: Rules of procedure and Evidence are not to amend the Statute.

Amending would be undermining of the Statute. Rules must be compatible with

the Statute. If not, the Statute must prevail. Rules should not be

repetitive. We must define exactly our starting point.

Greece: As to 54.1, we agree with UK. As to 54.2, we agree that also the

States and Security Counsel should be informed.

Malawi: As to 54.1, we agree with UK. As to 54.2 we have some doubts about

par. c.

France: Art. 15 and art. 53 involve the same kind of evaluation. Rule 54.1

is a little bit repetitive.

Next issue

Australian proposal: rule 60

French proposal: rule 54.3

Australia: We want to draw attention to the last sentence of art. 53.2, we

believe there is no need to repeat it.

France: The Australian view is very close to ours. We prefer to express

explicitly obligation to inform all who made referrals to court. The

decision of the Prosecutor should be given with reasons explained. In

accordance with art. 68/3 victims should have the possibility to

participate in all stages of proceedings when their interests could be

affected, that's why in this situation victims and their legal advisers

should be informed as well. Question of victims needs much more further

thoughts.

China: The rule 60 should also involve obligation for the Prosecutor to

inform of the reasons of his or her decision.

United Kingdom: The two proposals are very close to each other, should be

joined.

Austria: Prosecutor should inform those who can ask for review. We agree

with China, though maybe a bit repetitive, it is useful. Victims and their

legal representatives should be informed too.

Russian Federation: The need to give the reasons should be clear. As to

the position of victims, let us not forget that the court should serve the

victims.

Japan: The rule 60 should also contain the obligation to give the reasons.

Republic of Korea: Rules should fully respect the Statute but not repeat

it. Victims should be also informed, as French document proposes.

Colombia: Not only those who give the Prosecutor information but all the

victims and their legal representatives should be informed.

Fuji: Support the French proposal.

Malawi: The obligation to inform victims expressed in rule 54.3 would cross

the frame of the Statute. Could we not put it to rules to article 68?

Conclusion by chairperson:

Further analysis is needed. Many delegations expressed doubts about

necessity of rule 54.1. Rules 54.2 and 56 could be merged together.

Paragraphs 54.2 and 54.3 should be kept separate because they deal with

different procedural moments. Many delegations would prefer rule 60 to

involve obligation to explain also reasons of the decision. Question of

victims will need further thoughts.

Next issue

Australian proposal: rules 57, 58, 61, 62

French proposal: rules 55, 56

Chairperson: Let us discuss this issue separately in two parts:

1. review requested by Security Counsel or by the State

2. review of Pre-trial Chamber on its own initiative

Australia briefly recaps content of rules 57 and 61, France of rule 55.1, 55.2.

France: We made an extremely detailed proposal because this is a crucial

stage where exchange of information is needed while transparency as well as

necessary confidentiality must be respected. Not only the Prosecutor but

also all the other parties concerned should be given the chance of oral

hearing. The Pre-trial Chamber should decide by majority from three judges.

Cote d'Ivoire: How shall we calculate the three month period? Is it from

the date of sending out the decision or receiving the decision?

New Zealand: Agree with the explicit time limit. The State who requests

should be heard also.

Colombia: It should be clear that there is no obligation to request but if

requesting then in writing. As to rule 51, par. b, if the notification was

good than the state already knows all what is needed. Only a newly founded

information could be asked for.

Egypt: The two proposals should be merged. Decision of the Pre-trial

Chamber should be mandatory and not optional.

United Kingdom: Art. 53 of the Statute makes the decision mandatory, so the

Australian proposal follows the Statute better. French proposal makes very

important addition, which is the time limit regime. Rules should make the

review procedure clear and speedy but rule 55.1/b of the French proposal

would make it lengthy and expensive.

Spain: French proposal departs a bit from the spirit of the Statute.

Statute makes only the Prosecutor party of a process. If also victims etc.

could get involved it would cause imbalance.

Senegal: Let us set a precise time limit to the response under rule

55.1/d, last sentence. We support that under the rule 55.2 the Pre-trial

Chamber decides by majority of judges comprising the Chamber.