m.goetz-quintana@agora.stm.it

Contents:

1. Review of the United Nations Preparatory Committee for the International Criminal Court

i) General Remarks

ii) Elements of Crimes

iii) Rules of Procedure and Evidence

2. Up-coming meetings on the ICC

i) Seminar on Victims, organised by the French Ministry of Foreign Affairs

ii) Siracusa 'Intersessional Meeting'

iii) SADC Meeting

3. Update on Signatures and Ratifications

1. Review of the United Nations PrepCom

i) General Remarks

The Statute and its corrections: a document (CN 577.1998.TREATIES-8 (Annex)) was circulated containing a first round of corrections to the Statute. Further corrections are still being made - a final version will be only available at the next PrepCom in July 1999. (For instance, Article 21 on Applicable Law does not contain "Elements of Crimes" in the French version)

Mandate of the PrepCom:

The Preparatory Commission was established in accordance with Resolution F of the Final Act adopted by the Diplomatic Conference in Rome on 17 July 1998. The Preparatory Commission held its first session at the UN Headquarters in NY from 16 to 26 February in accordance with the General Assembly Resolution 53/105 of December 8 1998. The following sessions of the Preparatory Commission in 1999 will be: 26 July to 13 August and from 29 November to 17 December. Resolution F stipulates that the Preparatory Commission shall complete the "Rules of Procedure and Evidence" as well as the "Elements of Crimes" before 30 June 2000. The Final Act is available on the UN website at: http://www.un.org/law/icc/index.htm or can be sent by email by NPWJ on request.

Other work to be carried out by the PrepCom (as stipulated in Res F) includes: a relationship agreement between the Court and the United Nations, the Basic principles governing a headquarters agreement, Financial regulations and rules, An Agreement on the privileges and immunities of the Court, A budget for the first financial year and the Rules of Procedure of the Assembly of State Parties.

The PrepCom was opened by Kofi Annan - his speech is available from NPWJ on request.

The Like-Minded group of States, chaired by Australia and now counting over 60 States, continued to meet in the Preparatory Commission as in Rome and in the Pre-Rome phase. They adopted a 6 point list of criteria for membership - similar to those proposed by the NGO Coalition at a lunch on Wednesday 17 February hosted by the Mission of Germany to the United Nations. The criteria refer mainly to political will to sign and ratify and complete the work of the Preparatory Commission in line with Resolution F.

The Preparatory Commission appointed its chairman and vice-chairmen (who together constitute the "bureau" of the PrepCom). The Chairman is Philippe Kirsch (Canada) and Vice-Chairmen include Amb.Mohamed Sacirbey (Bosnia and Herzegovina) the Ambassador of Trinidad and Tobago. Mr. Suleimat, from Jordan was appointed Rapporteur. The Coordinators of the working Groups on Rules of Procedure and Evidence (RPE) and Elements of Crimes (EC) are Silvia Fernandez de Guermendi (Argentina) and Herman von Hebel (Netherlands) respectively.

During the Plenary Session of the last day of the PrepCom, Philippe Kirshe appointed "Contact Persons" on various fields covered by resolution F. In his summing up, he concluded that though the general atmosphere was positive and much progress was achieved, the PrepCom had already consumed 25% of the time allocated, and had only completed 12.5% of the work. These contact persons will act as "Ambassadors" of the Chairman in order to make headway on the many issues to be covered, through informal bilateral discussions with delegations.

Iroshi Karamnra from Japan:

- Draft text for Financial Regulations and Rules (Res F, subpara e)

- Draft budget for 1st year (Res F, subpara g)

- Rules of Procedure of the Assembly of States Parties (Res F, subpara h)

Christian Marchera - Chile

- Draft Relationship Agreement between the Court and UN (Res F, subpara c)

- Draft text of basic principles of the Headquarters Agreement (Res F, subpara d)

- Draft agreement on the Privileges and immunities (Res F, subpara f)

- Address para 4 of GA Resolution 53/105: "to discuss ways to enhance the effectiveness and acceptance of the Court".

ii) Elements of Crimes

The basis of discussion was the US paper on the elements of crimes. By way of background, it must be noted that in seeking compromises, which may have been susceptible of bringing the USA on board at the Rome Conference, it was agreed that a document on the Elements of Crime would "assist" the judges.

Status of the Elements: formal discussions on the status of the elements has been avoided so far - and seems to be a point of real contention for a number of delegations. The Coordinator on the Elements has made it clear that a start should be made at the content of the elements first, though it seems that the actual status will have to be addressed at the next PrepCom. The US paper begins with "General Comments". Work on this Introduction to the document will eventually clarify the ambiguities in the Statute as to whether the Elements are binding or not, and their actual status. A number of delegations expressed that they were opposed to the inclusion of Elements at the Rome Conference, but discussions were very constructive nonetheless. Repeatedly delegations confirmed the view that the Elements must not deviate from the Statute. Though the US paper follows the Statute closely in structure, and in its "General Comments" it claims that "they do not change the definition of any offence; they do not alter the

jurisdiction of the Court and they are consistent with the Statue", a mere glimpse at the proposed definitions can hardly be said to support these statements. Thus, a number of delegations stated that the US paper was riddled with contradictions and the second section named "Terminology" was an attempt to amend the Statute.

The PrepCom did not address the first two sections of the US paper (General Comments and Terminology) and begun with the elements of Genocide. (Article 6 of the Rome Statute)

The Statute (as well as the Genocide Convention) defines genocide as: "Any of the following acts committed with the intent to destroy, in whole or in part, a national, ethnical, racial or religious group" and then goes on to list the acts (Killing members of the group, causing serious bodily or mental harm to members of the group etc.). What distinguishes genocide from any other crime is its special intent requirement: the accused must be proved to have intended to destroy the group, in whole or in part. Until now this has been extremely hard to prove - only recently in the Rwanda Tribunal's judgement on Akayesu (3 September 1998) was a judgement of genocide passed.

The most significant addition to the definition made in the US paper implies that, for a crime to amount to genocide, not only is it necessary to prove that the accused intend to destroy the group, but in addition, that he carried out the acts "in conscious furtherance of a widespread or systematic policy or practice aimed at destroying the group". This language is used for the definition of Crimes Against Humanity, not Genocide and would mean that the accused had to be aware of a wider policy of genocide, and act in furtherance of this wider policy. As the delegate from Syria clearly put it: "this language is a widespread and systematic deviation from the Rome Statute!" , clearly narrowing the definition of the Genocide Convention. The US's concern was the possibility of isolated acts amounting to genocide: in theory, a single person committing any of the listed acts, with that special intention of destroying the group (in whole or in part) could amount to an act of genocide. However, in practice it has bee

n accepted that a widespread commission of acts may count as evidence of the accused's intention to destroy the group, and therefore it has been virtually inconceivable that genocide could be proved unless there were multiple acts of a widespread nature.

A compromise was reached in informal discussions addressing the US concerns: in addition to the special intent requirement (to destroy a group in whole or in part), "the accused knew, or should have known that the conduct would destroy, in whole or in part, such group, or that the conduct was part of a pattern of similar conduct directed against that group." Thus, the mens rea or mental element has been raised by adding the extra subjective element of whether "the accused knew or should have known".

Crimes Against Humanity (Article 7 of the Rome Statute) were not addressed at all during the PrepCom.

Discussion continued with War Crimes: article 8 of the Rome Statute. Article 8 is divided into 4 main parts 8(2)(a), (b), (c) and (d). Only the first part (a), on "Grave Breaches" was covered by this PrepCom, producing a "Rolling Text" for further discussion. (PCNICC/1999/LWGEC/RT)

8(2)(a) covers "Grave breaches of the Geneva Conventions of 1949, namely, any of the following acts against persons or property protected under the provisions of the relevant Geneva Convention: (i) Wilful killing; (ii) Torture or inhuman treatment, including biological experiments; (iii) Wilfully causing great suffering, or serious injury to body or health; (iv) Extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly; (v) Compelling a prisoner of war or other protected person to serve in the forces of a hostile Power; (vi) Wilfully depriving a prisoner of war or other protected person of the rights of fair and regular trial; (vii) Unlawful deportation or transfer or unlawful confinement; (viii) Taking of hostages."

The US paper again was the basis for discussion. Apart from some "misquotes" from the Rome Statute, like 8(2)(a)(i) "War Crime of Murder" rather than "wilful killing"1, the US text followed closely the structure of the Rome Statute, providing an article on each subparagraph. Each article being again broken down into its own subparagraphs constituting the elements to each crime. A number of language deviations were brought in line with the Rome Statute language, however, in the course of the compromises made, some new elements do appear.

A recurring element in the US paper, of much concern and subject of debate, was the introduction of the phrase: "the acts were committed without, and the accused knew they were committee without, lawful justification or excuse." implying that the accused had to know that the acts committed were unlawful. Justifications or "excuses" are covered elsewhere in the Statute, under Art. 31 "Grounds for excluding criminal responsibility", Article 32 "Mistake of fact or mistake of Law" and Article 33 "Superior Orders". These provisions deal with "justifications and excuses" in detail, and, in particular, under "Mistake of Law" it is explained that "a mistake of law, may however, be a ground for excluding criminal responsibility if it negates the mental element required by such a crime". The US proposal in fact raises the "mental element required": he must have known that the acts were unlawful. Thus, the US proposal gives an entirely different meaning to this provision and raises the requirement for guilt of war c

rimes.

The compromise text, resulting from informal discussions, separates the issue of a mistake of fact (the accused did not know that these people were "protected persons under the Geneva Conventions") from mistake of law (the accused did not know of the existence of the Geneva Conventions or that under international law his acts were "unlawful"). The language used for the war crime of "wilful killing" now reads: 1. The Conduct took place in the context of and was associated with an international armed conflict. 2. The accused killed one or more persons. 3. Such persons were protected under one or more of the Geneva Conventions of 1949 and the accused was aware of the factual circumstances that established this status.2

iii) Rules of Procedure and Evidence (RPE)

Australia and France submitted papers for discussion. The Australian paper covers the entire Statute. A number of their proposals are "skeleton proposals", merely titles of articles which need to be elaborated. The French delegation introduced a number of papers targeting Parts 2 and 5 of the Statute to supplement and provide further basis for discussion. By way of background, it is important to note that the introduction of a Pre-Trial Chamber into the pre-Rome negotiations was a primary concern of France, in order to provide a check on the powers of the independent Prosecutor, able to initiate investigations 'propio motu'. Thus, it is their continuing concern to see through the workings and relationship of the Prosecutor and Pre-Trial Chamber in the pre-Trial phase. Hence, the number of proposals made by France in order to flesh out the procedures involved, ensuring serious checks on the independence of the Prosecutor.

The first "cluster" of issues discussed covered the Pre-Trial phase, namely issues arising out of article 53 "Initiation of an investigation", outlining the procedural steps to be undertaken in the case that the Prosecutor decides to carry out an investigation or not: The decision and notification of decisions taken by the Prosecutor; the Procedure to be followed in the event of an application for review of a decision not to investigate or not to engage proceedings; Supervision by the Pre-Trial Chamber of the Prosecutor's decisions, based on the interests of Justice.

Closure of the Pre-Trial Phase was also discussed, particularly confirmation proceedings generally and confirmation hearings in the absence of the person charged (article 61(2) of the Statute).

There were also substantive discussions on the Conduct of the investigation and proceedings, namely issues regarding the collection of evidence and Disclosure of Evidence.

The coordinators produced two informal "Working Papers" following a first set of informal discussions, which then became the basis for further informals. The final "Discussion Paper" proposed by the Bureau as a "rolling text" will be discussed further at future PrepComs: PCNICC/1999/WGRPE/RT.4

2. Up-coming meetings on the ICC

i) Intergovernmental Regional Caribbean Conference for the Signature and Ratification of the International Criminal Court

Co-organised by the Ministry of the Attorney General of Trinidad and Tobago and No Peace Without Justice: 15 - 17 March 1999, Port of Spain, Holiday Inn Hotel. It is hoped that the representatives of the 12 CARICOM States will formally take a decision to sign the ICC Statute at the Closing Ceremony (if they have not already signed). The Conference will cover contentious issues of the ICC Statute, implementing legislation necessary in CARICOM States and Ratification of the ICC Statute.

ii) Seminar on Victims, organised by the French Ministry of Foreign Affairs

The French Government will be holding a Seminar on "Victims' access to the International Criminal Court" in order to make some progress in the discussions on victims' rights under the Rules of Procedure and Evidence of the Court. It will be led by about 40 experts representing all regions and juridical traditions: 27 to 29 April 1999.

State delegations, intergovernmental and non-governmental organisations may obtain additional information on the organisation and holding of the seminar by writing to the Ministère des Affaires Etrangères, Direction des Affaires Juridiques, 37 Quai d'Orsay, 75007 Paris, France. The Contact person is Mr. Ronan Le Clerc who can be reached after March 1st at:

Tel: +33-1-43 17 53 23 or +33-6-60 66 80 66

Fax: +33-1-43 17 43 59

iii) Siracusa 'Intersessional Meeting'

A possible intersessional meeting may take place in June 1999 at the Siracusa Institute: "Istituto superiore Internazionale di Scienze Criminali (ISISC)

iv) SADC Meeting

A SADC (Southern African Development Committee: 14 States) Meeting has been fixed for the month of June 1999. The Meeting will cover domestic legislation required in SADC States in order to implement the ICC Statute, common position for SADC on issues before the upcoming Preparatory Commissions and the production of a "Ratification Kit" for the SADC States.

3. Update on Signatures and Ratifications

1 Ratification: The Republic of Senegal

In honour of the Republic of Senegal, NPWJ organised a reception on 26 February 1999, the last day of the Preparatory Committee, to congratulate the government of Senegal, represented by H.E. Ambassador Ibra Deguene Ka, Permanent Representative of the Republic of Senegal to the United Nations.

76 Signatories to the ICC Statute as of 4 March 1999

New Signatories: Bulgaria, Haiti (February 1999)

1. Albania 18 July 1998

2. Andorra 18 July 1998

3. Angola 7 October 1998

4. Antigua and Barbuda 23 October 1998

5. Argentina 8 January 1999

6. Australia 9 December 1998

7. Austria 7 October 1998

8. Belgium 10 September 1998

9. Bolivia 17 July 1998

10. Bulgaria 11 February 1999

11. Burkina Faso 30 November 1998

12. Burundi 13 January 1999

13. Cameroon 17 July 1998

14. Canada 18 December 1998

15. Chile 11 September 1998

16. Colombia 10 December 1998

17. Congo(Brazzaville) 17 July 1998

18. Costa Rica 7 October 1998

19. Cote d'Ivoire 30 November 1998

20. Croatia 12 October 1998

21. Cyprus 15 October 1998

22. Denmark 25 September 1998

23. Djibouti 7 October 1998

24. Ecuador 7 October 1998

25. Eritrea 7 October 1998

26. Finland 7 October 1998

27. France 18 July 1998

28. Gabon 22 December 1998

29. Gambia 7 December 1998

30. Germany 10 December 1998

31. Georgia 18 July 1998

32. Ghana 18 July 1998

33. Greece 18 July 1998

34. Haiti 26 February 1999

35. Honduras 7 October 1998

36. Hungary 15 December 1998

37. Iceland 26 August 1998

38. Ireland 7 October 1998

39. Italy 18 July 1998

40. Jordan 7 October 1998

41. Kyrgyzstan 8 December 1998

42. Lesotho 30 November 1998

43. Liberia 17 July 1998

44. Lichtenstein 18 July 1998

45. Lithuania 10 December 1998

46. Luxembourg 13 October 1998

47. Macedonia - FYROM 7 October 1998

48. Madagascar 18 July 1998

49. Mali 17 July 1998

50. Malta 17 July 1998

51. Mauritius 11 November 1998

52. Monaco 18 July 1998

53. Namibia 27 October 1998

54. Netherlands 18 July 1998

55. New Zealand 7 October 1998

56. Niger 17 July 1998

57. Norway 28 August 1998

58. Panama 18 July 1998

59. Paraguay 7 October 1998

60. Portugal 7 October 1998

61. Samoa 17 July 1998

62. San Marino 18 July 1998

63. Senegal 18 July 1998

64. Sierra Leone 17 October 1998

65. Slovakia 23 December 1998

66. Slovenia 7 October 1998

67. Solomon Islands 3 December 1998

68. South Africa 17 July 1998

69. Spain 18 July 1998

70. Sweden 7 October 1998

71. Switzerland 18 July 1998

72. Tadjikistan 30 November 1998

73. United Kingdom 30 November 1998

74. Venezuela 14 October 1998

75. Zambia 17 July 1998

76. Zimbabwe 17 July 1998

1 Other such discrepancies were: "the act took place in the course of international armed conflict" rather than using the words "conduct" and "context". The Rolling Text language uses "the conduct took place in the context of and was associated with an international armed conflict". Another example is the use of "intended to kill [...] combatants placed hors de combat", which is language used for internal armed conflict; the Rolling Text language uses : "such persons protected under one or more of the Geneva Conventions".

2 A footnote gives further clarification: "This element specifies the requisite factual knowledge while clarifying that ignorance of the Geneva Conventions is not an excuse".