AD HOC COMMITTEE ON THE (Informal paper No. 5/Rev.2)
ESTABLISHMENT OF AN
INTERNATIONAL CRIMINAL COURT
RECOMMENDATIONS OF THE BUREAU CONCERNING
THE WORK OF THE AD HOC COMMITTEE DURING THE PERIOD:
14 - 25 AUGUST 1995
The Bureau recommends that the Ad Hoc Committee should focus its attention on the following list of issues which does not prejudge the position of any delegation or preclude the consideration of other issues:
I. Complementarity
1. Principle of complementarity
(a) question of reflecting the principle in an operative
provision of the statute
(b) relationship to national jurisdiction
the extent to which primacy of national jurisdiction
legitimately exercised should be preserved.
(c) clearer definition of that principle in relation to the
relevant provisions of the statute
(i) the consequences for jurisdiction, including the
crimes to be covered and the distinction between more
or less serious crimes
(ii) the consequences for admissibility: the question
of reflecting the principle as a condition in relation to
the exercise of jurisdiction in every case rather than as
a discretionary power to be exercised in certain cases
(iii) the consequences of the principle with respect to
the consent requirements, the trigger mechanism, national
investigations and proceedings, and the non bis in idem
principle
(iv) impact on international judicial cooperation
II. ISSUES PERTANING TO JURISDICTION
2. Applicable law and jurisdiction of the Court
(a) The question of the crimes to be covered by the statute
(i) genocide
(ii) aggression
(iii) serious violations of the laws or customs
applicable in armed conflict
(iv) crimes against humanity
(v) treaty crimes under paragraph (e) of article 20
(vi) the question of adding to paragraph (e) the
convention on the Safety of United Nations and
Associated Personnel or other relevant instruments
(b) Specification of crimes (definitions, elements and penalties)
(i) genocide: whether the relevant convention provides
a sufficient basis for defining this crime or whether
the definition requires further elaboration
(ii) aggression: whether conventional or customary law
provides an adequate basis for defining this crime for
purposes of determining individual criminal
responsibility
and the question of the role of the Security Council in
relation to this crime
(iii) serious violations of the laws or customs
applicable in armed conflict: clarification of the term
"serious" and the content of such violations under
customary or conventional law and the relationship
between "serious violations" and grave breaches of the
Geneva Conventions
(iv) crimes against humanity: the question of elaborating
a definition of such crimes that would take into account
the existing texts, provide an appropriate qualitative
criterion (e.g., large-scale and systematic violations)
and indicate whether the definition would apply to
situations other than armed conflicts.
(v) treaty crimes under the crimes under paragraph (e) of
article 20: the question of whether the crimes should be
defined by means of elaboration in the statute or by
reference to the relevant treaties
(vi) penalties:
--the type of penalties to be imposed by the court
(death penalty, imprisonment, fines or alternatively
imprisonment, restitution or other apropriate measures)
--the question of elaborating a general range of maximum
and minimum penalties or specific penalties for each of
the crimes in the statute or, alternatively, identifying
the national law to be applied
(c) General rules of criminal law.
(i) identifying the general rules of criminal law that
would be relevant to the functioning of the court
--the principle of individual criminal responsibility
(command responsibility, responsibility for participation
in a group, responsibility of decision makers as
distinguished from the responsibility of the
perpetrators, mental element required for the different
crimes, conditions for exoneration, defenses and mental
capacity)
--evidentiary and procedural rules
(ii) whether to include such rules in the statute or to
identify the rules of national law to which the court is
to have recourse
3. Exercise of jurisdiction
(a) Inherent jurisdiction
(b) State consent requirements
(i) territorial State
(ii) custodial State
(iii) State of nationality of the accused
(iv) State of nationality of the victim
(v) State which was the target of the crime
(c) Mechanism by which States accept the jurisdiction of the
Court
(d) Trigger mechanism
(e) Role of the Security Council
(f) the question of considering different approach for different
categories of crimes
(g) Statute of limitations.
III. METHODS OF PROCEEDINGS
4. Due process
(a) Trial procedures, including measures to ensure fair trial
(b) Trial in absentia
(c) Qualifications for and competence of defence counsels
(d) Rights of suspects, defendants and witnesses
(e) non bis idem
(f) Rules of the Court
(g) Admissibility
(h) Powers of the Prosecutor
(i) Powers of the Presidency
(j) Imposition of penalties, aggravating or mitigating
circumstances, parole, pardon, probation, commutation of
sentences, transfer of execution of sentences
IV. RELATIONSHIP BETWEEN STATES PARTIES, NON-STATES PARTIES
AND THE INTERNATIONAL CRIMINAL COURT
5 International cooperation and judicial assistance (including pre-trial
detention and enforcement of sentences)
6. Cooperation between States parties and the court (including national
investigations, judicial proceedings and extradition or surrender)
7. Effects of judgements (non bis in idem)
V. BUDGET AND ADMINISTRATION
8. Discussion on the basis of the preliminary report by the Secretary General of provisional estimates of staffing, structure and costs of the establishment and operation of the court
VI. MISCELLANEOUS
9. Relationship between the Court and the United Nations
* * *
The Bureau further recommends to reestablish an open-ended Working Group to consider issues relating to due process (including the rules of the court) and, in addition, the relationship between States parties, non-Stats
tes parties and the court.
