Programme Update

by Paul Nuty

(7 August 1995)

I write to apprise you of recent developments and activities within the International Law & Human rights Programme of Parliamentarians for Global action, specifically the following: 1)the United Nations ad Hoc Committee on an International Criminal Court (ICC); 2) Global Actions Declaration in support of an ICC; 3) the Head-of-State initiative; and 4) Global Action's cooperation with the International Criminal Tribunal for the Former-Yugoslavia on a trial observation project.

1. Un Ad Hoc Committee-International Criminal Court (ICC)

As you know, UN General Assembly resolution 49/35 created a special Ad Hoc committee whit a mandate to review the Draft Statute for an ICC and consider arrangements for convening a diplomatic conference to adopt the Statute. The opening session of the Ad Hoc committee was held from 3-13 April, and a second session will be held from 14-25 August. The committee plans to submit a report to the General Assembly at its 50th Session which will outline the next stage of negotiations and consultations for the proposed court.

Generally, observers of the Committee's opening session hold the view that progress will continue to be slow but steady. Noteworthy points are highlighted below:

There remains skepticism on the part of many countries regarding the proposed role of the Security Council. The principal objections are that 1) there is a risk of the Council expanding its power, 2) there is a risk of politicizing a judicial body, which would unacceptable, and 3) the proposals rests on very shaky legal footing with respect to international law.

On the issue of inclusion of drug trafficking and terrorism under the ICC's jurisdiction, there is a view prevailing among smaller States that inclusion would be vital to their security in light of the fact that drug cartels, in some instances, have bought off judiciaries, police forces, magistrates, etc. The point is that if the possibility of genocide, war crimes and crimes against is as remote as it is in these States, then the crimes which truly affect their security (i.e. drug trafficking) should be included; otherwise, there would be a less compelling interest for them to actively support the initiative.

Many countries commented on the "specificity" of crimes defined in the Statute, insisting that this be improved.

One possible scenario: a "minimalist" court is established -with jurisdiction over genocide, war crimes and crimes againsthumanity- and a mechanism is created for the expansion of the court's jurisdiction to include treaty crimes listed in the Statute's Annex. Expanded jurisdiction, in this view, could be timed to coincide with the development, codification and political acceptability of the Draft Code of Crimes Against Mankind, a more far-reaching effort to codify international criminal violations being developed by the International Law Commission.

It is likely that the U.S. and U.K. will NOT join a call for a diplomatic conference yet, but may agree to convening a preparatory conference in 1996, a modest but significant step. Some have suggested that if inclusion in the Statute of crimes related to drug trafficking is dropped, the U.S. will be more inclined to lend further support to the ICC initiative. The U.S. has continued to insist that it handle drug-trafficking matters bilaterally, primarily because it fears that its investigations of international drug traffickers might be jeopardized by parallel efforts of an international criminal court.

Several Global Action members have noted that, despite significant areas of disagreement among Member States on provisions in the Draft Statute, discussions on a permanent court have never progressed so far. The strategic focus, therefore, should remain on preserving the political consensus to move forward.

Priorities for action include:

1

Expanding the number of member States which take an active interest in the issue by raising the ICC at regional fora (such as the Organisation for African Unity, ASEAN, Association of Caribbean States, Arab League, South Pacific Forum, etc.). Further, key countries from each region should be identified and encouraged to take leadership on the ICC issue. At present, 78 countries have registered positions on the permanent court.

2

Targeting the United States. While some U.S. objections to the court reflect legitimate national security concerns, the Administration has hinted at some flexibility on a less comprehensive version of the ICC. Efforts should be undertaken to engage the U.S. more constructively trough delegations to meet with key Administration officials and building support in the Congress.

3

Enlisting the support of Heads-of-State (see Head-of-State initiative below).

4

keeping the ICC in the news; prepare editorials, letters-to-theeditor, and journal/magazine articles on the ICC's current status. Given the high level of exposure the Yugoslav Tribunal has received recently, any piece which links it with the longterm objective of establishing a permanent judicial body to try cases of genocide, war crimes, and crimes against humanity willbe useful.

Should you wish to obtain further information about the deliberation of the Ad Hoc Committee, please contact the Secretariat.

2Declaration in support of an ICC

As you probably know, Global Action prepared a declaration highlighting the proposed court's role in the maintenance of democracy and respect for the rule of international law. The document, drafted by Hon. A.N.R. Robinson (MP, Trinidad & Tobago), was forwarded to members of parliaments in March for signature. At present over 200 signatures have been obtained and we have recently mailed the Declaration for signature to the entire Global Action for membership to collect further signatures in the days remaining prior to the August session of the Ad-Hoc Committee.

Global Action was able to arrange for the Declaration to be submitted to the Ad Hoc Committee by the Trinidad & Tobago Government as an annex to its commentary on the Statute. This ensures that delegates to the Committee will consider the document.

If you have not received the Declaration and wish to sign it and/or circulate it among your colleagues, please contact the Secretariat. A copy will be faxed to you upon request. The deadline for signatures is 20 August.

3Head-of-State Initiative

With a view to maintaining political momentum on the permanent court initiative, Global Action will approach Heads-of-State who have expressed support for an ICC, to request that they use the platform of the 50th UN General Assembly to call for its establishment. The occasion will mark 50 years since the Nuremberg tribunals; this provides an excellent forum for Headsof-State to call attention to the opportunity before the international community. During the month of August, the Secretariat will begin identifying, in consultation with members of parliaments, Heads-of-States who may be inclined to do so. The Secretariat will prepare briefing materials which could serve as the basis of any remarks delivered by Heads-of-State. Details on this activity will be sent by fax shortly.

4Trial Observation Project

Since April, extensive work has been undertaken to develop a project in cooperation with the International Criminal Tribunal for the Former-Yugoslavia. On 2 June, a parliamentary delegation (Mr. William Powell-UK, Mr. Gianfranco Dell'Alba-Italy, Mr. Gerrit van Oven-Netherlands and myself) went to The Hague to meet with Chief Prosecutor Graham Blewitt. The purpose of the meeting was to consider a proposal to crete a network of Europeans MPs which would coordinate observation of trials - connected to the conflicts in the Former-Yugoslavia - held in national courts, and serve as a reporting mechanism to the Tribunal in The Hague. Atpresent there is no system in place to monitor national trials. Judge Goldstone noted the importance of developing one in order to ensure that fairness standards are consistently applied, and that questions of deferral to the Tribunal's jurisdiction are properly assessed.

Essentially, the idea is to create a network of European members of parliament who coordinate trial observer mission an serve as a reporting mechanism to the Tribunal in The Hague. Politically, it is a role well-suited for members of parliament as it allows them to promote the defendant's fundamental right to a fair trial, encourage the process of prosecuting individuals responsibles for massive violations of international humanitarian law in the Bosnian conflict, and engage their governments to fulfil their obligations to the Tribunal under the terms of the Tribunal's Statute.

The principal outcome of the Delegation was that Global Action received an endorsement from the Tribunal to proceed with this initiative and prepare a more detailed funding proposals. Further, Global Action's Executive Committee gave its full support to the meeting on 2325 June in New-York. At this moment, Tribunal's officials are reviewing the proposal, and will submit their comments shortly. The final version will be submitted to donors later on this month. If you are aware of any possible donors or institutions which may be interested in supporting this project, please advise the Secretariat.

In conclusion, I would invite your comments, suggestions and thought on any of the above activities and I look forward to hearing from you.