Draft Programme of Work of the Preparatory Committee on the Establishment of an International Criminal Court
PROCEDURE
It seems appropriate to base the next round of discussions more scrupulously on the draft articles of the ILC, indicating where alternative texts may be necessary and, if need arises, elaborating those alternative texts.
Participation of international and penal law experts may be useful throughout these discussions. It seems no longer effective to provide in advance for separate discussions between penal law or other experts. Their contributions will be needed in the general discussions.
The above considerations, however, do not preclude the need for smaller groups to discuss specific issues or to prepare draft texts, but those groups can be established after a general discussion and only with a very specific mandate.
DIVISION OF WORK ACCORDING TO THE SUBSTANTIVE TOPICS
Session 1
Session I will focus on the questions of jurisdiction, definition of crimes, trigger mechanism, general rules of criminal law and complementarity
The major questions are:
- the question of the crimes to be included in the Statute of the ICC and the way these crimes have to be laid down;
- the question of the trigger mechanism, including
- the acceptance of the jurisdiction of the ICC;
- the role of the Security Council, of States Parties and of the Prosecutor;
- the bringing of cases to the ICC;
- the relationship between the ICC and national jurisdictions.
The relevant provisions of the ILC Draft Statute are:
- the preamble (complementarity);
- Part 3 (jurisdiction of the court);
- art. 20: crimes within the jurisdiction of the Court
- art. 21/22: preconditions to the exercise of jurisdiction and acceptance of jurisdiction
- art. 23: action by the Security Council
- Part 4 (investigation and prosecution)
- art. 25: complaint
- Part 5 (the trial)
- art. 33: applicable law
- art. 35: issues of admissibility
- art. 39: nullum crimen sine lege
- art. 42: non bis in idem
SESSION 2
Session 2 will focus on procedural questions and the cooperation between states and the ICC
The major questions are:
- the question of the procedure to be followed, from investigation to execution of sentences;
- the question of laying down rules in the Statute, the Rules to be adopted by states (and rules to be adopted by the ICC);
- the question of guaranteeing a fair trial;
- the question of penalties which might be imposed;
- the question of the execution of sentences.
The relevant provisions of the ILC Draft Statute are:
- Part 2 (composition and administration of the court)
- art. 19: Rules of the court;
- Part 4 (investigation and prosecution)
-artt. 26-31: investigation, prosecution, arrest, pretrial detention etc.;
- Part 5 (the trial)
- artt. 34-36: challenges to jurisdiction and admissibility;
- art. 37: trial in absentia;
- art. 38: the Trial Chamber;
- art. 40: presumption of innocence;
- art. 41: rights of the accused;
- art. 43: protection of the accused, victims and witnesses;
- art. 44: evidence;
- art. 45-46; judgement, sentencing and penalties;
- Part 6 (appeal and review)
- artt. 48-50: appeal and revision
- Part 7 (international cooperation and judicial assistance)
- art. 51: cooperation and judicial assistance
- art. 53: transfer of an accused
- art. 54: obligation to extradite or prosecute
- art. 56: cooperation with states not parties
- Part 8 (enforcement)
SESSION 3
Session 3 will focus on the establishment of the ICC, the relationship between the ICC and the UN, organizational and budgetary questions
The major questions are:
- the question of the establishment of the ICC;
- the question of establishing a relationship with the UN and the content of that relationship;
- the question of the composition and election of the Court;
- and budgetary questions.
The relevant provisions of the ILC Draft Statute are:
- Part 1 (establishment of the Court)
- art. 1: the Court;
- art. 2: relationship with the UN;
- Part 2 (composition and administration of the Court)
- art. 6: qualification and election of judges;
- art. 8: the Presidency;
- art. 10: independence of the judges;
- art. 12: the Procuracy.
N.B. It should be noted that it remains important to keep the necessary flexibility in this Programme of Work in order to achieve maximum results. This means that adaptation of the programme should remain possible in the light of the developments in the discussions.
