To: NGO Coalition for an International Criminal Court

NGO Committee on the Sixth Committee

Other interested parties

Fr: William R. Pace, WFM-IGP

Date: November 17, 1995

Re: 1. Update on ICC negotiations

2. Notice about enclosed document

Update

On Friday, November 17, 1995, the General Assembly

Sixth (Legal) Committee held a third "informal" [off-the-

record, closed-door] meeting to discuss the draft

resolution which would create a preparatory committee to

draft a consolidated text of a statute for submission to a

conference of plenipotentiaries. The proposed

preparatory committee will meet for six weeks in 1996 -

tentative dates are from 25 March to 12 April and 12-30

August. The stalemate continues between the majority of

States who support the draft resolution and countries who

oppose creating a "preparatory committee" and who

generally would like to slow down and weaken the

resolution and process.

Some countries (including China, Cuba, Kenya, India) are

still expressing opposition to the resolution. This week

the Coalition lobbied and sent letters to the UN

Ambassadors from Mexico, India, and Thailand. On

Friday, for the first time Mexico did not speak against the

resolution. Also, reportedly for the first time in informals,

the US stated it could "live" with the resolution, but

apparently proposed changing establishing a "preparatory

committee" to "preparatory process". This and a number

of other formulations were debated. However, the Chair

reportedly resisted agreeing to prepare another draft.

The Chair, Mr. Lehmann of Denmark, had reissued on 10

November the original draft which included slight

grammatical changes, proposed prepcom dates, a new

paragraph (4) encouraging State participation and

universal support, and a "go slow" paragraph submitted

by China in the preamble, but no substantive changes to

the decision paragraphs. Most countries seem willing to

accept the China paragraph since it does not change the

decision to proceed to a preparatory and

drafting stage. However, China and the other opponents

still want more weakening amendments.

Some countries say the final agreement could include

eliminating the reference to establishing a preparatory

committee in the first sentence of the decision, but

retaining references to the preparatory committee in the

rest of the resolution.

Coalition members are encouraged to contact

governments, especially the U.S. and those opposing the

draft resolution, and encourage them to accept the

overwhelming consensus in favor.

Notice about documents:

Attached to this update is a copy of the draft resolution

[with recent additions by Chairman Lehmann] and the

draft work plan for the preparatory committee submitted

by Adriaan Bos, the former Chair of the Ad Hoc Committee

on the Establishing an International Criminal Court.

These documents have been uploaded to our APC un.icc

conference, as well as a formatted matrix document

describing country positions based upon their statements

October 30 - November 6, 1995. The country position

matrixes/papers are compiled by consultation among NGO

Coalition members, are not official, and we welcome any

additional information, corrections or amendments.

We hope to have the report of the Ad Hoc Committee,

select copies of country statements, and other official

documents uploaded during the next two weeks. Also,

key documents and markers will be uploaded to the new

World Wide Web page we helped create for the

International Criminal Tribunals on the Former Yugoslavia

and Rwanda as we have a 'click-on' to the ICC negotiations

on this Internet resource.

Coaliton Copy

(Draft Resolution Prepared by the Former Chair of the Ad

Hoc Committee on Establishing an International Criminal

Court and amended by the Sixth Committee Chair)

The General Assembly,

Recalling its resolution 47/33 of 25 November 1992, in

which it requested the International Law Commission to

undertake the elaboration of a draft statute for an

international criminal court,

Recalling also its resolution 48/31 of 9 December 1993;

in which it requested the International Law Commission

to continue its work on the question of the draft statute

for an international criminal court, with a view to

elaborating a draft statute for such a court, if possible at

the Commission's forty-sixth session in 1994,

Recalling also that the International Law Commission

adopted a draft statute for an international criminal court

at its forty-sixth session and decided to recommend that

an international conference of plenipotentiaries be

convened to study the draft statute and to conclude a

convention on the establishment of an international

criminal court,

Recalling also its resolution 49/53 of 9 December 1994,

in which it decided to establish an ad hoc committee open

to all States Members of the United Nations or members of

specialized agencies to review the major substantive and

administrative issues arising out of the draft statute

prepared by the International Law Commission and, in the

light of that review, to consider arrangements for the

convening of an international conference of

plenipotentiaries,

Added by China

Noting also that the States participating in the

ad hoc committee on the establishment of an

international criminal court still have different

views on major substantive and administrative

issues arising out of the draft statute prepared by

the International Law Commission and that,

therefore, further discussions are needed for

reaching consensus on the above issues in the

future,

Noting that the ad hoc committee on the establishment

of an international criminal court has made considerable

progress during its sessions on the review of the major

substantive and administrative issues arising out of the

draft statute prepared by the International Law

Commission,

Noting also that the ad hoc committee on the

establishment of an international criminal court is of the

opinion that issues can be addressed most effectively by

combining further discussions with the drafting of texts,

with a view to preparing a consolidated text of a

convention for an International Criminal Court as a next

step towards consideration by a conference of

plenipotentiaries,

Noting also that the ad hoc committee on the

establishment of an international criminal court

recommends that the General Assembly take up the

organization of future work with a view to its early

completion, given the interest of the international

community in the establishment of an international

criminal court,

Noting also that the ad hoc committee on the

establishment of an international criminal court

encourages participation by the largest number of States

in future work in order to promote universality,

Expressing deep appreciation for the renewed offer of

the Government of Italy to host a conference on the

establishment of an international criminal court,

1. Welcomes the report of the ad hoc committee on

the establishment of an international criminal court,

including the recommendations contained therein and

expresses its appreciation to the ad hoc committee for the

progress made;

2. Decides to establish a preparatory committee open

to all States Members of the United Nations or members of

specialized agencies or of the IAEA, to discuss further the

major substantive and administrative issues arising out of

the draft statute prepared by the International Law

Commission and to draft texts, with a view to preparing a

consolidated text of a convention for an International

Criminal Court as a next step towards consideration by a

conference of plenipotentiaries; and decides that the work

of the preparatory committee should be based on the

draft Statute of the ILC and should take into account the

report of the ad hoc committee and the written comments

submitted by States to the Secretary-General on the draft

statute for an international criminal court pursuant to

operative paragraph 4 of resolution 49/53 of 9 December

1994 and, as appropriate, contributions of relevant

organizations.

3. Also decides that the preparatory committee will

meet from 25 March to April 12 1996 and from 12 to 30

August 1996, and submit its report to the General

Assembly at the beginning of its fifty-first session, and

requests the Secretary-General to provide the preparatory

committee with the necessary facilities for the

performance of its work;

4. Urges participation in the preparatory committee

by the largest number of States in order to promote

universal support for an international criminal court;

5. And decides to include in the provisional agenda of

its fifty-first session an item entitled "Establishment of an

international criminal court", in order to study the report

of the preparatory committee and to decide on the

convening of an international conference of

plenipotentiaries to finalize and adopt a convention on the

establishment of an international criminal court, including

on the timing and duration of the conference.

[Note: Following is a scanned copy of the draft program of

work for the proposed preparatory committee. The

program was prepared by Mr. Adriaan Bos, Legal Advisor

of The Netherlands, former Chair of the Ad Hoc Committee

on Establishing an International Criminal Court. As of this

writing, Nov. 8, 1995, the Sixth Committee is considering

conducting six weeks of negotiations in 1996 in either 2 or

3 meetings.]

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

l. 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

2. 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, pre

trial 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;

. artt. 45-46: judgment, 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)

3. The establishment of the ICC, the relationship

between ICC and the UN, organizational and budgettary

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 budgettary 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.

The copies 1, 2 and 3 will be discussed subsequently.

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.