PREPARATORY COMMITTEE ON THE ESTABLISHMENT OF AN INTERNATIONAL CRIMINAL COURT

Report: August 12, 1996

Morning Session

1. Draft working paper on the Rules of Evidence and Procedure by Australia and the Netherlands.

2. Draft statute for ICC from the French Delegation.

3. Draft working paper on Applicable Law and General Principles of Criminal Law by the Canadian delegations.

4. Draft working paper on International Cooperation and Judicial Mutual Assistance from South African and Lesotho delegations.

The afternoon session will begin the discussion on procedural questions associated with Article 25 as outlined in Annex 2 of the Bureau timetable.

Afternoon Session

When necessary the Plenary can convert into working groups. The difference is that working groups will keep no records. Chairman Bos outlined the following schedule for the rest of the week:

Monday afternoon and Tuesday: question of procedure. Authors of papers on procedure will consolidate text.

Wednesday morning: Session with representatives of the Prosecutors Office of the international Criminal Tribunal for the Former Yugoslavia. allows the PrepCom to learn from the experience of the Tribunal. Closed session.

Wednesday afternoon and Thursday morning: General Principles of Criminal Law. Informal group chaired by Sweden in the last session will resume their work and include new documents in a consolidated text.

Thursday afternoon: Cooperation between ICC and National Jurisdictions. South Africa and others should work on consolidating texts.

India had concerns that not all the delegations had the human resources to attend all the working groups. Therefore, the work of these groups should not be considered advanced drafting and delegations should be given time to digest the products of the working groups. The United States was concerned that the three working groups of restricted memberships are to consider texts which many delegations might not have seen. It is important that there be a chance for discussion of these issues.

There was some discussion as to what exactly the working groups would be doing. Chairman Bos clarified that the working groups are to consolidate texts so that the Plenary can then discuss the issues based upon the consolidated texts.

Discussion of Article 25

Article 25 deals with the procedure by which a State party nay lodge a complaint with the court. the question discussed is whether the ILC draft requires further elaboration as to the preconditions and requirements of a complaint.

Australia: Art. 25(3) needs further elaboration as to the contents of complaints required, such as basis of jurisdiction, circumstances of crime, location of evidence, identification and location of suspects and witnesses.

Austria: Need mandatory requirements for content of complaints. This will Prevent frivolous complaints. Gives Prosecutor information needed for indictment.

Thailand: Elaborate the requirements in Art. 25(3) and make them compulsory. Contents of ILC draft are acceptable, but delete phrase "as far as possible."

France: General comments on procedure: (1) anything related to procedure should be in statute or annex adopted by states party, (2) ILC draft does not give enough space to sources of law from civil code countries (see issues involving hearings and role of judges).

Comments on Art. 25: (1) ILC draft sets up two systems, one for genocide and one for other crimes. there should be one system for all crimes. (2) Should be two trigger mechanisms, one for states and one for Security Council. (3) When complaint by state, the Court must check that all required states have consented. Information must be passed to Security Council so it can verify it is not dealing with the case under Chapter VII. (4) Complaints from the Security Council should be the same as from States, although they may be broader and less specific. Complaints made under Chapter VII do not require the consent of states.

Algeria: Elaborate and make more specific the conditions under Art. 25(3) Could go along with the ILC draft.

Netherlands: Limit statute to those provisions needed for Court's operation. Leave elaboration to Rules of Evidence and Procedure. these will be separate from statute and easier to change.

ICC should be independent. Prosecutor should have power to decide on his own initiative to investigate a crime.

Finland: Art. 25(3) is appropriate. However, favour Rule 54 of the Australia/Netherlands paper. Put only the essentials in the statute put details into supplementary rules. Judges should be allowed to amend these rules.

United Kingdom: Happy with the ILC art. 25(3). a non-mandatory list of criteria would be helpful. NO independent Prosecutor. Investigations only based on complaints.

Argentina: Statute should no have excessive details. Not a good idea to have mandatory criteria. Would the Prosecutor have to reject a complaint if a formal requirement had not been met?

New Zealand: Supports an Independent Prosecutor. Individuals should be allowed to file complaints - modify art 25(1). Supports Australia/Netherlands Rule 54, but extend it to individuals.

Egypt: Keep statute to basic principles regarding procedure and evidence. Allow a 2nd or 3rd tier document to contain more details. a 2nd tier document could be amended by a majority of states parties without the need for ratification. A 3rd tier document could changed by a full Senate of the Court. the Plenary should form consensus on whether the statute should contain general principles or detailed rules.

United States: Complaints should be gauged based upon (1) specificity, (2) basis for jurisdiction, and (3) information sufficient to indicate that investigation by Prosecutor is merited. Art. 25(3) is not sufficient for this threshold. Categories of useful information should be included, but not stringent requirement. Naming a suspect is not required in the complaint.

Denmark: Agree with ILC art. 25(3). Don't restrict Prosecutor. Allow an independent Prosecutor.

India: NOT in favor of an independent prosecutor. But ICC must be independent judicial body. Does not support the role of the Security Council in the ICC. Statute should state general principles. Egypt's idea has some merit.

Japan: Rules of Procedure and Evidence should be clearly detailed in statute - they are an integral part of the rights of the accused. Agrees with the ILC draft of art. 25. NO independent Prosecutor. It would lead to frivolous complaints.

Israel: NO independent Prosecutor. Would endanger his position as an independent organ of the ICC. Conflict of interest for a prosecutor to complain, investigate and prosecute a crime.

Mexico: Should include some basic requirements for complaints. No anonymous complaints. Delete art. 25(4) having to do with the role of the Security Council.

Germany: ILC draft needs further elaboration. Use existing national rules and adapt them for ICC.

Russia: Right to complain should belong to states parties. No special conditions needed for complaints of Genocide by any state whether a party to Genocide Convention or not. 25(3) is fine but if going to add specific requirements, put them in statute not in rules.

Portugal: ILC 25(3) is sufficient. Supports an independent Prosecutor.

China: General idea of art. 25 is desirable, but there should be criteria. Won't accept "as far as possible."

Italy: Supports an independent Prosecutor. Under art 25(2), don't restrict categories of states which can make a complaint. Should discuss extending inherent jurisdiction to other core crimes. Can live with 25(3), but could also accept Rule 54 of Australia/Netherlands paper.

Venezuela: Agree with art. 25(3) "as far as possible." Art. 25(4) is excessive. Security Council can receive information on complaint but cannot initiate a complaint.

France: Security Council can make a complaint. Guarantees should be included in statute, but there should also be rule of procedure and evidence. Would include more rather than less in the statute, but willing to discuss it.

Ireland: Art. 25(3) is satisfactory. More details could go into 2nd and 3rd tier. Poor States should not be prevented from making complaints because they do not have the resources to gather the information needed for a complaint.

Slovenia: Can live with art. 25(3) as is. Supports independent Prosecutor.

Korea: Agrees with art. 25(3) as is.

Guatemala: Expand art. 25(3). Need more information in the complaint.

Singapore: Supports Rule 54 of the Australia/Netherlands paper. But don't delegate these rules to a 2nd and 3rd tier document. Judges should not be able to change these rules.