I. INTRODUCTION

Human Rights Watch believes that it is crucial to maintain the considerable momentum that has built up for the establishment of the International Criminal Court (ICC). The need to bring justice to the victims of egregiuos international crimes cannot be overstated.

We think that the August session of the Preparatory Committee on the Establishment of an International Criminal Court can and must make important progress in moving to set a date for a Diplomatic Conference. Building on the work of the March-April Preparatory Committee, we believe that it is entirely feasible for this session to make significant headway in crafting language on the more technical issues that equals the quality of the International Law Commission Draft Statute.

There is valuable intercessional work to assist this Prep Comm. We believe that the non paper prepared by Canada on General Principles of Criminal Law, the Australian document on Rules of Procedure and Evidence and South Africa's non paper on Judicial Cooperation provides a sound basis for real progress in the respective Working Groups. In order to move efficiently towards the goal of "preparing a widely acceptable consolidated text of a convention...as a next step towards consideration by a conference of plenipotentiaries", we urge the participants in the upcoming Preparatory Committee to make use of these non papers.

We submit this Commentary to assist these important discussions and include a recommendation on the next step in the negotiating process.

II. ORGANIZATIONAL ISSUES

Article 1: Establishment of the ICC Human Rights Watch supports the establishment of the ICC as an independent judicial body through a multilateral treaty. A treaty, ratified according to the States parties' constitutions and having the force of law within each approving State, would give the ICC and its judgements greater legal authority than either a UN resolution or a Charter amendment. Requiring individual State ratification would be consistent with the principle of State sovereignty; it would be more practical to achieve that a Charter amendment; and it would provide greater permanence than a UN resolution.

Human Rights Watch believes that no more than twenty to twenty-five ratifications should be required before the treaty enters into force. Although the ICC must enjoy widespread international support, requiring too many ratifications will unduly delay its establishment. It is worth nothing that of the 13 most significant UN human rights treaties only three required more than 20 ratifications. (1) The General Assembly, however, should reinforce the legitimacy of the statute by passing a resolution that recommends its adoption by treaty and encourages States to ratify it promptly.

Article 2: Relationship Between the ICC and the UN. We believe that the ICC and the IN should have a close working relationship formalized in a special agreement as authorized by Article 2. This will facilitate the administration of the ICC, ensure the cooperation of relevant UN organs and enhance the ICC's universality and authority. We recommend, however, that the statute be amended to provide an adequate and reliable funding source for the ICC. It should also include an enforcement mechanism that would disallow States parties from voting on judges and other matters is a State fails to provide financial support or carry out its obligations under the statute.

Article 19: Rules of the Court. Human Rights Watch supports the inclusion of the most fundamental rules of criminal procedure and evidence in the statute. This will ensure that States parties' concerns about the fairness and legality of the ICC's rules are adequately addressed. However, any attempt to include all of the rules of the court in the statute would unnecessarily delay its adoption and invariably be incomplete. Therefore, we believe that the remaining rules--more administrative in nature--should be promulgated by the judges without the approval of States parties, as long as these supplemental rules are consistent with the statute. This is the approach taken by the Inter-American Court of Human Rights, the European Court of Human Rights and the International Tribunals for the former Yugoslavia and for Rwanda. It provides judges with the authority and flexibility to adopt and amend rules as new situations arise. Requiring approval of these supplemental rules by States parties would be unnecessary, bu

rdensome and time-consuming. It would potentially subject approval of the rules to political concerns, delay their adoption and undermine the effective functioning of the ICC.

We also recommend that the statute be amended to require judges, when applying the rules in specific cases, to apply the rules of the statute and those promulgated by the ICC. If these prove inadequate, judges should refer to the rules of any applicable treaties or provisions of international law. As a last resort, they should rely upon the law of the nation where the crime was committed, as long as it is consistent with the statute and international law.

III. FAIR TRIAL AND RIGHTS OF THE ACCUSED

Article 25: Complaint. Human Rights Watch finds the complaint procedure in the ILC draft to be unnecessarily narrow. Under the present wording, only States can lodge complaints to the prosecution. Since States parties may be reluctant to submit complaints, the procedure should be expanded to accept petitions from individuals concerning the most severe human rights violations.

Article 26: Investigation of Alleged Crimes. The Prosecutor should be allowed to initiate an investigation, whether or not there has been a State complaint or a Security Council referral, when the Prosecutor believes that there is prima facie evidence of the commission of crimes falling under the jurisdiction of the ICC. We feel this is necessary in order to avoid reducing the role of the Prosecutor to that of an executor of the decisions of the Security Council or of States parties. Of course, the Prosecutor must be selected on the basis of the most stringent criteria to ensure that the Prosecutor will use its powers judiciously. The Office of the Prosecutor two ad hoc Tribunals has such power and we see no reason for denying the same powers to the Prosecutor of this court.

We also recommend that the article be amended to allow the Prosecutor to seek the cooperation not only of States or the United Nations but also of non-governmental organizations. The cooperation of the latter may be of great use to the Prosecutor and should therefore not be excluded.

Another issue of concern here is the question of judicial review of the Prosecutor's decision not to initiate an investigation or not to file an indictment. We feel the Presidency should be able to order an investigation or to file an indictment if it considers the decision of the Prosecutor manifestly ill-founded. We therefore recommend the article be amended to reflect this need. We do not feel such an amendment would in any way infringe upon the independence of the Prosecutor; it would, on the contrary, enhance its independence by making political pressures not to investigate a crime or not file an indictment ineffective.

Finally, we are dissatisfied with paragraph 6 (ii) of this article which addresses the question of the right to the assistance of counsel. As it presently reads, the paragraph allows only for the assignment of counsel by the court in cases where the suspect "lacks the means to retain counsel." We believe it to be in the interests of justice that the court be given discretion to assign counsel to advise the defendant, regardless of his indigence, if in the court's view the right to a fair trial could be endangered by lack of effective advice from a lawyer.

Article 27: Commencement of Prosecution. We recommend that Article 27 be amended to provide that a hearing should take place, before confirmation of the indictment. This would help screen frivolous and unfounded indictments. Moreover, where it is unlikely that the trial chamber will convict the accused, it would be unfair to expose the suspect to a public trial.

Article 28: Arrest. We suggest that the 90-day period, after which a suspect who has been provisionally arrested is entitled to be released if the indictment has not been confirmed, be reduced to 60 days. We believe that a 60 day period, subject to an extension by the Presidency under certain limited conditions, is more reasonable given the special difficulties presented by prosecutions of this sort, in which relatively easier tasks in domestic jurisdictions are complicated by distance and requirements of international cooperation.

Article 29: Pre-trial Detention or Release. In general, we are pleased that this article was drafted to ensure conformity with Article 9 of the International Convention on Civil and Political Rights. We would however encourage bringing it into conformity with Rule 65 of the Rules of Procedure and Evidence of the International Criminal Tribunal for the Former Yugoslavia Tribunal. This would subject the Presidency's power to release the arrested person on bail to the additional condition that the arrested person, if released, will not pose a danger to victims, witnesses or any other person. We feel this additional condition is necessary to ensure the protection and safety of these aforementioned persons.

We also believe that leaving the determination of whether or not the arrest has been duly served and the rights of the accused have been duly respected to a state official may result in unfair and unequal treatment of defendants. In the interest of predictability in treatment of defendants, we would prefer this determination to be left to an organ of the court.

Moreover, we suggest the inclusion of time limitations specifying the time within which a prosecution should be brought or the accused released. Although we are aware that the International Law Commission decided against including such time limitations, citing the gravity of the offenses, we nonetheless favor their inclusion in order to respect the right of an accused to a speedy trial.

Article 33: Applicable Law Human Rights Watch believes that Article 33 should state explicitly the hierarchy of applicable law. Similar to Canada's propose amendment, (2) we believe that, if a matter is not covered by the statute or international law, the ICC should apply principles of law that it develops from the major legal systems of the world (3). If that proves inadequate, the ICC should refer to the law of the State where the crime was committed provided it is consistent with international standards. This will reduce reliance on national law and help prevent the unequal treatment of defendants. It will also allow the ICC to articulate international principles of criminal law, develop and ensure consistency and fairness.

Article 37: Trial in the presence of the Accused Human Rights Watch believes that, in situations where the accused is attempting is attempting to sabotage the ICC's proceedings, the statute should provide for the possibility for trial in absentia under strictly defined circumstances. This provision should include the following safeguards: 1) the accused must have received fair notice of the proceedings; 2) the accused must be given the opportunity to be present during the proceedings, either personally of through representation; 3) if the accused is not present of represented, counsel must be appointed to prepare an aggressive defense; 4) the proceedings must be open; and 5) upon apprehension, the accused must be permitted to re-open proceedings by bringing an appeal. Under this scheme, international criminals would not be allowed to choose whether or not they will tried for their crimes. If the accused choose not to be present or to put on a defense despite fair notice, the trial against them will proceed

regardless.

Article 38: Functions and powers of the Trial Chamber We believe that since the ILC Draft includes a provision allowing the defendant to enter a plea of guilty, a paragraph should be included in the statute making reference to the legal effect of a decision by the defendant to enter such a guilty plea. It should be explicitly stated that, despite a guilty plea, the prosecution still bears the burden of persuasion. The statute should also state, however, that such a guilty plea can be considered in sentencing as a factor showing remorse and willingness to cooperate on the part of the convicted person.

Article 41: Rights of the Accused Human Rights Watch recommends that the first sentence of Article 41 be amended to state that "every accused shall be treated equally before a fair and public hearing, subject to article 43." This right is so fundamental that we believe it should be prominently stated and this language would reflect mote accurately Article 14 of the of the International Covenant on Civil and Political Rights. Moreover, although the right to communicate with counsel usually includes the right to do so confidentially, we believe this should be expressly stated in paragraph 1 (b).

In addition, we recommend that paragraph 2 be replaced with amendment Rule 68 of the Rules of Procedure and Evidence of the International Criminal Tribunal for the Former Yugoslavia (4). In addition, to requiring disclosure by the Prosecutor of exculpatory information, Rule 68 requires the disclosure of evidence that tends to impeach the testimony of a prosecution witness.

Finally, we recommend the insertion of a new paragraph that states that any violations of an accused's rights will be remedied as promptly as possible, rather than through an appeal challenging the fairness of the proceedings (5).

Article 42: Non bis in Idem Human Rights Watch is not satisfied with the terminology proposed in the ILC Draft Statute regarding one of the exceptions to the application of this principle, i.e. where the acts in question were characterized by another court as an "ordinary crime." We suggest replacing paragraph 2(a) with clearer language that draws on the language used in the report accompanying Security Council Resolution 808 (1993). Article 8, paragraph 66(a) reads as follows: "the characterization of the act by the national court does not correspond to its characterization under this statute." We are of the opinion that avoiding the term "ordinary crimes" (which carries with it numerous and varied definitions) will eliminate confusion and give grater clarity to the statute. We also believe that the article must explicitly state that the exceptions to the non bis idem principle must apply beyond trial to clemency, parole, amnesty, pardon and other proceedings used to frustrate efforts to establish criminal

responsibility.

Article 43: Protection of the Accused, Victims and Witness Taking into consideration the developments at the International Criminal Tribunal for the Former Yugoslavia, we feel this article merits close attention and Human Rights Watch suggests reinforcing the article as it appears in the ILC Drat Statute.

We feel that is important that a provision be included stating that the measures in the article are to be consistent with the rights of the accused. This proposed revision, which is based on the language of Rule 75 of the Rules of Procedure and Evidence of the International Criminal Tribunal for the Former Yugoslavia, would make clear that protective measures for witness must be consistent with the basic rights of the accused, including the right to confront all accusatory witnesses.

However, in instances involving young children and/or sexual assault victims, we believe that the court should have discretion to balance the accused's right to confront the evidence against him or her with the victims's right to preservation of safety and privacy. The court should also have the discretion to balance to take additional measures to protect the integrity and privacy of children and sexual assault survivors.

Furthermore, we strongly recommend that the court establish a service for victims and witnesses to ensure the safety of the accused, victims and witness, as well as that of their families, from intimidation and retaliation, before, during and after the trial.

Article 47: Applicable Penal Sanctions Human Right Watch believes that the statute should codify penalties for all crimes and not leave sentencing primarily to the discretion of the judges. Determinate sentences will provide maximum deterrence of future crimes and ensure adherence to the principles of legality and non-retroactivity. The gravity of these crimes necessitates strict penalties and does not warrant fines without imprisonment. The judges, however, should retain the discretion to consider individual circumstances when imposing sentences and should not be authorized to impose the death penalty.

Article 48: Appeal Against Judgment or Sentence We believe that Article 48 of the Draft Statute is incomplete because it does not allow the Prosecutor and the defense to appeal pre-trial rulings on questions of jurisdiction or exclusion of evidence. In the interests of efficiency, we recommend the introduction of such interlocutory appeals which could then be immediately disposed of by the appeals chamber prior to the commencement of trial. We believe the standard for hearing such an appeal should be a high one, and recommend that the appeals chamber only entertain appeals when it is shown that the failure to do so is reasonably likely to cause serious impairment to the prosecution or the defense.

We also believe that the paragraph 1 Article 48 should distinguish between the rights of the Prosecutor, who will likely have considerable resources at hand, and a possibly innocent accuse, who must not only endure the great ordeal of being tried for the most serious of crimes, but also run risk, however remote it could be, of being erroneously convicted. We therefore suggest that the convicted's right to appeal against a decision be used upon: 1) an error of procedure and/or a question of law invalidating a decision; and 2) an error of fact which has allegedly resulted in a miscarriage of justice. The Prosecutor's right to appeal against a decision, however, should be based only upon an error of procedure and/or a question of law invalidating a decision.

The following two sections, on general principles of criminal law rules of cooperation in penal matters, are items that the Preparatory Committee will consider during the Working Group sessions.

IV. GENERAL PRINCIPLES OF CRIMINAL LAW

Human Rights Watch believes that the statute must be consistent with the principle of legality and elaborate general principles of criminal law governing application of the statute to specific cases.

Elements of Crime To be consistent with the principle of legality, the ICC statute should not define the crimes under its subject matter jurisdiction simply by reference to existing treatise. Those offenses must be more specifically and narrowly defined in the text of the statute. Similarly, the statute should accurately define the different forms of criminals liability that can be incurred, such as direct and intellectual authorship, accessoryship, attempt and command responsibility.

Statute of Limitations Human Right Watch believes that the crimes covered by the ICC are too heinous to justify a statute of limitations and repose for the accused. This is consistent with the trend in international law to establish the non-applicability of "prescription" or statutes of limitation to genocide, war crimes and crimes against humanity. Moreover, that accused is protected from being tried on stale or outdated evidence by Article 27. This article requires the Prosecutor to conclude that she has a prima facie case before filing an indictment. This conclusion must be confirmed by Presidency. To further protect the rights of the accused, we support Canada's proposal to allow defendants to appeal to the Appellate Tribunal if they believe the credibility and sufficiency of the evidence in support of indictment is fatally affected by the passage of time.

Age of Responsibility Human Rights Watch believes that the minimum age of adult criminal responsibility should be eighteen years. Between fifteen and eighteen years of age, the ICC should determine whether an accused is sufficiently mature to be responsible under the statute. From pre-trial detention to sentencing, the ICC should establish separate procedures for treating juvenile defendants that are consistent with the U.N. Convention on the Rights of the Child. Sentences should include alternatives to imprisonment, consider a child's reintegration into society and be reduced to account for child's age and lessened culpability.

Article 33: Applicable Law (See supra p. 4)

Article 47: Applicable Penal Sanctions (See supra p. 6)

V. RULES OF COOPERATION IN PENAL MATTERS

The effectiveness of the proposed ICC is totally dependent on cooperation from States. Since the court is not to have its own enforcement agency, the successful operating of this court rests entirely with the cooperation of national jurisdiction in obtaining evidence and securing the presence of the accused before it.

A. GENERAL ISSUES RELATING TO INTERNATIONAL COOPERATION AND JUDICIAL ASSISTANCE

The Framework Securing Cooperation Between States We consider it essential that the statute provide the ICC with a a sound, workable and predictable framework to secure the cooperation of States. We recommend the idea of a universal framework applicable to all States and defendants equally. Seeking to avoid any potential conflict with already existing extradition regimes, and to distinguish between those and the cooperating system to be established between the ICC and the State parties, we favor adopting an entirely new regime.

We further believe it to be of vital importance that in situations where there are already existing conventions between States in the area of cooperation, primacy be nonetheless accorded to a competing ICC request. Failure to do so would result in disparity and unpredictability in the ICC's dealings with the State parties.

Obligations and Exceptions to the Duty Provide Cooperation and Judicial Assistance We support including an article in the statute mandating a general obligation to cooperate with the ICC in all circumstances. Furthermore we believe it is essential that all basic obligations and exceptions to provide cooperation and judicial assistance be laid down explicitly in the statute, and the national law therefore not be viewed as a source for determining such requirements. Such a list would ensure that all States have a clear understanding of the types of assistance required so as to enable them to develop national legislation in order to implement these cooperation requirements. We recommend the inclusion of a non-exhaustive enumeration of the types of judicial assistance to be provided by States, including taking testimony, production of evidence, service of documents ad executing searches and seizures. We favor such a non-exhaustive list so as to provide a measure of flexibility and to enable the ICC to request ap

propriate kinds of assistance, in particular cases not specifically envisaged in the statute. We believe this obligation should not, however, be limited to State parties which have accepted the jurisdiction of the court with respect to the crime concerned but that the obligation to provide assistance should apply to all State parties.

With regards to exceptions to the duty to cooperate and provide assistance, is clear that these must be enumerated in the statute and kept to a strict minimum in order to avoid hampering the effective functioning of the ICC. Taking into account the serious nature of the crimes to be covered under the statute, we favor excluding the traditional limitations or exceptions such as the nationality of the accused, essential interests/ordre public, or sufficiency of evidence. We also suggest excluding the statute of limitations, dual criminality, manifest errors of law, competing requests received by the requesting State from another State under existing treaty regulations and non-acceptance of the ICC's jurisdiction, especially if it is limited to the core crimes. We are of the view that the only acceptable exception in the statute would be manifest error of fact.

Non-compliance to ensure compliance with these provisions and the successful operation of the ICC, we recommend that the statute envisage a special chamber that would consider refusals of failure to comply with request for cooperation and judicial assistance. The chamber would be empowered to render appropriate decisions, seek the support of the Security Council and other organs of the United Nations, or file an action with the International Criminal Court of Justice.

The Powers of the Prosecutor We agree with the majority of the delegates that the prosecutor should be required to obtain the consent of national authorities in order to conduct an on-site investigation. However, we fear situations may arise in which mandatory reliance on national authorities would impede a successful investigation. To avoid this, we propose that the Prosecutor have its own access to the territory concerned not only in situations in which national authorities have ceased functioning properly but also where the ICC feels the national authorities are either shielding the accused, failing to investigate diligently, or are neither impartial nor independent. Similarly to failures to comply with requests for cooperation and assistance, we recommend that the statute envisage a special chamber to adjudicate these issues.

B. APPREHENSION AND SURRENDER

Strict Transfer Regime Human Rights Watch supports the idea of a statute that provides for a strict transfer regime, limiting the role of national authorities to determining whether the necessary formalities to be contained in a request for arrest of an accused or a suspect, as defined in the statute, have been complied with. We believe it should be possible to challenge in the national court of a requested State a document purporting to be a warrant for its formal validity and sufficiency; consequently we do not favor granting receiving States authority to examine the warrant's adequacy in relation to substantive law. With regards to both the pre-indictment stage as well as the transmission of a formal request, we suggest the statute specify the documentary and evidentiary requirements for apprehension and surrender to be satisfied in the request. We disagree with the proposal that it be the States who specify these requirements in advance as this would lead to inconsistency in the ICC's treatment of State

parties and defendants.

Arrest of Person Other Than the Accused With regards to a provision in the statute concerning arrests of persons other than accused, we urge for a more flexible system ensuring the ability of the ICC to receive testimony taken outside of its seat with the assistance of the national judiciaries, or for example through electronic means to be supervised by local judiciaries. Because, however, a witness' testimony may be vital to the outcome of a case, we do nonetheless support a regime that would provide for the forced transfer of a reluctant witness where that witness has been notified, has refused to testify and has been clarified in contempt of court.

Executing the Surrender For practical reasons we recommend that the custodial State be enabled to execute the surrender but that the ICC also have a cadre of auxiliaries available to supervise or cooperate in these functions.

C. RECOGNITIONS OF JUDGMENTS AND ENFORCEMENTS OF SENTENCES

Recognition of ICC's Judgements We believe that by accepting the jurisdiction of the ICC, State parties by definition recognize the ICC's judgments. We strongly urge Article 58 be amended to read "State parties must recognize the judgments of the court as judgements rendered by their national judiciaries".

Temporary of Permanent Release of a Prisoner We feel that the control of the ICC is necessary to prevent national law from being used to reduce a sentence imposed by the ICC on a prisoner. We therefore recommend that an additional arm of the ICC be established to address issues such as permanent or temporary release of a prisoner, as well as pardon, parole and commutation of sentences.

Supervision of Conditions of Incarceration For reasons of practicality, we believe that the ICC should exercise control in critical areas, in order to ensure consistency and compliance with international norms regarding conditions of incarceration, but that the day-to-day supervision of the prisoner should be left to the custodial State.

VI. PROGRAMMATIC RECOMMENDATION

Human Rights Watch believes that it is crucial to maintain the momentum that has built up behind the establishment of the ICC. Based on continued progress at the August Preparatory Committee, we feel that convening a Diplomatic Conference in 1997 (even the latter part of the year following another Preparatory Committee session, if necessary) is appropriate. There is, how ever, no legitimate reason to delay the start of a Diplomatic Conference beyond early 1998. For the Preparatory Committee to fail to facilitate the General Assembly setting a 1998 date ignores the urgent need for this court and abandons all too many victims seeking justice.

Human Rights Watch feels that the Preparatory Committee should include a programmatic recommendation as part of its report to the General Assembly. While the General Assembly's Resolution convening the 1996 Preparatory Committee does not explicitly call for a recommendation, it certainly does not preclude one. We feel that the experts who have been discussing these issues during 1996 are best placed to make a recommendation to the fifty-first General Assembly.

August 1996