SLOW BUT DETERMINED PROGRESS:

The First Week of the Second Preparatory Committee on a Permanent

International Criminal Court

Throughout the first week of the Second Preparatory Committee on a

Permanent International Criminal Court, workable solutions were offered

by numerous delegations to remedy some of the few remaining deficiencies

in the ILC draft Statute. The many analytical writings on an

International Criminal Court authored by Human Rights Watch, Amnesty

International, and the Lawyers Committee for Human Rights, among others,

have proven invaluable in this respect. From the rights of suspects, to

the needs of victims and witnesses, to the rights to a fair trial these

scholarly reports have identified practical solutions on which many

delegations have apparently seized. As a New Zealand delegate noted,

the breadth and depth of the debate is encouraging.

The determination and willingness of most delegations, whether from

common, civil or other legal traditions, to craft an effective and just

Court was particularly evident during the debate on trials in absentia

and guilty pleas. Regarding pleas of guilt or innocence, a few well-

intentioned delegates unwittingly provoked a remarkable display of

solidarity by several delegations to eschew a divisive debate regarding

the merits of a civil, common, or other legal system. With respect to

trials in absentia, a wide consensus has emerged that some form may be

permissible in exceptional cases, such as where the accused has flouted

the jurisdiction of the Court, provided that the rights of the accused

are properly safeguarded. A clear majority of states, however, have

justifiably concluded that trials in absentia ought not to be permitted

in cases where the accused is absent for reasons of security or health,

or because he or she was disrupting the proceedings. In such cases,

more narrowly tailored means are available whereby the accusedUs right

to a fair trial would be more appropriately balanced against the

interests of the Court in proceeding to a judgment.

Likewise, there is a growing consensus regarding the value of and

need for Rule 61 hearings, building on the experience of the Ad Hoc

Tribunal for the former Yugoslavia. Under Rule 61, an indictment

chamber is able to record and preserve evidence for a future trial,

should the accused subsequently appear before the Court. It is

generally agreed, however, that such a proceeding ought not to result in

a verdict. For this and other valuable lessons from the Yugoslav

Tribunal, a Portuguese Delegate aptly concluded that various NGOs can

take much credit for having pressed early and often for the Prosecutors

to be invited to share their experience with the PrepComm.