Preparatory committee ICC

Report

August 16, 1996

A. morning session

I. discussion on art. 38 ILC draft statute

Argentina: proposes to combine the two systems of common and civil law

in possibility to hold accelerated procedures. After the indictment, the

defendant has the option to "accept" the indictment; if he does the

procedure that follows can be accelerated. It can be desided however

that the normal procedure will follow in spite of the acknowlegement of

the indictment by the defendant.

Mexico: The consequences from a plea guilty can not be seen out of the

statute. That is why the trial chamber has to decide, which procedure

will take place. In this regard the pressumption of innocence has to be

considered, which means that all evidences must be proved.

United States: Is willing to consider the canadian and argentinien

proposal. Challenges to admissibility or the jurisdiction of the ICC

might be better referred to another section of the court (than the trial

chamber). Pragraph 4 of art. 38 ILC draft statute should be restricted.

Paragragraph 5 subparagraph f needs further elaboration: sanctions on

contempt of the court should be included. Clearity has to be reached

about the time when to establish a trial chamber. That is particular

important for the recognition which tasks were left for the other

elements of the court.

The judge is not obliged to accept a plea of guilt. Because the only

essence of a plea of guilt has is that the accused without pressure

faces his or her guilt. That does however not mean, that there is no

need for the prosecuter to prove the other elements of the crime in

question. The trial is generally held in public. The Possibility of

closed negotiations should be limited to very exceptional cases.

Israel: In art. 38 (4) ILC draft statute the expression "sensitive"

needs to be clarified.

Malaysia: A plea guilty should be accepted.

Singapore: As a minimum after a plea guilty there must be a summing up

of all evidences, so that the sentence is well founded. Whether after a

plea guilty a full trial will follow, depends on the public interest and

the gravity of the crime. Because justice is not only be done but must

also seen to be done.

Venezuela: Plea of guilt is fully acceptable. The statement of guilt or

innocence must be taken into account as an evidence. Art 38 (4) should

be restricted.

Russion Federation: A confession should have any consequences neither

for the form of the trial nor for a conviction. Plea bargaining is not

considered as acceptable.

Austria: ICC applies non - jury trial. Admission by the accused is only

one of the means of evidence. However, abreviated procedure is

acceptable. Art. 38 (4) ILC draft statute needs specification.

China: Whetherthe accused pleas guilty or innocent, this statement

shoulg have the same status as the other evidences. The court can not

decide on that one statement.

France: After a plea of guilt by the accused a complete unabbreviated

procedure must follow. In the interest of both the accused and the

victims. Especially the victim has a right to see a full trial.

Considerations of time and money should not be taken into account.

II. discussion on art. 41 ILC draft statute

Australia: The statute should adress in detail the rights of the accused

and the victims. Australia in general agrees with the wording in the ILC

draft statute. Reference was made to the proposal on the rules of

procedure and evidence submitted by the Netherlands. Translation of all

documents is not necessary as long as the accused has a legal advisor

who has working experience and language skills in the language the

documents were filed in.

Switzerland: Wants the "subject to art 37 (2) in art 41 (1) (d) be

deleted.

Singapore: A list of all witnesses should be submitted to the defence,

so that the ddefence can decide to call additional witnesses. This is a

requirnement of the equality of arms.

United States: Reluctant to accept exceptions to any fundamental rights,

in particular the right to cross examination.

Argentina: Inequality of arms must be prevented.

France: Article on rights of the accused to consult legal advisor

without surveillance shoul be inserted.

New Zealand: There are lacks in the draft statute. There are already

aplicable international conventions and agreements on the right s of the

accused. In particular the ICPR (art. 9, 14, 15), the universal

declarations on human right and several others. This already aplicable

instruments must be inserted. The possibility of compensation must be

induced.

Lesotho: Art. 41 should be regarded as a minimum guarantee. It should be

however not an exhaustive list.

Holy see: There is a tnsion between plea bargaining and art. 41 ILC

draft statute.

B. afternoon session (working group on general principles of

international criminal law)

Introduction: During the first session of the preparatory committee

for the establishment of an international criminal court (from 24. march

to 12. april 1996) a working group under the chairmanship of Sweden

elaborated a compilation of pertinent formal text proposals from

delegations and other scources as the statutes of the ICTY and ICTR and

the siracusa draft statute (so called swedish non paper). It contains

various options of possible elements of general principles on

international criminal law, which could be included in a part of the

draft statute for the ICC or in an annex therto, which is an integral

part of the statute.

During the second session of the preparatory committee (from the 12. to

the 30. august 1996) proposals were submitted mainly by Canada and

France but also by other delegations. To revise and consolidate the so

called swedish non paper on general principles in regard to the

submitted proposals the working met again under the chairmanship of

Sweden and agreed upon the following:

I. Section A

1. Insanity/ diminished mental capacity

(contains proposals from spring submitted by Japan and a text from the

siracusa draft statute)

New proposals were made by Canada and France (art. 88)

In regard to insanity/diminished mental capacity the canadian proposal

will replace the proposal submitted by Japan during the first session of

the preparatory committee, whereas Japan agreed upon that. The french

proposal will be inserted as an alternative text vis a vis the proposal

submitted by Canada. The text from the siracusa draft statute will be

dropped. The already existand note will be retained.

2. Intoxication

(contains a text from the siracusa draft)

New proposals were submitted by Canada and France (art 89)

The french proposal will be inserted and the text from the siracusa

draft statute will be dropped.

3. Ability to stand for trial

The provision will be deleted

4. Self - defence/Defenece of others/Defence of property

(contains proposals from spring submitted by Japan, Canada and a text

from the siracusa draft statute)

New propasals were submitted by Canada (33/15) and France (art. 86)

The canadian proposal (33/15) will replace the proposals from spring,

whereas Japan agreed upon that, and the text from the siracusa draft

statute. In addition the french proposal (art. 86) will be inserted as

an alternative text.

5. Necessity

(contains proposals from spring submitted by Japan, Canada and a text

from the siracusa draft statute)

New proposals were submitted by Canada (33/16) and France ( art. 87)

The canadian proposal replaces the canadian text from spring. The text

from the siracusa draft statute will be dropped. The japanese proposal

will be retained as an alternative text. French text ???????

6. Duress/ Coercion

contains proposals from spring submitted by Japan, Canada and a text

from the siracusa draft statute)

New proposals were submitted by Canada (17/22) and France (art. 19)

The canadian proposal replaces the proposals from spring submitted by

Canada and Japan, whereas Japan agreed upkn that. Although the french

proposal is similar to the canadian text, as was stated by the

represantaive of Canada, the french represantative pointed out that

there were editorial difficulties, with the reault that France was not

in the view that the french proposal is reflected in the canadian text

appropriatly.

7. Lesser of evils

The provision concerning lesser of evils will be dropped

8. superior orders

(contains proposals from spring submitted by Japan, a text from the

siracus draft statute and a text from the statute of the ICTY)

New proposals were submitted by Canada (33/18) and France (art. 85)

The text from the siracusa draft statute and the text from the statute

of the ICTY will be dropped. The canadian proposal replaces the proposal

submitted by Japan during the spring session, whereas Japan agreed upon

that. The french proposal will be inserted as an alternative text vis a

vis the canadian proposal.

9. Possible defences under public international law

(contains a list elaborated by the so called "Hafner Gruppe" during the

ad hoc committee 1995 and a text from the siracusa draft statute)

The heading will be revised as possible defences refering too war crimes

and grave breaches of the geneva conventions. The heading includes the

subheadings of military necessity and reprisals

The text from the siracusa draft statute will be dropped. In the note

only the reference to the savings clause will be retained.

In this regard the view was expressed by France, wether there is a need

for this provision, because the UN Charter fully applies.

10. Exhaustive or enumarative list of defences

(It contains a proposal from spring submitted by the Netherlands and a

text from the siracusa draft statute)

New proposals were made by Canada and the United States (working paper

5)

The proposal from the spring session submitted by the Netherlands was

withdrawn by its representative. Paragraph 1 from the siracusa draft

statute will be retained whereas paragraph 2 will be deleted. The

proposal submitted by the United States will be inserted under this

point. Two notes from the canadian proposal will be included in the

already existend note.

II. Section B

1. Pressumption of innocence (art. 40 LC draft statute)

New proposals were submitted by France (art 51 (1) (a)) and Japan

(tentative draft on general principles, (I) (2))

The pressumtion of innocence will be transfered from the procedural into

the part concerning the general principles. On the suggestion of Japan a

footnote will be added, in which it is expressed that the pressumtion of

innocence is also a procedural matter. The question was left where in

the part of the general principles the pressumption of innocence should

be placed. An amendment was suggested by Norway that: "an accused should

be pressumed innocent until he or she is convicted in accordance with

the law.

2. non bis in idem

A new proposal was submitted by France (art. 151)

The french proposal will be inserted. Furthermore on the suggestion of

the United States a footnote will be embodied, which epresses that the

principle of non bis in idem is closely linked with the principle of

complementarity and with the issue of the rights of the accused.

3. To what extend should the court empowered to elaborate the rules of

procedure ans evindence

A new proposal was submitted by Singapure (working paper 2)

The proposal and the explanatory note submitted by Singapure will be

reproduced. The rest of the text remains unchanged.