REPORT ON THE CURRENTLY DEBATE AT THE PREPARATORY COMMITTE

August 23rd

The morning plenary session was canceled to allow the working groups to

continue meeting. During the afternoon plenary, the Committee returned to

Articles 46 and 47 and issues relating to penalties. However, France

first intervened to admonish the Committee to avoid "needless haste or

confusion" by providing delegates with adequate notice of and time to

prepare for meetings of the working groups, as well as time to respond to

the various emerging texts. Future work is to be announced in advance

with specific timetables to which the Committee should adhere. The French

Delegate also noted the need to translate the working groups' consolidated/compilated texts to ensure transparency and equality amongst

delegations.

The US Delegate also expressed concern about delegates being unable to

effectively participate due to the Committee Regarding the range of permissible penalties, the Netherlands, Venezuela, Finland, the US, Portugal, Malaysia, and Denmark concurred with the many delegates who suggested yesterday that reparations and/or restitution ought to be permitted under the Statute. Australia noted, however, that the Tribunal might lack the proper mechanisms to appropriately deal with issues surrounding victims' compensation. The Netherlands suggested that

the recently promulgated Basic Principles Regarding Reparations in the

Case of Gross Violations of Humanitarian Laws ought to be given

consideration.

On the propriety of fines, several delegations opined that they might be

permissible in certain cases, such as Fritzsche's use of the press to

incite violence in Nazi Germany (Netherlands), for "procedural matters",

such as violations of proposed court rules governing perjury, tampering

with a witness, etc. (US, Finland, Greece, Portugal, and Korea), for

lesser crimes like attempt (Greece), and in the case of juridical entities

(Portugal and Thailand). Other delegations continued to view monetary

fines as inappropriate due to the egregious nature of the crimes the Court

is intended to address (Venezuela, Italy, Malaysia). Imprisonment should

be the primary means of punishment with fines being merely supplemental,

according to the Chinese Delegate.

A few delegations supported expanding the permissible penalties to include

disenfranchisement from public office and/or employment (Netherlands, US,

Mexico), as well as forfeiture and/or confiscation of property (Greece,

China, Italy, Mexico, Malaysia, and Korea), particularly in cases

involving drug trafficking (Thailand). Finally, several delegates

strenuously objected to any recourse to the death penalty as contrary to

their respective constitutions and/or fundamental cultural beliefs (Italy,

Portugal, Mexico, Denmark, and New Zealand). Portugal and Mexico also

expressed their discontent with the ILC draft provision for life

imprisonment. Malaysia, on the other hand, joined Egypt in its support

for the inclusion of the death penalty.

Regarding applicable law, the Netherlands agreed in principle with the

approach taken in the ILC draft; namely, that reference ought to be made

to the law of the state of accused, the victim, and/or the situs of the

crime. In contrast, Venezuela, Finland, Australia, the Holy See, China,

Mexico, Thailand, Malaysia, Denmark, and Korea concurred with the Swiss

and Swedes, among others, that the penalties ought to be set forth in the

Statute, including a maximum and minimum, to accord with the principle of

legality and to ensure that disparate sentences are not given for similar

crimes. While the Portuguese Delegate recognized the need for a certain

uniformity in sentencing, she felt some reference ought to be made to the

law of the state where the crime was committed.

Regarding the aggravating and mitigating circumstances the Court is to

consider when imposing a sentence, delegates from Venezuela, Russia,

Greece, Mexico, and Thailand opined that specific criteria ought to be set

forth in the Statute. The Russian Delegate felt that the list of

aggravating circumstances should be exhaustive, and that "should" in

Article 46(2) ought to be replaced with "shall" to ensure that the Court

consider such relevant factors. The Holy See suggested that the Court

take into consideration any prior record of the defendant.

ETC. The Russian Delegate stressed that convicts be given credit for time

served, and that provision be made for monetary compensation in the event

a defendant is subject to excessive detention. The US and Israel

suggested that the Statute allow for a defendant to be convicted of a

lesser crime than that which he or she was originally charged, provided

that the resulting penalty be no greater than that which may otherwise

have been imposed, and that the defendant have an adequate opportunity to

respond to the charge. The Irish Delegate noted that the ILC draft lacked

clarity regarding what purpose(s) the penalties were to serve, whether

deterrence, retribution, punishment, etc.; that mental capacity should be

taken into account; that rigid penalties should be eschewed in favor of a

sliding scale; and that delegates remain mindful of Oscar Wilde's "little

piece of blue".

Regarding the future work of the Prep Comm, Norway has agreed to chair a

Working Group on Penalties. In response to this and subsequent

internventions, the Japanese Delegate voiced her concern about the pending

departure of Japan's experts who are considered indispensable for Japan to

engage in substantive consolidation of text.

The schedule for next week follows with one caveat: as the Chairman was

somewhat unclear, I have disseminated this summary as quickly as possible

in the hopes that any errors or omissions will be timely identified by

more astute and attentive members of the Coalition.

On Monday, both remaining questions regarding the establishment of the

Tribunal and the relationship between the Tribunal and the UN will be

discussed in the plenary session. On Tuesday morning, the Committee will

revisit specific issues discussed in the First Prep Comm, including

complimentarity (France has a proposal to submit) and the definition of

war crimes (Japan likewise has a proposal). The US Delegate noted that

this discussion should focus solely on new matters. In response to a

Danish query regarding the scope of issues to be revisited, the Chair

stated that this would be left to the delegates to decide.

Following a French intervention, the Chair suggested that the Committee

address the product and progress of the working groups (the newly created

WG on Penalties was the only group not referenced) on Tuesday afternoon to

enable the Secretariat ample time to prepare the Report. Wednesday is to

be devoted to any proposed recommendations for the General Assembly. On

Thursday, the Committee will tentatively address organizational matters

like the contents of the Prep Comm Report and strategies for the meeting

of the Sixth Committee in November. This discussion would carry over to

Friday as needed. The representative of India requested that he be

provided with any circulating draft proposals for a GA resolution, as well

as an organizational proposals for 1997.

The US Delegate stated that if the papers produced by the working groups

are to be included in the Prep Comm Report, then delegates would need time

to review and make comments on them. The Algerian Delegate discouraged a

substantive debate on the working papers as his delegation was unable to

participate in their preparation and are without experts. He requested

further that the working papers be merely annexed to the Report of the

Prep Comm with no particular status attached to them beyond a compilation

of proposed text for future substantive discussion. In response to the

German Delegate's query whether there was a deadline for the submission of

proposals, the Chair stated that, to be included in the Report,

submissions ought to be made by today. He noted, however, that it was not

possible to set any absolute, outer time limit for the submission of

proposed texts.

There was further uncertainty expressed by the US and UK Delegates

regarding the distinction between organizational matters and the

preparation of a resolution for the GA which the Chair attempted to

resolve. The document from the Working Group on Organizational Issues is

now available, according to the Malaysian Delegate, who requested that

delegates review it for possible additions and/or amendments. Delegates

who wished to participate in the preparation of a working paper on

penalties were encouraged to meet with the Norwegian Delegate following

the meeting. Argentina announced a meeting of the Working Group on the

Rules of Procedure to follow the plenary in Conference Room B. Responding

to Singapore's request for time to review the draft Report, the Chair

noted that the Secretariat would do its best.