Preparatory Committee for the

Establishment of the International Criminal Court

Summary by Steven Gerber (Coalition)

August 26, 1996

Establishment of ICC and Relationship to Court

What is the preferred method (legal instrument) for establishing the ICC?

Canada stated its preference that the ICC be established by amending the

U.N. Charter to make it a principal organ of the U.N. As did Finland

(although will support a treaty) and New Zealand, Italy prefers the ICC to be established by multilateral treaty (when the treaty is signed, have the General Assembly pass a resolution encouraging states to sign the treaty), as does Israel, Japan, Switzerland, United States (will oppose other methods), Korea, Austria (exclude all reservations), Hungary,

India, Russia, United Kingdom, Greece, Venezuela, Libya, Egypt,

Singapore (not a preference but seems more likely), Mexico, Ireland,

Thailand, China (opposes Sc or GA resolutions). Chile. Malaysia.

Kazakstan, Ukraine. Slovenia.

The following delegations stated that the ideal method would be to amend

the U.N. Charter, but that they support a multilateral treaty route.

Trinidad and Tobago, Netherlands (suggested an article in treaty recommending the statute be included in any future U.N. Charter amendments), France, Lesotho, Portugal (supports Netherlands suggestion), Samoa (but don't dismiss resolution method), Denmark (supports Italy suggestion), Sweden.

If established by Multilateral treaty, how many ratifications should be

needed in order to let the treaty enter into force?

Many states mentioned that there needed to be a balance between the need

for speed in establishing the court(low number of ratifications) and the need for universality in the court (high number of ratifications).

Number of ratifications should not be too high, according to Canada, Greece

Finland. Italy suggested 20 to 25 ratifications. Trinidad and Tobago

suggested 30 to 35. Lesotho look to ICCPR (20-30). Portugal suggested 25.

Denmark suggested 35. Sweden suggested 30-40 if geographic distribution

and all legal system represented. Likes Denmark's suggestion about G.A.

resolution. Ireland agreed with Sweden. Chile suggested 35-40 (include

regional requirements). Australia suggested 35-40. Slovenia (not too high).

States which suggested higher number of ratifications include:

Israel suggested looking at the Law of the Sea which required 60

ratifications and the Vienna Conventions on Treaties (35). After all the

U.N. has 185 states. Switzerland. United States suggested looking at Law of

Sea Tribunal (60) and Chemical Weapons Convention(65). Korea number

should be relatively high. India suggested a majority of the world's states

(185?). France did not yet have a position. Same with Japan. Austria

suggested about 60. Russia suggested 60-65. United Kingdom stated that

even half the U.N. membership would be low (90s). Czeck Republic

suggested 55 or 60. Pakistan stated the number should be high. Singapore

suggested that if there were 18 or 24 judges then at least twice that many

ratifications would be needed just to have a good selection of judges. Rule

of thumb - 1/4 to 1/3 of U.N. Mexico suggested that all 5 Permanent members

of the Security Council must be among the ratifications. Thailand, China.

Malaysia suggested 60. Kazakstan. Ukraine suggested 90 as the

maximum.

Should the Court be a permanent institution, acting only when required or

meeting on a more permanent basis?

Netherlands suggested more parts of the Court should operate permanently

(full-time) to avoid delays in court's operation as did France, Lesotho,

United States, Hungary, Mexico.

India supports the court operating full-time.

Japan supports ILC draft art. 4(1) as does Korea, Russia and Sweden.

Switzerland stated that the court should only operate when there is a case.

Austria, although some parts of court would be permanent, the rest should

not.

What should be the relationship between U.N. and ICC?

Canada stated that there should be a relationship with the U.N., but the ICC must remain independent, although there should be a mechanism for the

Security Council to refer situations to the court.

Italy encourages a relationship w/ the U.N. as does the Netherlands.

Trinidad and Tobago suggested expanding art.2 to resemble art. 16 of IAEA

which includes relationships with other organizations. Relationship w/ U.N. could include financing, personnel, reports, info and document exchange.

Israel stated that the relationship with the U.N. would require further

study.

France suggested that the court should be independent with strong links to

the U.N. and suggested considering the ICC as a specialized agency under

U.N. Charter art. 56 and 57. U.N. Charter art. 96 would allow the ICC as a

specialized agency to request advisory opinions of the International Court of Justice.

Japan supports ILC draft art. 2. Japan suggested the agreements between

the U.N. and IAEA and the Law of the Sea Tribunal as models.

Switzerland stated the relationship should be one between equals.

Finland supports draft ILC art. 2 as does Korea and Greece.

Lesotho stated that the court should be seen as part of the U.N. system.

New Zealand agreed with this.

United States stated that it would provide textual revisions of Art. 2.

Should NOT go the specialized agency route. Agreement should include (1)

recognition of ICC as judicial body, (2) recognition that it may need to

cooperate with the U.N., (3) agreement of the U.N. to provide information to the ICC. IT should NOT include provisions regarding personnel, financing (except for Security Council referrals) or attendance.

Egypt suggested extending "approving" to "monitoring" in Art. 2.

Austria stated that the agreement would not be like those with specialized

agencies. Portugal stated it was against specialized agency status for ICC. Russia, Egypt and United Kingdom agreed with Portugal on this.

How should the legal instrument dealing with the relationship with the U.N.

be arranged?

Canada would be willing for State Parties or the diplomatic conference to

have a large role in the agreement, as would Trinidad and Tobago, United

Kingdom (states parties should approve agreement).

Israel stated that the states parties should confirm any agreement and the

agreement should be annexed to the statute.

Japan stated that the agreement should be approved by U.N. General

Assembly.

Switzerland stated that agreement should come after statute.

Lesotho stated that the agreement should be decided by states parties.

United States stated that the agreement does not needed to be included in

statute.

How should the ICC be financed?

ICC should be financed from the U.N.'s regular budget. Canada, Trinidad

and Tobago (provides reliable funding source also allow voluntary

contributions), Netherlands, Denmark (opposes funding solely from states

parties, but if combination financing is necessary, would consider Universal Postal Union system), Sweden prefers UN budget, but interested in U.S. proposal. Ireland. Thailand (agreed with Singapore that WFM's suggestions should be explored). Chile (opposes funding solely from states parties).

Malaysia, Slovenia (ideally from states parties. but that might deter

ratifications).

Japan preferred the states parties to be assessed under the same formula as

for the U.N. regular budget. Also, complaining states would pay for the cost of the case. Korea supports combination financing some from states parties and some from U.N. budget. Russia stated that funding should come from states parties but according to the U.N. formula, adjusted for the number of states parties.

Tanzania suggested that in the beginning the funding come from the U.N.

budget but then switch to funding from states parties.

China preferred funding from states parties. Other sources should be

supplementary.

United States stated that the U.N. regular budget lacks the means to

support the court and the Court would not be independent if wrapped up in

UN budget and administration process. Combination system: general budget

of ICC borne by states parties according to formula of the Universal Postal

Union; when Security Council refers situation to ICC, then U.N. will pay for costs of case; when a case makes a complaint, it should contribute to the costs of the case (states that do not have the financial means to do so can discuss this with the Registrar). Allow for voluntary contributions

India supported the spirit of the U.S. comments about independence.

Portugal stated that a provision should be included that prohibits

participation in judge elections by states which don't pay their dues.

Favors allowing voluntary contributions.

Egypt suggested doing a feasibility study. Pakistan agreed with this.

Singapore stated concerns over funding out of U.N. budget. Should explore

other options such as those in the World Federalist Paper on financing.

New Zealand stated that it did not like the U.S. proposal for Security

Council to pay for its referrals, because it seems like the Security Council is contracting out the job. Also, doesn't like complaining states having to pay, it will discourage some states from bringing cases.

The following delegations stated a need for an oversight mechanism.

Trinidad and Tobago, France (general assembly of states parties to meet

annually), Japan (meeting of states parties as administrative organ of the

court), United States (assembly of states parties), Russia (budget adopted

by a state party organ), Venezuela (supports French proposal), Egypt (need

a wider role for committee of states parties)