Summary of the Tuesday, August 27, 1996

PrepComm

A.M. Session

The Chairman started this morning's meeting by announcing the programme for the a.m. session, i.e. the introduction of new proposals pertaining to topics addressed at the March/April Prep Comm. Most of the comments submitted by the various delegations dealt with the following topics: the competency of the court, the definition of the crimes, the role of the Security Council, complementarity and the relationship of the ICC and the United Nations.

France was the first country to speak and gave a very detailed analysis of the above-mentioned topics along with stating that it felt one more years of discussions were necessary in order to successfully complete the preparatory work and that it did not rule out the possibility of a Diplomatic Conference in 1998. The French delegate also mentioned that he would like to see the establishment of the court before the turn of the century.

1. COMPETENCY OF THE COURT AND THE DEFINITION OF CRIMES

France suggested the competency of the Court should be limited to the core crimes, i.e. genocide, crimes against humanity, war crimes and aggression. It proposed the definitions contained in its draft. Egypt also supported the inclusion of the crime of aggression within the court's jurisdiction. Japan suggested including the detailed definition of the crimes in the statute, rather than by reference to the relevant treaties. The Japanese delegate also stated that he favored the exclusion of internal conflict from the definition of war crimes. Belize proposed that article 20 of the ILC draft be reformulated along the lines of articles 17 to 20 of the Draft Code of Crimes against the Peace and Security of Mankind. This delegate proposed that each paragraph of article 20 be contained in separate articles identifying all the minimum, common, qualitative and quantitative elements of the crimes. Denmark suggested the inclusion of a fifth crime to Annex 1 of the ILC Draft, namely the "Crimes against United Nations a

nd associated personnel."

2. THE ROLE OF THE SECURITY COUNCIL

France stated that it had changed its earlier position on this issue and with regards to the crime of aggression, the Security Council would confine itself to stating whether or not the situation is an act of aggression within the meaning of the Charter. Singapore stated its concern with article 23 (3) as this article would prevent the court from initiating proceedings unless the Security Council were to give it the go ahead and suggested an amendment to the paragraph that would serve to reverse the presumption in the present text. New Zealand voiced its support for the latter suggestion.

3. COMPLEMENTARY

France made reference to article 35 of its draft statute (concurrent jurisdiction), which lists the Switzerland voiced its general support of the subsidiary principle contained in this French article although mentioned its concern as to the crime of aggression and the need for the ICC in certain situations to be able to look at the sentences handed down on a national level. With regards to the consent requirement contained in article 34 of the French Draft, the German delegate expressed the view that this article was unnecessary and could, in fact, serve to destroy the credibility of the entire system. The United States felt further exploration of the "reconciliation regimes" adopted by other countries, was necessary. Should the ICC defer to a reconciliation process? And if there were to be a deferral, how would one be able to tell it was not a sham? Egypt insisted on the need for the ICC to have inherent jurisdiction over the crimes in order to avoid the creation of a stand-by institution that would not ser

ve its purpose. Singapore made reference t the UK proposal and confirmed that the "absence of good faith" on the part f the national jurisdictions was a good litmus test for the intervention of the court. He also stressed the similarity in the proposal between that of the UK and that of France and that therefore, in his opinion, there was definitely room for consolidation.

4. RELATIONSHIP OF THE ICC AND THE UNITED NATIONS

New Zealand submitted a written proposal aimed at leaving open the option of including the Statute of the ICC in the Charter of the United Nations.

Most of the countries who made the above propositions also submitted them in writing. The Chairman adjourned the meeting by making reference to the somewhat miscellaneous agenda of the meeting and stating that the afternoon session would begin half and hour later than usual and deal with the Reports from the Informal Working Groups.