Summary of the PrepCom Working group meeting, February 13 1997

The Chairman started this morning's meeting by repeating in brief the outcome of the Wednesday morning session. Then he announced the program for the a.m. session, i.e. finalize the crime against humanity in a manner which takes into account all the views expressed by the different delegations.

Most of the comments submitted by the various delegations on behalf of Art. 20 lit. d of the draft statute dealt with the following questions:

1. Chapeau

The chapeau as it is in the draft statute has the following wording: "Crimes against humanity" means the following [crimes] [acts), when committed as pan of a widespread [and] systematic attack [ on a massive scale] against any civilian, population.

Concerning the first set of brackets, i.e. whether it should say "crimes" or "acts", a majority of countries stated their preference for "crimes" . (Actually only one country was explicitly in

favor of using "acts").

Still undecided is the question, whether widespread and systematic should be used cumulatively or alternatively (i.e. "and" or "or") because there could not be a spotted out a clear tendency as about the same number of delegations thought the competencies of the court would either be too restricted (when "and" is chosen) or too wide (when "or" is chosen).

A majority of the delegations thought that "on a massive scale" should not be added, as

"widespread" defines the scale already concise enough.

A great number of countries followed the Swiss proposal to take article 18 of the ILC draft code as model for the formulation of the chapeau.

The question was brought up whether the crimes a-against humanity in this article would only apply to wartime or as well to peacetime. An overwhelming majority has the attitude that crimes against humanity cannot only be committed during wartime but also during peacetime.

2. Lit. f: torture

Lit. f has the following wording:

torture [or other forms of cruel treatment]

The number of states who wish to delete the brackets equals more or less the amount of countries who want to uphold the brackets.

Several states expressed their concern for a more detailed definition of torture and stated, that the inclusion of the definition given in the Annex lit f. would be sufficient.

3. Lit. g: Should enforced prostitution and other acts of sexual violence be added.

Lit g has the following wording: "rape [or other serious assaults of a sexual nature]

A majority of countries has the opinion, that enforced prostitution and other serious assaults of a sexual nature are to be added and that this amendment would not constitute new international law and therefore would not be beyond the mandate of the PrepCom. The countries agreed mainly on lit. g of the Annex.

4. Formulation of lit. h (persecution)

The draft statute has the following wording:

Persecutions on political, [national, ethnic] racial and religious grounds [in connection with any [other] crime within the jurisdiction of the Court]

There was no consensus in sight, whether "national" and "ethnic" should be upheld or not as the countries uttered different attitudes towards this question.

The states almost unanimously want to delete "in connection with any [other] crime within the jurisdiction of the Court".

Most countries agreed on the proposal to add forced disappearance to the list of crimes against humanity. The suggested connection to gender was also welcomed by many states.

5. Lit. i: other inhumane acts: Is it concise enough to meet the needs of the principle of legality and should institutionalized discrimination be added?

In the draft statute, lit. i has the following wording:

[other inhumane acts of a similar character [, such as] willfully causing great suffering or serious injury to body and health] [other inhumane acts which cause serious injury to body or health]

The majority of states were in favor of an non-exhaustive list of crimes; but mairdy only with the inclusion of a more precise definition in the Annex.

A number of important states were in favor of the second proposal but with the addition of intentionally" so that it would say: "other inhumane acts which intentionally cause serious injury to body or health".

Most countries are in favor of adding institutionalized discrimination to the list of crimes; but the question was raised whether this kind of discrimination really is a crime against humanity.

6. Varia

Few countries were of the opinion, that further amendments to the list of crimes would create new law and therefore exceed the mandate of the PrepCom.

A number of countries think that - in the name of the principle of legality - it is important to uphold the Annex with the definition of crimes.