the international criminal court monitor · un secretary-general kofi annan stated that the...

JUNE PREPCOMWhat Remains To Be Done

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GENDER JUSTICEOutstanding Issues

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US PROPOSALAn In-Depth Look

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CONSTITUTIONALISSUESOvercoming RatificationBarriers Page 7

BUILDINGNETWORKSNotes from the Field

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UPCOMINGEVENTS

Pages 8 - 9

FOURTH PREPCOMSUMMARY

Pages 10 - 13

In his Millennium Report, released in April 2000,UN Secretary-General Kofi Annan stated that thecreation of an International Criminal Court (ICC)will make an important contribution instrengthening protection for the vulnerable, andmade a strong plea, as he has on other occasions,for all states to sign and ratify the Rome Statute.The report will be debated at the fifty-fifth sessionof the General Assembly, the “MillenniumAssembly”, which will open on 5 September 2000.Governments will be encouraged to sign the treatybefore the December 30th deadline.

Further to a recommendation of the Secretary-General, NGOs and other civil societyorganizations from more than 100 countries metat the UN headquarters for one week in May toprepare their own declaration and agenda foraction. This will be forwarded to the Secretary-General for consideration at the “MillenniumSummit” to be held from 6 - 8 September 2000.The declaration mirrors the Millennium Report inits call for universal ratification of the ICC Statuteand adds the importance of adopting strongdomestic implementing legislation.

Governments are already heading these calls.The number of ratifications continues to mount,with Venezuela, Iceland, Tajikistan and Belizehaving recently completed the process. As thisissue was going to press, France had indicated itsintention to deposit its ratification bill withindays. The ratification by France is particularlysignificant in light of its status as a permanentmember and current president of the SecurityCouncil, its significant contributions topeacekeeping efforts and its initial concerns aboutthe Rome Statute. Great progress has been madein countries all over the world over the last fewmonths, including Argentina, Belgium, Brazil,Canada, Cyprus, Denmark, Ecuador, Iran,Lesotho, Luxembourg, Nepal, New Zealand,Portugal, South Africa, Sweden, and Uganda,among others. It is expected that severalratifications will be announced during the fifthsession of the UN Preparatory Commission on theICC which will take place at UN headquarters

from June 12-30. The June session of the Preparatory

Commission is particularly significant, as June30th is the deadline for the adoption of draft Rulesof Procedure and Evidence and Elements ofCrimes. Many difficult issues remain to addressed,including the issue of the proposal circulatedinformally by the United States at the last session.Since that time, the U.S. has worked hard topromote it in capitals around the world, and theproposal, or a modified version of it, is expected tobe introduced at the upcoming meeting.

Although NGOs and governments have beenworking with the U.S. delegation throughout theprocess to attempt to address their concerns, theNGO Coalition for an ICC, representing morethan 1,000 members, has taken a commonposition that the proposal would seriouslyundermine the effectiveness and independence ofthe future Court and would effectively amend theICC Statute; the most critical amendments wouldthe increased role of the Security Council and theexemption for “official acts”. In addition, theproposal would allow an exemption for roguestates and would provide an incentive forcountries to remain outside the treaty. TheCoalition is concerned that governments mayagree to a modified version of the current proposalor accept a package deal which included parts ofthe proposal, at the 11th hour of the June session.

We trust that the Like-Minded countries willuphold their principle to “fully safeguard theintegrity of the Statute adopted in Rome” and thatmembers of the Non-Aligned Movement will heedtheir recent declaration which also notes the“importance of safeguarding the integrity of theStatute”. The worldwide movement towardsratification clearly demonstrates support for theStatute adopted in Rome, and NGOs look forwardto continuing to work in partnership withgovernments to ensure that a fair, effective andindependent ICC is established.

Jayne StoylesProgram Director

The ICC MONITORis a publication of the

NGO Coalition for an ICC

UN Secretary-General Kofi Annan delivering the Millennium Report address to the General Assembly on 3 April 2000

The International Criminal Court

MONITORThe Newspaper of the NGO Coalition for an International Criminal Court

Issue 15 • June 2000

97 Signatures

11 Ratifications

JUSTICE IN A NEWMILLENIUM

JUSTICE IN A NEWMILLENIUM

June Preparatory Commission Will Address Important Issues Page 3

Government of Bangladesh Reiterates Support for ICC Page 3

Many Gender Issues Remain to be Resolved at the June Prepcom Page 4

Asia-Pacific Child Soldiers Conference Recognizes the Need for an ICC Page 4

Workshop Discusses War-Affected Children and the ICC Page 5

U.S. Circulates New Proposal Page 6

Non-Aligned Movement Declares Support for the ICC Page 6

The Debate on Constitutional Compatibility with the ICC Page 7

Africa-Europe Summit Declaration Urges Support for the ICC Page 7

Establishing a Regional Network: A Latin American Perspective Page 8

Calendar of Events Page 8

Establishing a National Network: A South African Perspective Page 9

Summary of the Fourth Session of the Preparatory Commission Page 10

Crime Congress Includes Meeting on the ICC Page 10

AI Pakistan Generates Interest in the ICC Page 11

Latin American Members of FIDH Discuss International Justice in Colombia Page 12

Rabat Declaration Calls for ICC Ratification Page 13

Latin American and European Experts Meet in Madrid Page 13

Conference Discusses African Conflicts and the ICC Page 14

NGOs in India Spread the Word about the ICC Page 15

NGOs from 100 Countries Call for an ICC at the Millenium Forum Page 15

Iceland 25 May 2000Ambassador ThorsteinnIngólfsson, Hans Corell,Under-Secretary-Generalof the Office of LegalAffairs (Left)Venezuela 7 June 2000Minister of Foreign AffairsJosé Vicente Rangel, HansCorell (Right)

“To strengthen protection [of the vulnerable], we must reassert thecentrality of international humanitarian and human rights law. We muststrive to end the culture of impunity—which is why the creation of theInternational Criminal Court is so important. We must also devise newstrategies to meet changing needs.”

– UN Secretary-General Kofi Annan, in his Millennium Report addressto the General Assembly, April 3, 2000

The International Criminal Court MONITORa publication of the NGO Coalition for anInternational Criminal Court

CICC Address: Tel: 1-212-687-2176c/o WFM Fax: 1-212-599-1332777 UN Plaza New York NY 10017 USAEmail: [email protected] Address: www.iccnow.org

William R. Pace Convenor

Jayne Stoyles Program Director & Editor

Irune Aguirrezábal European Coordinator

Georgia Boundy Program Assistant

Carmel Gabbay Research & Media Associate

Eduardo González Cueva Global South Outreach

Coordinator

Jens Iverson Data Systems & Layout

Ushma Parikh Development Associate

Mariana Rodríguez Pareja Program Intern

Jennifer Schense Legal Adviser

CICC Informal Steering Committee:

Amnesty InternationalAsociación pro Derechos HumanosEuropean Law Students AssociationFédération Internationale des Ligues des

Droits de l’HommeHuman Rights WatchInternational Centre for Human Rights and Democratic DevelopmentInternational Commission of JuristsLawyers Committee for Human RightsNo Peace Without JusticeParliamentarians for Global ActionUnion Interafricaine pour les Droits de

l’HommeWomen’s Caucus for Gender JusticeWorld Federalist Movement

Current funding for the Coalition for anInternational Criminal Court is beingprovided by the Ford Foundation; the John D.& Catherine T. MacArthur Foundation; theOpen Society Institute; the European Union;the governments of Canada, Germany,Liechtenstein, Norway, Switzerland, and theUnited Kingdom; and from individual donorsand participating non-governmentalorganizations. Long-term and/or previousfunding has been received from Denmark,Finland, Italy, the Netherlands, Sweden, thePaul and Daisy Soros Foundation and others.The views expressed herein are those of theCICC and can thereforein no way be taken toreflect the officialopinion of the funders.

The International Criminal Court MONITOR • June 2000

Contents

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Recent Ratifications

The outcome of the June session of thePreparatory Commission for the InternationalCriminal Court (PrepCom) will be of greatimportance for the future effectiveness of theICC. The following outlines some of the mainissues of concern to NGOs at the session. Amore complete overview of these andadditional issues can be found on the ‘NewDocuments’ page of the CICC web-site athttp://www.iccnow.org/html/new.html.

Elements of Crimes

The general introduction to all threecrimes (the ‘super chapeau’) must be reviewedto ensure consistency with the Statute andwith the elements of all crimes. In addition, ageneral ‘gender integration’ clause—makingclear that crimes of sexual violence can becharged as other crimes, such as torture—isbeing considered.

The ‘actively promote and encourage’language in the chapeau to Article 7 has beencondemned by NGOs on the grounds that itthreatens to prevent the Court fromexercising its jurisdiction over crimes againsthumanity where the state or organizationalpolicy is to take no action to prevent orpunish an attack. Any alternative languagearising at the June PrepCom must bescrutinized for consistency with the Statuteand international law.

The current wording of the elements forenslavement and sexual slavery (“purchasing,selling, lending or bartering … or by … asimilar deprivation of liberty”) has raised theconcern that situations of slavery notinvolving commercial exchange could beexcluded. This should be clarified by addingto sexual slavery the same footnote as forenslavement, which makes clear that forcedlabor, servile status and trafficking in personsfall within this crime.

The text on enforced disappearancecontinues to raise concerns, in particularabout the need to encompass all the

individuals who participate in the chain ofevents constituting the crime.

Rules of Procedure and Evidence

In connection with the US proposal (seebelow), NGOs firmly oppose the inclusion ofany rule to Article 98 allowing the Court toenter into agreements limiting its ownexercise of jurisdiction.

A number of issues relating to victims willbe dealt with at the June session, with thedefinition of ‘victim’ being among the mostprominent. The current text reflects NGOcalls for inclusion of the 1985 VictimsDeclaration definition, although it also addsorganizations and institutions, as included inthe Paris Seminar definition. Somegovernments are seeking to narrow thisdefinition, especially with respect to“emotional suffering”; asmaller number wouldfurther exclude “those whointervene to assist victimsor to preventvictimization” , andorganizations andinstitutions.

For both the Rules andElements, a harmonizationeffort was madeintersessionally torationalize the structure ofthese texts. The process ofrestructuring andharmonization at the Junesession must be watchedcarefully to ensure that thesubstance of the Rules isnot compromised whiletheir transparency andusefulness is maximized.

The US Proposal

The US proposal, circulatedat the March session, wouldadd a Rule for Article 98allowing the Court—notonly States, ascontemplated by theStatute—to enter intoagreements preventingsurrender to the ICC. Theproposal would then insertinto the RelationshipAgreement between the UNand the ICC text requiringthe approval of thegovernment of a non-StateParty before the Courtcould seek the surrender oraccept the custody of anindividual acting under itsdirection. This limitationcould be used by all non-State Parties unless theSecurity Council explicitlyauthorized the surrenderpursuant to Chapter VII ofthe UN Charter. TheSecretariat of the NGOCoalition for an

International Court (CICC) and its membershave considered the U.S. proposal carefullyand have concluded that it would seriouslyimpair the jurisdiction and reputation of theCourt. NGOs are asking governments toinstruct their delegations to work against theacceptance of this proposal and of theprinciples underlying it, and to resist theadoption of any rule of procedure openingthe door to further negotiations on this orsimilar proposals.

Fanny Fontaine, Jean Carmalt and BruceBroomhall work on the International JusticeProgram of the Lawyers Committee for HumanRights, as Intern, Program Assistant and SeniorCoordinator respectively.

June Preparatory Commission Will Address Important IssuesBy Fanny Fontaine, Jean Carmalt and Bruce Broomhall


March PrepCom Session on the EnforcedDisappearance of Persons and the ICC. Fromright to left, Chris Hall (AI), Eduardo GonzalezCueva (CICC), and Helen Duffy (HRW).

A conference on “The International Criminal Court and itsRatification by Bangladesh” took place on the 16th and17th of May in Dhaka, under the auspices of the Asian NGONetwork for an ICC (ANICC). The Conference wasinaugurated by the Chief Justice of Bangladesh, Mr. LatifurRahman and had the participation of numerous expertsfrom the host country, and from other South and South EastAsian Countries.

The meeting was of special interest for Bangladeshihuman rights defenders because of the atrocities committedthere during the independence war in the 70s, and duringyears of military dictatorships. Although the ICC, becauseof its non-retroactive character, will be unable to try thecrimes perpetrated against the Bangladeshi people at thattime, many legal experts expressed hope that new avenuesfor truth and justice could be found due to the fact thatmany countries will enact universal jurisdictionmechanisms together with their ratification of the ICCStatute.

The Conference included a productive session on thegender dimension of the ICC Statute.Diverse women’s rights advocatesdiscussed a rich presentation byVahida Nainar about the pathbreakingadvances that the Statute provided forwomen, and about the need toemphasize the role of the ICC as asignificant advancement for womenduring the discussions of the Beijing +5 Agenda.

CICC representatives, Mr. WilliamPace (Convenor), Ms. Vahida Nainar(Director of the Women’s Caucus forGender Justice) and Mr. EduardoGonzález, (Global South Coordinator)met with Prime Minister, H.E. Sheikh Hasina, tocongratulate her for the accomplishments of hergovernment in delivering on the pledges she made at theHague Appeal for Peace in May 1999. Among these pledgeswere the signature and ratification of the ICC Statute. ThePrime Minister reiterated her government’s interest in aprompt process of ratification of the Statute and said shewould instruct her cabinet to work expeditiously in thisenterprise.

Government of BangladeshReiterates Support for ICC

H.E. Mr. LatifurRahman, ChiefJustice,Bangladesh

The Coalition to Stop the Use of Child Soldiers, in co-operationwith the United Nations Children's Fund (UNICEF), organized theAsia-Pacific Conference on the Use of Children as Soldiers, whichtook place in Kathmandu, Nepal from May 15th to 18th. Inattendance were delegates from Asia-Pacific governments andgovernments from other regions (including Belgium, Canada,Denmark, Finland, France, Germany, Norway and Switzerland),local and regional NGOs, the International Committee of the RedCross, the International Labour Organization, the U.N. HighCommission for Refugees, the Human Rights Commission of SriLanka, and independent specialists from different regions.

Drawing from the results of plenaries relating to four differentworking group sessions, the conference adopted a declaration on itsconcluding day. The root causes of the recruitment and use ofchildren as soldiers and their interrelationship with other extremeforms of child labor and exploitation were thoroughly discussed inlight of the experiences of different countries. International legalstandards governing the recruitment, participation, demobilisationand reintegration of child soldiers, and their effective monitoring

and implementation, were examined by the human rights activistsand government officials. Strategies for the prevention of childrecruitment, including advocacy, programmatic interventions,human rights education and awareness initiatives were explored.

The final declaration, the " Kathmandu Declaration on the Useof Children as Soldiers", included in its preamble "... Welcomingthe adoption of the Statute of the International Criminal Courtwhich makes the conscripting or enlisting of children under the ageof 15 years or using them to participate actively in hostilities a warcrime, both in international and internal armed conflict andwhether by armed forces or armed groups, while regretting that theage specified was not 18 years;...." To supplement this declaration,in a specific resolution, participants committed to call upon Asia -Pacific States which have not already done so, to ratify the ICCStatute, as well as a number of other treaties which provideprotection for children.

Fayazuddin Ahmad is the Programme Coordinator, Asian Network for anICC

Many of the issues identified by women’sgroups as of priority concern as far back asFebruary 1999 are still outstanding as thePreparatory Commission on the ICC(Prepcom) prepares for the finalization of theElements Annex and Rules of Procedure andEvidence in June. This articles outlines thekey outstanding gender issues.

Gender integration

One recurring theme since the first post-Rome Prepcom has been the need for astatement of gender integration, preferably inan overarching chapeau to all of the crimes inthe Annex, to the effect that sexual violenceshould be charged also as other grave crimes.At the moment there appears to be supportfor such a statement in an overarchingchapeau to apply to all the crimes, thoughcurrently it is reflected in Footnote 2 to thegenocide text.

A few delegates have questioned the needfor such a statement given the jurisprudenceof the ad hoc tribunals. The responseto their concern is that the ICTY andICTR were forced to charge thesecrimes as torture or genocide sincerape was the only crime of sexualviolence listed in the statutes, andeven then only as a crime againsthumanity. Aside from the fact thatcharging rape, for example, as acrime in and of itself as well as aform of torture or an act of genocidemore accurately reflects the natureand purpose of sexual violence inmany cases, there is also the ever-present danger of marginalizationwhen it comes to violence againstwomen. Even with sexual violencecrimes specifically enunciated in theRome Statute, the statement iscrucial.

Crimes Against Humanity

The compromise language in the crimesagainst humanity chapeau, requiring that thestate or non-state entity “actively promote orencourage” the criminal conduct, would limitthe statutory jurisdiction of the Court andwould have the effect of discriminating onthe basis of gender and age. This is a priorityissue, especially since it is often the case thatcrimes committed on a widespread orsystematic basis with the acquiescence ortoleration of states or non-state entities arecommitted predominantly against womenand children. Moreover, this language wasthe result of a compromise based on theproposal submitted by 11 Arab countrieswhich sought to exclude crimes of sexual andgender violence from the jurisdiction of theICC when committed within the family or asa matter of religious or cultural concern.Since that proposal was baseless,discriminatory and contrary to internationallaw to begin with, eliminating the

compromise language is the only satisfactoryoption.

Evidence in Cases of Sexual violence

Rules 6.5 and 6.5 bis and ter of the RPE rollingtext encompass a series of issues identified bywomen’s groups at the outset which havebeen heatedly debated at several juncturessince last year. At the March Prepcom, afterlong negotiations the informal workinggroup, chaired by Canada, issued a carefulelaboration of the rule, which delineates aseries of principles the Court is required totake into account concerning prohibitedinferences of consent and sexual conductevidence. The current rule also sets in placean in camera screening procedure that wouldcome into play any time a party desires tointroduce or elicit such evidence for reasonsother than those prohibited. Since thisformulation already represents a compromiseand departure from absolute prohibitions on


Many Gender Issues Remain to be Resolved at the June PrepcomBy Pam Spees

Asia-Pacific Child Soldiers Conference Recognizes the Need for an ICCBy Fayazuddin Ahmad

Strategy meeting of the Women’s Caucus for Gender Justice at the March Preparatory Commission.

Continued on next page

this evidence, with due regard for the rights ofthe accused, this current formulation must beadopted without further dilution.

Privileges

Communications between counselors andpatients must be accorded an absoluteprivilege. As observed at the ICTY and indomestic systems, the lack of adequate rulesregarding the counselor-patient privilege hasresulted in egregious violations of witnesses’privacy and intrusion into a relationship thatis critical to the healing process of victims oftraumatic events. Currently, the formulationin Rule 6.4 leaves this privilege discretionaryand identifies criteria for the Court to apply indetermining whether to privilege thecommunications.

This is in contrast to the absolute privilegeawarded in the rolling text to the priest-penitent privilege, or religions which have aconfessional communication central to theirpractice. While a regression from theconfessional privilege is not desirable, it is apoint of serious concern that a religiousconfession to a violent crime is automaticallyprivileged and untouchable by the Courtwhereas the communications betweencounselors and victims struggling to come toterms with horrific and traumatic events arenot, especially when the need for a sense ofsafety, security and privacy is fundamental tothe recovery process.

There are several other outstandinggender issues which must be addressed at theJune Prepcom. The first is the need for afootnote to the term “genuine consent” in thecrime of enforced sterilization, to ensure it isunderstood to mean voluntary and informedconsent as well as capacity to give consent.Second, the proposal in Footnote 25 to thecrime of persecution, proposing that thefundamental rights at issue be “universally”recognized, will be considered; this proposalfurther narrows international law and divergesfrom the Rome Statute. Next, the definitionof “victim” will be discussed, and must alsorecognize as survivors those who stand inclose relationship to the deceased victim as defacto family, if not formally recognized at law.It must also be broad enough to addressenvironmental and cultural damage. Finally,the elements of enslavement and sexualslavery must be modified to de-emphasize thecommercial exchange element and re-incorporate the acts of forced labor andforcing others into a servile status; these weredropped from the footnote in the rolling textat the behest of the UAE and Holy See,respectively, at the last Prepcom.

In addition, the long-awaited presentationof the U.S. proposal (see article in this editionby John Washburn) is of concern to women’sgroups, who view it as a re-introduction of theSecurity Council ‘veto’ and peacekeeperexception. It is crucial that in these finalstages states, as well as civil society, not falterin the commitment to an independent,impartial and effective Court as the U.S.intensifies the pressure to meet its demandsfor special treatment; demands that havealready been conceded to.

Pam Spees is Outreach Coordinator for theWomen’s Caucus for Gender Justice.


“The abomination we are witnessing againstchildren in theatres of conflict around theworld, where they are being deliberatelytargeted, brutalized and used as instruments ofwarfare, represents above all a crisis of values.There is a wide gap between the impressiverepertoire of international humanitarian andhuman rights instruments that have beendeveloped in the last 50 years, and theirapplication on the ground. The establishmentof an international criminal court represents aunique opportunity to begin closing that gapand to begin the process of reversing the trendof impunity in conflict situations around theworld.”

Olara A. Otunnu, Special Representative of the Secretary-General forChildren in Armed Conflict, June 1998

Workshop Discusses War-Affected Childrenand the ICC

In Accra, Ghana, a workshop on War-Affected Children in West Africa tookplace on April 27 and 28, 2000. Theworkshop, sponsored jointly by theForeign Ministries of Ghana andCanada, brought togetherrepresentatives of the governments ofthe sixteen members of the EconomicCommunity of West African States(ECOWAS) to mobilize concrete actionfor protection for childrendisproportionately affected by armedconflict and violence.

The workshop included anafternoon session on the InternationalCriminal Court (ICC), encouragingECOWAS States to sign and ratify theRome Statute and focusing on activitieswhich civil society organizations canundertake to help bring the ICC intoexistence. The Ghana Fellowship ofFormer Members of Parliament(GAFFOMP) played an active role inorganizing the session on the ICC. TheCoalition for an ICC took advantage ofthis opportunity to bring together activemembers from the region to discuss theglobal ratification campaign, inaccordance with the growingdecentralization of the work of theCoalition.

The Accra Declaration on War-Affected Children was adopted at theend of the workshop. On the subject ofthe ICC, the ECOWAS States publiclycommitted themselves "to ratify theStatute of the International CriminalCourt and to bring to justice those whocommit violations against children."The Declaration will be the centerpiece

of the outcome of the Ghanaconference, which will be shared andbuilt upon at the InternationalConference on War-Affected Children,to be hosted by the Canadiangovernment in the fall. For moreinformation on this initiative, visit thewebsite of the Canadian ForeignMinistry at www.dfait-maeci.gc.ca.

Credit: Coalition to Stop the Use ofChild Soldiers/UNICEF/1403/YannGamblin

Continued from previous page

Early in the first week of the March session ofthe U.N. Preparatory Commission on theInternational Criminal Court, the UnitedStates delegation circulated a proposalprivately, first to other delegations, and thento NGOs. The United States discussed this textextensively in small informal meetings withother governments and NGO representatives,but did not introduce it as an officialdocument of the Commission.

The proposal consists of a rule ofprocedure under the Rome Statute and aprovision in an international agreement. TheUnited States will ask the Commission toadopt these. These texts address only one verydetailed and specific situation: The Court hasindicted someone and issued an arrest warrantfor him; he is under the control of a nation ofwhich he is not a citizen and which is aboutto deliver him to the Court; his own countryhas not joined the Rome Statute; it claims thatin the situation surrounding the crime ofwhich he is accused, he was its official oragent.

The purpose of the proposal is to allow hiscountry, by withholding its consent, either toprevent him from being delivered to theCourt, or to bar the Court from taking himinto custody. This privilege would not beavailable in any one of three circumstances:(1)The country later consents; (2)The caseinvolved had been referred to the Court bythe Security Council under its enforcementpowers in Chapter VII of the United NationsCharter (this limitation does not appear in thetext, but was confirmed by the United Statesdelegation in conversations); (3)The Councilhad used those same powers to takepeacekeeping or other actions (such assanctions) directly against the country inconnection with the situation involving thecrimes for which the Court had indicted theagent or official. Furthermore, in doing thisthe Council had also specifically determinedthat the country could not have the privilege.

The proposal uses two provisions of theRome Statute to establish this privilege. Article98, section 2 says that the Court may not askone nation to deliver a citizen of anothercountry to it when this would require the firstnation to violate that nation's "obligationsunder international agreements" to get theconsent of the other country in advance.These obligations could of course be satisfiedif either the Court or the first nation obtainedthe consent of the other country. Article 2requires that the Court "be brought intorelationship with the United Nations throughan agreement" between the two organizations.

The proposal first provides a paragraph forthe relationship agreement. This would createfor the Court the limitations already describedon requesting the surrender, or takingcustody, of an indicted person. The proposalfollows this with the text of a rule underarticle 98, section 2. That rule would establishthe relationship agreement as one of theinternational agreements to which thatsection refers. In this way, Article 98 wouldenforce on the Court the limitations in theparagraph proposed for the relationshipagreement.

The proposal was approvedin Washington so late that theUnited States in most cases wasonly able to start discussing itwith other governments in theircapitals as their delegations weretraveling to the March session ofthe Commission. Thesedelegations accordingly had noinstructions and were not able torespond authoritatively to theproposal. Recognizing this, theUnited States delegation did nottry to introduce the proposal asan official document. It did,however, obtain a footnoteunder article 98 in the rollingtext of the rules of procedureand evidence which will be thebasis for formal debate on theproposal in the June session.Between the sessions, the UnitedStates has been preparing forthat debate with extensivediscussions in capitals includingan April 17 letter from Secretaryof State Albright to many foreignministers.

The proposal appears to bethe result of a strenuous andthoughtful effort by the UnitedStates to find a new approach toits very longstanding objectiveof keeping American officials outof the reach of the Court. Duringthe negotiations before andduring the Rome conference, ittried to achieve this throughlimitations on the Court'sjurisdiction. Recently, it hasaccepted that it has becomeimpossible to negotiate thechanges in the Statute thatalterations in jurisdiction wouldrequire now. The presentproposal therefore tries to staywithin the Statute as it is.

The United States decided todo that after a long and difficult internaldebate. The consequences of the proposalaccepted in that decision constituteimpressive evidence of the strength andgenuineness of the concerns and interestswhich the United States has emphasized againand again since 1995 as the reasons for itsinsistence on exemption for its officials.

Indictment and issuance of an arrestwarrant come at the end of a long chain ofevents, hearings, and decisions in the Court,some of which are very public. These aredescribed in Articles 14-19 and 53-59 of theStatute. They include several extensiveopportunities for states to assert formallyunder the principle of complementarity theirrights to investigate and try their accusednationals themselves. The United States nowinsists that it wants the power of exemptionafter all of this has happened. This stronglysuggests that the United States does feelgenuinely and intensely a serious threat thatamong the numerous judges, prosecutorialstaff, and investigators involved in this long

and complicated process, so many will beaffected by anti-Americanism or politicalpressures that they will succeed in unjustlyindicting a U.S. official or military person.Moreover, U.S. belief that this is likely tohappen, perhaps even frequently, would inturn support its further fear that the threat oftrial could be used by the Court's judges andstaff hostile to the United States to intimidateits officials and thus affect their conduct of itsforeign and security policy.

Reaction to this new U.S. initiative at theMarch Commission session was somewhatrestrained by surprise and the absence of anofficial document, but it was given extensiveand thoughtful consideration. A largemajority of both NGOs and governmentsrejected the basic goal of exemption ofgovernment personnel so long pursued by theUnited States. They believed that it would be afundamental alteration of the Rome Statute.They pointed out that a U.S. effort to providefor this exemption in the Statute had been


U.S. Circulates New Proposalby John Washburn

The 13th ministerial conference of the Non-AlignedMovement (NAM) was held in the city of Cartagena,Colombia from April 8-9. The final Declarationproduced at the conference included the following wordsof support for the ICC:

Non-Aligned MovementDeclares Support for the ICC

97. We recall the Declaration on the UnitedNations Diplomatic Conference of Plenipotentiarieson the Establishment of an International CriminalCourt by the NAM Ministerial Meeting of theCoordinating Bureau. We take note of the ongoingdiscussions in the Preparatory Commission and westress the need to ensure during the work of thePreparatory Commission, that the Court is impartialand independent of political organs of the UnitedNations which should not direct or hinder thefunctions of the Court nor assume a parallel orsuperior role to the Court. We also note theimportance of safeguarding the integrity of theStatute of the Court, in particular during the workof the Preparatory Commission and emphasize theneed to take the necessary measures to ensure thecoming into operation of the InternationalCriminal Court.

98. We note the conclusion by the PreparatoryCommission for the International Criminal Courtof its second reading of the Elements of Crimes andthe Rules of Procedure and Evidence. We call onthe States to work together to ensure the timelycompletion of the mandate of the PreparatoryCommission in particular with regard to the Rulesof Procedure and Evidence and the Elements ofCrimes. We also emphasize the need to concludethe ongoing work of the Preparatory Commissionwith respect to the crime of aggression, which is animportant part of the Statute. In this regard, weurge the active and consistent participation of themembers of NAM in the Working Group in allissues, particularly with regard to arriving at anacceptable definition of this serious crime.

99. We stress our serious concern on theintention of a group of States to unilaterally re-interpret or re-draft the existing legal instruments inaccordance with their own views and interests. Weemphasize that the integrity of legal instruments byMember States must be maintained.

U.S. Proposal, Continued on page 15

In the nearly two years since the adoption ofthe Rome Statute, the movement towardsglobal ratification has gained considerablemomentum. At the time of writing, ninety-seven states have signed the treaty, elevenhave completed ratification and many moreare in the process of doing so. In manycountries, this ratification process hasgenerated considerable debate on thecompatibility of the ICC Statute withdomestic constitutions.

While different constitutions give rise todifferent questions, three issues have arisenwith particular regularity. As explained inmore detail below, these relate to thecompatibility of the ICC Statute withprohibitions on the extradition of nationals,provisions on immunities, and prohibitionson life imprisonment. In many countries,after close analysis of the ICC Statute togetherwith the relevant constitutional provisions,initial concerns have given way to the viewthat the statute and the constitution can infact be read harmoniously. This approach,which might be termed the ‘interpretativeapproach’, and the ideas and argumentscirculating in distinct parts of the world insupport of it, are the focus of this paper.

Before considering this interpretativeapproach, it should be acknowledged that it isnot the only approach that has been adoptedto date. A small number of states havedecided instead to amend their constitutions.France, for example, has completed itsconstitutional amendment procedure, suchthat Article 53.2 reads: “[t]he Republic mayrecognize the jurisdiction of the ICC withinthe agreed upon conditions contained in thetreaty approved July 18, 1998.” Brazil iscurrently debating an amendment whichwould have a similar effect. Importantly,Belgium has decided to take the amendmentroute, but to do so only after ratification, thustaking a critical step to ensuring thatamendment will not affect the ability to ratifywithout delay.

Extradition

Some constitutions prohibit the extradition ofnationals. Given that the ICC will not

prosecute in absentia, the Court must gainphysical control over the suspect for the trialto take place, and states are correspondinglyobliged to cooperate with the Court in thearrest or surrender of persons, be theynationals or not.

The apparent tension between theconstitutional prohibition and the ICCobligation dissipates when one recognizes thedifference between surrender to aninternational criminal court and extradition.The Statute distinguishes the two, defining“surrender” as “the delivering up of a personby a State to the Court” and extradition as“the delivering up of a person by one State toanother.” This is not merely a difference interminology. The ICC is the negotiatedproduct of states, and states will become partof the Assembly of States Parties uponratification. Moreover, the ICC is aninstitution which must, as set out in itsstatute, meet the highest standards of fairnessand due process. Surrender to the ICC istherefore quite different from extradition toanother sovereign state, in whose creation thesending state has no investment, and overwhose standards it has had no control. Thus,concerns which underlie the constitutionalprohibition on the extradition of nationals donot apply to surrender of a national to theICC.

In some cases, the constitutionalprohibition may be cast more broadly thanprohibiting ‘extradition,’ such as in the CostaRican constitution, which states that “noCosta Rican may be compelledto leave national territory.”However, other provisions ofthe statute have been invokedto dispel any perception ofpotential conflict, includingwith constitutionalprohibitions framed in thisway. The principle ofcomplementarity in Article 17,which provides that the ICCwill be able to act only whenthe national justice system hasnot investigated or prosecuted,has been considered of centralimportance. A state can itself

investigate a crime committed by one of itsnationals, and therefore avoid being calledupon to surrender him or her to the Court.

In this respect it has also been noted thatmany states have already recognized the dutyto prosecute or extradite for many of thecrimes under the Rome Statute, namelytorture, grave breaches of the GenevaConventions and genocide, by virtue of theirratification of the relevant internationaltreaties. Therefore, compatibility issues whicharise with ICC ratification should not be new.If a national commits these crimes, the statewould be obliged by virtue of other treaties toprosecute on the domestic level.

2) Immunities

Many national constitutions grant certainstate actors a degree of immunity fromprosecution. The scope and extent of suchimmunities vary greatly, with someconstitutions strictly limiting immunity tocertain acts, such as utterances in parliament,and others framing the immunity morebroadly, granting immunity from any penalprocess.

Article 27 of the ICC Statute, on the otherhand, establishes that the Statute “shall applyequally to all persons without any distinctionbased on official capacity. In particular,official capacity as a Head of State orGovernment, a member of a Government or


The Debate on Constitutional Compatibility with the ICCBy Brigitte Suhr and Helen Duffy

The first summit meeting between Heads of State ofAfrican nations and of the member states of theEuropean Union, as well as the President of the EuropeanCommission, was held in Cairo, Egypt from April 3-4.The summit followed the conclusion of the negotiationsbetween the European Union and Africa, Caribbean andPacific (ACP) states which took place two months earlierand resulted in the creation of a new partnershipagreement among the regions.

The Cairo Summit addressed a broad range ofeconomic, social and political issues of concern to bothAfrican and European nations for the purpose ofestablishing a common agenda to address these issues.Included in the final declaration was the followingstatement of support for the ICC: “We welcome thesigning of the Rome Treaty establishing the InternationalCriminal Court with a view to prosecuting crimes againsthumanity, genocide and war crimes. We urge all Statesto sign and ratify the Statute.”

The declaration contained 110 provisions, spanningfive general areas: integration and regional economiccooperation; integration of Africa in the world economy;human rights, democratic principles and institutions,and lawful government; peace-building, prevention,handling and resolution of conflicts; and development.The inclusion of support for the ICC in the declaration isparticularly significant in light of the participation ofNorth African nations in the Summit.

Africa-Europe Summit DeclarationUrges Support for the ICC

Constitutionality, continued on page 14

William Pace, Convenor of the Coalition and Rolf Einar Fife, Deputy Director-General of the Norwegian Ministry for Foreign Affairs at a briefing onNorway’s Ratification.

In December 1997, the Peruvian Association for Human Rights(APRODEH) committed itself to act as a nexus for an ICC network inthe Latin American region. To obtain membership, APRODEH, anaffiliated member of the Fédération Internationale des Ligues desDroits de L’homme (FIDH), launched an intensive campaign ofcoordination and communication with fifteen other organizationsalso affiliated with FIDH as well as with other NGOs in Argentina,Bolivia, Brazil, Chile, Colombia, El Salvador, Guatemala, Mexico, andNicaragua.

Once the first contacts were established, APRODEH gathered anddistributed information among different civil society groups,governmental representatives and other officials, law professionals,researchers, and journalists. APRODEH also created and participatedin several public forums, and promoted the participation of NGOs inthe U.N. preparatory meetings, as well as in the DiplomaticConference itself. At the same time, it developed an information e-mail network in Spanish that currently allows the prompt transfer ofupdated information among 250 different users.

Finally, APRODEH has encouraged the creation of local initiativegroups (grupos de iniciativa), whose presence has been strengthenedin those countries where the Statute has already been signed. Thefurther decentralization of a national or regional coalition can bebeneficial, but connection with the core group is important to allowthe flow of information and rapid response to issues which arise, suchas attempts to weaken the Rome Statute.

An example of such a group is the Peruvian Initiative Group(GIP), created in March of 1998. Currently, it counts ten institutionsamong its members. Moreover, one of those institutional members isthe Coordinadora Nacional de Derechos Humanos, which itselfgroups 60 organizations. This demonstrates the value ofdecentralizing in order to strengthen the campaign.

It is also important that the national or regional network developits own working plan, compatible with, but more specific than, theoverall strategy of the ICC Coalition. The development andimplementation of a working plan has allowed the GIP to makesubstantial progress in areas such as education and awareness amongthe general public, advocacy and contributions to the substantivework required for ratification. A team of lawyers from the AndeanCommittee of Jurists (Comision Andina de Juristas) has joined theGIP recently and will study the compatibility of the Rome Statutewith the national constitutions of countries of the Andean region.

While assuming the role of coordinator of a network is anambitious project, it is essential that committed organizations andindividuals take this on. Much work needs to be done at the locallevel and the best chance of success is in working together.

Monica Guzmán is on the Working Team for an ICC, Asociacion proDerechos Humanos in Peru.

Establishing a National or RegionalNetwork: A Latin AmericanPerspective By Monica Guzmán

As more and more countries move towards ratification of the ICC Statuteand begin working on domestic implementing legislation, it becomesincreasingly vital for NGOs and governments to work in partnership atthe national and regional level. As highlighted in previous issues,members of the Coalition for an ICC are also seeing the value in ensuringthat they are collaborating with each other. National ICC networks nowexist in many countries and some of these are expanding to the regionallevel. Here, two of the founding members of such networks offer us theirviews on some of the key considerations for organizations interested inplaying such a coordination role for a national or regional network. A listof upcoming events and meetings is also included here; these provideexcellent opportunities to reach out to other members of civil society andto contribute to the worldwide effort to ensure the early entry into forceof the ICC treaty and the development of effective national legislation.

Participants at the FIDH seminar on international experiences and strategiesagainst impunity. From left to right: Pedro Crespo, member of the Union ofProgressive Prosecutors, Spain; Eduardo González Cueva, CICC; FranciscoSoberón, APRODEH; Mr. Jaime Córdova Triviño, Vice-Attorney General ofColombia, and Amerigo Incalcaterra, UNHCHR.

• 2 June Banquet honoring Madame Justice Louise Arbour, hosted by theWorld Federalists of CanadaOttawa, Canada• 3 June “Should the United States Sign and Ratify the InternationalCriminal Court Treaty?” A debate hosted by the NJ Division of the UnitedNations Association of the United States of America, featuring Professor SaulMendlovitz, and the Honorable Lee Casey, former Counsel to the U.S.Department of JusticeMontclair, NJ• 3-5 June “Hemispheric Integration and Democracy in the Americas:Citizenship, Participation, Accountability” A symposium hosted by theInternational Centre for Human Rights and Democratic Development(ICHRDD)Windsor, Canada• 4-6 June 30th Ordinary Session of the General Assembly of theOrganization of American States (OAS)Windsor, Canada• 5-6 June “East African Conference on ICC Ratification” Meeting ofpolitical leaders and Attorneys-General from Uganda, Tanzania, and Kenya tolaunch an East African platform to ratify and implement the Rome Statute intheir respective countries, hosted by Parliamentarians for Global Action(PGA) Arusha, TanzaniaFor more information, write to David Donat-Cattin at [email protected]• 5-9 June “Women 2000: Gender equality, development and peace for thetwenty-first century” The twenty-third Special Session of the GeneralAssembly; GA resolution 54/142 encourages NGOs to participateNew York, NY• 12 JunePGA Parliamentarian Meeting on the ICC, opening day of the FifthPreparatory Commission, to focus on the latest developments towardsratification and implementation of the ICC StatuteUN Headquarters, NYFor more information, write to David Donat-Cattin at [email protected]• 12 JuneConsultation Meeting: Nepalese Coalition for an ICCKathmandu, NepalFor more information, write to Purna Shova Chitrakar at [email protected] • 12-14 June“International Congress on the Evaluation of Crimes of Communism”Dialogue, organized by the Lithuanian Union of Political Prisoners andDeportees, on addressing crimes against humanity resulting fromcommunism as well as to begin the process of prosecution and punishmentof its organizersVilnius, LithuaniaFor more information and to register visit http://ok.w3.lt/2000/ or write toVytas Miliauskas at [email protected]• 12-14 June ASEAN Workshop on the ICC, organized by Forum AsiaThailandFor more information, write to Nicholas McGowan [email protected] • 13-16 June Eastern European Meeting on the ICC, hosted by theInternational Society for Human Rights, Germany, to inform the civil sectorand the military about the ICCKiev, UkraineFor more information write to Hans Born at [email protected] • June Summer Course on the International Criminal Court hosted by theIrish Centre for Human RightsA one week course for NGOs, university students, legal professionals, andpublic servants, given by a faculty of specialists including Philippe Kirsch,John Holmes, and William SchabasGalway, IrelandFor more information, write the Irish Centre for Human Rights [email protected]

June

Upcoming Events

Gaining the support of one ’s organisation is of paramountimportance in the bid to establish a national or regional network onthe ICC. This support must be accompanied by the deepcommitment of the individual mandated to take a lead role in theinitiative, as it means carrying out many tasks on your own time,especially if your organisation does not have the ICC issue as a coreprogramme.

The next step is to gain the support of as many organisations andindividuals as possible. One approach to this is to contact existingumbrella groups which might have an interest in the issue; in mycountry this was the South African National NGO Coalition(SANGOCO). Membership registration forms can be sent out by eachnetwork member to their contacts, with a request that the form beforwarded to others and posted to their electronic notice boards andlistservs.

In order to develop your network, it is important to raiseawareness of the ICC among the general public, as most individuals,including academics and professionals, have little knowledge of theissue. Lectures, meetings, and the distribution of materials via e-mailand through other means is essential. This education must be takento another level once a network is formed, as an in-depthunderstanding of the issues is essential to constructive involvement.Also involve the media in the dissemination of information andbegin to foster closer relationships with key media representatives.Do everything in your power to facilitate civil society andgovernment buying into the idea of the ICC.

Consultative meetings, early in the process, help to facilitate thedevelopment of strategies and the expansion of the network. It isalso important to make contacts with key governmentrepresentatives, and to begin to share information and demonstratethe value of the partnership for all parties concerned. For me,contacts were initiated through my participation in the PreparatoryCommission process.

With respect to the organization of the network, this wasminimal at the beginning, with a small group of individuals doingwork on different aspects, but in isolation. The formalization of astructure and process took some time, and I would advise others tomake these steps a priority. This is important for several reasons:transparency and accountability are introduced; there is a sharing oftasks and resources; there is better co-ordination; the processbecomes more credible; and funders are more willing to considerproposals from an established network.

It is essential to ensure that the process in establishing an ICCnetwork is as inclusive as possible and that one organisation isdesignated to use its infrastructure to support the network. Thisobviates the need to purchase capital assets and find office space. Anetwork ideally includes an Honorary Committee, a Committee ofAdvisors, an Executive Committee and a Secretariat. The processmust be transparent, accountable and inclusive.

Anil Naidoo is the Convenor for the Interim South African Coalition for anICC

Establishing a National or RegionalNetwork: A South AfricanPerspective By Anil Naidoo

• 5-8 August Eastern European Meeting on the ICC, hosted by theInternational Society for Human Rights, Germany, to inform the civil sectorand the military about the ICCMinsk, BelarusFor more information write to Hans Born at [email protected] • 10-13 August Eastern European Meeting on the ICC, hosted by theInternational Society for Human Rights, Germany, to inform the civil sectorand the military about the ICCMoscow, RussiaFor more information write to Hans Born at [email protected] • 24-27 August Eastern European Meeting on the ICC, hosted by theInternational Society for Human Rights, Germany, to inform the civil sectorand the military about the ICCTashkent, UzbekistanFor more information write to Hans Born at [email protected] • 28-30 August “Global Solidarity Conference for NGOs focusing on GlobalSolidarity: The Way to Peace and International CooperationA conference hosted by the Department of Public Information and featuringSecretary-General Kofi Annan, and President of the General Assembly TheoBen Gurirab.UN Headquarters, New York, NYFor more information, contact Helene Hoedl at [email protected]

• 15-17 September Amnesty International National Lawyers Meeting todiscuss the AI international campaign against torture and bringingperpetrators of human rights abuses to justice, with keynote speaker Juan E.Mendez of the Inter-American Commission on Human Rights, OASSan Francisco, CAFor more information, write to AI Legal Support Network at [email protected] • 28-29 October “Caucusus: Ethnic Relations, Human Rights, Geopolitics”The 2nd Annual Conference of the International Association will discuss theInternational Criminal Court and the CaucususTbilisi, GeorgiaFor more information, write to Dr. Levan Z. Urushadze [email protected]• October Workshop to focus on the role of national NGOs and theprevention of torture, hosted by the Association for the Prevention of Torture(APT)GeorgiaFor more information, write to [email protected] • 16-18 November “Ethnic cleansing in 20th Century Europe,” A meetinghosted by the Institute for German American Relations (IGAR) at DuquenseUniversityPittsburgh, PennsylvaniaFor more information, write to Steven Vardy at [email protected], or HuntTooley at [email protected]

September/October/November

• 1 July “War Crimes, Litigiousness & Judges: Legal Issues of the 21stCentury” A conference focusing on sovereignty, personal responsibility,human rights, and judges, hosted by the University College London, Facultyof LawsLondon, EnglandFor more information, write to the New Law Journal [email protected] • 1 July Francophone Parliamentarian General Assembly MeetingYaounde, CameroonFor more information on advocacy related to this meeting, write to MukarabeMakinto-Inandava at [email protected]• 7-10 July Eastern European Meeting on the ICC, hosted by theInternational Society for Human Rights, Germany, to inform the civil sectorand the military about the ICCMoscow, RussiaFor more information write to Hans Born at [email protected] • 18 July Public mock trial of a fictitious Head of State before the ICC,presented by the American Bar Association Section of International Law andPractice, the International Court Committee, and the International CriminalLaw CommitteeLondon, EnglandFor more information, write to David Stoelting at [email protected] • 18-21 JulyEastern European Meeting on the ICC, hosted by the International Society forHuman Rights, Germany, to inform the civil sector and the military about theICCKishinev, MoldovaFor more information write to Hans Born at [email protected] • 24-25 July“At Century’s Dawn: The Future and Past of Human Rights and the Rule ofLaw” hosted by Northwestern University School of Law; attendees willinclude the world’s leading theorists on legal history, human rights, the ruleof law, and constitutionalismLondon, EnglandFor more information, contact Stephen Presser [email protected]

July

From right to left: Sandra Pavic-Harder (COEICL), Maître Eley-Lfele, Bona malwal,Dr. Sitati, and Dr. El-Hassein in Constance, Germany.

August

By Jennifer Schense

This summary of the outcome of the fourthsession of the Preparatory Commission is basedon team reports by Christopher Hall ofAmnesty International, Siliana Laurenti of theLelio Basso Foundation, John Washburn of theWashington Working Group, Bruce Broomhalland Jean Carmalt of the Lawyers Committeefor Human Rights, David Donat-Cattin ofParliamentarians for Global Action, RichardDicker and Helen Duffy of Human RightsWatch, Jeanne Sulzer of the FédérationInternationale des Ligues des Droits de

l’Homme, Fiona McKay of Redress Trust, Jean-Louis Gilissen and Flor Tercero of Avocats SansFrontières, and Carmel Gabbay and FannyFontaine of the Coalition Secretariat. TheCoalition would also like to thank all themembers of the teams who made theproduction of team reports and the Coalition’sreport possible. The Coalition Secretariat takesall care to ensure accuracy; corrections andadditions are welcome. Those interested in amore detailed account of the proceedings mayaccess the Coalition's full report on the CICCwebsite (www.iccnow.org).

Introduction

The fourth session of thePreparatory Commission(PrepCom), chaired byAmbassador Philippe Kirsch(Canada), was held at U.N.Headquarters in New York fromMarch 13-31, 2000. The PrepComwas established in Resolution F ofthe Final Act of the U.N.Dipomatic Conference ofPlenipotentiaries on theEstablishment of an InternationalCriminal Court, in accordancewith General Assembly resolution53/105 of 8 December 1998. Threesessions were held in 1999 andtwo more will be held in 2000, inaddition to the March session:June 12-30 and November 27-December 8.

Work on the draft texts of theRules of Procedure and Evidence(Rules) and Elements of Crimes(Elements) must be completed byJune 30, 2000, after which thefocus will shift to the crime ofaggression, the relationshipbetween the Court and the UnitedNations, budgetary considerations,and other issues outlined in thefull report. The fourth PrepComsession made significant progresson a second reading of the Rulesand Elements. The PrepCom willcontinue until the conclusion ofthe first meeting of the Assemblyof States Parties, when thePrepCom will likely forward its

work—including the draft Elements andRules—to the Assembly for final approval.

Rules of Procedure and Evidence

Part 2 (Jurisdiction, Admissibility andApplicable Law)

In the November-December session, theWorking Group, coordinated by John Holmes(Canada), debated the "linear" versus the"fused" approach to hearings under Articles 15,18 and 19 and concluded by indicating thathearings under Articles 15 and 18 could bejoined, but that hearings under Article 19 couldnot be joined to others. Nevertheless, theMarch session resulted in a text that did notallow for any hearings to be merged; as a result,such mergers will depend on the Court's owninterpretation of its inherent powers asexpressed in the Statute.

Additional admissibility factors underArticle 17 have been included in the rules as aresult of a U.S. proposal, yet the Court willhave the discretion to decide whether toconsider them. As a result, the Court mayconsider relevant State-provided informationregarding the adherence of national courts tointernational standards for prosecution andmay also consider confirmation from a Statethat it is investigating or prosecuting aparticular case. In providing suchconfirmation, the State must clearlydemonstrate, rather than merely asserting, thatit has taken the steps necessary to claimjurisdiction in a particular case.

In general, the discussions on admissibilityreflected an acceptance of the need forstraightforward and effective procedures underArticles 15, 18 and 19. Other rules addressedhow the Prosecutor and Registrar will interactwith non-State parties to encouragecooperation with the Court and clarified thescope of Article 12 to ensure that the Courtclearly addresses an entire situation in theprocess of investigation and not simply anindividual crime.

Under the coordination of Håkan Friman(Sweden), the Working Group addressedvictims issues, including the duty to informvictims of procedures under Article 15(3)(authorization of an investigation) and Article

Fourth Session of the Preparatory Commission


The Tenth United Nations Congress on the Prevention ofCrime and the Treatment of Offenders took place inVienna, Austria from April 10-17, 2000. The Congresstakes place every four years. This year’s meeting focusedon the need to promote the rule of law and strengthenthe criminal justice system; to promote internationalcooperation in combatting transnational crime; to notenew developments in effective crime prevention; and toexamine accountability and fairness to both offendersand victims in the justice process.

Representatives from 139 States participated in theCongress, as well as individual experts, representatives ofUN bodies, from intergovernmental organizations andfrom nearly fifty NGOs. One of the purposes of theCongress was to adopt a single declaration to besubmitted for consideration and action to the MilenniumSummit meeting of the General Assembly, which willbegin meeting in New York in September 2000.

The relationship between national law enforcementauthorities and the future International Criminal Court(ICC) was raised in a paper distributed by the ICCCoalition. In particular, it underscored for the lawenforcement experts in attendance the links betweenserious crimes of international concern which are notcurrently included in the Rome Statute—such astrafficking in drugs, weapons and persons—and the corecrimes in the Statute: "For States which are concernedabout prosecution of other international crimes, it isworth noting that individuals who commit crimes,especially in war zones, often take advantage of relativelychaotic situations to perpetrate not only war crimes, butcrimes which more directly profit them and which evenfuel their war efforts. Where national judicial systemsand the International Criminal Court together succeed inprosecuting and imprisoning such individuals, they mayfind they are addressing both types of crime."

At an ancillary meeting on ratification andimplementation of the Rome Statute, organized bymembers of the Coalition, the question of how nationallaw enforcement authorities will interact with the Courtwas addressed. Among the issues discussed was whetherHeads of State may be tried for war crimes, crimes againsthumanity and genocide in the courts of other States, aswell as at the ICC. The lively discussion at this meetingand throughout the Congress demonstrated that thereare many issues fundamental to basic notions of justice,which may be affected by the creation of the Court, andwhich call for new ways of thinking.

Jennifer Schense is the Legal Adviser, NGO Coalition for anInternational Criminal Court.

Crime Congress IncludesMeeting on the ICCBy Jennifer Schense

Anna Segall, ICRC; Helen Duffy, Human Rigths Watch; and William Pace, CICC at the CrimeCongress in Vienna.



19(3) (challenge to jurisdiction/admissibility).The delegates agreed to a separate regime forthese two processes : the Prosecutor willundertake widespread notification for Article15(3) proceedings, while only those victimsalready identified will be notified of ajurisdiction or admissibility challenge underArticle 19(3).

It will likely be necessary to review all rulesrelating to victims under the different parts ofthe Statute, to ensure their consistency.

Part 4 (Composition and Administration ofthe Court)

The Working Group, coordinated by MedardRwelamira (South Africa), met in three sub-groups and concentrated on footnotes whichraised structural and organizational questions.From the beginning, there appeared to begeneral agreement that two issues would be thefocus of the discussions: the working languagesof the Court and the balance betweenassistance to the defence and to the victimsand witnesses unit.

The discussion of official languages wascoordinated by Socorro Flores Liera (Mexico).The delegates decided that the Court should tryto ensure that at least one judge in aproceeding knows the official language used asa working language in that case. In addition,delegates discussed the publication of decisionsof the Court, expanding the list of eligibledocuments. All other aspects of the previouslycontroversial issue of the languages of theCourt were resolved.

Discussion of the functions of the Registrarand the Victims and Witnesses Unit (the Unit)were coordinated by Gérard Dive (Belgium).All functions relating to victims and witnesseswill now fall under the Unit; previously, theywere divided between the Registry and theUnit. The aim was to avoid duplication yetsome raised the concern that thereorganisation made the responsibilities of theRegistry arising in other rules unclear. Thisremains to be addressed.

A number of proposals were maderegarding children and disabled persons, basedon recommendations arising from the SiracusaIntersessional (see March issue of the Monitor).

These included provisions assigning a childsupport person to assist children duringproceedings, and noting the need to haveexperts in the Victims and Witnesses Unit withexpertise in the particular needs of children,elderly persons and persons with disabilities.

Parts 5 and 6 (Investigation and Prosecutionand Trial)

Most of the Working Group meetings on Parts5 and 6 focused on the rules pertaining tovictims under the coordination of Peter Lewis(United Kingdom) and Håkan Friman(Sweden). The Working Group as a whole,coordinated by Silvia Fernandez de Gurmendi(Argentina), did not have theopportunity to discuss many ofthe other outstanding issues,and these will need to beaddressed in the June session.

One of the issues addressedby the Working Group was termlimits, to ensure that all phasesof the Court's proceedings are asexpeditious as possible. TheWorking Group also addressedthe results of the SiracusaIntersessional, adding generallanguage requiring the Court totake into account the needs ofall victims, in particular ofchildren, elderly and disabledpersons.

A discussion of rules relatedto sexual violence, coordinatedby Donald Piragoff (Canada),resulted in a text whichaddresses the defense of consentof the victim in cases of sexualviolence, and indicates thatevidence of prior or subsequentsexual conduct of a victim orwitness with the defendant isnot admissible. The rule alsoallows for an initial in camerapresentation of evidenceregarding consent, to determineits relevance or admissibility.

On the subject of self-incrimination by a witness, thetext ensures that witnesses willhave the opportunity to seeklegal advice, should an issue ofself-incrimination arise in thecourse of proceedings.Regarding the possibility ofanonymous witnesses, theWorking Group concluded thatthe existing text for this rule willremain unchanged.

In relation to victims andwitnesses, the discussion focusedon rules addressing two issues:participation of victims in theproceedings, and reparations.The first was reopened butremained largely unchanged.Discussion of the second issuefocused on the standard of prooffor reparation orders, but did notresult in changes to the text.Another issue which arose wasthe use of the Trust Fund toassist in providing reparations.

Part 7 (Penalties)

All substantive work on Part 7 of the Statute,coordinated by Rolf Fife (Norway), wascompleted in the third session of the PrepCom,in November/December 1999. There may besome need for harmonization of rules relatingto Parts 7 and 10.

Part 8 (Appeal and Revision)

The Working Group on Part 8, coordinated bySilvia Fernandez de Gurmendi (Argentina),focused on whether hearings or written

March 13 – 31, 2000

On March 26, 2000, Sajjad Haider Zaidi, the President ofAmnesty International (AI) Pakistan, presided over aseminar at Waris Shah Law College Faisalabad on theneed for a permanent International Criminal Court(ICC). More than 100 participants attended the seminar,among them journalists, lawyers and members of non-governmental organizations.

In the introductory session, the need for an ICC washighlighted with the following words: “Since the end ofthe trials before the International Military Tribunals atNuremberg and Tokyo after the Second World War,despite millions of victims of genocide, other crimesagainst humanity and war crimes, states have largelyfailed to fulfill their responsibilities to bring thoseresponsible to justice.”

All speakers, which included Rasheed Misbah(Principal Waris Shah Law College), Malik Amjad Hussain(Member Punjab Bar Council) and Razia Joseph(Directress, Women Shelter Program) emphasized thepotential deterrent effect of the Court and the impact ofan increased ability of the international community tobring perpetrators of heinous crimes to justice in a timelymanner. The speakers also emphasized the slow pace ofthe legislative processin Pakistan andhighlighted the needto ensure thatlegislation providingfor full, prompt andeffective cooperationwith the Court beenacted as soon aspossible.

AI Pakistan ’snational campaign on the ICC was outlined, includingplans to call on heads of government, foreign ministersand national legislatures for prompt ratification of theICC Statute. Prior to the seminar, an open letter fromPierre Sané, Secretary General of Amnesty International,was mailed to The Chief Executive General PervezMusharraf, calling upon him to strengthen the rule oflaw around the world through early ratification.

At the meeting, 100 postcards expressing the need forthe ICC were signed by participants and posted toconcerned authorities. A resolution was also adopted tourge that Pakistan promptly sign and ratify the Statuteand enact the necessary implementing legislation.

Athar Abbas is AI Pakistan’s National Campaign Coordinatorfor the ICC.

AI Pakistan Generates Interestin the ICCBy Athar Abbas

Ambassador Philippe Kirsch, Chair of thePreparatory Commission, with William Pace atthe CICC Reception in March.

Panelists at the seminar at WarisShah Law College, Pakistan.



procedures were appropriate for appeals andwhat time limits would apply, and clarifiedthe term “party” in the notificationprovisions. The text makes the hearing anexception and the written procedure thegeneral rule (Rule 8.8 on procedure for theappeal) and sets time limits for appeals underRules 8.6 (appeals that do not require theleave of the Court) and 8.7 (appeals thatrequire leave of the Court). The final rollingtext contains a footnote reflecting theconcern of some delegations that the term“party” be clear and consistent throughoutthe Rules.

Several issues related to victims andwitnesses were raised in the first week andresolved in the second and third, such as thenotification of hearings and whether victimsare “parties” or not. There are no outstandingissues under Part 8, although the generalsense is that the Coordinator's text requiresfurther discussion.

Part 9 (International Cooperation andJudicial Assistance)

The Working Group discussed surrender ofpersons to the Court under Article 89 of theStatute. The rule addresses situations where aperson surrendered to the Court has beenreleased from custody inter alia because theCourt does not have jurisdiction, the case isinadmissible, the charges have not beenconfirmed, or the person has been aquitted attrial or on appeal. The Working Group addeda footnote, stating that, “An issue was raisedwhether the rule should further clarify that aperson should not be extradited to a thirdstate without the consent of the originalsurrendering State”.

The US circulated a proposal which wouldrequire a rule for Article 98. A footnote wasadded, but without substantive text; theCoordinator indicated that substantive textmay be added during the June PrepComsession (See the article by John Washburn onpage 6 of this issue).

Part 10 (Enforcement)

The discussion on Part 10 focused on theenforcement of fines, forfeitures andreparation orders, as well as the enforcementof sentences. In relation to victims andwitnesses, the only discussion was withrespect to the role of national authorities ingiving effect to reparations. The rule whichemerged does not place specific obligationson states, providing instead that the Court, intransmitting the order to states, will informthem that national authorities shall notmodify the order and shall facilitate itsenforcement. There are no outstanding issueson victims and witnesses under this part ofthe Statute.

Definition of a Victim

The only proposal on the definition of avictim was generated at the Paris seminar onvictims' access to the ICC. In the discussion,coordinated by Håkan Friman (Sweden),many States referred to the UN Declaration ofBasic Principles of Justice for Victims of Crimeand Abuse of Power of 1985 as the desirablebasis for a definition, although it appliesmainly to state rather than individualresponsibility. An outline for a rule

containing a definition has been drafted, butrequires further discussion, in particularwhere it discusses the scope of the terms"direct and indirect" victims and discussesorganizations and institutions as victims.

Elements of Crimes

The Working Group on Elements of Crimes,coordinated by Herman von Hebel(Netherlands), also incorporated the results ofthe Siracusa Intersessional, where therelationship between the Elements and themental requirement for crimes was addressed.The report of the Intersessional noted that nofurther work is required on the relationshipbetween the Elements and the concept ofmistake of fact or law; value judgments; andother forms of criminal responsibility.

The focus of the formal Working Groupwas on technical issues. Only wherefootnotes in the text required discussion didthe group return to substantive questions.The Coordinator urged that issues which hadbeen resolved during the first three sessionsnot be reopened during the second reading ofthe draft Elements.

The group first focused on the elements ofgenocide, then war crimes. The Coordinatorsuggested that thesequence of elements foreach separate crime withinthe three categories be:conduct; consequence;and circumstances. Healso suggested mentioningthe mental element onlywhen necessary todistinguish it from thechapeau's general mentalelement. There was noagreement as to whetherone chapeau for eachcrime is necessary or if asingle chapeau withseparate introductionswould be acceptable.Regarding the three typesof footnotes, he suggestedthat those which weresimply cross-references toother sections be dropped,that those whichaddressed minority viewsalso be deleted and thatthose which providedfurther clarification bekept.

The discussion of theelements of genocide(Article 6) addressed theneed for a 'pattern' ofconduct; whether intentto destroy (in whole or inpart, a national, ethnical,racial or religious group) issufficient; and whetherthe "should have known"standard of knowledge isappropriate. The text nowreads: "The conduct tookplace in context of amanifest pattern of similarconduct directed againstthat group or was conductthat could itself effectsuch destruction."

In relation to war

crimes, (Article 8), the Coordinator began thediscussion with grave breaches of the GenevaConventions. Some delegations noted theneed to ensure consistency within theElements of Crimes, especially for certaincrimes against humanity and war crimes. Thegroup discussed the element indicating theneed to show that the conduct took place "inthe context of and was associated with anarmed conflict." This element did not changeand will be included with the elements foreach crime. The mental knowledge elementwas discussed, and there is now an elementfor each crime specifying that "the accusedwas aware of factual circumstances thatestablished the existence of an armedconflict." This does not require legalknowledge of what constitutes a conflict orwhether a conflict is internal or international.Regarding grave breaches, the accused mustalso be "aware of the factual circumstancesthat established protected status" of thevictims under the Geneva Conventions.Similarly, for violations of Common Article 3,the accused would have to know that aperson was taking no part in hostilities forexample, though he or she would not have tohave knowledge of the Geneva Conventions

More than 70 human rights defenders from all over LatinAmerica met in Bogotá, Colombia, from May 22-27 for aworkshop entitled “International Experiences and Strategiesin the Struggle Against Impunity”. This was organized bythe Fédération Internationale des Droits de l’Homme(FIDH) and the local “Lawyers Collective José AlvearRestrepo” .

The topics discussed included the experiences of truthcomissions around the world and cases of reparations tovictims of human rights violations in Latin America; therelationship between transitions to democracy and theredress of past wrongs committed by authoritariangovernments; and the new paths opened in the struggleagainst impunity through the use of universal jurisdictionmechanisms and the creation of the International CriminalCourt (ICC). The seminar also analyzed the experience ofthe International Tribunals created by the UN SecurityCouncil for the former Yugoslavia and Rwanda in order toassess the practical challenges that will be faced by a futureICC.

Among the many excellent presentations during theseminar, an intervention by Mr. Pedro Crespo Barquero,member of the Progressive Union of Prosecutors of Spain,stood out. This organization was instrumental in bringingthe Pinochet case to fruition and Mr. Crespo discussed how,with an ICC in force, many of the issues that provedproblematic during the Pinochet case would have beenresolved. “With an ICC we would have never needed toargue that the perpetration of crimes against humanitycannot be considered legitimate acts for a Head of State,since the irrelevance of the official position is a principleclearly stated by the Rome Statute”.

Many participants expressed regret that the future ICCwill be unable to exercise retroactive jurisdiction overegregious crimes committed in the past; in this regard, thedramatic suffering in Colombia during its long internalconflict was recalled. Nevertheless, most participantsexpressed their conviction that the future ICC would be animportant instrument to deter the repetition of thesecrimes and to strengthen the independence andmodernization of the national judicial bodies.

Latin American Members ofFIDH Discuss InternationalJustice in Colombia




themselves. There is a special provisionwhere the protected status emanates from thenationality of the victim, specifying that theaccused need only know that the person wasassociated with the adversary to a conflict.

Delegations also discussed the war crimeof torture and whether a particular purposeshould be attached to differentiate it from thecrime of inhumane treatment; the crimeagainst humanity of torture has no purposeattached. The delegates agreed to a non-exhaustive list of purposes.

Crimes of disproportionate attackscausing excessive incidental deaths and thequestion of damage which is disproportionateto the “overall military advantage”anticipated were also discussed; the languageregarding the latter is broader than in theGeneva Conventions and AdditionalProtocols. Weapons provisions weresomewhat elaborated. There were no majordevelopments on sexual crimes, except for afootnote to the crime of sterilization onexclusions for "birth control measures withshort term effects."

The Working Group did not begin thesecond reading of the elements of crimesagainst humanity (Article 7), but did holdinformal negotiations on enforceddisappearances and on the chapeau, which isnow more restrictive than the wording ofArticle 7 as it attempts to limit the Court'sjurisdiction to situations in which theprosecutor can prove a state or organizationalpolicy to actively encourage or promote thecommission of crimes. These matters will beon the Working Group agenda for the Junesession.

Aggression

Based on an Italian statement in the firstweek, the Coordinator of the Working Group,Tuvaku Manongi (United Republic ofTanzania), circulated a non-paper, containinga possible checklist of issues to be addressedin developing proposals on the crime ofaggression, to facilitate an organizeddiscussion. Issues were divided into fourareas or themes: the definition of the crime;the conditions under which the Court shallexercise its jurisdiction; the relationship ofthe crime of aggression to the generalprinciples of criminal law in Part 3 of the

Statute; and the principle ofcomplementarity. Nonetheless, thedelegates could not agree on how tostructure the discussion.

In the end, delegates looked to theCoordinator to return in June with a morerestrictive consolidated text of options fordiscussion.

Among other issues raised were therelationship between the crime of aggressionand the right to self-defense (Article 51 ofthe UN Charter), and the possiblerelationships among the Court, the GeneralAssembly, and the International Court ofJustice, in determining when aggression hasoccurred.

Paragraph 4

The U.S. delegation continued to conductinformal bilaterals with delegations fromevery region. The delegation circulated butdid not introduce a proposal that would, ineffect, require the approval of thegovernment of a non-state party to theStatute before the Court could seek thesurrender or accept the custody of anindividual acting under that government’sdirection, unless the Security Councilexplicitly authorized the surrender pursuantto Chapter VII of the UN Charter. Thislanguage would be included in asupplemental document to the RomeStatute, and in a rule under article 98. Ifadopted, the proposal would effectivelyamend the Rome Statute, dramaticallyincreasing the ability of the Security Councilto control the Court, providing topermanent Security Council members a defacto veto over Court prosecutions, andoverriding the Nuremberg principlesallowing no exemptions from prosecutionfor official acts.

Several members of the Coalitioncirculated a non-paper in response, detailingthe problems which arise in the US proposaland many delegations expressed concernthat the proposal represented a “back door”attempt to amend the Rome Statute,reiterating that they could not support anyeffort to reopen the Statute. The matterremains to be addressed again in June.

Jennifer Schense is the Legal Adviser, NGOCoalition for an International Criminal Court.

Approximately 60 experts from Spain,Portugal and Latin American countries met inMadrid on the 22nd and 23rd of May for the“Ibero-American Meeting on InternationalCriminal Justice”, The meeting was hostedby the “House of America” with thesponsorship of the Foreign Affairs Ministry ofSpain, the Madrid Bar Association and theCenter of Studies of InternationalHumanitarian Law of the Spanish Red CrossAssociation.

More than a dozen papers were presentedand discussed on key issues such as theparticipation of victims in the proceedings,the rights of the defense, and the relationshipof Non-States Parties with the Court. Thesealso assessed the pace of ratifications in theIbero-American region.

In his inaugural presentation,Ambassador Juan Antonio Yáñez-Barnuevo,chief of the Spanish delegation to thePreparatory Commission, expressed his hopethat the Rome Statute will soon enter intoforce, and estimated that at least fortyratifications would be obtained by the thirdanniversary of the Rome Conference.

Ambassador Philippe Kirsch, chair of thePreparatory Commission, emphasized thepolitical difference between the timeimmediately after the Rome TreatyConference and the present moment: from asituation still marked by the complex debatesand compromises of the Conference, to asituation of active and enthusiasticparticipation in the Preparatory Commission.Later, in response to questions from the pressabout the reservations of the United States,Ambassador Kirsch declared, “The Courtwould be stronger with the United States, butit would be able to work without it”.

In general, the Conference was markedby the strengthening of ties between jurists ofSpain, Portugal and the Latin Americancountries, encouraged by the contributions ofthe juridical traditions of the Ibero-Americanregion to the Rome Statute and to the currentnegotiations concerning the Rules ofProcedure and the Elements of Crimes.

Latin American andEuropean Experts Meetin Madrid


Participants at the Ibero-American Meeting on International Justice, from left to right:Ambassador Víctor Rodrîguez, Venezuela; Ms. Clara Inés Vargas, Colombia; Mr. FranciscoFontecillas, Spain; and Ms. Socorro Flores, Mexico.

The Fifth International Workshop forNational Institutions for the Promotion andProtection of Human Rights was held inRabat, Morocco from April 13-15, under thepatronage of His Majesty King Mohamed VI,in cooperation with the High Commissionerfor Human Rights. The declaration adoptedat the workshop included a call for rapidratification of the ICC Statute:

9. …encourage all States to ratify alltreaties relating to human rights and toensure that the Statute of the InternationalCriminal Court, adopted in Rome in July1998, comes into force rapidly.

Rabat Declaration Callsfor ICC Ratification


parliament, an elected representative or agovernment official shall in no case exempt aperson from criminal responsibility under thisStatute.” It goes on to state that “immunitiesor special procedural rules which may attachto the official capacity of a person, whetherunder national or international law, shall notbar the Court from exercising its jurisdictionover such a person.”

It has been suggested that suchimmunities only apply to domesticproceedings, and not to those before the ICC,an international court which was certainlynot contemplated at the time theconstitutional provisions were drafted. It hasbeen suggested further that regard should behad to the underlying objective of any suchimmunities, which was not to guaranteeimpunity for genocide, crimes againsthumanity and war crimes. Rather, immunityprovisions were often intended to protect thebeneficiary of the immunity from undueinterference in the exercise of his or herfunctions, even if the immunities were notexpressly limited in this way. As thepossibility of politically motivatedinterference is addressed by the multiplechecks and balances provided in the ICCStatute, there is no need for immunity toaddress this concern.

The commission of the egregious crimeswithin the Court’s purview would constitute aprofound rupturing of the very constitutionalframework which provides for the immunity.As such, it has been suggested that theimmunity provisions should not be rigidlyinterpreted to provide impunity in respect ofthose crimes, as this could not have been theintention when the constitution was drafted.This is particularly so when such aninterpretation would be inconsistent with theinternational obligations of the state.

To build on this point, it is oftenhighlighted that these compatibility issuesshould already have been resolved if the statehas recognized the duty to prosecute orextradite, regardless of the official status ofthe accused, through ratification of otherinternational treaties that establish this duty.

Finally, in certain contexts, constitutionalimmunities are subject to waiver by theparliament or other entity. Thus theimmunity can be lifted, either in a particularcase or, as some have suggested, on apermanent basis, through the parliamentaryvote on ratification. It has been suggestedthat this removes any inherent tensionbetween the obligations and the immunity.

3) Life imprisonment/”perpetualimprisonment”

The third issue relates to the constitutionalprohibition on life imprisonment, which

arises primarily in Latin America. Someconstitutions prohibit life imprisonmentoutright, such as the Salvadoran Constitution,which provides in Article 27 that “[p]erpetualpenalties are prohibited.” Others provide thatpunishment involving restriction of libertymay not exceed a maximum number of years.The Statute on the other hand allows for theimposition of life imprisonment, “whenjustified by the extreme gravity of the crime

and the individual circumstancesof the convicted person.”

Life imprisonment by theICC will therefore not be thenorm, but the exception reservedfor the most egregious of theserious cases that will come beforethe ICC.

Moreover, it has been notedthat a mechanism in the statuteensures that no one will be subjectto imprisonment for ‘life,’ withoutthe possibility of liberation. Am a n d a t o r yreview processunder Article

110 obliges the Court to“review the sentence todetermine whether itshould be reduced” once aperson has served 25years. If the Court decidesnot to reduce thesentence, further hearingswill take place, asestablished by the draftrules of procedure, atwhich the Court willconsider evidence as tothe behavior,rehabilitation and othercircumstances of theconvicted person.

It is critical to recallthat the Statute makesclear in Article 80 that itdoes not in any way affectthe penalties provided for,or prohibited, on thenational level. Moreover,in no circumstances will astate be obliged to enforcea ‘life sentence’ handeddown by the Court; a stateparty can attachconditions to anyagreement to enforcesentences on its territory.Potential difficulties canonly therefore arise whenthe state has custody of asuspect and receives arequest from the Court tosurrender that suspect.However, as set out above,if the state investigates orprosecutes the egregiouscrimes itself (irrespectiveof the fact that it will notimpose a life sentence),the ICC will defer to thestate ’s prosecution, inaccordance with thecomplementarity regimein the statute. The issue isthus avoided.

Conclusion

The ICC will play adecisive role in the

enforcement of human rights, the deterrenceof future crimes and the strengthening of thevery principles upon which many, if not all,constitutions of the world are based. It istherefore unsurprising that, as indicated bythe debate in different corners of the world,which this article seeks merely to highlight,‘constitutional issues’ have not proven to be‘constitutional obstacles.’ Rather, there isreason to hope that the rich discussion onthese issues around the world has deepenedunderstanding of the complementary natureof this unique institution, and will translateinto many more ratifications in the very nearfuture.

Brigitte Suhr is International Criminal CourtAdvocate, Human Rights Watch, New York andHelen Duffy is Counsel, International Justice,Human Rights Watch, the Hague.

The Committee for an Effective International Criminal Law(CoIECL) recently sponsored an international conferenceon African conflicts and the ICC. The conference, whichtook place in Constance, Germany from April 5-8, 2000,drew experts from civil society, governments andinternational organizations from all regions of the world, todiscuss the links between today's conflicts and tomorrow'spossibilities for preventing or ending conflicts.

Conflicts in Africa continue to underscore the urgentneed for the ICC, as noted by UN Secretary-General KofiAnnan, who described the ICC—in the context of SierraLeone—as "a real missing link in all our efforts to containthese criminals who act with impunity in our world today."It is vitally important that civil society organizations inAfrica are aware of the ICC and continue to participate inits establishment, so thattheir societies may alsobenefit from thisgroundbreaking developmentin international law andfrom the adaptation of theirown unique legal systems toallow for prosecution ofuniversal crimes in their owncourts. The Constanceconference brought togethercivil society representativesfrom at least five Africancountries and from aroundthe world, to discuss thepotential impact of the ICCon Africa and to encourageAfrican groups to link upwith their partners elsewherein the campaign to establishthe Court. Recommendations resulting from theconference were presented to the Millenium Forum whichtook place at U.N. headquarters from May 22-26 (seedescription in this issue).

The CoEICL was founded on August 19, 1998 for thepurpose of supporting the development of internationallaw. The organization works actively within the Coalitionfor an International Criminal Court to promote theestablishment of the ICC.

Conference discusses AfricanConflicts and the ICC


Participants at the Bangladeshi National Conference on theRatification of the International Criminal Court.

Constitutionality, continued from page 7

Mr. Kingsley Chiedu Moghalu,spokesman of the ICTR inConstance

decisively rejected in Rome. Moreover, itwould offer a broad avenue of escape forprecisely the kind of criminal leader the Courtwas created to try and punish. The CICC hadalready gone on record against changes in theStatute, now concluded that the U.S. proposalconstitutes such changes and therefore wasable quickly to declare its formal oppositionto the initiative.

Some government and NGO experts werenonetheless intrigued by the ingenuity of theU.S. proposal and the concessions itcontained. However, their scrutiny of it

generally identified further secondary reasonsfor opposing it. Some of these were: Article 98is about country-to-country agreements suchas extradition or status of forces treaties, notagreements between internationalorganizations. Article 2 concerns the usualrelationship agreements which assistinternational organizations to work together.They have never been used to bind thirdparties, and especially not nation states towhich international organizations aresubordinate.

Most governments and NGOs left theMarch session apparently unable to accept the

U.S. proposal. Some were already preparedsimply to reject it and move on. Others,however, were considering how to turn itdown while recognizing the effort the UnitedStates had made in it to respond to thecommitment of other countries to the Courtand the Statute, and also acknowledging thereality of the American concerns and interestsbehind it.

John Washburn is Co-Chairman, WashingtonWorking Group on the International CriminalCourt.

From May 22-26, approximately 1,350representatives of over 1,000 NGOs and othercivil society organizations from more than100 countries gathered at the United Nationsheadquarters in New York. The purpose ofthe gathering, the “Millennium Forum”, was“to build upon a common vision and thework begun at civil society conferences andthe U.N. world conferences of the 1990’s, todraw the attention of governments to theurgency of implementing the commitmentsthey have made, and to channel ourcollective energies by reclaimingglobalization for and by the people” asexpressed in its final declaration.

The Forum considered six thematic areas,two of which touched upon the need forgreater accountability for universal crimes:human rights; and strengthening anddemocratizing the U.N. and internationalinstitutions. The declaration producedduring the forum was developed in openmeetings of the drafting committee. It willbe submitted to U.N. Secretary-General KofiAnnan with a request that it be transmittedto government representatives as a U.N.document for consideration at theMillennium Summit meeting of the GeneralAssembly in September. Six discussionpapers, one for each of the thematic areas ofthe Forum, will be annexed to thedeclaration.

The declaration calls upon UN memberstates “to establish a fair and effectiveInternational Criminal Court” and “to ensurethat a gender perspective is integrated at allremaining stages of the process to establish[the ICC] and at all stages of the proceedingsof the functioning Court and that theparticular needs of children, the elderly, andpersons with disabilities areconsidered.” The declarationalso calls for universalratification of internationaltreaties, which would includethe ICC treaty, and for theenactment of strongdomestic implementinglegislation upon ratification.

The discussion paper onTheme Six, which will beannexed to the declaration,elaborates on these points. Itincludes a call for thecontinued support of thePreparatory Commission onthe ICC, for signatures andratifications of the ICCtreaty, and for the enactmentof strong domesticimplementing legislationwhich would provide foruniversal jurisdiction overcrimes within the Statute and

those arising under customary internationallaw.

The full declaration can be found atwww.millenniumforum.org. For the text ofthe discussion paper on Theme Six, whichc o n s i d e r e d t h e n e e d f o r a n I C C ,v i s i t www.worldfederalist.org.

U.S. Proposal, continued from page 6.


NGOs from 100 Countries Call for an ICC at the Millenium Forum

“Secretary-General Kofi Annan has called upon all Heads ofState and Government to use the unique opportunitypresented by the forthcoming Millennium Summit to re-dedicate themselves to the international legal framework andactively contribute to the strengthening of the internationalrule of law. In particular, he has encouraged those stateswhich are not already party to the vast body of treatiesdeposited with him to sign and ratify them….

In his letter sent to all Heads of State or Government dated15 May 2000, the Secretary-General has identified 25 coretreaties, which reflect the key policy goals of the UnitedNations to be the focus of a sustained effort to encouragesignature and ratification during the MillenniumSummit….[O]n this list [is]…the Statute of the InternationalCriminal Court…

For those States who have not been able to ratify thesetreaties due to a lack of resources, the Secretary-General hasrequested all UN agencies to provide appropriate technicalassistance. The objective is to help states to become parties tothese treaties and to implement them at the national level…”

From a press release issued by the UN Office of the Secretary-General dated 16 May 2000.

The creation of the International Criminal Court (ICC) is awatershed in the history of international humanitarian law.However, in India, little is known about the issue. On May22, a meeting on the ICC and India was held at the office ofthe India Centre for Human Rights and Law, Mumbai, toassist in addressing this lack of knowledge.

The meeting was organized to discuss the proposedCourt, its jurisdiction and the possible implications forIndia, including its potential to impact the struggle forhuman rights within the country. Emphasis was also placedon the provisions of the ICC Statute providing specificprotections for women, with particular reference to sexualabuse and the violation of reproductive rights. The thirtyparticipants were advocates, criminologists, and activistsworking on human rights issues such as women’s issues,housing rights, minority rights, police atrocities and thecampaign against globalisation.

Ms. Usha Ramanathan, a legal researcher from NewDelhi, and Ms. Vahida Nainar, Director of the Women’sCaucus for Gender Justice based in New York and closelyassociated with the Women’s Research and Action Group inMumbai, addressed the meeting. An issue of concern to theparticipants was its potential misuse by repressive states toprosecute persons leading struggles for independence orautonomy within a country. It was concluded that there areenough safeguards in the Statute to prevent this fromoccurring, and that an international trial in such a situationwould be preferable to a domestic trial, controlled by therepressive regime.

Others raised a concern about whether the Court wouldbe truly autonomous. This fear was allayed by highlightingthe fact that key players in the international communitywere standing firmly against the attempts of the UnitedStates to reduce the independence of the Court, indicatingthe will on the part of most nations to ensure the Court’sautonomy. The level of debate and the excellentconsiderations raised indicated that there is indeed a greatdeal of interest in the ICC in India.

Saumya Uma is Assistant Director, India Centre for HumanRights and Law, Mumbai

NGOs in India Spread theWord about the ICCBy Saumya Uma

For More Information Please return this form to: CICC c/o WFM, 777 UN Plaza, 12th Floor New York, NY 10017, USA fax: +1 212 599 1332

Name & Title Organization

Address City State Postal Code Country

Phone / Fax email

States Ratification DateParties

Belize 5 April 2000 Fiji 29 November 1999Ghana 20 December 1999Iceland 25 May 2000 Italy 26 July 1999Norway 16 February 2000San Marino 13 May 1999Senegal 2 February 1999Tajikistan 5 May 2000 Trinidad & Tobago 6 April 1999Venezuela 7 June 2000

Signatures Signature Date

Albania 18 July 1998Andorra 18 July 1998Angola 7 October 1998Antigua and Barbuda 23 October 1998Argentina 8 January 1999Armenia 1 October 1999Australia 9 December 1998Austria 7 October 1998Bangladesh 16 September 1999Belgium 10 September 1998Benin 24 September 1999Bolivia 17 July 1998Brazil 7 February 2000Bulgaria 11 February 1999Burkina Faso30 November 1998Burundi 13 January 1999Cameroon 17 July 1998Canada 18 December 1998

Central African Rep. 7 December 1999Chad 20 October 1999Chile 11 September 1998Colombia 10 December 1998Congo 17 July 1998Costa Rica 7 October 1998Cote d'Ivoire30 November 1998Croatia 12 October 1998Cyprus 15 October 1998Czech Rep. 13 April 1999Denmark 25 September 1998Djibouti 7 October 1998Ecuador 7 October 1998Eritrea 7 October 1998Estonia 27 December 1999Finland 7 October 1998France 18 July 1998Gabon 22 December 1998Gambia 7 December 1998Germany 10 December 1998Georgia 18 July 1998Greece 18 July 1998Haiti 26 February 1999Honduras 7 October 1998Hungary 15 December 1998Ireland 7 October 1998Jordan 7 October 1998Kenya 11 August 1999Kyrgyzstan 8 December 1998Latvia 22 April 1999Lesotho 30 November 1998Liberia 17 July 1998Liechtenstein18 July 1998Lithuania 10 December 1998Luxembourg 13 October 1998

Macedonia, FYR. 7 October 1998Madagascar 18 July 1998Malawi 3 March 1999Mali 17 July 1998Malta 17 July 1998Mauritius 11 November 1998Monaco 18 July 1998Namibia 27 October 1998Netherlands 18 July 1998New Zealand7 October 1998Niger 17 July 1998Nigeria 1 June 2000Panama 18 July 1998Paraguay 7 October 1998Poland 9 April 1999Portugal 7 October 1998Rep. of Korea 8 March 2000Romania 7 July 1999Samoa 17 July 1998Sierra Leone 17 October 1998Slovakia 23 December 1998Slovenia 7 October 1998Solomon Islands 3 December 1998South Africa 17 July 1998Spain 18 July 1998St. Lucia 27 August 1999Sweden 7 October 1998Switzerland 18 July 1998Uganda 17 March 1999Ukraine 20 January 2000UnitedKingdom 30 November 1998Zambia 17 July 1998Zimbabwe 17 July 1998

The NGO Coalition for an International CriminalCourt (CICC) welcomes the participation of non-governmental organizations from all sectors ofcivil society.

To be a participating organization of theCoalition, a non-governmental organization must(1) endorse in principle the creation of apermanent, just and effective InternationalCriminal Court, (2) wish to be involved at somelevel in supporting the establishment of the ICC,(3) make an active commitment to the earliestpossible world-wide ratification and entry intoforce of the Rome Statute for the ICC adopted onJuly 17, 1998, and (4) make an active commitment

to the adoption of comprehensive nationalimplementing legislation following ratification.

We encourage both organizations andindividuals to support the Coalition as they areable. There is no membership fee to join theCoalition. The Coalition does not have individualmembers.

In general the Coalition does not takepositions, but serves to raise awareness of thepositions of its members.

To join the Coalition, or to receive moreinformation in the future, please fill out the formbelow and return it to the CICC Secretariat.

The main purpose of the NGO Coalition foran International Criminal Court is toadvocate for the creation of an effective, justand independent International CriminalCourt. The Coalition brings together abroad-based network of over 1,000 NGOs,international law experts and other civilsociety groups. The multi-track approach ofthe Coalition involves: promotingeducation and awareness of the ICC and theRome Statute at the national, regional andglobal level; supporting the successfulcompletion of the mandate of thePreparatory Commission and facilitatingNGO involvement in the process;promoting the universal acceptance andratification of the Rome Statute, includingthe adoption of comprehensive nationalimplementing legislation followingratification; and expanding andstrengthening the Coalition ’s globalnetwork. To achieve these goals, some ofour activities include:• Covening sectoral caucuses (Women’sChildren’s, Faith, Peace, and Victims’),national and regional networks, and issueworking groups.• Maintaining a World Wide Web site andemail lists to facilitate the exchange of NGOand expert documentation and informationconcerning the ICC negotiations and the adhoc Tribunals and to foster discussion anddebate about substantive issues.• Facilitating meetings between theCoalition and representatives ofgovernments, UN officials and othersinvolved in the ICC negotiations.• Promoting education and awareness ofthe ICC negotiations at relevant public andprofessional conferences - including UNconferences, committees, commissions andpreparatory meetings.• Producing newsletters, bulletins, mediaadvisories, reviews and papers on all aspectsof efforts to establish the ICC.

NGO Coalition for an InternationalCriminal Courtc/o WFM, 777 UN Plaza,12th FloorNew York, NY10017 USAPhone: 1 212-687-2176 Fax: 1 212-599-1332Email: [email protected] Address: http://www.iccnow.org

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States Parties and Signatories to the Rome TreatyAlphabetically, as of 7 June 2000

o My organization would like to be a participating organization of the NGO Coalition for an ICC as described in “To Join the Coalition”.

To Contribute to theCoalitionIf you are interested in making a tax-deductiblecontribution to the International Secretariat ofthe Coalition, please make the check payable tothe CICC and send it to: NGO Coalition for an ICCc/o WFM, 777 UN Plaza, 12th FloorNew York, NY 10017, USA