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24 November 2000

Preparatory Commission, at Two-Week Session in New York, Will Discuss Proposals for Negotiation of Necessary Agreements

The Preparatory Commission for the International Criminal Court is to hold a two-week session in New York beginning on Monday, (27 November) and continuing until 8 December, to work on some of the practical arrangements for the Court.

At this, its sixth session, the Commission will focus in particular on drafting three agreements: one on the financial rules and regulations of the Court; another on a relationship agreement between the Court and the United Nations, and a third on privileges and immunities of the Court. The United Nations Secretariat has prepared three drafts to serve as the basis for negotiations on those agreements.

The draft agreement on the relationship between the United Nations and the International Criminal Court (document PCNICC/2000/WGICC-UN/L.1) comprises 20 articles covering such issues as cooperation between the Security Council and the Court, cooperation between the United Nations and the Prosecutor, cooperation in terms of war crimes committed against United Nations personnel, exchange of information and protection of confidentiality as well as budgetary and financial matters.

The draft on privileges and immunities of the International Criminal Court (document PCNICC/2000/WGAPIC/L.1) comprises 28 articles establishing provisions in that area that are necessary for the fulfilment of its purposes.

The draft on the financing of the Court (document PCNICC/2000/WGFIRR/L.1) focuses, at this time, on the regulations governing the Court with the expectation that financial rules will be elaborated afterwards. It contains 14 regulations and includes a formula for how the Court is to be funded.

At its last session, from 12 to 30 June, the Commission met its mandated deadline of 30 June for finalization of the operational details of the Statute necessary for the eventual functioning of the Court.

At that session the Commission adopted, by consensus, two key texts related to the Court’s Statute -- the Rules of Procedure and Evidence (document PCNICC/2000/INF/3/Add.1) and Elements of Crimes (document PCNICC/2000/INF/3/Add.2). The Rules cover such issues as composition and
administration of the Court, penalties for crimes, obligations of international cooperation and assistance, as well as enforcement of sentences. On the matter of crimes initially within the Court's jurisdiction -- genocide, war crimes and crimes against humanity -- the Commission identified the elements that constituted those crimes.

One particular rule was intensely debated during the June session concerned immunity and consent to surrender –- Rule 9.19 (re-numbered as Rule 195 in the final document), which applies to Article 98.2 of the Statute on cooperation with request to waiver of immunity and consent to surrender. The rule states that "the Court may not proceed with a request for the surrender of a person without the consent of a sending State if, under Article 98, paragraph 2, such a request would be inconsistent with obligations under an international agreement pursuant to which the consent of a sending State is required prior to the surrender of a person of that State to the Court".

Included in the report on the Commission's proceedings was the following understanding: "It is generally understood that rule 9.19 should not be interpreted as requiring or in any way calling for the negotiation of provisions in any particular international agreement by the Court or by any other international organization or State".

However, in concluding remarks, most speakers agreed that the integrity of the Statute was still intact despite some ambiguities and drawbacks in adopted documents. And in a recent discussion of the International Criminal Court in the Sixth Committee (Legal), speakers hailed the consensus adoption of the extensively negotiated texts as “a promising sign” that would reinforce the credibility of the Court as a truly international court.

The Sixth Committee recommended that the Preparatory Commission be reconvened for two further sessions in 2001 to continue its work: from 26 February to 9 March, and from 24 September to 5 October.

The Court, which is to be a permanent judicial body with jurisdiction over crimes committed by individuals, will become operational once the treaty establishing it -- commonly referred to as the Rome Statute -- receives 60 ratifications. So far, 115 countries have signed the treaty and 22 have ratified it. The treaty is with the Secretary-General and will remain open for signature until 31 December 2000.

At the Rome Conference, where the International Criminal Court treaty was adopted on 17 July 1998, the Commission was also requested to prepare proposals on the elements and conditions under which the Court could exercise its jurisdiction over the crime of aggression. Once agreement is reached on a legal definition of that crime, the draft text will be presented to an International Criminal Court amendment conference, which is expected to take place seven years after the Court becomes operational. In the meantime, the Commission has established a working group that has begun discussions on the subject and will continue until agreement is reached on a definition.

The Preparatory Commission will remain in existence until the conclusion of the first meeting of the Assembly of States parties.

Participation in the work of the Preparatory Commission is open to all States that were invited to the Rome Conference, including those which have not yet signed the Statute. Representatives of relevant regional intergovernmental organizations and international bodies, including the International Tribunals for the former Yugoslavia and for Rwanda, may participate as observers. Non- governmental organizations also may participate in the Commission's open meetings.

The 13-part Statute of the International Criminal Court, which was adopted by an unrecorded vote of 120 in favour to 7 against with 21 abstentions, gives the Court the authority to investigate and bring to justice individuals who commit the most serious crimes of concern to the international community, such as genocide, war crimes and crimes against humanity. States Parties to the Rome Statute, the Security Council and the Court's Prosecutor have the power to bring cases before the Court, which will be presided over by 18 judges from 18 different countries. It will have an independent Prosecutor elected through secret ballot by States that have ratified the Statute.

The idea of a permanent court began with the unsuccessful attempt to establish an international tribunal after the First World War. Following the Second World War, the Nuremberg and Tokyo war crimes tribunals set the stage for efforts to create a permanent court. It was first considered at the United Nations in the context of the adoption of the 1948 Convention on the Prevention and Punishment of the Crime of Genocide. Further development of the notion was effectively forestalled by differences of opinions for many years.

In 1992, the United Nations General Assembly directed the International Law Commission to elaborate a draft statute for an international criminal court. Further public interest was created by the Security Council's establishment of the International Criminal Tribunals for the former Yugoslavia in 1993 and for Rwanda in 1994.

In December 1994, the Assembly established an ad hoc committee of all Member States and members of specialized agencies to review the final version of the International Law Commission's draft statute. In December 1996, the General Assembly set 1998 as the year for the Conference of plenipotentiaries to consider the establishment of the Court.

International Law Commission's officers are: Philippe Kirsch (Canada), Chairman; George Winston (Trinidad and Tobago), Medard R. Rwelamira (South Africa) and Muhamed Sacirbey (Bosnia and Herzegovina), Vice-Chairpersons. Salah Suheimat (Jordan) is the Rapporteur.



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