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12 June 2000
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Preparatory Commission for the
International Criminal Court
12 June 2000
17th Meeting (AM)
Delegates to the Preparatory Commission for the International Criminal Court (ICC) were urged this morning to focus on resolving essential issues, rather than spending too much time debating secondary matters, as the Commission began its three-week session to complete the operational details of the Court’s Statute by its mandated deadline of 30 June.
Philippe Kirsch (Canada), Chairman of the Commission, which is required to finalize the Statute’s Rules of Procedure and Evidence and Elements of Crimes by 30 June, said that leaving critical decisions to be made in a very short period of time at the end of the session was a situation he was sure all wished to avoid. All during the Preparatory Commission, the Bureau had made every effort to avoid such an unfortunate possibility. But any pre-planning would not be enough without effective and efficient use of the time left.
Mr. Kirsch announced that the Court, which is to be a permanent judicial body with jurisdiction over crimes committed by individuals, had received five more ratifications since the end of the last session -- Belize, Iceland, Tajikistan, Venezuela and France -— bringing the total number of countries that had ratified it to 12. So far, 97 countries have signed the treaty establishing the Court which will come into being with 60 ratifications. The first seven to ratify were Senegal, Trinidad and Tobago, San Marino, Italy, Fiji, Ghana and Norway. The treaty remains open for signature until 31 December 2000.
He also informed delegates that copies of a work plan, including informal consultations, for the session would be distributed. Also, a document containing the results of an inter-sessional meeting, held in Canada from 30 April to 5 May to review the provisions of the Rules of Procedure and Evidence for consistency, as well as to eliminate duplications and consider structural questions, would be available.
The Rules of Procedure and Evidence 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 is working to identify what elements would constitute those crimes and would need to be proven in order to obtain convictions. In the category of crimes against humanity, it is discussing such crimes as murder, enslavement, extermination, persecution, disappearance and sexual crimes.
At its last session in March, the Commission conducted a "second reading" of those two key texts, based on a consolidation of the results of the Commission’s three previous sessions. The Commission is flushing out the legal details of the general principles enunciated in the Statute.
Judge Erik Mose, Vice-President of the Rwanda Tribunal, who addressed the Commission this morning, said that, since its inception in 1995, the Tribunal had created important case law, drawing up a comprehensive set of Rules and dealing with the numerous practical problems that arose before an international criminal court of this kind. It had been a meeting place for the major legal systems of the world -- Common Law and Civil Law -- and also represented a synthesis of principles emanating from international humanitarian law, international criminal law and human rights law. He hoped that the Tribunal's experiences would prove useful to the Preparatory Commission and the International Criminal Court.
Other tasks that remain to be addressed by the Preparatory Commission, which will remain in existence until the conclusion of the first meeting of the Assembly of State Parties, include finalization of financial rules and regulations, a first-year budget for the Court, a relationship agreement between the Court and the United Nations, and a headquarters agreement with the host country (the Netherlands).
The two contact points appointed for those matters are: Hiroshi Kawamura (Japan) for financial regulations and rules, a budget for the first financial year, and the rules of procedure for the Assembly of State Parties; and Cristián Maquieira (Chile) for a relationship agreement between the Court and the United Nations, a headquarters agreement between the Court and the host country, an agreement on the privileges and immunities of the Court, and the request contained in paragraph 4 of General Assembly resolution 53/105 and reiterated in paragraph 3 of resolution 54/105, which, among other things, requests the Commission "to discuss ways to enhance the effectiveness and acceptance of the Court".
Mr. Kirsch announced that, because of an important parallel commitment in Geneva, Mr. Maquieira would be unavoidably detained during the last week of June. In light of the importance of the issues for which Mr. Maquieira was the contact point and to avoid discontinuity, Rolf Fife (Norway) would be assisting Mr. Maquieira during the session. During the session, the Preparatory Commission would hear from the two contact points concerning the remaining issues of the mandate of the Commission. The Commission will focus on those logistics at its next session from 27 November to 8 December.
At the Rome Conference, where the Court’s 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 ICC 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 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.
The Coordinators of the Commission’s working groups are: Herman Von Hebel (Netherlands), Coordinator for the Elements of Crimes; Silvia Fernandez de Gurmendi (Argentina), Rules of Evidence and Procedure; Medard Rwelamira (South Africa), Rules of Procedure and Evidence relating to Part 4 -- Composition and Administration of the Court; Rolf Fife (Norway), Rules of Procedure and Evidence relating to Part 7 - Penalties; Phakiso Mochochoko (Lesotho), Rules of Procedure and Evidence relating to Part 9 - International Cooperation and Judicial Assistance, and to Part 10 -- Enforcement; and, Tuvako Manongi (United Republic of Tanzania), the Crime of Aggression.
This morning’s meeting commenced with a moment of silence to mark the passing of President Hafez Al-Assad of Syria. The representative of Syria thanked the Commission for its expression of condolence.
Judge N. Pillay, President of the International Criminal Tribunal for Rwanda, in a short statement, said international justice was now a reality, and that the ad hoc tribunals were an expression of a global desire for justice.
Judge Erik Mose, Vice-President of the Rwanda Tribunal, giving an overview of the work of the Tribunal, said that it had rendered seven judgements and convicted eight persons. Each of the judgements represented an important stepping-stone in the development of international criminal law. They had all, in one respect, created legal precedence. Since its inception in 1995, the Tribunal had created important case law, drawing up a comprehensive set of Rules and dealing with the numerous practical problems that arose before an international criminal court of this kind.
The Commission will meet again in plenary at a time to be announced.
Statements
Judge N. PILLAY, President of the International Criminal Tribunal for Rwanda, expressed admiration for the work of the Preparatory Commission, noting that its outcome would enable the International Criminal Court to effectively implement justice. International criminal justice was now a reality. The ad hoc tribunals were an expression of global desires for justice, she added.
Judge ERIK MOSE, Vice-President of the Rwanda Tribunal, giving an overview of the Tribunal's work to date, said it had rendered seven judgements and convicted eight persons. Each of the judgements represented an important stepping-stone in the development of international criminal law, he said. They had all, in one respect, created legal precedence. The Jean Paul Akayesu judgement presented the Tribunal with the first legal definition of the crimes of genocide, direct and public incitement to commit genocide and complicity in genocide. In the same case, he said, a progressive approach was adopted by the Chamber in including rape and sexual violence in the definition of genocide.
In the case of Alfred Musema, the Chamber had defined the crime of conspiracy to commit genocide and held that an accused could not be convicted of both genocide and conspiracy to commit genocide. Elsewhere in the judgements, the Tribunal had extensively considered the individual criminal responsibility and, where appropriate, superior responsibility of civilians and representatives of the Government. To date, no accused had been found guilty of war crimes under Article 4 (Violations of Article 3 common to the Geneva Conventions and of Additional Protocol II) of the Statute of the Tribunal.
The case of Ignace Bagilishema, a bourgmestre/mayor, had started on
27 October 1999, with the presentation of evidence being completed on Friday, 8 June. Closing arguments would be heard next month. Appeals were still pending for six of the convicted accused. In the case of Omar Serushago, the sentence was confirmed by the Appeals Chamber on 15 February 2000. The Appeals Chamber would sit in Arusha at the end of June to hear arguments in a number of cases, including that of Jean Kambanda who was appealing his life sentence.
To ensure the right of each accused to be tried without undue delay, he said, the Tribunal had endeavoured, through amendments to the Rules of Procedure and Evidence and its practice, to increase the efficiency and expediency of the proceedings. Those amendments were usually inspired from practical experience and were adopted only if agreed to by at least 10 judges at a plenary session of the Tribunal. Rule 72 of the Rules, on preliminary motions, was amended in February to enable the Trial Chamber and Appeals Chamber Judges to deal with such motions without undue delay. A party was now permitted to raise questions as to the form of the indictment in one motion only. As regarded interlocutory appeals, the term "lack of jurisdiction" had now been clarified.
He said judges were no longer disqualified from sitting at a trial in which they had confirmed the indictment against one or more accused. The indictment to Rule 15 of the Rules had been an issue since the inception of the Tribunal and was necessary as it had become apparent that disqualification of confirming judges was impeding the organization of trials. As there were only nine Trial Chamber Judges, he said the constitution of Trial Chambers, especially where there were multiple accused, became difficult as often more than one Judge was disqualified for having confirmed a relevant indictment. Prior to the commencement of either the prosecution or defence case, the Trial Chamber now held pre-trial and pre-defence conferences, respectively, in conformity with Rules 73bis and 73ter adopted by the Tribunal in July 1998. Those two Rules allowed for the Judges to require the parties to present to the Chamber details as to their case.
To date, the Tribunal had prepared more than 250 witnesses covering 20 countries in three continents. Of the 223 witnesses who had so far appeared before the Trial Chambers to testify, 178 had benefited from protection measures ordered by the Tribunal. Many of the protected witnesses were themselves victims to the massacres in Rwanda in 1994, and had suffered both physically and mentally. All of the protected witnesses were assigned pseudonyms and, although they testified in open court, measures were taken to ensure that their identity was not revealed to the public. The parties, including the accused and the Judges, were aware of the identity of the witnesses and could see them during the examination. Twenty protected witnesses had been relocated for their own safety. The Victims and Witness Support Unit was based in Arusha and had a sub-office in Kigali. A Gender Issues and Assistance to Victims Unit dealt with issues of gender sensitivity. Much of the success of the Witness Programme depended on close cooperation with the States in which witnesses resided.
Under Article 20(4) of the Statute of the Tribunals, an accused had the right to counsel of his or her own choosing, he said. The accused presently detained had been found to be indigent and thus unable to afford counsel of their own choosing. They had been provided counsel by the Tribunal -- a total of 42 lead counsel from 17 different counsel, and 19 co-counsel.
International cooperation was vital to the functioning of the Tribunal, he said. The cooperation could take numerous forms, including financial and material support, secondment of specialized staff, and providing host facilities. The Tribunal had detained more than 40 accused persons, most of whom were arrested on the basis of international warrants of arrest issued by the Tribunal and transferred to Arusha with the assistance of Member States. Seventeen different countries had been involved in those arrests, and as such had directly contributed to the mandate of the Tribunal.
Finally, he said the International Criminal Tribunal for Rwanda had since its inception in 1995, created important case law, drawing up a comprehensive set of Rules and dealing with the numerous practical problems that arose before an international criminal court of this kind. It had been a meeting place for the major legal systems of the world -- Common Law and Civil Law -- and also represented a synthesis of principles emanating from international humanitarian law, international criminal law and human rights law. He hoped that the Tribunal's experiences would prove useful to the Preparatory Commission and the International Criminal Court.
* *** *
International Criminal Court
12 June 2000
17th Meeting (AM)
Delegates to the Preparatory Commission for the International Criminal Court (ICC) were urged this morning to focus on resolving essential issues, rather than spending too much time debating secondary matters, as the Commission began its three-week session to complete the operational details of the Court’s Statute by its mandated deadline of 30 June.
Philippe Kirsch (Canada), Chairman of the Commission, which is required to finalize the Statute’s Rules of Procedure and Evidence and Elements of Crimes by 30 June, said that leaving critical decisions to be made in a very short period of time at the end of the session was a situation he was sure all wished to avoid. All during the Preparatory Commission, the Bureau had made every effort to avoid such an unfortunate possibility. But any pre-planning would not be enough without effective and efficient use of the time left.
Mr. Kirsch announced that the Court, which is to be a permanent judicial body with jurisdiction over crimes committed by individuals, had received five more ratifications since the end of the last session -- Belize, Iceland, Tajikistan, Venezuela and France -— bringing the total number of countries that had ratified it to 12. So far, 97 countries have signed the treaty establishing the Court which will come into being with 60 ratifications. The first seven to ratify were Senegal, Trinidad and Tobago, San Marino, Italy, Fiji, Ghana and Norway. The treaty remains open for signature until 31 December 2000.
He also informed delegates that copies of a work plan, including informal consultations, for the session would be distributed. Also, a document containing the results of an inter-sessional meeting, held in Canada from 30 April to 5 May to review the provisions of the Rules of Procedure and Evidence for consistency, as well as to eliminate duplications and consider structural questions, would be available.
The Rules of Procedure and Evidence 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 is working to identify what elements would constitute those crimes and would need to be proven in order to obtain convictions. In the category of crimes against humanity, it is discussing such crimes as murder, enslavement, extermination, persecution, disappearance and sexual crimes.
At its last session in March, the Commission conducted a "second reading" of those two key texts, based on a consolidation of the results of the Commission’s three previous sessions. The Commission is flushing out the legal details of the general principles enunciated in the Statute.
Judge Erik Mose, Vice-President of the Rwanda Tribunal, who addressed the Commission this morning, said that, since its inception in 1995, the Tribunal had created important case law, drawing up a comprehensive set of Rules and dealing with the numerous practical problems that arose before an international criminal court of this kind. It had been a meeting place for the major legal systems of the world -- Common Law and Civil Law -- and also represented a synthesis of principles emanating from international humanitarian law, international criminal law and human rights law. He hoped that the Tribunal's experiences would prove useful to the Preparatory Commission and the International Criminal Court.
Other tasks that remain to be addressed by the Preparatory Commission, which will remain in existence until the conclusion of the first meeting of the Assembly of State Parties, include finalization of financial rules and regulations, a first-year budget for the Court, a relationship agreement between the Court and the United Nations, and a headquarters agreement with the host country (the Netherlands).
The two contact points appointed for those matters are: Hiroshi Kawamura (Japan) for financial regulations and rules, a budget for the first financial year, and the rules of procedure for the Assembly of State Parties; and Cristián Maquieira (Chile) for a relationship agreement between the Court and the United Nations, a headquarters agreement between the Court and the host country, an agreement on the privileges and immunities of the Court, and the request contained in paragraph 4 of General Assembly resolution 53/105 and reiterated in paragraph 3 of resolution 54/105, which, among other things, requests the Commission "to discuss ways to enhance the effectiveness and acceptance of the Court".
Mr. Kirsch announced that, because of an important parallel commitment in Geneva, Mr. Maquieira would be unavoidably detained during the last week of June. In light of the importance of the issues for which Mr. Maquieira was the contact point and to avoid discontinuity, Rolf Fife (Norway) would be assisting Mr. Maquieira during the session. During the session, the Preparatory Commission would hear from the two contact points concerning the remaining issues of the mandate of the Commission. The Commission will focus on those logistics at its next session from 27 November to 8 December.
At the Rome Conference, where the Court’s 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 ICC 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 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.
The Coordinators of the Commission’s working groups are: Herman Von Hebel (Netherlands), Coordinator for the Elements of Crimes; Silvia Fernandez de Gurmendi (Argentina), Rules of Evidence and Procedure; Medard Rwelamira (South Africa), Rules of Procedure and Evidence relating to Part 4 -- Composition and Administration of the Court; Rolf Fife (Norway), Rules of Procedure and Evidence relating to Part 7 - Penalties; Phakiso Mochochoko (Lesotho), Rules of Procedure and Evidence relating to Part 9 - International Cooperation and Judicial Assistance, and to Part 10 -- Enforcement; and, Tuvako Manongi (United Republic of Tanzania), the Crime of Aggression.
This morning’s meeting commenced with a moment of silence to mark the passing of President Hafez Al-Assad of Syria. The representative of Syria thanked the Commission for its expression of condolence.
Judge N. Pillay, President of the International Criminal Tribunal for Rwanda, in a short statement, said international justice was now a reality, and that the ad hoc tribunals were an expression of a global desire for justice.
Judge Erik Mose, Vice-President of the Rwanda Tribunal, giving an overview of the work of the Tribunal, said that it had rendered seven judgements and convicted eight persons. Each of the judgements represented an important stepping-stone in the development of international criminal law. They had all, in one respect, created legal precedence. Since its inception in 1995, the Tribunal had created important case law, drawing up a comprehensive set of Rules and dealing with the numerous practical problems that arose before an international criminal court of this kind.
The Commission will meet again in plenary at a time to be announced.
Statements
Judge N. PILLAY, President of the International Criminal Tribunal for Rwanda, expressed admiration for the work of the Preparatory Commission, noting that its outcome would enable the International Criminal Court to effectively implement justice. International criminal justice was now a reality. The ad hoc tribunals were an expression of global desires for justice, she added.
Judge ERIK MOSE, Vice-President of the Rwanda Tribunal, giving an overview of the Tribunal's work to date, said it had rendered seven judgements and convicted eight persons. Each of the judgements represented an important stepping-stone in the development of international criminal law, he said. They had all, in one respect, created legal precedence. The Jean Paul Akayesu judgement presented the Tribunal with the first legal definition of the crimes of genocide, direct and public incitement to commit genocide and complicity in genocide. In the same case, he said, a progressive approach was adopted by the Chamber in including rape and sexual violence in the definition of genocide.
In the case of Alfred Musema, the Chamber had defined the crime of conspiracy to commit genocide and held that an accused could not be convicted of both genocide and conspiracy to commit genocide. Elsewhere in the judgements, the Tribunal had extensively considered the individual criminal responsibility and, where appropriate, superior responsibility of civilians and representatives of the Government. To date, no accused had been found guilty of war crimes under Article 4 (Violations of Article 3 common to the Geneva Conventions and of Additional Protocol II) of the Statute of the Tribunal.
The case of Ignace Bagilishema, a bourgmestre/mayor, had started on
27 October 1999, with the presentation of evidence being completed on Friday, 8 June. Closing arguments would be heard next month. Appeals were still pending for six of the convicted accused. In the case of Omar Serushago, the sentence was confirmed by the Appeals Chamber on 15 February 2000. The Appeals Chamber would sit in Arusha at the end of June to hear arguments in a number of cases, including that of Jean Kambanda who was appealing his life sentence.
To ensure the right of each accused to be tried without undue delay, he said, the Tribunal had endeavoured, through amendments to the Rules of Procedure and Evidence and its practice, to increase the efficiency and expediency of the proceedings. Those amendments were usually inspired from practical experience and were adopted only if agreed to by at least 10 judges at a plenary session of the Tribunal. Rule 72 of the Rules, on preliminary motions, was amended in February to enable the Trial Chamber and Appeals Chamber Judges to deal with such motions without undue delay. A party was now permitted to raise questions as to the form of the indictment in one motion only. As regarded interlocutory appeals, the term "lack of jurisdiction" had now been clarified.
He said judges were no longer disqualified from sitting at a trial in which they had confirmed the indictment against one or more accused. The indictment to Rule 15 of the Rules had been an issue since the inception of the Tribunal and was necessary as it had become apparent that disqualification of confirming judges was impeding the organization of trials. As there were only nine Trial Chamber Judges, he said the constitution of Trial Chambers, especially where there were multiple accused, became difficult as often more than one Judge was disqualified for having confirmed a relevant indictment. Prior to the commencement of either the prosecution or defence case, the Trial Chamber now held pre-trial and pre-defence conferences, respectively, in conformity with Rules 73bis and 73ter adopted by the Tribunal in July 1998. Those two Rules allowed for the Judges to require the parties to present to the Chamber details as to their case.
To date, the Tribunal had prepared more than 250 witnesses covering 20 countries in three continents. Of the 223 witnesses who had so far appeared before the Trial Chambers to testify, 178 had benefited from protection measures ordered by the Tribunal. Many of the protected witnesses were themselves victims to the massacres in Rwanda in 1994, and had suffered both physically and mentally. All of the protected witnesses were assigned pseudonyms and, although they testified in open court, measures were taken to ensure that their identity was not revealed to the public. The parties, including the accused and the Judges, were aware of the identity of the witnesses and could see them during the examination. Twenty protected witnesses had been relocated for their own safety. The Victims and Witness Support Unit was based in Arusha and had a sub-office in Kigali. A Gender Issues and Assistance to Victims Unit dealt with issues of gender sensitivity. Much of the success of the Witness Programme depended on close cooperation with the States in which witnesses resided.
Under Article 20(4) of the Statute of the Tribunals, an accused had the right to counsel of his or her own choosing, he said. The accused presently detained had been found to be indigent and thus unable to afford counsel of their own choosing. They had been provided counsel by the Tribunal -- a total of 42 lead counsel from 17 different counsel, and 19 co-counsel.
International cooperation was vital to the functioning of the Tribunal, he said. The cooperation could take numerous forms, including financial and material support, secondment of specialized staff, and providing host facilities. The Tribunal had detained more than 40 accused persons, most of whom were arrested on the basis of international warrants of arrest issued by the Tribunal and transferred to Arusha with the assistance of Member States. Seventeen different countries had been involved in those arrests, and as such had directly contributed to the mandate of the Tribunal.
Finally, he said the International Criminal Tribunal for Rwanda had since its inception in 1995, created important case law, drawing up a comprehensive set of Rules and dealing with the numerous practical problems that arose before an international criminal court of this kind. It had been a meeting place for the major legal systems of the world -- Common Law and Civil Law -- and also represented a synthesis of principles emanating from international humanitarian law, international criminal law and human rights law. He hoped that the Tribunal's experiences would prove useful to the Preparatory Commission and the International Criminal Court.
* *** *