6th. PrepCom
Women's Caucus Report on the 6th Session of the ICC Preparatory Commission
November 27 to 8 December, 2000.
I - Introduction
The first session on technical issues of the ICC PrepCom was held from November 27 to 8 December, 2000. This session had working groups on the Relationship Agreement between the United Nations and the Court (ICC-UN), the Agreement on Privileges and Immunities (APIC), and the Financial Regulations and Rules (FRR). The Working Group on the Crime of Aggression (CA) also continued its work. Being the first viewing of these texts, all of the working groups began with formals for initial comments, eventually moving to informals for more comprehensive negotiations. No documents were finalized at this session and rolling texts will be the basis for work at the next PrepCom, which will be held from 26 February to 9 March, 2001.
The Women's Caucus was represented by 14 women from just as many countries. Most of the representatives had attended previous PrepCom sessions; however there were 4 new participants. The new participants quickly became accustomed to the workings of the PrepCom and together with the veterans, the Caucus made a significant contribution at this session.
II - Caucus Preparation and Participation
The Women's Caucus has been monitoring the process of the creation of an ICC since February 1997 to ensure that the Statute recognizes gender-based crimes and that the process reflects a commitment to gender integration from a gender perspective. These major substantive issues were decided at the end of the June session. Due to the technical nature of this PrepCom, the Caucus planned on minimal participation, choosing to focus its energies on outreach and training workshops on the ICC. At the same time, continuing to oppose any attempts by the United States or other countries to introduce proposals that would weaken the ability of the Court to effectively prosecute war crimes, crimes against humanity and genocide.
Due to the excellent work of Caucus participants in sessions past, when the Coalition for an International Criminal Court (CICC) became aware of this, it offered to support the participation of the Women's Caucus. The Caucus brought together a delegation of women from around the world that formed a strong advocacy presence at the PrepCom. Although not all of the Caucus participants were able to make the session because of late notice, we still had a solid team of women following the negotiations at all times. The Caucus brought together a delegation of fourteen women in total at different times during the two-week PrepCom. They came from different regions and countries, including Guatemala, El Salvador, Uganda, Nigeria, Philippines, Sri Lanka, Georgia, Costa Rica, Kenya, Cameroon, to name a few.
The Women's Caucus did not prepare a position paper for this PrepCom session. While we identified areas of concern, we decided to wait until more clarification could be obtained through the negotiations and interactions with delegates. The Caucus issued an Action Alert on 30 November in response to the US government's efforts to obtain exemption for US nationals. This alert was issued in response to a press briefing held at the UN by Senator Jesse Helms' spokesperson, Mark Thiessen, releasing a letter signed by 12 members of the Republican foreign policy establishment, including Henry Kissinger, Jeanne Kirkpatrick and James Baker, condemning the Court and expressing support for the "American Service members Protection Act" sponsored by Helms. This Act would prohibit US involvement in peacekeeping missions as well as economic assistance involving those countries that support the ICC. In addition, the Caucus, in conjunction with the National Council of Women's Organizations, a bi-partisan network of over 100 organizations and representing more than six million women, issued a strong statement in support of the ICC and its historical role in ending impunity for gender violence crimes.
The CICC organized a meeting the afternoon before the PrepCom to update members on the issues that would come up for discussion at the PrepCom. Other members of the CICC presented the status on ratification of the treaty and the more pressing and political concerns to be aware of at the PrepCom. The Caucus conducted a similar meeting on the eve of 27 November to brief those participants who were unable to attend this meeting.
The participants were involved in analyzing the documents and following issues of interest to the Women's Caucus and worked closely with other Coalition members on teams created to follow each working group and report back to CICC members. Participants represented the Caucus at meetings with different delegations, attended other NGO meetings and followed debates on one or other issue to report back to the Caucus. On a regional level, participants were also involved in organizing and attending regional meetings on status of ratification and signature and implementing legislation.
III - Outcome of the Negotiations Regarding Our Issues
Being the first PrepCom on technical issues, discussions began in formal sessions for an initial reading in which delegations raised their concerns with the documents, eventually moving to informal sessions for the main negotiations. Below are the details of the issues identified as priority concerns at this PrepCom session. The format followed is to state each issue of concern, followed by development and current status. For the results of other issues or to see these texts in their entirety, the documents are available on the UN ICC website at http://www.un.org/law/icc/index.html.
Relationship Agreement Between the UN and ICC
The draft Relationship Agreement addresses the Court's relationship to the UN. This document was the most controversial as this is the place identified by the US where it would attempt to include language exempting all US nationals from the Court's jurisdiction. At the outset of the session, it was not clear how the US would present its position, whether through another country, through the Chair or on its own. While the Women's Caucus and the CICC identified specific areas of concern in the document, it was important to follow the negotiations closely.
Chairman Cristian Maquieira (Chile) presided over the working group.
The delegations of Argentina, Canada and the United Kingdom submitted proposal DP.1 to be read in conjunction with the draft agreement. There was general support for the proposal.
UN-Oriented Court:
Issue: Independence of the Court and its relationship to the UN. It is important that this Agreement emphasize that the ICC is a permanent and independent body, which has a relationship with the UN, but is not a subsidiary body to the UN. The roles of the ICC and UN should be carefully defined making it clear that the UN is a separate and distinct entity also in the promotion of respect and adherence to international law and peaceful resolution of disputes.
Development: Most delegations pointed out that the Relationship Agreement should reflect the balanced interests of both organizations, in particular concerning the reporting and disclosure of information. Many delegates called for careful alignment of the relationship agreement with the exact language of the Statute in order to preserve the integrity of the Statute.
Current Status: These concerns were raised by delegates and are reflected throughout the draft document.
Article 4:
Issue: Independence of the Court and its relationship to the UN, in particular the Security Council. The Rome Statute is clear on the relationship between the Court and the Security Council and the relationship agreement cannot modify it; otherwise this would be in contradiction to the terms of the Rome Statute.
Paragraph 4 in the draft agreement requires the Court to wait for an unlimited period of time for the Security Council to submit observations on questions of the Court's jurisdiction in cases referred to the ICC by the Security Council. This open-ended obligation is problematic because it requires the Court to give the Security Council "sufficient time" to decide whether to submit observations to the Court, as provided for in Article 19(3) of the Rome Statute but then prevents the court from proceeding until it receives the observations. The relationship agreement must be absolutely clear that the establishment of a time limit under which the Court must act is the prerogative of the Court and not of the Security Council. Any reference to a time limit must recognize that the Court has the sole discretion.
Development: The proposal in DP.1 was to delete paragraph 4 rather than to create out an entirely new procedure and trespass on the Rules of Procedure. The majority of States supported this proposal.
Final Outcome: Paragraph 4 of this article was deleted.
Article 8:
Issue: Privileges and immunities for UN personnel and the authority of the UN to waive such immunity. Any recognition of immunity for UN personnel and the prerogative of the UN to waive such immunity is clearly contrary to Article 27(2) of the Rome Statute, which indicates that there is no immunity from prosecution for crimes committed within the Court's jurisdiction, and international humanitarian and customary law. Problematic wording includes "other agreements," "if necessary" and "in accordance with the Statute."
The main concern of the Caucus is that any UN personnel, but especially peacekeepers, may be deemed privileged or immune from the Court's jurisdiction unless the UN waives such privileges or immunities. This is extremely problematic in light of the history of human rights abuses committed by peacekeepers in Somalia, Haiti and most recently Kosovo, with the conviction and life sentence of Sergeant Frank Ronghi, who raped and murdered a 12-year-old Kosovar Albanian girl. In addition to this heinous act, the Pentagon recognized that the entire US peacekeeping battalion in Kosovo operated in an overly aggressive and abusive manner that violated "basic standards of conduct and human decency."
Development: Delegations raised serious concern with this article, a few supported deletion or reworking, and almost all delegations supported reworking the article. Delegates were concerned with the "other agreements" language in the article, requesting clarification as to what agreements it refers and delegates also indicated that the "if necessary" language was problematic in that it suggests that the UN may not waive such immunity.
The Secretariat took the floor to clarify these and other issues: "other agreements" refer to bi-lateral agreements containing provisions of privileges and immunities enjoyed by the various categories of personnel employed by the Organization. Member States enter into these agreements with the Organization to ensure implementation of activities mandated by the Charter and decisions of the respective UN organs. These include headquarters agreements concluded by the Organization for its regional offices or special subsidiary bodies (ICTY), status of forces agreements for peace-keeping operations, standard assistance agreements concluded by UNDP, UNICEF, WFP and other UN offices, programs and funds with Governments.
As for the "if necessary" clause, the Secretariat indicated that because the constituency of the Statute and the UN are different, bi-lateral agreements would have to be accepted by both parties because they go in front of the General Assembly and it will be difficult for States who are not parties to the Statute to accept this. The Secretariat noted that deleting this article would not be a problem; however, if it is retained and modified creating certain obligations of States who are not party to the Treaty, the General Assembly will have a problem.
Norway and Canada both found merit in the article and opposed deletion. Norway's reasons include that privileges and immunities are granted to people in the interest of the UN, not individuals and if there is no immunity, there is a benefit in having an articulated procedure to take into account the interest of the UN. Furthermore, because the UN does not have a police force and in order to follow up in situations envisaged in Article 8, the cooperation of another State may be needed. The delegation suggests the deletion of the "if necessary" clause.
The delegate of Canada agreed with Norway and made further comments. While Canada does not believe that the article is contrary to Article 27 of the Statute, it does find it to be redundant. The delegate laid out three possible scenarios, two of which the article is redundant and one in which it is not. The two situations which are redundant are when a person is already before the Court, in which case the Court will not recognize immunity, and the second is if the State is a State party it should not use immunity if the Court asks for the surrender of a suspect. The situation in which the article is not redundant is one in which a State is not a party to the Statute. In such a case, the State is not governed by the Statute, but rather by the Vienna Convention and the UN and if the UN does not waive immunity, the non-state party is obligated to the UN and may not surrender until the UN waives.
Due to the complexity of this article and the lack of clarity of its interpretation, members of the NGO Relationship Agreement team met with delegates from Norway, Canada, Australia, Switzerland and Liechtenstein to discuss the interpretation and understanding of "other agreements" and actual scenarios which may fall under this article. A second meeting was held with the same group, this time including the delegates from Spain and Argentina.
Final Outcome: The Working Group deferred consideration of this article until the next session of the PrepCom. Norway, Belgium and a group including the United Arab Emirates and others each introduced separate proposals for reworking the article. The Coordinator suggested that the sponsors of each proposal get together to find common ground between them as a basis for discussion at the next PrepCom.
US Exemption
Issue: Exemption of US nationals from the Court's jurisdiction. No exemption of US nationals from the Court's jurisdiction will be tolerated. An exemption in any form is unacceptable and undermines the competence of the Court.
Development: It was unclear how the US would introduce its proposal, including who would introduce it and whether it would take the form of an amendment to the relationship agreement or as a part of the Coordinator's report on the PrepCom. On the eve of 4 December, there was word that a proposal from the Like-minded countries was being crafted based on Article 124 of the Rome Statute, which exempts a State who has ratified the Treaty a 7 years from the Court's jurisdiction for war crimes. Supposedly, the proposal was to extend the 7-year exemption from the Court's jurisdiction for war crimes to the US in return for signature. Clearly, such a proposal undermines the integrity of the Statute and would result in a de facto amendment to the Statute. This "ghost proposal" never came into fruition, as no written text was ever circulated.
The much anticipated US proposal was finally presented by the United States delegate in the final formal session of the Working Group on the morning of 7 December. The US introduced the following text for a new article:
"In order to encourage contributions by States to promote international peace and security, and unless there has been a referral to the Court pursuant to Article 13(b) of the Statute, the United Nations and the Court agree that the Court shall determine on its own motion pursuant to Article 19(1) the admissibility of a case in accordance with Article 17 when there is a request for the surrender of a suspect who is charged in such case with a crime that occurred outside the territory of the suspect's State of nationality."
This text is problematic on several fronts, including the effect that it would have on the Court's ability to expeditiously conduct proceedings at early and crucial phases, as well as the compatibility of the proposal with the provisions of the Rome Statute. The CICC quickly drafted a non-paper highlighting all of the possible implications of the proposal to distribute to delegates. In addition to the following specific concerns, this proposal has the effect of a de facto amendment to the Statute.
First, this proposal does not fit within the scope of the Relationship Agreement. Rather, it deals with procedures well delineated within the Rome Statute itself. Second, the words "in order to encourage contributions by States to promote international peace and security" are not relevant to the proposal or to the Rome Statute itself. Third, the assertion that the Court "shall determine on its own motion pursuant to Article 19(1) the admissibility of a case" places undue restrictions on the statutory discretion of the Court, and is therefore inconsistent with the Statute. Article 19(1) clearly provides that the Court may determine admissibility on its own motion; the proposal would require the Court to do so. Fourth, the proposal suggests that this required determination of admissibility take place "when there is a request for the surrender of a suspect." This trigger is inconsistent with the flexibility envisaged by the Statute, which does not require admissibility proceedings to be held at this particular stage. Moreover, such a requirement, if made mandatory, could impose serious delays that would hinder the Court's effectiveness in the preparation of the cases. Finally, the requirement for the request for surrender pertaining to "a crime that occurred outside the territory of the suspect's State of nationality" introduces a distinction not made in the Statute between suspects who act on the territory of their State of nationality and those who act outside that State. This distinction is without relevance for determining admissibility for purposes of Article 17.
The United States introduced a second proposal for consideration by the Preparatory Commission on the morning of 8 December. It reads as follows:
"The United States of America proposes for the consideration of the Preparatory Commission the development of factors for the Court that may be relevant for the investigation, prosecution and surrender of suspects, including the context within which an alleged crime has occurred and a State's contribution to international peace and security."
This proposal is a clear attempt by the US to create restrictive factors to inhibit the Court's functioning and pressure favoring certain States in the investigation, prosecution and surrender of suspects.
Final Outcome: The proposal for an additional article to the relationship agreement was included in the annex of the Chairperson's report for consideration at the next PrepCom because it had not been discussed amongst the delegations. There was no discussion of the second proposal.
Current Status of Draft Relationship Agreement:
The draft agreement was not finalized at this PrepCom. Chairman Maquieira prepared a revised text, resulting in a rolling text upon which work will continue at the next PrepCom. The report consists of two parts and one annex. The first part contains a Coordinators revised text of articles 1 to 7 and 9 to 12, based on the discussions and the proposals submitted. The second part contains the revised text for articles 13 to 21, also based on discussions and proposals. The annex contains the new proposals not discussed, including three for article 8 and the US proposal for a new article.
IV - Other Prepcom Developments
Crime of aggression: The working group on aggression (CA) held four formal sessions and four informals. Delegates expressed strong preference for a definition of the crime of aggression based on existing international customary law; however, there are differences on the content of that law. Delegations agreed that the PrepCom could venture into progressive development of international law without radically departing from existing customary law. A need for a consensus-based definition was expressed, otherwise the Court could be turned into a political forum for the discussion of the legality of the use of force in general, having a detrimental effect on the Court. This concern also emerged in discussions regarding the conditions for the exercise of the Court's jurisdiction. Delegations still differ on the proper interpretation of Article 39 of the Charter - one key difference being the nature of the competence of the Security Council to determine the existence of an act of aggression. Some delegations believe that it is entirely within the exclusive competence of the Security Council and any other interpretation would be inconsistent with the Charter and would amount to amending the Charter through the Court's Statute. Other delegations favor a more liberal reading of Article 39, whereby the issue was primarily, but not exclusively, the province of the Security Council. Therefore, in situations where the Security Council for any reason did not act, the Court or other United Nations organs, such as the General Assembly or the International Court of Justice (ICJ), could step in to make such determination. An additional proposal involved a possible role of the advisory jurisdiction of the ICJ in such cases. The Working Group has moved beyond a simple exploration of positions to a coalescing of views into several broad trends, with significant support being thrown behind one or more of the proposals on the table.
CICC and Caucus strategy meetings: The CICC held strategy meetings every afternoon or evening, which Caucus participants attended. In this forum, participants shared information and reviewed the issues in order to be up to date with information and strategies. In addition, the Caucus scheduled two meetings each week and ad hoc emergency meetings to discuss new proposals and update each other on negotiations.
Ratification initiative by the Coalition: The Coalition organized three meetings to provide CICC members an opportunity to share information about the status of signature, ratification and implementation efforts in every country, in order to make it available to all members to assist them in their work. The first meeting consisted of small regional group discussions to examine the status of signature and ratification and political and legal conditions affecting such progress. The second meeting provided the opportunity for CICC members to supplement or challenge information set out in the small groups and share more detailed information about the Coalition's current work on ratification. The third meeting was designed to clarify activities that could contribute to successful ratification campaigns and discuss ways to work through regional groups and organizations and promote North-South and South-South cooperation.
Meeting with representatives from ICTR and ICTY: The team leader for the CICC Privileges and Immunities team arranged a meeting with two representatives, Mariana Goetz and David Talbott, respectively from the ICTR and ICTY, to meet with members of the NGO Coalition. They were asked to field questions concerning issues of privileges and immunities for Court personnel and financial concerns of the two Tribunals. Both agreed that the Article 8 issue of allowing the UN to waive or not waive privileges and immunities is problematic. An analogy was given to the situation in which Chief Prosecutor Louise Arbour attempted to enter Kosovo, but was denied. Mr. Talbott suggested that any reference to the obligation of issuing visas should be strengthened "without delay" and ensuring cooperation with State authorities. Both Mr. Talbot and Ms. Goetz stressed that financial rules and regulations should be carefully crafted in dealing with witness confidentiality. The Tribunal experience has revealed that a large administrative staff is necessary to with witnesses and victims to preserve anonymity. It was also noted that financial regulations should contain specific provisions regarding appropriate accounting and auditing to protect victims and witnesses. The need for a flexible system that is adaptable to the Court was stressed. Mr. Talbott stressed that the Prosecutor should have budgetary autonomy; however practically the budget needs to be integrated. Support is needed in various offices (i.e., Croatia and Bosnia for the ICTY) similar to peacekeeping. He suggested that a consultative body, independent from the Prosecutor and Registrar and the Fifth Committee Advisory Committee on Administrative and Budgetary Questions (ACABQ), be established to work with both sides, representing all fronts.
Announcements: South Africa announced at the opening plenary of the session that it ratified the Rome Statute. Germany and the Marshall Islands also ratified the Statute. States having recently signed include Syria, the United Arab Emirates, Peru, Bahrain and Uruguay. Cameroon announced that a technical committee was created to study the implementation of the Court's Statute and draft a law on its ratification. Currently, 120 States have signed the Rome Statute and 25 States have ratified. The treaty remains open for signature until 31 December, after which States may only ratify the treaty. There is hope that States will rush to sign the treaty before this date.
V - Special Events
Panel Discussion: The Women's Caucus organized a panel discussion on the Draft Statute for the Special Court for Sierra Leone on 1 December to raise awareness about it and identify areas needing revision before the Security Council gives its final approval. Being the first court of its kind since the adoption of the Rome Statute, the Draft Statute of the Special Court is problematic from a gender perspective, among other reasons. The panelists included Ms. Daphna Shraga, Senior Legal Advisor with the UN Office of Legal Affairs, who played a key role in the drafting of the Draft Statute, and Mr. Engelbert Theuermann from UNICEF, who works on issues surrounding child soldiers. Betty Murungi from the Women's Caucus moderated the discussion. For a more detailed report, please see the Women's Caucus website.
Video Screening: The Women's Caucus premiered its video "If Hope Were Enough," which chronicles the development of the ICC from the perspective of women, on 3 December 2000 from 11 a.m. - 1 p.m. at the Anthology Film Archives. Blanche W. Cook, biographer of Eleanor Roosevelt, spoke at the screening and Betty Murungi presided over the event. Over one hundred people turned out for the event, including some delegates. A discussion followed the viewing, raising interesting ideas for using the video as an educational tool to increase awareness about the ICC in general and the strides that it has made in international law with its inclusion of gender crimes.
VI - Outreach Activities
Meeting for evaluation of Women's Caucus work: The Women's Caucus organized a meeting to discuss the planning of a cross-regional training seminar in April 2001. The areas for education and training include conflict areas, peace movements and women in armed conflict. A suggestion was made that a package directed to the media would be useful, including a 3-4 page document regarding the Court, highlighting its main points, and the video "If Hope Were Enough". Possible locations for the conference include Arusha, Tanzania, Kenya, the Hague. A place near an international judicial body would be useful to visit. Questions raised for consideration include, how does one initiate law reform vis-à-vis gender laws, including rape and evidence of sexual violence. Bringing together women in law, reform lawyers and activists - how to use the ICC as a model. Also, include health groups and economic/globalization activists.
VII - Concerns for the Next Prepcom
The next preparatory commission for the International Criminal Court will be held from 26 February to 9 March 2001. It will be devoted to continuing the technical issues of developing a relationship agreement between the ICC and the UN, privileges and immunities and financial regulations and rules. Negotiations on the crime of aggression will also continue. In addition, a budget for the Court's first financial year and the basic principles governing a Headquarters Agreement will be negotiated at the next session. This is the first of two remaining PrepCom sessions. This is the first of two remaining PrepCom sessions, the final session being 24 September to 5 October 2001.
As of now, it is unclear what the participation of the Caucus will be during the next PrepCom session. However, the Caucus will continue opposing proposals by the United States or other countries to introduce proposals that would pose a threat to the independent functioning and competence of the Court.
Source: Women's Caucus Advocacy in ICC Negociations - Report of the November-December 2000 ICC Prepcom
This document has been published on 30Sep02 by the Equipo Nizkor and Derechos Human Rights