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8th. PrepCom

Women's Caucus Report on the 8th Session of the ICC Preparatory Commission
24 September - 5 October 2001.

The Eighth Session of the Preparatory Commission for the International Criminal Court concluded on 5 October at UN Headquarters in New York. The Preparatory Commission meeting began on 24 September amid tight security and at the same time as the Security Council and General Assembly were formulating their responses to the events of September 11th.

By the end of the ICC Prepcom, the number of ratifications of the Rome Statute of the ICC had grown from 38 to 42 with the Central African Republic, Nigeria, Liechtenstein and the United Kingdom becoming the most recent additions to the growing list of States Parties. Sixty ratifications are required for entry into force. The pace of ratifications has led to predictions that the treaty will enter into force in early 2002.

Security was eased only slightly during the second week of the Prepcom to allow for better participation by NGOīs. As of Thursday, 11 October, the UN announced it would begin allowing more access to all ECOSOC and DPI accredited NGOīs.

Related Events

- Security Council and General Assembly

On 28 September, the Security Council quickly adopted resolution 1373 which called for a broad range of measures to combat terrorism, including measures to address the financing of terrorism and measures relating to asylum issues. NGOīs and some states expressed concern that the resolution contained no definition of terrorism yet it called for, and in some cases required, serious action by all countries against terrorism and suspected terrorists.

The Womenīs Caucus, along with many other NGOīs who signed on to a statement, expressed these concerns in an Open Letter to the General Assembly which began its high-level deliberations on terrorism the following Monday. (For a copy of this Open Letter, please contact the Womenīs Caucus.) While many states took the opportunity of the GA session to show their support for an international campaign against terrorism, some states such as Malaysia expressed their concern about the lack of coherent definition of terrorism and the problem that legitimate movements for self-determination could be targeted.

Many states also used the opportunity of the high-level debate to express their support for the future International Criminal Court and their views that the Court will be a viable mechanism to try crimes such as those committed on September 11th.

- Anti-ICC Legislation in United States

During the Prepcom session, NGOīs were alerted to the fact that anti-ICC legislation had been introduced again to the U.S. senate. The main aspects of the legislation are as follows:

    - Would prohibit all forms of cooperation with the future court, including financing, provision of evidence and extradition of suspects;
    - Would prohibit all military assistance to countries ratifying or supporting the ICC, with limited exception
    - Would authorize - all means necessary - which includes the use of force to free individuals held by or on behalf of the Court. For this reason, many have dubbed the legislation - the Hague Invasion Act.

One day before the attacks of September 11th, Republican Senator Jesse Helms, the principle author of the legislation had vowed to tie this legislation to the payment of arrears to the United Nations. This required some negotiation between Helms and the Bush administration. Once the administrationīs concerns were met, the administration publicized its support for the bill which went to the Senate during the second week of the Prepcom.

The legislation was fortunately blocked by a procedural motion. However, it will surface again this week (week of October 8) and will likely continue to be reintroduced by Helms. Some governments such as Germany and Spain expressed their concern about this legislation to the U.S. administration and indicated publicly that such efforts would undermine the U.S.īs efforts to build a multilateral campaign against terrorism. At about the same time, the UK completed its ratification of the Rome Statute and indicated in a press conference its concern about the U.S. role in the process toward the ICC.

PrepCom - Working Group Summaries

The seven working groups of the Prepcom continued their work the second week. For the most part, many of the issues in the various working groups were resolved and the texts ultimately adopted by the Prepcom for submission to the future Assembly of States Parties. Remaining issues were allotted to new working groups which will be constituted at the next Prepcom.

While the General Assembly has not officially set the dates yet for the next Prepcom, it is anticipated that it will be held sometime in March. As the Rome Statuteīs entry into force is expected early next year, the Prepcom anticipates the need for another session which would possibly coincide with the first meeting of the Assembly of States Parties at which time the Preparatory Commission would cease to exist and give way to the new Assembly.

At the moment it is also unclear whether the Assembly would begin meeting in New York, though many assume that will be the case.

In anticipation of the imminent entry into force, the Chair of the Prepcom, Philippe Kirsch, formed two working groups for the next session. These are WG ASP/PD (Assembly of States Parties Preparatory Documents) and WGFI (Financial Issues). The bureau also adopted a - road map - for dealing with practical issues leading to the Courtīs establishment and appointed three focal points and a subcommittee of the bureau to attend to these issues in more detail before the next Prepcom. The possibility of holding several intersessional meetings has also been discussed.

Among the texts finalized and adopted by the Prepcom for submission to the Assembly were:

    -Agreement on Privileges and Immunities of UN Personnel
    -The Relationship Agreement between the UN and the ICC
    -The Financial Rules and Regulations
    -Rules of Procedure for the Assembly of States Parties

These texts will likely be available on the UNīs ICC website in the near future. Some issues of concern to the Womenīs Caucus were not dealt with fully in the draft texts and will thus be left for consideration at the future sessions. These include the Trust Fund for Victims and the rules of procedure regarding the election of judges, prosecutor and deputy prosecutors. During the second week the Prepcom also heard from the registrars of the International Criminal Tribunals for the Rwanda and the Former Yugoslavia. Their statements are available on the CICC website:www.iccnow.org.

Working Group Summaries

- Aggression

The Aggression working group spent much of the formal sessions discussing the proposal submitted by Bosnia-Herzegovina, New Zealand and Romania, which addressed both the definition of aggression and the conditions under which the Court may exercise jurisdiction over aggression. In the second week, Greece and Portugal reasserted that they wished for the joint proposal these two delegations submitted at a previous prepcom to be considered.

The main issues are still the degree to which the Security Council will be deferred to by the Court for a determination that an act of aggression has occurred. Thus, issues arise as to whether the Court can validly request an opinion from the International Court of Justice through General Assembly as an alternative to Security Council decision and even, as suggested by some countries, whether the ICC would need to defer to other institutions at all.

The United States delegation was the only permanent member of the Security Council to take a stand in the debates and asserted that only the Security Council had the authority to determine an act of aggression and therefore the ICC would need to be reliant on the SC for that determination. In addition, the U.S. stated it considered that acts of aggression could be committed by non-state actors as well as States. This goes against the existing proposals and concepts of aggression.

Other issues that were raised last week include the threshold of use of force that is in violation of the UN Charter. Some delegations including Norway, Germany and the U.S. wanted to raise the threshold so that not just any use of force in violation of the Charter could be deemed an aggression. Rather, they desired more serious or severe violations of the Charter to be understood as Aggression.

Also, many delegations raised concerns about the practicality or logistical implications of referrals to the ICJ and the legal relationship between the two courts with vastly different realms of jurisdiction.

The working group has now raised the questions of how the negotiations should continue, whether through the Assembly of States Parties or through the General Assembly. These questions will be discussed further at the next Prepcom.

- Rules of Procedure for the Assembly of States Parties

Among the issues of concern to the Womenīs Caucus and other NGOīs in this working group were: (1) NGO access to the Assembly of States Parties and subsidiary bodies; (2) Elections of judges, prosecutors and deputy prosecutors; (3) the principle of open meetings for the subsidiary bodies.

On the matter of NGO access, the original text at the last Prepcom only allowed access for those NGO's that were in attendance at the Rome Conference. The NGO team following this working group advocated to expand the original rule.

Now, the rule relating to NGO observers states:

"4. Non-governmental organizations invited to the Rome Conference, non-governmental organizations accredited to the Preparatory Commission for the International Criminal Court, non-governmental organizations in consultative states with the Economic and Social Council of the United Nations whose activities are relevant to the activities of the Court and other non-governmental organizations invited by the Assembly may participate in the work of the Assembly through their designated representatives as follows:

    (a) By attending meetings of the Assembly and, unless otherwise decided by the body concerned, formal meetings of its subsidiary bodies;
    (b) By receiving copies of official documents;
    (c) Upon the invitation of the President and subject to the approval of the Assembly, by making, through a limited number of their representatives, oral statements on questions within the scope of their activities to the opening and closing sessions of the Assembly and, as appropriate, to the formal meetings of its subsidiary bodies."

On the matter of open meetings of the subsidiary bodies, the rules affirm as a general principle that meetings of the subsidiary bodies shall be open unless the body concerned decides otherwise. Originally, the rule stated that the meetings of such bodies would be private unless decided otherwise.

On the matter of elections of judges, prosecutors and deputy prosecutors, the current draft simply contains a general statement that such elections shall be held in accordance with related articles of the Rome Statute (articles 36 and 37 re: judges and 42 re: prosecutors).

The Women's Caucus, in coordination with the CICC team leaders on Rules of Procedure for the ASP, raised the need for this rule to be expanded and of the need to include specific mandates about transparent nomination and election processes, availability of c.v.'s and background material to the public, opportunity for full evaluation of candidates, and the need to ensure compliance with the statute's mandates around geographical and gender representation.

The bureau decided to send this issue to the subcommittee of the bureau and the working group on Assembly of States Parties - Preparatory Documents for further development. Presently, there is a concern that the election process for the first year of the Assembly would need to be expedited so as to staff the Court more quickly. Beyond the first year, the judges terms will be staggered and will take place every three years. The Womenīs Caucus submitted a one-page advocacy paper detailing our concerns about the process of election. For a copy of this paper, please email the Caucus.

We will need to monitor closely the discussions in the interim, along with the CICC, which has allotted a staff member to work solely on the issue of nominations in coordination with the Caucus and other NGOīs. In fact, the issue may be brought up in an intersessional at which point we would advocate strongly that our concerns and principles of accessibility and transparency be incorporated into the procedures.

- Relationship Agreement Between the ICC and the UN

The two issues of most concern to the NGO team in the Relationship Agreement involved the privileges and immunities for UN personnel in article 8 (now article 19 in the final text) and the amendments allowing for referrals to the ICJ in article 13. In the negotiations on article 8, the working group accepted amendments proposed in earlier prepcoms by France which mandate the UN's cooperation in cases where a UN personnel is alleged to have committed crimes within the ICC's jurisdiction. The French amendments relate to UN cooperation with respect to additional witnesses and evidence.

The initial paragraph of article 8 relating to the privileges and immunities of UN personnel accused of crimes within the Courtīs jurisdiction was cause for concern for the Womenīs Caucus and the Relationship Agreement team. The Women's Caucus and NGO's had protested all along the fact that the language could possibly imply that there is some prerogative or procedural need on the part of the UN to waive privileges and immunities so that the Court can exercise jurisdiction over an accused. This would seem contrary to article 27 of the Rome Statute, which states clearly that no immunities, whether Head of State or diplomatic, are applicable before the ICC.

We were concerned about the implication that there are some privileges and immunities that could interfere with the Court's jurisdiction. There were some discussions that perhaps the provision was not necessary and would only complicate matters.

Others, including government representatives and some NGOīs, felt that an explicit provision was necessary as the UN is not a state and therefore would not be a party to the Rome Statute and subject to it in the same way. Thus, the UN would need to be brought within the jurisdiction of the Court through the relationship agreement.

The language of Article 8 is as follows:

If the Court seeks to exercise its jurisdiction over a person who is alleged to be criminally responsible for a crime within the jurisdiction of the Court and if, in the circumstances, such person enjoys, according to the relevant rules of international law, any privileges and immunities as are necessary for the independent exercise of his or her work for the Organization, the United Nations undertakes to cooperate fully with the Court and to take all necessary measures in order to allow the Court to exercise its jurisdiction, in particular by waiving any such privileges and immunities.

The NGO team following the relationship agreement discussed the issues again at length with different delegations, most of whom felt it would be impossible to open the language again because negotiations at prior prepcoms had been so heated and the compromise was solid. Because some of the delegations that shared our views about the provision were satisfied that the language was satisfactory, the team then took a different approach and advocated that language be included in the preamble that restates the importance of article 27 in general terms.

The team circulated a non-paper to all delegations suggesting this before the last formal session of the working group. While this was not possible so late in the day, several delegations made declaratory statements for the record that they understood the provision to be without prejudice to article 27 of the Rome Statute because in their view immunities for crimes within the Courtīs jurisdiction did not exist and therefore could not be waived. Portugal, Austria, South Africa, Belgium, Chile, Switzerland made these statements which were then reiterated on the final day of the prepcom during the plenary session after the texts were adopted. Thus, these delegations made it clear for the record that the language could not be construed as implying immunities or privileges with respect to the Courtīs jurisdiction - only that in the event there are situations where there might be intersecting agreements between the UN and States, the UN is obliged by the language to waive any possible hindrances.

The issues surrounding article 13 proposals had implications for the Aggression negotiations. The proposals for article 13 would have established mechanisms for the Court to seek advisory opinions from the ICJ on different issues. It was believed by some government delegates and NGO's that if the ICC is to be able to make referrals to the ICJ or make use of ICJ decisions relating to aggression, a mechanism needed to be established in the relationship agreement. The delegate of New Zealand, co-author of the most recent Aggression proposal, expressed his belief that this was the case. Other delegations said it was too premature to make this assessment and that once a definition of Aggression is agreed upon, amendments will have to be made to various agreements - not just the Rome Statute.

The end result was that the article was deleted in its entirety. Spain worked to maintain the language as a hook but France was taking the lead on deleting the language. The assessment is that the permanent membership of the Security Council would have been opposed to instrumentalizing a relationship between the ICC and the ICJ, as one of the principle organs of the UN, to prevent at least one means of circumventing the Security Council.

- Agreement on Privileges and Immunities of ICC Personnel

The primary concerns of the Women's Caucus in these negotiations has been the privileges and immunities for the legal representatives of victims and the privileges and immunities for victims and witnesses. This agreement will be a separate bilateral treaty in and of itself between the ICC and ratifying states.

We had wanted to ensure that the legal representative for the victims enjoyed at least the same level of privileges and immunities as defence counsel. This concern has been addressed and in the definitions of terms "counsel" is defined to include both defence and victims' legal representatives. One shortcoming in the text is that persons assisting defence counsel are also subject to the privileges and immunities whereas persons assisting the legal representatives of the victims are not explicitly covered.

One of the enormous difficulties in these negotiations was the fact that each category of person had to be treated separately, in accordance with their needs and their function with respect to the Court. Thus, witnesses who are not also victims have a separate treatment in the rules from victim-witnesses as do experts in the field and experts at the seat of the Court.

- Financial Rules and Regulations

Our chief concern in the working group was the Trust Fund for Victims. There were efforts on the part of some delegations at the last prepcom to burden the Trust Fund with expenses and costs that should be included in the institutional budget.

Thus, we were concerned with protecting the Trust Fund against those who see the participation and protection mandates for victims and witnesses as satellite issues and not central to this Court's process. Some NGO's at this preparatory commission desired to see the working group address more details of the Trust Fund such as the scope of victims able to make claims, the criteria to be applied to voluntary contributions, the principles relating to reparations, etc. Some of us, however, believed that this working group should not be undertaking these discussions which would be better addressed once the Assembly began to function and could appoint experts who can focus only on the parameters and scope of the Trust Fund.

Due to time constraints, the working group did decide it was best to leave these matters for future personnel of the Court and committees who can study in more detail the functionality of such a Fund. NGO's and the Women's Caucus will need to ensure that these discussions and debates are accessible in the future so that we make contributions to help shape the workings of this Fund.

- First-Year Budget

The draft First-Year Budget was released by the UN Secretariat a month ago and allots approximately $15 million for the Court's first year of existence. The draft budget assessed that the cost would double if the Court were to take on a case in its first year.

The coordinator of the working group on the first year budget has indicated that there are many problems with the draft in terms of the way it is organized and structured. There has been little discussion about the specific line items of the budget at this point.

Instead of working with the secretariatīs draft in detail, the working group, led principally by the coordinator, prepared a series of guidelines for the first-year budget and requested the secretariat prepare a new draft in accordance with the guidelines.

While individual budgetary allotments were not questioned at this prepcom, we have identified at least one major concern in the first draft of the budget which involves the initial staffing of the Victim and Witnesses Unit. Currently, the budget only allows for five or six staff to be hired in the first year. Additionally, the unit was not allotted enough senior personnel who could then spend the time during the first year, developing their own structures and work methods and future budgeting priorities. We have therefore highlighted the need to restructure the initial VWU operations so that professional grade personnel could be brought in to help plan the overall structure and functioning of the VWU and begin hiring and search procedures.

In the interim, we hope to be in contact with personnel at the VWUīs at both the tribunals to develop working suggestions.

- Headquarters Agreement

Our main concern in this working group was to ensure that there was nothing in the principles which would limit the concept of family members of ICC staff. This is because the Dutch immigration regulations are very progressive in terms of who are viewed as family members. We will advocate in the future that the ICC apply the same standards when determining family members of ICC staff so that staff members in non-traditional familial arrangements will also have the same benefits as staff with more traditional families.

In consultation with others, we were satisfied that the language of the principles that will guide the future negotiations between the Court and the host state do not foreclose this possibility.

Source: Extracted from "Women's Caucus Advocacy in ICC Negociations - ICC PrepCom Report Eighth Session, 24 September-5 October 2001".

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This document has been published on 30Sep02 by the Equipo Nizkor and Derechos Human Rights