Women's Caucus for Gender Justice report on the final session of the ICC Preparatory Commisssion
(July 1-12, 2002)
10th and Final Session of the ICC Preparatory Commission
The final session of the ICC Preparatory Commission (Prepcom) took place from 1-12 July 2002 at UN Headquarters in New York. The Prepcom started its work with a celebration as the Rome Statute officially entered into force on the first day of the session, 1 July, marking the time at which the future Court's jurisdiction becomes effective.
There were five working groups at the Prepcom including groups: (1) Crime of Aggression; (2) Preparatory Documents for the Assembly of States Parties (including rules relating to the election of judges); (3) Financial Issues - Remuneration of Judges; (4) Financial Issues - Trust Fund for Victims; (5) First-Year Budget.
Election of Judges, Prosecutor and Deputy Prosecutors
The negotiations of rules governing the nomination and election of judges, prosecutor and deputy prosecutors were highly charged and controversial at the 10th and final session of the ICC Preparatory Commission. These negotiations took place in the Working Group tasked with developing Preparatory Documents for the ASP. Ultimately, delegates were unable to reach agreement on key issues and the discussions will spill over into the agenda of the ASP.
Among the most contentious issues in the debates related to the issue of minimum voting requirements to ensure fair representation of women and men on the Court and equitable geographical distribution, in accordance with article 36(8) of the Statute.
Some delegations such as the United Kingdom remained opposed to any rules intended to give effect to the statutory mandates by building mechanisms, such as minimum voting requirements, into the voting process. Other governments, led by Hungary and Liechtenstein, were in favor of voting mechanisms that would help ensure a fair representation of women and men on the Court and equitable geographical representation.
Ultimately, the debates stalled in the final moments of the Prepcom around the issue of geographical representation. Some governments sought a uniform regional representation that did not depend on the number of ratifications per region. Other governments, primarily from regions well-represented among the States Parties, sought a differential scheme which was based on regional presence.
While the debates concerning the rules for the actual election will continue, agreement was reached on the nomination process. During the nomination period, delegates agreed that the secretariat or bureau of the ASP would issue periodic reports to the States Parties to track the extent to which judges with required qualifications are represented among the candidates. In addition, the reports will contain information related to the number of female and male candidates as well as number of candidates from each geographical region.
The delegates further decided that if certain minimum numbers for the categories are not met by the end of the nomination period, the nomination period will be extended and a call issued for more nominations. Thus, if there are less than nine male or female judges on the list of candidates at the end of the nomination period, the Assembly will extend the time for countries to submit nominations.
The nomination period will open during or immediately after the ASP meeting in September and will close at the end of November 2002. It is expected that the elections of judges will be held during the next meeting of the ASP in January or February 2003. It was also agreed that as soon as the Bureau of the Assembly receives nominations from States Parties, it will post the information about candidates on the web as soon as possible.
The Women's Caucus had argued since the eighth session of the Preparatory Commission for firm voting requirements to ensure parity of women and men on the Court and equitable geographical representation, oversight during the nomination period in addition to overall transparency in the process.
The Women's Caucus and other NGO's are concerned that the first election of judges for the Court will be the first test of the Court's legitimacy and will continue to advocate strongly that the ASP adopt rules which give full effect to the provisions of the Statute, in particular those relating to fair representation of women and men and equitable geographical distribution.
The Working Group for the Crime of Aggression spent most of its time resolving the issue of how to continue the negotiations on the crime of aggression since the Preparatory Commission's mandate ended once the Assembly of States Parties convenes after entry into force of the Rome Statute. The debates around the definition of the crime of aggression have been controversial and difficult since the Preparatory Commission began its work in 1999. The most controversial issue is what role the Security Council will have in determining when an act of aggression has occurred over which the ICC could have jurisdiction. A large, perhaps majority, of delegations desires to ensure that the Security Council is not the sole arbiter of what constitutes an act of aggression and want the Court to be able to make such determines in the absence of Security Council Action. Other delegations, primarily the permanent members of the Security Council, want to make sure the Security Council will have exclusive authority to determine when an aggression has been committed.
The Rome Statute anticipates in article 5 that negotiations would continue to define the crime of aggression and that a definition would be adopted in accordance with the amendment procedures set out in the Statute. The first opportunity for such amendment procedures would be at a review conference called by the Secretary-General of the UN seven years after the statute's entry into force.
By the end of the Prepcom, it was decided that negotiations would continue under the auspices of the ICC Assembly of States Parties with a recommendation that the negotiations be open to all states regardless of whether they have ratified in order to assure that no government could assail the final definition as not have been by global consensus.
Remuneration of Judges
The Working Group dealing with the remuneration of judges focused on the issue of judges serving only part-time. The remuneration for full-time judges had been decided at the Ninth Session at which point the salaries were set at 180,000 euros. It is anticipated that while all 18 judges will be elected at once, pursuant to the Rome Statute, not all judges will need to be full-time in the beginning phase of the Court's establishment. Thus, delegates had to determine the nature and scope of the remuneration for such judges.
Ultimately, the working group decided that all non-full-time judges would receive an allowance of 20,000 euros. Non-full-time judges whose annual income is less than 60,000 euros would receive an upward adjustment to their salaries to 60,000 euros above the 20,000 received as an allowance. As for a pension benefit, delegates decided against providing non-full-time judges with a pension benefit. The argument for this was that judges will only be serving part-time for a brief period and would then become eligible for pension benefits at the same time and rate as judges serving full-time.
Trust Fund for Victims
Article 79 requires the ASP to establish a trust fund for the benefit of victims and their families. The Working Group on this issue worked to put in place a structure and guidelines for the Assembly to adopt at its first meeting.
The administration of the trust fund would be governed by a five-member Board of Directors and an Executive Director. The Working Group also determined that a unit should be set up within the Registry of the Court that would provide such assistance to the Board as is necessary for its proper functioning. The Board members will serve on a pro bono basis and will be elected by the Assembly of States Parties. Members should have experience in working with victims victims of serious crimes. The ASP must appoint an Executive Director to manage the fund based on the recommendation of the Board of Directors and in consultation with the registrar of the Court.
Additionally, the Working Group developed guidelines for the acceptance of voluntary contributions to the trust fund such that the acceptance of such funds should be in accord with the goals and activities of the Trust Fund and, if donated for a specific purpose, should not lead to inequitable distribution among different groups. Additionally, the Board of Directors must do a detailed report on the acceptance or refusal of voluntary contributions to the ASP on a yearly basis.
Delegates in the Working Group on the First-Year Budget continued to negotiate and make intricate adjustments into the last days of the Prepcom which took into account the negotiations in other working groups, such as the Victims Trust Fund for which a new post had to be added to the budget for the first financial period. The working group ultimately set the budget at 30,893,500 euros.
[Source: IccWomen News - The E-Newsletter of the Women's Caucus for Gender Justice, Vol. III / Issue 3 - August 2002]
International Criminal Court
This document has been published on 24Sep02 by the Equipo Nizkor and Derechos Human Rights