7th. PrepCom

Women's Caucus Report on the 7th Session of the ICC Preparatory Commission
26 February - 9 March 2001

I - Introduction

The Seventh session of the Preparatory Commission meeting on the International Criminal Court (ICC) was held from February 26 to March 9. The agenda of this session was to continue its negotiations from the last session and to begin the first reading of the Rules of Procedure of the Assembly of States Parties (PCNICC/2001/WGRPASP/L.1).

As a result, this PrepCom had five working groups including: (1) the Rules of Procedure of the Assembly of States Parties,(2) the Agreement on Privileges and Immunities of the Court (WGAPIC), (3) the Relationship Agreement Between the United Nations and the International Criminal Court (WGICC-UN), (4) the Financial Regulations and Rules (WGFIRR) and the working group on the Crime of Aggression (WGCA) which continued its work (5).

Respecting the same working procedures as in previous sessions, all of the working groups began with formals for initial comments, eventually moving to informals for more comprehensive negotiations or to discuss more controversial issues.

There was a great deal of concern among NGO's at the beginning of the PrepCom when some working group coordinators expressed their intent to complete the texts by the end of this session. As a result, there was an effort by some in the coalition to urge the working groups not to rush through these discussions as there were numerous complex issues to deal with.

The first impression this PrepCom gave, was that time would be problematic: all the working groups had to advance their work as much as they could in only nine open days as March 5th was a UN holiday. However, the pressure to finish dissipated by the end of the last week and the documents were not finalized at this session although a major part of the pending issues from last PrepCom were resolved.

II - Caucus Participation

Since the finalization of the Rules of Procedure and Evidence and the Elements of Crimes, the Women's Caucus for Gender Justice participation has been considerably reduced, focusing on the outreach work on the gender gains reflected in the Rome Statute. However, as in the November-December PrepCom, the Caucus remains alert on any important issue that could undermine the independence of the Court or restrain the language already adopted in the Statute and its Annexes.

During the previous PrepCom the participation of the Caucus was possible as the Coalition for an International Criminal Court (CICC) had offered its support. This collaboration with the CICC was renewed once more at this session.

The Caucus brought together five participants from different regions: Betty Murungi (Kenya) Sumue Epie Eyoh (Cameroon), Aurora Parong (Philippines), Maria Eugenia Solis (Guatemala) and Margarette Macaulay (Jamaica). The Caucus invited participants from these countries based on consultations with the CICC Global South Coordinator concerning future strategies and women's involvement. There was no position paper drafted for this session, the main concerns laid on following-up the issues identified at the previous one.

A pre-PrepCom strategy meeting was organized by the Coalition the day preceding the first day of the PrepCom to update members on the issues that would come up for discussion at the PrepCom. Since the method has proven its efficiency for the past PrepComs, the CICC constituted teams parallel to the working groups with a total of five for this session.

The participation of the Caucus members was reflected at different levels, separate from the fact that they were also involved in analyzing the documents and following issues of interest to the Women's Caucus:

- In the teams: participants represented the Caucus at the different team meetings or with those organized with some key delegations; attended other NGO meetings and followed debates on one or other issue to report back to the Caucus.

- In the regional meetings: they were also involved in organizing and attending regional meetings on status of ratification and signature and implementing legislation.

- With the CICC: participants worked closely with other Coalition members on the teams created and reported back to CICC members during the daily strategy meetings.

III- Relevant Issues in the Working Groups

Relationship Agreement Between the UN and ICC

The working group was able to consider articles 1 through 12; articles 12-21 as well as the Preamble will have to be considered at the next session of the working group. The working group will also have to take up proposals on the structure of the text. The outcome of the working group is contained in PCNICC/2001/WGICC-UN/RT.1/Rev.1 .

Article 8 on Privileges and Immunities of UN Personnel

Issue: During the last session, this article raised a lot of concerns among delegations because of its problematic language. As mentioned in the last PrepCom report, the Caucus' main concern 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

Development: Three different proposals were officially introduced at this session from Norway, PCNICC/2001/WGICC-UN/DP.2, France (DP.3) and a joint proposal in document DP. 7 with the delegations of Bahrain, Belgium, France, Iraq, Jordan , Libyan Arab Jamahiriya, Norway, Oman, Qatar, Saudi Arabia, The Syrian Arab Republic and the United Arab Emirates. Discussions on article 8 were to left to the informal-informal consultations. The text of the French proposal from the November 2000 session, specifically relating to a second paragraph for article 8, was retained in the draft agreement's appendix for further consideration.

Current status:

The language in this article is going to be reconsidered at the next session. Article 8 now reads:

- 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.

Article 13 on the International Court of Justice

Development: Two proposals were submitted on article 13, addressing the role of the International Court of Justice in providing advisory opinions to the ICC. A number of delegations and NGOs favored the suggestion that the General Assembly delegate to the Assembly of States Parties the power to seek ICJ advisory opinions without requiring the ASP to go to the General Assembly each time for permission, as was done with the International Atomic Energy Agency. Questions were raised about the respective competence of the ICC and the ICJ to interpret international law. It was suggested that one possibility would be to delete this article for now, or to conclude a supplementary agreement as provided for under article 19, outlining the respective competencies of the ICC and ICJ.

Current status: Both of these proposals were included in the appendix of the draft relationship agreement, to facilitate further discussion at the next session.

Privileges and Immunities of the Court

The first day of the PrepCom, a meeting was organized by the team leader to meet with the Coordinator of the WGAPIC, Mr. Phakiso Mochochoko of Lesotho, and some key- delegations to discuss some concerns raised from last session which remained unsolved. Formals and informals took place during which delegations concentrated their efforts on the draft provided by the Secretariat.

The Coalition team's main concern was the lack of participation on this important issue. At the November-December session, few delegations were active in this working group. By the end of the PrepCom however, after a strong lobbying from the team, delegations became more involved. The following is a brief description of the most controversial issues:

Article 12 bis on the crimes under the jurisdiction of the Court

Issue: This article was introduced at the last session but remained controversial. It stated that - articles 13 to 17 are without prejudice to the relevant rules of international law, including the Statute, relating to the crimes under the jurisdiction of the Court.

This article would ensure that the Court is not immune from its own jurisdiction. The problem is whether States not party to the Rome Statute would use this Privileges and Immunities to avoid crimes under the jurisdiction of the Court.

Development: The proposal for this article was made by Belgium, supported by the delegation of Switzerland and Canada. They believed this article was essential since the document on privileges and immunities of the Court implicates states who have not ratified the Rome Statute is an independent agreement, unlike the other subsidiary agreements. Therefore, this article would address the concerns of countries non party to the Rome Statute.

On the other hand, many delegations such as United Kingdom, China, Mexico, Uganda, Russia and France believed this article should be deleted since this question was covered by article 27 of the Rome Statute, arguing that the language of the article was problematic and could lead to confusing situations whereas the Rome Statute consists of precise definition.

Current Status: France made a proposal to make a direct reference to article 27 (2) of the Rome Statute. Even though the privileges and immunities provided are all functional, this reference would cover the situations of non State parties.

Article 13 on the Privileges and Immunities of the representatives of States Parties

Issue: At the last PrepCom, a proposal was introduced, yet not discussed, to change the title of this article to Privileges and Immunities of the representatives of States participating in the Assembly and its subsidiary organs. This proposal was intended to cover all situations when members travel to and from the place of the proceedings.

Development: The discussion on this article went to informals but the discussion led to the creation of another article: The proposal on the title of article 13 was kept and now reads Privileges and Immunities of the representatives of States participating in the Assembly and its subsidiary organs.

But in order to cover all situations, an article 13 bis was added entitled Privileges and Immunities of the representatives of States participating in the proceedings of the Court which reads that representatives of States participating in the proceedings of the Court shall, while exercising their official functions, and during their journey to and from the place of the proceedings, enjoy the privileges and immunities referred to in article 13.

Current Status: The question still remains open in paragraph 1 when - representatives to the Rome Statute - is mentioned, the question being whether this article should deal with the representatives of States Parties to the Agreement as opposed to the representatives of States Parties to the Rome Statute. A revised text of article 13 is in document PCNICC/2001/WGAPIC/DP.3 submitted by Canada for the next PrepCom.

Article 16 on privileges and immunities of counsel

Issue:. The problem with article 16 was the extent to which Privileges and Immunities should be granted to counsel as well as those assisting counsel. Also of concern was whether all the persons in article 16 should have the same immunity or whether they should have different degrees of immunity. A general question arose as to who should fall within the definition of Counsel.

Development: The representative of the ICTY clearly stressed that there was a need to give a definition of counsel; supported by Turkey and France who specified that counsel means defense counsel and any counsel appearing before the Court including the legal representative of the victim.

The main argument in favor of an immunity provided to the Counsel was the balance that had to be given to the various parties in terms of privileges and immunities. Argentina made reservations on this immunity as the delegation stated lawyers for the defense are not international officials and therefore the functional nature of immunities needed to be specifically indicated and limited.

With respect to this extension of the immunity given to the counsel, Colombia introduced a proposal in document PCNICC/2001/WGAPIC/DP.1 in order to adjust the content of article 16 by incorporating the reference to location provided for in article 15.

Briefly, a chapeau would be introduced to describe the purpose of the functional immunity given to this category of persons. Colombia? s proposal was supported by several delegations (France, Russia, Venezuela) to introduce a chapeau in this article.

Final outcome: With respect to the definition of Counsel, the title of article 16 now reads: Counsel and persons assisting Counsel.

The delegation of Belgium and Colombia worked on the language of the chapeau and it was introduced as following:

Counsel and persons assisting Counsel in accordance with rule 22 of the Rule of Procedure and Evidence shall enjoy the following privileges, immunities and facilities to the extent necessary for the independent performance of their functions in any State Party where they may be on the business of the Court, or in any State Party through which they may pass on such business, subject to.

Article 17 on experts, witnesses, victims, and other persons required to be present at the seat of the Court

Issue: The representative of the ad-hoc Tribunal suggested there was a need to differentiate between the expert-witnesses and the experts on mission, this last category of experts will not be at the seat of the Court and therefore a special provision should cover their particular situation when they will be required to work in the field.

Development: Hungary, Belgium, UK and France pointed out the language in article 17 was too restrictive and there was a need to expand the scope of the article to cover the persons involved in the proceedings but not required to be present at the seat of the Court or those persons assisting the Court in one way or the other (e.g. investigators at exhumations working in the field but not having a contract with the Court or requested to be present at its seat). But also the need to differentiate the scope of privileges, immunities and facilities for experts and other persons referred to in this article.

Current Status: The discussions on this article were not conclusive and commentaries were incorporated in footnotes for discussion at the next PrepCom. In addition, Brazil and Mexico introduced a proposal for an article 17 bis in document PCNICC/2001/ WGAPIC/DP.2 also to be discussed in the future session.

Article 19 on waiver of immunity

Issue: The second paragraph of article 19 of the draft agreement on privileges and immunities is redundant with article 48 of the Rome Statute, except in the case of counsel, experts and witnesses or other person required to be present at the seat of the Court.

Development: Colombia's proposal pointed out in paragraph 1 that the privileges and immunities were for the good administration of justice and therefore there was no obligation to waive the immunity. The procedure of the waiver of immunity for the counsel, experts and witnesses or other person required to be present at the seat of the Court was added in this article.

Current Status: The issue of who should waive the privileges and immunities of the Counsel will need to be discussed at the next session as well as the personnel recruited locally (on this last category, suggestions were made that the waiver could be made by the Prosecutor, the Presidency or the Registrar).

A proposal was introduced in document PCNICC/20001/WGAPIC/DP.3 by Norway to rephrase article 15 bis with respect to the immunities of personnel recruited locally and assigned to hourly rates.

A third paragraph was added on the obligation of a State Party to waive the immunity of their representatives (functional immunity) if this immunity would impede the course of justice and where it can be waived ?without prejudice to the purpose for which the immunity is accorded?

The Coordinator of this working group stated at the final Plenary that there were a number of articles which gave difficulties even though additional progress was made. The amendments to document PCNICC/20001/WGAPIC/ RT.1 will be issued in a future document.

Financial Regulations and Rules

There was a great progress made by the working group on financial regulations and rules. The Coordinator of the Working Group, Mr. Georg Witschel (Germany), said the work of the Prepcom may be concluded in the September-October PrepCom including finalization of the financial regulation, relevant texts, criteria of the trust funds and coordination with working group on the first year budget and Rules of Procedure of the ASP. The main controversial issues at this session are described below:

Currency for the Budget and payment of the Court

At the last PrepCom, this issue remained unsolved. In this session, Mr. Warren Sage, Director of the United Nations Office of Programming Planning and Budgeting, addressed the Working group on this question. He was strongly in favor of the use of the Euro for all purposes of the ICC. He said this was required by the inevitable use of the Euro by the ICC for 80 percent or more of its expenses.

A problem remains for some countries where their domestic legislations require that the payment of contributions to international organizations be made in their national currency and the ICC will have to cope with this possibility.

Contingency and Emergency Payments

Mr. Sage explained the mechanism on this issue. He noted that a senior official (in the case of the UN, the Secretary General) needed to have limited authority to make such payments. This authority would be monitored by and its use approved by the Assembly of States Parties (ASP) in the course of the budgeting process. He also stated that all organizations need some kind of a reserve fund.

In the case of the UN this is the Working Capital Fund. Expenditures are made from this according to the criteria established for every budget cycle by the Security Council Resolutions.

Finally, all long term institutions must have the ability to make future commitments beyond the current budget cycle, i.e. for such purposes as leases and caterers.

Voluntary contributions

The discussions of the criteria for acceptance of voluntary contributions was based on documents DP.12 (Malawi) and DP.18 (Spain). It was agreed that the Working Group would produce a regulation 7.2 and a draft resolution for the ASP on this issue.

The relevant article of the Rome Statute is article 116 which authorizes receipt of voluntary contributions in conformity with criteria established by the ASP. These criterias therefore cannot be in the FIRR. The main themes of the debate were strongly majority views that the independence of the Court should be preserved from manipulation by donors.

The Committee on Budget and Finance

Two proposals were put forward as models for discussion on the CBF: DP.6 (Korea) and DP.13 (Spain). It was generally agreed that the definition of the CBF should be presented as a draft resolution for the approval by the ASP. There seemed to be consensus that the members of the CBF could be both experts and representatives. Although there was considerable sentiment for the CBF membership as small as nine, most countries thought that the number between 12 and 15 would be about right. Delegations noted that the higher number would be necessary to obtain a better geographical representation.

On the frequency of meetings of the CBF, the discussion seemed to conclude with an agreement that there should be at least one meeting a year, with flexibility for emergency meetings. A number of delegations suggested it should coincide with the meetings of the ASP and several noted that much of the work of the CBF could be done through modern communications. There was disagreement as to whether the CBF should undertake administrative tasks but most concurred that the ASP should be able to confer additional responsibilities to the CBF. There was a majority feeling that CBF would require its own rules of procedure (this may be left to the ASP because of the amount of work and the limited time the working group has).

The Coordinator recommended to incorporate the following documents into the proceedings of the next session:

PCNICC/2001/WGFRR/RT.1/Rev.1, the discussion paper proposed by the Coordinator, and, RT.2, the draft resolution concerning the Committee on Budget and Finance, and finally, RT.3, regarding the draft resolution of the Assembly of States Parties on relevant criteria for voluntary contributions to the Court.

Document RT.2 Rev.1 contains a draft resolution of the Assembly of States Parties regarding the committee of finance and budget. This document also contains the text of another draft resolution regarding relevant criteria for voluntary contributions. Voluntary contributions are to be subject to the provisions of Article 116 of the Statute.

He also specified that the conclusion of the working group does not contemplate the drafting of the financial rules of the Court (since this can be done by the Assembly of States Parties or by the Court itself).

Rules of Procedure of the Assembly of States Parties

The working group on the Rules of Procedure of the Assembly of States Parties held four meetings and had one meeting for informal consultation. The first reading was based on document PCNICC/2001/WGRPASP/L.1 prepared by the Secretariat.

The Coordinator, Mr. Saeid Mirzaee (Iran), will submit a discussion paper for the next Prepcom and believes the work will be completed in the coming session. However, even though the nature of this working group was very technical, Coalition members and the Caucus had two main concerns for the future functioning of the Court.

Gender neutrality

The drafting of this document did not respect the gender neutrality encountered in the other documents, such as the Rules of Procedure and Evidence. Throughout the document, every character was referred to as a - he - neglecting a gender balance in the language that was previously used in the other documents.

Spain intervened pointing out that the English version was less respectful than the Spanish one. The Secretariat was asked to take into consideration this issue.

Rule 81 on the Elections of the Judges

Issue: this article refers only to the election of judges - in accordance with article 36 and 37 of the Rome Statute and article 36 and 37 of the Rules of Procedure and Evidence. To ensure a transparency of these elections, there should be a period between the elections and the nominations where the list of the candidates should be publicized with their competence. This mechanism would allow transparency in the nominations of the judges to ensure mandates described in the Rome Statute are respected. The Caucus was very concerned about this issue as practice - for instance in the recent nominations in ICTY - reveals that basic principles, such as an equal representation of female and male judges are not respected.

Development: Spain, who was particularly active in this working group, intervened to emphasize that the Rome Statute does not provide for a precise time between the publication of dissemination of the candidatures and the election. Spain asserted that this could be covered in the Assembly Rules, suggesting a minimum time limit of one month. Mali, France and Iran intervened on the redaction of the article with no further comment.

Article 88 on the participation of observers other than Observers States

Issue: Article 88 was too restrictive in its language, it only gave the status of observers to NGOs that were accredited to the Rome Conference.

Development: Switzerland first took the floor to point out the restrictive language of this article making an oral proposal to remedy the language. A number of delegations intervened in favor of this statement to show support and willingness to work on the current language. It was suggested for instance to divide this part nine containing only article 88 into two articles, the first one describing the quality of observers (others than States Parties) and the second on the conditions of participation.

Final Outcome: Switzerland's statement had great support from delegations and ended in a written proposal in document PCNICC/2001/WGRPASP/DP.1 jointly with the following delegations: Argentina, Australia, Belgium, Brazil, Canada, Denmark, Finland, Germany, Lesotho, Liechtenstein, Mali, New Zealand, The Philippines, Portugal, South Africa, Spain, The Sudan, Sweden, the Syrian Republic, Trinidad and Tobago, And the United Kingdom Of Great Britain and Northern Ireland.

The proposal includes in paragraph 2 and 3 pertaining to representatives designated by other regional intergovernmental organizations and other international bodies respectively- the language ...accredited to the Preparatory Commission for the International Criminal Court or invited by the Assembly.

Regarding the NGOs, paragraph 4 of the proposal reads: NGOs invited to the Rome Conference, NGO accredited to the Preparatory Commission for the International Criminal Court or invited by the Assembly, NGO in consultative status with the Economic and Social Council of the United Nations whose activities are relevant to the activities of the Court and others NGO invited by the Assembly may participate.

In addition in sub paragraph c, NGOs may participate to the openings and closing of the Assembly, and, as appropriate to the formal meetings of the subsidiary bodies.

Crime of Aggression

At the last session, the Working Group on the Crime of Aggression, coordinated by Tuvako Manongi (United Republic of Tanzania), held four meetings during which discussions focused on the definition of aggression and the conditions under which the Court will exercise its jurisdiction. A key issue is the nature of the relationship between the Court and the Security Council, as the Council under Article 39 of the United Nations Charter has the responsibility to determine when acts of aggression have occurred. At this session, Silvia Fernandez de Gurmendi (Argentina) appointed as the Coordinator for the Working Group on the Crime of Aggression in place of Tuvako Manongi (United Republic of Tanzania who had completed his tour of duty in New York.

The Working Group on the Crime of Aggression held four formal meetings and two informal consultations. Consolidated text document PCNICC/2000/L4/Rev.1 and other proposals, as well as new proposals submitted on the jurisdiction of the Court formed the basis the work.

It was acknowledged that Article 39 of Charter gives the Security Council the authority of determining an act of aggression. However there remains disagreement over the primacy and exclusiveness of this authority. Last time the working group considered proposals that said that the authority was primary and not exclusive. This time, the joint proposal of Bosnia-Herzegovina, Romania, and New Zealand (in document PCNICC/2001/WGCA/DP.1) offered a different solution to this problem. Many delegations stated that their comments on this were preliminary. Many are prepared to prepare a revised version. As was pointed out, most of the time was spent in consideration of conditions which constitute the definition of aggression (a division is clearly between delegations who prefer a list of acts, and those who prefer a general definition). The issue of state and individual responsibility raises many questions. Several delegations have stated clearly that they would like all options to remain open.


The US participation

The great surprise at this PrepCom was the absence or it can be better referred to as the silence from the United States in these negotiations. During the last PrepCom, the US introduced proposals in the WGICC-UN and at the last plenary. Since there was no US presence in this working group, these proposals were not reconsidered again. However, at the November-December session, presidential elections were paralyzed and even though the new administration has revealed its opposition to the establishment of the ICC, it is important to follow any move from them that may lead to an exemption for their nationals.

The main intervention was at the WGCA in where the U.S. delegate gave a lengthy statement arguing against specific formal proposals on the floor for alternative mechanisms, pointing out that consistency with the UN Charter means respecting the exclusive authority of the Security Council under article 39 to determine state aggression.

This is important to mention even if this intervention is only on a specific language, since it demonstrates the presence of the US in a certain way on the negotiations.

VII - Concerns for the Next Prepcom

The next preparatory commission for the International Criminal Court will be held from 24 September to 5 October 2001. It will be devoted to try to finalize the technical issues of the relationship agreement between the ICC and the UN, privileges and immunities of the Court and the 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 as well as the second reading of the Rules of Procedure of the Assembly of States Parties. Saeid Mirzaee-Yengejeh (Iran) would act as the contact point for the budget for the first financial year of the Court and Zsolt Hetesy (Hungary) would serve as contact point for the second group, containing the basic principles governing the Headquarters Agreement to be negotiated between the Court and the host country of the Netherlands.

It is necessary to point out that the next PrepCom will be having 7 working groups in only ten open days. The documents that will be discussed are getting more technical and concrete. It is essential to be vigilant and not to neglect the upcoming issues since there are only a few PrepCom sessions left to complete work on the key documents.

Another issue that has to be considered is the consequences of an early entry into force of the Rome Statute. As we know a significant number of countries have launched their ratification process as they want to be in the first 60 countries to ratify; currently 29 countries have ratified and 139 others have signed (without mentioning those who may accede). It is reasonable to say the Statute will enter into force by mid-2002.

The experience with the negotiations of the International Tribunal For the Law of the Sea illustrated this. It is probable that when the treaty enters into force, the Court will not yet be in existence, staffed or funded. There will be a time gap during which crimes continue to be committed but the Court won't be functioning yet. There is a need to ensure this gap shall be reduced as much as it can to avoid any crimes committed during this timeline will be brought before an effective and independent Court.

At the same time, there is a problem of continuity within the negotiations:

The PrepCom for the establishment of an International Criminal Court was established by resolution F of the Final Act of the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court. This resolution F established a specific mandate for the Commission, which was to prepare proposals for practical arrangements for the establishment and coming into operation of the Court. These are all the texts being negotiated in the sessions, except for the Rules of Procedure and Evidence and the Elements of Crimes which were already finalized in the June 2000 PrepCom. The problem is that the PrepCom?s mandate will soon be over and there is a need to empower another entity in the period between the end of the last PrepCom and the first session of the Assembly of States Parties. This body will have the obligation to launch the functioning of the ICC. There is a need to identify this entity that could guarantee to maintain the independence and integrity of the Statute in its first steps.

Source: Extracted from "Women's Caucus Advocacy in ICC Negociations - Report of the 26 February-9 March 2001 Preparatory Commission for the International Criminal Court".

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