1 For an account of the third and fourth sessions, see Christopher, Keith Hall, The Third and Fourth Sessions of the UN Preparatory Committee on the Establishment of an International Criminal Court , 92 AJIL 124 (1998)Google Scholar.

2 UN Doc. A/AC.249/1997/WG.1/CRP.7 (1997). No summary records of the Preparatory Committee have been kept. This account is based on the notes of the author and two other members of the Amnesty International delegation, Lars van Troost and Harriet Ware-Austin, as well as on the excellent confidential daily summaries prepared by the NGO Coalition for an International Criminal Court. Given the informal nature of the meetings, individual government positions are indicated only if they are now in the public domain. All of the Preparatory Committee documents, as well as nongovernmental organizations’ publications for the session, are available on the Internet site of the NGO Coalition: (http:/www.igc.apc.org/icc).

3 UN Doc. A/AC.249/1997/WG.1/CRP.9 (1997).

4 ICRC, Comments on the informal working paper on war crimes of 31 October 1997, at 1 (Dec. 2, 1997).

5 Convention for the Amelioration of the Condition of the Wounded and the Sick in Armed Forces in the Field, Aug. 12, 1949, 6 UST 3114, 75 UNTS 31; Convention for the Amelioration of the Condition of the Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, Aug. 12, 1949, 6 UST 3217, 75 UNTS 85; Convention Relative to the Treatment of Prisoners of War, Aug. 12, 1949, 6 UST 3316, 75 UNTS 135; Convention Relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949, 6 UST 3516, 75 UNTS 287.

6 Regulations Respecting the Laws and Customs of War on Land, annexed to Convention Respecting the Laws and Customs of War on Land, Oct. 18, 1907, 36 Stat. 2277, 2 AJIL Supp. 90 (1908) [hereinafter Hague Regulations]; Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts, opened far signature Dec. 12, 1977, 1125 UNTS 3 [hereinafter Protocol I].

7 The language of this provision closely follows that of Hague Regulations, supra note 6, Art. 23(c).

8 This provision is modeled upon id., Art. 23(f), but with the threshold requirement of “death or serious injury,” which derives from Protocol I, supra note 6, Art. 85(3) (f).

9 This provision is modeled upon Hague Regulations, supra note 6, Art. 23(b), but does not include the more detailed provisions of Article 37(1) of Protocol I, supra note 6.

10 This provision is modeled on Hague Regulations, supra note 6, Art. 23(d), rather than the broader provisions of Protocol I, supra note 6, Art. 40.

11 This provision is modeled upon Hague Regulations, supra note 6, Art. 23(g).

12 This provision is modeled upon id., Art. 23(h), para. 1.

13 This provision is modeled upon id., para. 2.

14 This provision is modeled upon Hague Regulations, supra note 6, Art. 28.

15 This provision is based on Article 28 of the Fourth Geneva Convention (“The presence of a protected person may not be used to render certain points or areas immune from military operations.”), and on principles reflected in Protocol I, supra note 6, Art. 28(1) (prohibiting the use of the presence of medical aircraft to render military objectives immune from attack) and id., Art. 57(1) (“In the conduct of military operations, constant care shall be taken to spare the civilian population, civilians and civilian objects.”).

16 This provision is based upon the general principle reflected in id., Art. 12(1) (prohibiting medical units from being the object of attack).

17 This provision is based upon id., Art. 54, but, in contrast, does not authorize derogation. Articles 55 and 59–63 of the Fourth Geneva Convention govern relief supplies in occupied territories. Convention Relative to the Protection of Civilian Persons in Time of War, supra note 5.

18 This provision is modeled on Protocol I, supra note 6, Art. 11, but the scope of persons protected is narrower and it adds a threshold requirement that the acts must cause death or serious injury.

19 This provision attempts to protect the full range of cultural and religious property protected by the Hague Regulations, supra note 6, Arts. 27 and 56; the Convention Concerning Bombardment by Naval Forces in Time of War, Oct. 18, 1907, Art. 5, 36 Stat. 2351, 2 AJIL Supp. 146 (1908); the Convention for the Protection of Cultural Property in the Event of Armed Conflict, May 14, 1954, Arts. 1, 8, 249 UNTS 358; Protocol I, supra note 6, Arts. 53, 85(4) (d); and other humanitarian law instruments.

20 That other provision is based on common Article 3, rather than Article 76(1) of Protocol I.

21 The draft consolidated text defines “rape or other sexual abuse [of comparable gravity,] or enforced prostitution” as a crime against humanity. UN Doc. A/AC.249/1997/L.5 (1997).

22 GA Res. 48/104, UN GAOR, 48th Sess., Supp. No. 49, at 217, UN Doc. A/48/49 (1993). Article 1 defines violence against women as “any act of gender-based violence that results in, or is likely to result in, physical, sexual or psychological harm or suffering to women, including threats of such acts, coercion or arbitrary deprivation of liberty, whether occurring in public or private life.” Article 2 contains an illustrative list of acts that constitute violence against women but does not distinguish among physical, sexual and psychological violence.

23 Rape is recognized as a grave breach of the Geneva Conventions. ICRC, Statement of the ICRC before the Preparatory Committee for the Establishment of an International Criminal Court at 2 (Feb. 14, 1997). See also Theodor, Meron, Rape as a Crime under International Humanitarian Law , 87 AJIL 424 (1993)Google Scholar.

24 This provision is based upon Protocol I, supra note 6, Art. 85(3) (a), but does not require that the attack result in death or serious injury.

25 This provision is significantly different from id., Art. 85(3) (b), which prohibits “indiscriminate” attacks, and from id., Art. 52, which defines civilian objects as “all objects which are not military objectives.”

26 The Convention on the Rights of the Child, Nov. 20, 1989, Art. 38(2), GA Res. 44/25, UN GAOR, 44th Sess., Supp. No. 49, at 166, UN Doc. A/44/49 (1989), 28 ILM 1448 (1989), ratified by all UN members except Somalia and the United States, requires states parties to “take all feasible measures to ensure that persons who have not attained the age of fifteen years do not take a direct part in hostilities.” Id., Art. 38(3) requires them to “refrain from recruiting any person who has not attained the age of fifteen years into their armed forces.” Article 77(2) of Protocol I, supra note 6, has almost identical requirements: “The Parties to the conflict shall take all feasible measures in order that children who have not attained the age of fifteen years do not take a direct part in hostilities and, in particular, they shall refrain from recruiting them into their armed forces.”

27 Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts, opened for signature Dec. 12, 1977, 1125 UNTS 609 [hereinafter Protocol II]. India, Indonesia, Iran, Nigeria, Pakistan and Turkey were the only states to express reservations about giving the ICC jurisdiction over any violations in internal armed conflicts.

28 The Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia has noted that certain fundamental principles of humanitarian law governing international armed conflicts also apply to noninternational armed conflicts and incur international criminal responsibility. Prosecutor v. Tadić, Appeal on Jurisdiction, Case IT–94–1–AR72, paras. 96–137 (Oct. 2, 1995). See also Theodor, Meron, Classification of Armed Conflict in the Former Yugoslavia: Nicaragua’s Fallout supra p. 236 Google Scholar; Theodor, Meron, International Criminalization of Internal Atrocities , 89 AJIL 554 (1995)Google Scholar.

29 This provision is based upon Protocol II, supra note 27, Art. 13(2) (omits the prohibition of acts or threats primarily designed to spread terror among the civilian population).

30 This provision is based upon id., Art. 17(1) (omits the requirement to take all possible protective measures and the prohibition in Article 17(2) of compelled departure from one’s territory).

31 This proposal treats rape and other sexual assault as independent crimes, in contrast to id., Art. 4(2) (e), which treats them as “outrages upon personal dignity.”

32 Id., Art. 4(2) (b).

33 Id., Art. 6(4).

34 The official ICRC commentary to the Geneva Conventions rejects a threshold for common Article 3 and states that it “should be applied as widely as possible.” ICRC, Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field: Commentary 50 (Jean, S. Pictet ed., 1952)Google Scholar.

35 UN Doc. A/AC.249/1997/WG.2/DP.3 (1997).

36 UN Doc. A/AC.249/1997/WG.2/DP.4 (1997).

37 UN Doc. A/AC.249/1997/WG.2/DP.3, para. 2 (1997).

38 Id, para. 1(a).

39 Id, para. 1(b)-(e).

40 This option reflects the prohibition of superior orders as a defense found in the Nuremberg Charter, Charter of the International Military Tribunal, annexed to Agreement for the Prosecution and Punishment of Major War Criminals of the European Axis, Aug. 8, 1945, Art. 8, 59 Stat. 1544, 8 UNTS 279; Allied Control Council Law No. 10, Art. 4, Control Council for Germany, Official Gazette, Jan. 31, 1946; the Statute of the Yugoslavia Tribunal, Art. 7(4), UN Doc. S/25704, annex (1993), 32 ILM 1192 (1993); the Statute of the Rwanda Tribunal, Art. 6(4), SC Res. 955 (Nov. 8, 1994), 33 ILM 1602 (1994); and the Draft Code of Crimes against the Peace and Security of Mankind, Art. 5, Report of the International Law Commission on the work of its forty-eighth session, UN GAOR, 51st Sess., Supp. No. 10, at 9, 31, UN Doc. A/51/10 (1996).

41 UN Doc. A/AC.249/1997/WG.2/CRP.8, Art. M, para. 1 (1997).

42 Id., para. 2.

43 The report of the working group is found in a series of papers: UN Docs. A/AC.249/1997/WG.6/CRP.2–14 (1997).

44 The report of the working group is found in UN Docs. A/AC.249/WG.4/CRP.11–11/Add.3 (1997).

45 The report of the working group is found in UN Docs. A/AC.249/WG.5/CRP.2–3 (1997). This working group was greatly assisted by a shorter version of the proposals (Abbreviated Compilation), UN Doc. A/AC.249/1997/WG.5/CRP.1 & Adds.1–5 (1997), prepared at an intersessional meeting in Siracusa, Italy (Nov. 17–21, 1997), which was sponsored by the Institute of Higher Studies in the Criminal Sciences and attended by governmental experts, current and former staff of the Office of the Prosecutor of the Yugoslavia and Rwanda Tribunals, and representatives of the NGO Coalition, all in their personal capacity.

46 Indeed, in recognition of the important role that NGOs have played in the drafting of the statute, the General Assembly, in Resolution 52/160 of Dec. 15, 1997, requested that the Secretary-General invite to the diplomatic conference NGOs “accredited by the Preparatory Committee with due regard . . . in particular to the relevance of their activities to the work of the Conference.” These NGOs would be able to attend plenary meetings and, unless the conference decided otherwise in specific situations, attend formal meetings of subsidiary bodies except the drafting group, receive copies of official documents, and address the opening and/or closing sessions.

47 Some of the dozens of NGO publications for the fifth session include Amnesty International, The International Criminal Court: Making the Right Choices—Part III: Ensuring Effective State Cooperation (AI Index No. IOR 40/17/97, 1997); Human Rights Watch, Human Rights Watch Commentary for the December 1997 Preparatory Committee Meeting on the Establishment of an International Criminal Court (1997); Lawyers Committee for Human Rights, Compliance with ICC Decisions (1997); Women’s Caucus for Gender Justice in the International Criminal Court, War Crimes (1997), and Penalties and Reparations (1997); World Federalist Association, Recommendations and Commentary for December 1997 Preparatory Committee on the Establishment of an International Criminal Court (1997).

48 Statement by Justice Louise Arbour to the Preparatory Committee on the Establishment of an International Criminal Court at 13–14 (Dec. 8, 1997).

* Legal Adviser, Amnesty International.