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The First and Second Sessions of the Preparatory Commission for the International Criminal Court1

Published online by Cambridge University Press:  17 February 2009

Knut Dörmann
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Extract

The adoption of the Statute of the International Criminal Court in July 1998 in Rome was the culmination of years of effort by the international community. Under Article 126, the Statute will enter into force once it is ratified by 60 states. As many states will have to enact national legislation or even change their constitutions before ratification to comply with the obligations of the Statute, the required number of ratifications will probably not be reached in the short term.

Besides, a number of tasks still remain to be undertaken by states, as indicated in the Statute itself, namely, drafting of a document called ‘Elements of Crimes’ (EOC), drafting of the Rules of Procedure and Evidence (RPE) and reaching agreement on the definition of the crime of aggression. Therefore, the UN General Assembly has mandated a Preparatory Commission (PrepCom) to prepare draft texts of the RPE and EOC and proposals for a provision on aggression, including its definition, elements and the conditions under which the International Criminal Court (ICC) shall exercise its jurisdiction with respect to this crime. The drafts of the EOC and RPE must be finalized by 30 June 2000, when they should be formally adopted. The definition of aggression does not have to be agreed on until the first review conference seven years after the entry into force of the Statute. In addition to these tasks, which this article will describe in greater detail, the PrepCom will work on a relationship agreement between the Court and the United Nations, basic principles governing a headquarters agreement and financial regulations and rules.

Type
Current Developments
Information
Yearbook of International Humanitarian Law , Volume 2 , December 1999 , pp. 283 - 306
Copyright
Copyright © T.M.C. Asser Instituut and the Authors 1999

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References

3. These elements are intended to help the Court interpret the provisions on crimes, Article 9 ICC Statute.

4. See UN GA Res. 53/105 of 8 December 1998 and Res. F adopted by the United Nations Diplomatic Conference on the Establishment of an International Criminal Court on 17 July 1998.

5. All Articles referred to below are of the ICC Statute, unless otherwise specified.

6. PCNICC/1999/DP.4 and Add.1–3.

7. PCNICC/1999/DP.5.

8. PCNICC/1999/DP.9 and Add.1 and 2.

9. PCNICC/1999/WGEC/INF.1.

10. ‘Art. 6(a): Genocide by killing — Elements

1. The accused intended to destroy, in whole or in part, a national, ethnical, racial or religious group, as such.

2. The accused killed one or more persons of that group in furtherance of that intent.

3. The accused knew or should have known that the conduct would destroy, in whole or in part, such group or that the conduct was part of a pattern of similar conduct directed against that group.

Art. 6(b): Genocide by harming — Elements

1. The accused intended to destroy, in whole or in part, a national, ethnical, racial or religious group, as such.

2. The accused caused serious bodily or mental harm to one or more persons in that group in furtherance of that intent.

3. The accused knew or should have known that the harm caused would destroy, in whole or in part, such group or was part of a pattern of similar conduct directed against that group.

Art. 6(c): Genocide by inflicting conditions of life — Elements

1. The accused intended to destroy, in whole or in part, a national, ethnical, racial or religious group, as such.

2. The accused inflicted certain conditions of life upon the group or members of the group in furtherance of that intent.

3. The conditions of life were calculated to physically destroy that group, in whole or in part.

4. The accused knew or should have known that the conditions inflicted would destroy, in whole or in part, such group or were part of a pattern of similar conduct directed against that group.

Art. 6(d): Genocide by preventing births — Elements

1. The accused intended to destroy, in whole or in part, a national, ethnical, racial or religious group, as such.

2. The accused imposed measures upon one or more persons within that group in furtherance of that intent.

3. The measures imposed were intended to prevent births within that group.

4. The accused knew or should have known that the measures imposed would destroy, in whole or in part, such group or were part of a pattern of similar conduct directed against that group.

Art. 6(e): Genocide by transferring children — Elements

1. The accused intended to destroy, in whole or in part, a national, ethnical, racial or religious group, as such.

2. The accused forcibly transferred one or more persons from that group to another group in furtherance of that intent.

3. The person or persons were, and the accused knew or should have known that the person or persons were, under the age of 18 years.

4. The accused knew or should have known that the forcible transfer or transfers would destroy, in whole or in part, such group or were part of a pattern of similar conduct directed against that group.’ PCNICC/1999/WGEC/RT.1 (PCNICC/1999/L.3/Rev.1), pp. 20 et seq.

11. PCNICC/1999/WGEC/RT.3.

12. PCNICC/1999/WGEC/RT.2.

13. Again, some delegations contested the value and the necessity of commentaries and footnotes containing points of substance.

14. Art. 21 of the Statute reads as follows:

‘1. The Court shall apply:

(a) In the first place, this Statute, Elements of Crimes and its Rules of Procedure and Evidence;

(b) In the second place, where appropriate, applicable treaties and the principles and rules of international law, including the established principles of the international law of armed conflict;

(c) Failing that, general principles of law derived by the Court from national laws of legal systems of the world including, as appropriate, the national laws of States that would normally exercise jurisdiction over the crime, provided that those principles are not inconsistent with this Statute and with international law and internationally recognized norms and standards.’

15. ‘2. For the purposes of this article, a person has intent where:

(a) In relation to conduct, that person means to engage in the conduct;

(b) In relation to a consequence, that person means to cause that consequence or is aware that it will occur in the ordinary course of events.’

16. For example The Prosecutor v. Zejnil Delalić, Zdravko Mucić, also known as ‘Pavo’, Hazim Delić, Esad Landžo also known as ‘Zenga’ (Čelebići), IT-96–21-T, Opinion and Judgment [hereinafter, Čelebići Opinion and Judgment], 16 11 1998, paras. 434 et seq., p. 159Google Scholar.

17. Ibid., para. 201, p. 76.

18. Concerning the time frame, the ICTY stated that ‘(i)nternational humanitarian law applies from the initiation of such armed conflicts and extends beyond the cessation of hostilities until a general conclusion of peace is reached.’ The Prosecutor v. Duško Tadić, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction [hereinafter, Tadić Jurisdiction Decision], IT-94–1-AR72, 2 October 1995, para. 70, p. 37. In this regard, see for example the First Geneva Convention (Art 5), the Third Geneva Convention (Art. 5) and the Fourth Geneva Convention (Art. 6), which are applicable until protected persons who have fallen into the power of the enemy have been released and repatriated. See also in this context Art. 3(b) Additional Protocol I.

19. This limitation was clearly expressed by the ICTR in The Prosecutor v. Jean-Paul Akayesu, ICTR-96–4-T, Judgment [hereinafter, Akayesu, Judgment], 2 September 1998, para. 636. With respect to the necessary nexus between the acts of the accused and the armed conflict, the ICTY held the following:

‘For a crime to fall within the jurisdiction of the International Tribunal, a sufficient nexus must be established between the alleged offence and the armed conflict which gives rise to the applicability of international humanitarian law.’

‘For an offence to be a violation of international humanitarian law, therefore, this Trial Chamber needs to be satisfied that each of the alleged acts was in fact closely related to the hostilities.’

The Prosecutor v. Duško Tadić, IT-94–1-T, Opinion and Judgement, 7 May 1997, paras. 572 et seq., p. 207. See also Tadić, Jurisdiction Decision, ibid., para. 69, p. 37.

20. ‘For the purpose of this Convention, the term ‘torture’ means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.’

21 Čelebći, Judgment, supra n. 16, para. 459, p. 167.

22. Ibid., and para. 494, p. 178: ‘(i) There must be an act or omission that causes severe pain or suffering, whether mental or physical, (ii) which is inflicted intentionally, (iii) and for such purposes as obtaining information or a confession from the victim, or a third person, punishing the victim for an act he or she or a third person has committed, intimidating or coercing the victim or a third person, or for any reason based on discrimination of any kind, (iv) and such act or omission being committed by, or at the instigation of, or with the consent or acquiescence of, an official or other person acting in an official capacity.’

In the Furundžija Judgment, the ICTY described some specific elements that pertain to torture as ‘considered from the specific viewpoint of international criminal law relating to armed conflicts’. Thus, the Trial Chamber considers that the elements of torture in an armed conflict require that torture: ‘(i) consists of the infliction by act or omission of severe pain or suffering, whether physical or mental; in addition; (ii) this act or omission must be intentional; (iii) it must aim at obtaining information or a confession, or at punishing, intimidating, humiliating or coercing the victim or a third person; or at discriminating, on any ground, against the victim or a third person; (iv) it must be linked to an armed conflict; (v) at least one of the persons involved in the torture process must be a public official or must at any rate act in a non-private capacity, e.g., as a de facto organ of a State or any other authority-wielding entity.’

The Prosecutor v. Furundžija, Judgment [hereinafter, Furundžija, Judgment] IT-95–17/1-T, 10 December 1998, para. 162, pp. 63 et seq.

23. Čelebići, Judgment, supra n. 16, para. 473, p. 172.

24. See supra n. 22 for the findings of the Čelebići and Furundžija Judgments on the element of purpose. The ICTY defined the element of purpose slightly differently in each case.

25. Čelebći, Judgment, supra n. 16, para. 470, p. 170. But the ICTR seems to suggest an exhaustive list by formulating ‘for one or more of the following purposes’, Akayesu, Judgment, supra n. 19 at para. 594.

26. Čelebići, Judgment, supra n. 16, para. 471, p. 171.

27. Furundžija, Judgment, supra n. 22, para. 163, p. 64.

28. According to the ICTY, ‘all acts found to constitute torture or wilfully causing great suffering or serious injury to body or health would also constitute inhuman treatment’. However, inhuman treatment is not limited to acts described by the other two offences. It ‘extends further to other acts which violate the basic principle of humane treatment, and particularly the respect for human dignity’. Čelebići, Judgment, supra n. 16, para. 544, p. 194.

29. PCNICC/1999/DP.1 (Australia) and PCNICC/1999/DP.2, PCNICC/1999/DP.3, PCNICC/1999/DP.6, PCNICC/1999/DP.7 and Add.1 and 2, PCNICC/1999/DP.8 and Add.1 and 2, PCNICC/1999/DP.10 and Add. 1 (France).

30. Supra n. 6.

31. PCNICC/1999/WGEC/DP.8, 10, 11, 20, 22.

32. PCNICC/1999/WGEC/DP.12.

33. PCNICC/1999/WGEC/INF.2 (Parts II–IV) and Add.1–2 (Parts V–VI).

34. PCNICC/1999/WGEC/RT.4 on elements of Art. 8(2)(a); PCNICC/1999/WGEC/RT.5/Rev.1 on elements of Art. 8(2)(c); PCNICC/1999/WGEC/RT.6 on elements of Art. 8(2)(b)(xxii); PCNICC/1999/WGEC/RT.7 on elements of Art. 8(2)(b)(xiii)-(xvi) and (xxvi); PCNICC/1999/WGEC/RT.8 on elements of Art. 8(2)(b)(x) and (xxi); PCNICC/1999/WGEC/RT.9 on elements of Art 8(2)(b)(i)–(iii); and PCNICC/1999/WGEC/RT.10 on elements of Art. 8(2)(b)(vi), (vii), (xi) and (xii).

35. With a slight modification emphasised in italics it reads as follows:

‘The following general paragraph would be included as an introduction to the Elements of article 8: “Consistent with the general principles of law defined in article 30, it is presumed that all actions described in the elements must be intentionally committed and the elements do not repeat the general intent implied for each action. Likewise, the elements presume that the conduct is not otherwise legally justified under applicable law referred to in article 21, paragraph 1(b) and (c) of the Statute. Hence, the element of ‘unlawfulness’ that exists in the Statute and in the jurisprudence of many of these offences has not been repeated in the elements of crimes. Absence of a lawful justification for a particular action need not be proved by the Prosecutor unless the issue is raised by the accused.”’

36. The ICTY concluded — with regard to any difference between the notions of ‘wilful killing’ in the context of an international armed conflict on the one hand, and ‘murder’ in the context of a non-international armed conflict on the other hand — that there ‘can be no line drawn between “wilful killing” and “murder” which affects their content’. Čelebići, Judgment, supra n. 16, paras. 422 and 423, p. 154. See also ICTY, The Prosecutor's Pre-trial Brief, The Prosecutor v. Slavko Dokmanović, IT-95-13a-PT, p. 23. According to the Tribunal, ‘cruel treatment constitutes an intentional act or omission, that is an act which, judged objectively, is deliberate and not accidental, which causes serious mental or physical suffering or injury or constitutes a serious attack on human dignity. As such, it carries an equivalent meaning and therefore the same residual function for the purpose of common article 3 of the Statute, as inhuman treatment does in relation to grave breaches of the Geneva Conventions’. Čelebići, Judgment, para. 552, p. 196. Concerning any difference between the notion of ‘torture’ in the context of an international armed conflict on the one hand, and in the context of a non-international armed conflict on the other hand, the ICTY concluded that ‘[t]he characteristics of the offence of torture under common article 3 and under the “grave breaches” provisions of the Geneva Conventions, do not differ’. Ibid., para. 443, p. 162.

37. PCNICC/1999/WGEC/DP.8.

38. See for example , Oppenheim, International Law, A Treatise, Vol. II, 7th edn. (London, Longmans 1952) p. 342Google Scholar, who indicates the following examples of treacherous conduct: ‘no assassin must be hired, and no assassination of combatants be committed; a price may not be put on the head of an enemy individual; proscription and outlawing are prohibited; no treacherous request for quarter must be made; no treacherous simulation of sickness or wounds is permitted.’

39. Ipsen, K., ‘Perfidy’, in Bernhardt, R., ed., 3 Encyclopedia of Public International Law (1997) p. 980Google Scholar.

40. Furundžija, Judgment, supra n. 22, para. 185, p. 73. See also the definition by the ICTY Prosecution quoted in that judgement (para. 174, p. 68): ‘rape is a forcible act: this means that the act is “accomplished by force or threats of force against the victim or a third person, such threats being express or implied and must place the victim in reasonable fear that he, she or a third person will be subjected to violence, detention, duress or psychological oppression”. This act is the penetration of the vagina, the anus or mouth by the penis, or of the vagina or anus by other object In this context, it includes penetration, however slight, of the vulva, anus or oral cavity, by the penis and sexual penetration of the vulva or anus is not limited to the penis.’ (Footnote omitted).

41. Akayesu, Opinion and Judgment, supra n. 19, paras. 597 et seq.

42. Ibid., para. 688.

43. PCNICC/1999/WGEC/INF/3.

44. The proposals submitted at this second session are contained in the following documents: PCNICC/1999/DP.7/Add.1/Rev.1; PCNICC/1999/DP.8/Add.1/Rev.1; PCNICC/1999/WGRPE/INF.2 and Add.1; PCNICC/1999/DP.8/Add.2/Rev.1; and PCNICC/1999/WGRPE/DP.5–38.

45. PCNICC/WGRPE/RT.5/Rev.1, Add. 1 and Corr.1, and Add. 2 and 3 on rules related to Part 6 of the Statute; PCNICC/WGRPE/RT.6 on rules related to Part 5 of the Statute; and PCNICC/WGRPE/RT.7 on rules related to Part 8 of the Statute.

46. PCNICC/1999/WGRPE(4)/RT.1.

47. PCNICC/1999/L.4.

48. PCNICC/1999/INF.2.

49. Reports on the outcome of PrepComs Three and Four will be included in Volume 3 of the YIHL.