Published online by Cambridge University Press: 27 February 2017
The object of this paper is to describe the negotiating process during the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court. It is told from the perspective of those that were ex officio at the center of negotiations, as members of the Bureau of the Committee of the Whole (CW).1 It describes the main issues under consideration at the conference and the evolution of the negotiations, including an inside view of the development of the final package containing the principal elements of the statute of the court.
1 See infra notes 5 and 6.
2 A draft statute had been developed from 1995 to 1998 by the Ad Hoc and Preparatory Committees established by the United Nations General Assembly. A great deal was accomplished in the PrepCom, under the chairmanship of Adriaan Bos of the Netherlands. The structure of the draft statute was developed and generally agreed on by states; the framework for a new innovative system of international criminal justice was developed, mergrng elements from different legal systems, in particular those of civil and common law; and there was agreement on some substantive issues, including “complementarity” (the relationship between the international criminal court (ICC) and national courts) and several of the general principles of criminal law to be included in the statute.
3 UN Doc. A/CONF.183/2/Add.1 (1998).
4 The main organs of the conference, i.e., the Committee of the Whole and the Drafting Committee, began their work soon after the beginning of the conference, in parallel with the plenary. In addition, a multitude of informal working groups and consultations were arranged throughout the conference, all reporting directly or indirecdy to the CW. These took place concurrendy with the formal meetings and expanded rapidly to fill all the available time, including eventually meetings lasting most of the night.
5 The plenary dealt with the organization of work, the delivery of policy statements of a general nature (which lasted four days) and the formal adoption of the statute at the end of the conference. The CW was responsible for the development of the statute, and the Drafting Committee was responsible for ensuring proper and consistent drafting throughout the statute in all languages. In general, issues once debated in the CW were referred to working groups or coordinators. The latter then reported the results of their work to the CW, and texts accepted by the CW were referred to the Drafting Committee. Texts refined by the committee had again to be approved by the CW. The final report was sent from the CW to the plenary, witii a complete text, on the final day of the conference. There were some variations on mis procedure; for example, some parts of the draft statute were sent directly to working groups or to the Drafting Committee widiout preliminary CW discussion (e.g., some procedural provisions), and part 2 of the statute did not go to the Drafting Committee except informally.
6 Many of diose had served as such during the PrepCom sessions and were reappointed by the CW chairman-designate, in order to ensure continuity and valuable expertise and leadership in the very complex negotiations that lay ahead. Others were new, replacing PrepCom coordinators who could not continue, and leading negotiations on new areas of the statute.
7 1. Establishment of the Court; 2. Jurisdiction, Admissibility and Applicable Law; 3. General Principles of Criminal Law; 4. Composition and Administration of the Court; 5. Investigation and Prosecution; 6. The Trial; 7. Penalties; 8. Appeal and Revision; 9. International Cooperation and Judicial Assistance; 10. Enforcement; 11. Assembly of States Parties; 12. Financing; and 13. Final Clauses.
8 Proposals ranged from universal jurisdiction, advocated for example by Germany, to the mandatory consent of the state of nationality of the accused, argued most forcefully by the United States.
9 Bureau Discussion Paper, UN Doc. A/CONF.183/C.1/L.53 (1998).
10 These included the article on genocide, much of the provision on crimes against humanity, and parts of the provisions on war crimes, complementarity, challenges to jurisdiction and applicable law.
11 Bureau Proposal, UN Doc. A/CONF.183/C.1/L.59 (1998).
12 These options are discussed infra under “Issues Relating to Crimes” and “Issues Relating to Jurisdiction.”
13 See “Basic Issues and Positions” supra.
14 Now appearing as Article 8(b)(iii) of the Rome Statute of the International Criminal Court, July 17,1998, UN Doc. A/CONF.183/9* <http://www.un.org/icc>, reprinted in 37 ILM 999 (1998) [hereinafter ICC statute].
15 Bureau Proposal, supra note 11, Art. 5.
16 Most delegations accepted that common Article 3 of the 1949 Geneva Conventions would apply in internal armed conflicts, and many delegations favored adding other serious violations of the laws and customs of war occurring in internal conflicts. Certain delegations, however, continued to resist fiercely the inclusion of internal armed conflicts altogether or some of the applicable law.
17 The first section incorporated the provisions of common Article 3 of the 1949 Geneva Conventions and thus was supported by almost all delegations. Even some of those delegations that publicly stated that they did not think the statute should apply to internal armed conflicts indicated privately that if it did, they could accept a provision based on common Article 3. The second section, which denned the other serious violations of the laws and customs of armed conflict to be governed by the statute, was more controversial.
18 The bureau’s discussion paper had included the provision from the Geneva Conventions that the sections did not apply to internal disturbances and tensions such as riots. To diis, the bureau’s proposal added new language derived from Additional Protocol II to the Geneva Conventions of 1949:
It applies to armed conflicts that take place in the territory of a State Party between its armed forces and dissident armed forces or other organized armed groups which, under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations.
The second safeguard clause, also drawn from Additional Protocol II, protected the responsibility of states to maintain or reestablish law and order.
19 It was understood that the statute was not to create new substantive law, but only to include crimes already prohibited under international law. See, e.g., 1 Report of the Preparatory Committee on the Establishment of an International Criminal Court, UN GAOR, 51st Sess., Supp. No. 22, at 16, UN Doc. A/51/22 (1996).
20 Bureau Proposal, supra note 11, Art. 5 quater, B(o)(vi).
21 Other proposals relating to crimes proved less controversial. Except for a few specific provisions, the bureau’s proposal included texts on genocide and crimes against humanity that seemed broadly acceptable. The negotiations on some elements of the provision on war crimes had advanced somewhat and the proposal reflected these developments, relating for example to UN personnel and children. Yet the gender-related crimes (including forced pregnancy) and the broader question of a threshold for war crimes (limiting jurisdiction to those committed as part of a plan or policy or on a large scale) were unresolved. Despite the opposition of a number of states to such a threshold, some options were maintained for the time being. The bureau’s proposal also added a new provision that is noteworthy. It provided that the “Elements of Crimes” would be elaborated later by the Assembly of States Parties and would be used by the court to interpret and apply the crimes in the statute. This procedure had been proposed by the United States during the March Prep-Com and had received some measure of support in the CW debates and during informal consultations.
22 See infra note 36, describing the amendments proposed by India on the final day.
23 Bureau Proposal, supra note 11, Art. 12, Option 2.
24 By that time, even discussions on “automatic jurisdiction,” meaning that states that ratify the statute must automatically accept the court’s jurisdiction over the crimes, without the need for additional acts of acceptance on a case-by-case basis, were no longer really controversial. A few delegations had insisted on some form of acceptance of jurisdiction on a case-by-case basis. However, given persistent trends in the debate, only two options were included in the bureau’s proposal: automatic jurisdiction for all core crimes, and automatic jurisdiction for genocide only, with opting in for crimes against humanity and war crimes. The bureau’s recognition of automatic jurisdiction for genocide attracted little criticism, so that it was clear that the concept of automatic jurisdiction was gaining broader currency. To compensate, those who wanted controls over the exercise of jurisdiction by the court redirected their efforts to other areas, notably the preconditions for its exercise of jurisdiction.
25 The broadest nexus was based on the Korean proposal. A narrower option permitted the court to proceed only with the acceptance of the territorial state, and another only with the acceptance of the state of nationality of the accused. A final option provided for acceptance by the territorial or custodial state.
26 “High Noon” was the description offered by Terra Viva, an independent publication of Inter Press Service in partnership with the NGO No Peace Without Justice. Under the headline “High Noon” on July 15, 1998, Terra Viva drew an amusing analogy:
Like the lone sheriff in a classic Western, chairman Philippe Kirsch is conducting a desperate but determined search for a critical number of deputies to back his attempt to gather support for a compromise Statute for an International Criminal Court (ICC) before the Wednesday “high noon” deadline of sorts, set for the Committee of the Whole to complete its work.
27 In the meantime, sensing that time was running out and concerned to make every possible effort to achieve general agreement, the head of the Japanese delegation, Ambassador Hisashi Owada, had begun a low-key effort to bridge the gap on jurisdiction. He invited a number of delegations to a meeting on Sunday, July 12, to discuss the issue and explore possible solutions. The meeting was inconclusive, but the Japanese delegation continued its efforts to consult delegations individually and in groups, including the like-minded group. While tiiese efforts did not lead to general agreement, an idea emerged for an opting-out mechanism for some core crimes, in the form of a protocol, which would have a time limit. The idea, a 10-year opting out for both crimes against humanity and war crimes, was intended to allow states an opportunity to see how the court would exercise its jurisdiction, including in interpreting complementarity and the specific crimes. The bureau would later draw on that idea in the final package, in a different form.
28 Rules 34 and 52 of the conference’s Rules of Procedure, UN Doc. A/CONF.183/Add.2 (1998).
29 See Mahnoush H. Arsanjani, The Rome Statute of the International Criminal Court, infra p. 22.
30 Article 5(2) of the ICC statute, supra note 14, includes the crime of aggression but specifies that the court shall not exercise jurisdiction over the crime of aggression until a definition of aggression and the applicable preconditions are settled on in a review conference, in accordance with the amendment procedures of the statute.
31 The resulting clause contains the generally accepted clarification that internal disturbances and tensions, such as riots and isolated and sporadic acts of violence, do not constitute armed conflicts. The additional restriction for internal armed conflict, which would have required that an armed force or group operate under responsible command and with control over territory enabling them to carry out sustained and concerted military action, was deleted owing to lack of support.
32 The inclusion of nuclear weapons was not possible in view of the current state of international law and the loss of support that the court would suffer if there were an attempt to outlaw nuclear weapons through this forum. On the other hand, excluding nuclear weapons while including the “poor man’s weapons of mass destruction” (e.g., biological and chemical weapons) proved equally impossible, as to do so would have sent a political signal unacceptable to many delegations. Therefore, none of these weapons are included in the list of prohibited weapons in Article 8(2) (b) of the ICC statute, supra note 14; instead, a mechanism was added to allow the issue to be reconsidered at a review conference (Article 8(2)(b)(xx)).
33 Id., Art. 124.
34 This article narrows the preconditions to correspond as closely as possible with current international criminal law norms. Thus, the preconditions are that the states parties must be the territorial state or the state of nationality of the accused. Id., Art. 12.
35 Rule 30 of the Rules of Procedure of the conference, supra note 28, required, as a general rule, that proposals be circulated not later than the day preceding the meeting at which they were to be considered.
36 The proposed amendments by India relating to the role of the Security Council and nuclear weapons were known to evoke a certain resonance among many nonaligned members and, had the Non-Aligned Movement adopted a formal position on these proposals, a large number of its members would have had to support them. However, many of those members, recognizing that such amendments would unravel the final package and likely preclude the adoption of the statute, solidly voted against the amendments when proposed. Indeed, members of the Non-Aligned Movement seconded the no-action motion proposed by Norway, which led to the rejection of the Indian amendments. The United States-proposed amendments were also rejected overwhelmingly, with only China among the P-5 countries supporting them.
37 As noted by the United Nations, the version that was adopted represented “a very delicately balanced text,” a “package,” which was the “product of intense negotiations and judicious compromises designed to reach widespread agreement.” UN Department of Public Information, International Criminal Court: Some Questions and Answers 2 (undated) <http://www.un.org/icc>.
38 Resolution F in the annex to the conference’s Final Act, UN Doc. A/CONF.183/10 (1998), provides a nonexhaustive list of instruments to be developed by the Preparatory Commission to facilitate the establishment and operation of the court.
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