1 For a history of the first two sessions, see Christopher, Keith Hall, The First Two Sessions of the UN Preparatory Committee on the Establishment of an International Criminal Court , 91 AJIL 177 (1997)Google Scholar. See also Hans-Peter, Kaul, Towards a Permanent International Criminal Court: Some Observations of a Negotiator , 18 Hum. Rts. L.J. 169 (1997)Google Scholar.

2 GA Res. 51/207, UN GAOR, 51st Sess., Supp. No. 49, at 342, UN Doc. A/51/49 (1996). For the debate in the Sixth Committee on the drafting of this resolution, see Virginia, Morris & Christiane Bourloyannis-Vrailas, M., The Work of the Sixth Committee at the Fifty-first Session of the UN General Assembly , 91 AJIL 542, 548–49 (1997)Google Scholar.

3 GA Res. 51/207, supra note 2.

4 Id.

5 Report of the Preparatory Committee on the Establishment of an International Criminal Court, UN GAOR, 51st Sess., Supp. No. 22A, Vol. 2, UN Doc. A/51/22 (1996).

6 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 delegations, Lars van Troost and Jean Follana, as well as on the working papers, Preparatory Committee reports, UN press releases and excellent confidential daily summaries with information on individual governmental positions prepared by the NGO Coalition for an International Criminal Court, which coordinates the work of more than three hundred NGOs around the world. Many of the public documents are available on the Internet at (http://www.igc.apc.org/ice). Given the informal nature of the meetings, individual government positions are indicated only if they are now in the public domain.

7 NGO papers published in 1997 included Amnesty International, The International Criminal Court: Making the right choices—Part I: Defining the crimes and permissible defences and initiating a prosecution (AI Index No. IOR 40/01/97, 1997), and Part II: Organizing the court and guaranteeing a fair trial (AI Index No. IOR 40/11/97, 1997); Association of the Bar of the City of New York, Committees on International Law and International Human Rights, Report on the Proposed International Criminal Court, A.B.N.Y.C. Record, Jan.-Feb. 1997, at 79; Human Rights Watch, Commentary for the February 1997 Preparatory Committee on the Establishment of an International Criminal Court (1997), and Commentary for the August 1997 Preparatory Committee Meeting on the Establishment of an International Criminal Court (1997); Lawyers Committee for Human Rights, Crimes within the ICC’S Jurisdiction and Essential Elements of their Definitions (1997), and The International Criminal Court Trigger Mechanism and the Need for an Independent Prosecutor (ICC Briefing No. 4, July 1997); Redress, Promoting the Right to Reparation for Survivors of Torture: What Role for a Permanent International Criminal Court? (1997); Women’s Caucus for Gender Justice in the International Criminal Court, Recommendations and Commentary for August 1997 PrepCom on the Establishment of an International Criminal Court (1997).

8 Decisions taken by the Preparatory Committee at its session held from 11 to 21 February 1997, Annex I: Report of the Working Group on the Definition of Crimes, UN Doc. A/AC.249/1997/L.5 (1997) [hereinafter WG1 Report].

9 Dec. 9, 1948, 78 UNTS 277, reprinted in 45 AJIL Supp. 7 (1951). Article II states that genocide in the Convention

means any of die following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:

• (a)

  (a) Killing members of die group;

• (b)

  (b) Causing serious bodily or mental harm to members of die group;

• (c)

  (c) Deliberately inflicting on die group conditions of life calculated to bring about its physical destruction in whole or in part;

• (d)

  (d) Imposing measures intended to prevent births within the group;

• (e)

  (e) Forcibly transferring children of the group to anodier group.

10 This approach is similar to the understanding attached by the U.S. Senate to the Genocide Convention stating that genocide requires the specific intent to destroy a substantial part of a group. S. Exec. Rep. No. 99–2 (1985), reprinted in 80 AJIL 612, 618 (1986).

11 This explanation is not as restrictive as the understanding attached to the Genocide Convention, which states that “mental harm” means “permanent impairment of mental faculties through drugs, torture or similar techniques.” Id., 80 AJIL at 619.

12 Charter of the International Military Tribunal, annexed to Agreement for die Prosecution and Punishment of Major War Criminals of the European Axis, Aug. 8, 1945, Art. 6(c), 59 Stat. 1544, 8 UNTS 279 [hereinafter Nuremberg Charter].

13 Report of the International Law Commission on the work of its forty-eighth session, UN GAOR, 51st Sess., Supp. No. 10, at 9, UN Doc. A/51/10 (1996) [hereinafter Draft Code of Crimes].

14 See Nuremberg Charter, supra note 12, Art. 6(c); Statute of the Yugoslavia Tribunal, Art. 5(a)-(d), UN Doc. S/25704, annex, 32 ILM 1192 (1993); Statute of the Rwanda Tribunal, Art. 3(a)-(d), SC Res. 955 (Nov. 8, 1994), 33 ILM 1602 (1994); Draft Code of Crimes, supra note 13, Art. 18(a), (b), (d), (g).

15 Opened for signature Dec. 10, 1984, 1465 UNTS 85.

16 Although rape was not expressly listed as a crime against humanity in the Nuremberg Charter, it was included in Allied Control Council Law No. 10, Punishment of Persons Guilty of War Crimes, Crimes against Peace and against Humanity, Art. 11(1) (c), Control Council for Germany, Official Gazette, Jan. 31,1946, at 50; and in Statute of the Yugoslavia Tribunal, supra note 14, Art. 5(g); Statute of the Rwanda Tribunal, supra note 14, Art. 4(g); and Draft Code of Crimes, supra note 13, Art. 18(j). In addition, Article 18(j) lists “enforced prostitution and other forms of sexual abuse” as crimes against humanity.

17 GA Res. 47/133, UN GAOR, 47th Sess., Supp. No. 49, at 207, UN Doc. A/47/49 (1992).

18 WG1 Report, supra note 8, n.8.

19 Most states favored limiting the elements of discriminatory grounds to the crime of persecution, as in Article 6(c) of the Nuremberg Charter, supra note 12, Article 5(h) of the Statute of the Yugoslavia Tribunal, supra note 14, and Article 18(e) of the Draft Code of Crimes, supra note 13, although several states argued that such grounds should be an element of all crimes against humanity, as in Article 3 of the Statute of the Rwanda Tribunal, supra note 14.

20 WG1 Report, supra note 8, para. 2.

21 Id. (War crimes).

22 ICRC, Statement of the ICRC before the Preparatory Committee for the Establishment of an International Criminal Court (Feb. 14, 1997); Working paper submitted by New Zealand and Switzerland, UN Doc. A/AC.249/1997/WG.1/DP.2 (1997).

23 Convention for the Amelioration of the Condition of the Wounded and 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; Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts, opened for signature Dec. 12, 1977, 1125 UNTS 3.

24 ICRC, supra note 22, at 2.

25 Id. See also 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.

26 UN Doc. A/AC.249/1997/WG.1/DP.1, at 1 (1997) (United States proposal).

27 Members of the North Atlantic Treaty Organization met in June and October 1997 in an attempt to develop a common position bridging the gap between these approaches.

28 WG1 Report, supra note 8 (Crime of aggression).

29 GA Res. 3314 (XXIX), annex, UN GAOR, 29th Sess., Supp. No. 31, at 142, UN Doc. A/9631 (1974).

30 Penalties, UN Doc. A/AC.249/1997/CRP.1 (1997) (Norway); Grounds for the Exclusion of Criminal Liability or the Mitigation of Punishment, UN Doc. Non-Paper/WG.2/No. 1 (1997) (Singapore); Working paper submitted by Argentina, Canada, France, Germany, Mexico, Portugal and the United States of America, Definition of defences, UN Doc. A/AC.249/1997/WG.2/DP.3 (1997).

31 All references to the draft consolidated text for Articles 21–25 and 35 are to Decisions taken by the Preparatory Committee at its session held from 4 to 15 August 1997, Annex I: Report of the Working Group on Complementarity and Trigger Mechanism, UN Doc. A/AC.249/1997/L.8/Rev.1 (1997).

32 All references to the first draft of a consolidated text for these articles are to id., Annex II, Report of the Working Group on Procedural Matters. This working group was greatly assisted by a shorter version of the proposals (Abbreviated Compilation) prepared at an intersessional meeting in Siracusa, Italy, from May 29 to June 4, 1997, which was sponsored by the Institute of Higher Studies in the Criminal Sciences and attended by governmental experts, staff of the Office of the Prosecutor of the Yugoslavia and Rwanda Tribunals and representatives of the NGO Coalition, all in their personal capacity. This paper reduced the proposals to a more manageable length by eliminating duplication and recommending that many proposals be included in the rules.

33 William Fenrick, Senior Legal Adviser in the Office of the Prosecutor of the Yugoslavia Tribunal, emphasized in an oral intervention on August 4, 1997, that “[f]or us, the ability to conduct on-site investigations without the presence of local officials is essential.”

34 GA Res. 40/34, annex, UN GAOR, 40th Sess., Supp. No. 53, at 252–53, UN Doc. A/40/53 (1985).

35 Gustave, Moynier, Note sur la création d’une institution judiciaire internationale propre à prévenir et à réprimer les infractions à la Convention de Genève , Bull. Int’l, No. 11, 1872, at 122Google Scholar.

* Legal Adviser, Amnesty International.