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Home > ICC > PREPCOMS > MARCH 2000 WOMEN'S CAUCUS ADVOCACY IN ICC NEGOTIATIONS |
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SUMMARY OF MARCH 2000 PREPCOM
The most recent session of the ICC PrepCom was held from March 13 to 31, 2000. This session had working groups on the Elements of Crimes (Elements WG), Rules of Procedure and Evidence (Rules WG), and Aggression. The Elements and Rules Working Groups began a second reading of the rolling text completed at the last PrepCom session with a view to finalizing the documents by June 31, 2000. Many of the issues identified in the Women’s Caucus position papers were addressed at this session. Most of the issues remain outstanding, with some exceptions.
Most of the work was transferred to informal meetings after the first week of the session. This made it increasingly difficult to lobby states. It is anticipated that the next session will have even more informals.
The Women’s Caucus collected signatures from individuals attending the CSW session affirming their support for a gender-sensitive Court and for the Women’s Caucus. At the end of the ICC PrepCom session, the Women’s Caucus distributed an “Open Letter to the Delegates to the ICC PrepCom” which set out our major concerns and with the petition attached. Please find the open letter attached to this report.
The Women’s Caucus was represented by 22 women from 18 countries. All the representatives had attended previous PrepCom sessions. Thus, they were able to draw upon their expertise and relationships with delegates.
SUMMARY OF WOMEN’S CAUCUS PROPOSALSThe Women’s Caucus produced three position papers for this PrepCom session on Elements of Crimes, Rules of Procedure and Evidence, and Composition and Administration of the Court. The Elements and Rules papers were translated into Spanish and French by Women’s Caucus members.
We recapitulate below the summaries of the caucus proposals on different issues: (For those familiar with the Women’s Caucus proposals, please skip to the next section “Update on Women’s Caucus proposals”)
ElementsThe Need for a General Statement of Gender Integration: A general statement must be included in the Elements of Crimes stating that sexual violence should be charged as other crimes where the acts of sexual violence meet the elements of those other crimes.
Gender crimes must not be held hostage to the compromise on the chapeau: Agreement on the formulations of the gender-specific crimes should not be predicated on the compromise regarding the chapeau, as suggested in footnote 12. Gender issues should not be used as a pawn for agreement on other issues.
“Actively promote or encourage”: The language in the crimes against humanity chapeau which requires that the State or organization “actively promote or encourage” the criminal conduct in question would impermissibly limit the statutory jurisdiction of the Court and must be eliminated.
Murder: The elements of murder should use the term “killed or caused death” so as not to exclude situations in which death results from an intentional omission.
Extermination: The language in the rolling text that the accused “intended the conduct to be part of such mass killing” calls for specific intent, which is unauthorized by the statute. Neither death nor mass killing are required.
Enslavement: The definition in article 7(2)(c) is sufficient to form the elements of the crime. Any modifications are unwarranted.
Sexual Slavery: The elements of sexual slavery in the rolling text which emphasizes “purchasing, selling, lending or bartering” and similar deprivations of liberty would exclude many situations of sexual slavery. The elements of sexual slavery in the rolling text must therefore be modified to de-emphasize the commercial exchange element.
Forced pregnancy: The rolling text is correct and should be maintained.
Enforced sterilization: The footnote in the rolling text which excludes birth control measures from this crime deprives the crime of all meaning and should be deleted. Genuine consent should be substituted by or explained as requiring “informed and voluntary consent.”
Persecution: The proposal in footnote 21 that the fundamental rights be universally recognized diverges from the Rome language, further narrows the crime from current international law, and should be rejected
Torture: The elements of torture under war crimes should not contain any purposes. Alternatively, the purposes clause should include “or any reason based on discrimination of any kind.”
Rules of Procedure and Evidence
Definition of victim: If victim is defined, the definition of victim should be based on the UN Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power and should recognize victims who have suffered environmental and cultural damage.
Participation of Victims: Victims’ rights to participate in the proceedings, as codified in the Rome statute, should be fully recognized in the Rules.
Disclosure: The Rules must ensure that evidence which is confidential or private is not disclosed without the knowledge of affected victims.
Evidence in cases of sexual violence: Special Rules of evidence should be explicitly provided for cases of sexual violence. In particular:
Corroboration: Rule 6.1 of the Rules of Procedure rolling text precluding corroboration of testimony of sexual violence as part of a general non-corroboration rule should be retained.
Consent: The Rules must specify that consent evidence is inadmissible where coercive circumstances affect the ability of the victims to consent.
Acquiescence: The Rules should indicate that acquiescence does not constitute consent.
Victim’s sexual conduct: Rule 96(iv) of the ICTY/ICTR Rules of Procedure prohibiting the admission of any evidence of the sexual conduct of the victims should be adopted.
Privileges: All communications between the witness and medical doctors, psychiatrists, psychologists or therapeutic counselors, whether secular or religious, and including those in the Victim Witness Unit, should be automatically privileged, and not subject to disclosure at trial, unless the client consents to such disclosure.
Rules to protect the interests of Children and Disabled Persons: The Women’s Caucus fully supports the recommendations in the Report of the Seminar on Protection of Victims, in particular of Special Groups of Victims, such as Children and Disabled Persons.
Composition and Administration of the Court
1. Harassment and Discrimination should be explicitly identified as “misconduct” under Rule 4.1.1 and 4.1.2, constituting a ground for removal from office or for disciplinary measures.
2. A mechanism should be established to implement the equality, diversity and expertise criteria respecting the staffing of the Court; and to prevent and process any form of discrimination and harassment
UPDATE ON WOMEN’S CAUCUS PROPOSALSThis section summarizes the developments on the ICC PrepCom issues with particular reference to the Women’s Caucus proposals .
Elements
The Elements Working Group dealt with the rolling text of the elements of genocide and war crimes. This Working Group was working under a general presumption, very strictly enforced by the working group chair, against admitting new language. Instead, it tried to focus only on language which had a footnote in the rolling text stating that further discussion was required. As a result, most of the language dealing with gender crimes was unchanged, even if there was general support for changes.
Crimes against humanity:
The elements of crimes against humanity (CAH) were not discussed at this session. It will be discussed at the next PrepCom session. As a result, the rolling text coming out of the last PrepCom session remains the same, including the language of “actively promote or encourage” in the chapeau to CAH.
The chapeau language was discussed in the panel organized by the Women’s Caucus (see report below). Madeleine Rees from the Office of the High Commissioner on Human Rights spoke out against the language of “actively promote or encourage” on the Women’s Caucus panel.
Genocide:In the rolling text going into the session, paragraph 3 of the chapeau to the elements of genocide contained a statement that sexual violence crimes can be charged as genocide. The chapeau was eliminated and paragraph 3 was reworded and moved to a footnote (fn 1) to subparagraph (b) (Causing severe bodily or mental harm). The footnote which is attached to the first element of causing serious bodily or mental harm states:
“This conduct may include, but is not necessarily restricted to, acts of torture, rape, sexual violence or inhuman or degrading treatment.”
This rewording loses the concept of integrating gender into all the acts of genocide. It also loses the placeholder for a statement in a superchapeau calling for gender integration in all the other crimes. Moreover, as a footnote, it has less prominence than as part of the chapeau. This will make our work more difficult at the next PrepCom session.
In the Working Group discussion on genocide, only a few states referred to paragraph 3. Canada stated that the wording was its proposal and that it reflected a long-standing debate in international law. It favoured its inclusion. Samoa stated that it supported paragraph three, but wasn’t sure if it should remain in the genocide section or part of a more general chapeau.
As a result of its having been reworded and moved to a less prominent place, we urged the group dealing with the overall or super-chapeau (and incorporating the results of the mental elements discussion in Siracusa) to incorporate an over-arching gender integration statement covering all the elements of crimes. In response to his proposal, the US argued that the principle that the same act may constitute more than one crime applies to many acts and that this needed to be considered in the reformulation of the chapeau. As a result, the footnote to the superchapeau contains a footnote to this effect. This superchapeau will be discussed at the next session.
War crimes:
The Elements Working Group completed its review of the war crimes elements. It therefore dealt with the gender crimes which exist in war crimes which are the same as those in crimes against humanity.
i) Outrages upon personal dignity
A footnote (fn15) was added which states:
“This element takes into account relevant aspects of the cultural background of the victim.”
This footnote may or may not be problematic. On the one hand, it will ensure that acts which are humiliating because of the culture of the victim will be considered a crime. On the other hand, it may admit considerations of cultural relatavism to determining whether or not someone is a victim. Further consultation is required to determine whether this issue should be added to the Women’s Caucus concerns.
ii) Rape, enforced prostitution, enforced sterilization, other sexual violence
The term “genuine” consent remains in the elements of rape, enforced prostitution, enforced sterilization and other sexual violence, rather than the terminology “voluntary and informed” which we favored.
Please note that in Rule 6.5 in the Rules, the drafters used “voluntary and genuine consent”. If left as it is, this may create the impression that the genuine consent which appears in the elements of crimes does not include the concept of being voluntary. We therefore have the choice of trying to change “genuine consent” in the Elements to “genuine and voluntary”, or change both the Rules and the Elements to say “voluntary and informed”.
Previously, a footnote was attached after genuine consent in all four of the above crimes. This footnote stated that a person may be incapable of giving genuine consent if affected by natural, induced or age-related incapacity. This footnote (fn 17) has been removed from enforced sterilization, and applies only to rape, enforced prostitution, and other sexual violence.
iii) Sexual Slavery
Our major issue concerns the exclusively commercial language used to exemplify the essential element of slavery. A footnote which was attached to the reference to “other similar deprivation of liberty” in the elements of the crime of enslavement under the crimes against humanity section was added to the references to sexual slavery in the war crimes section. This footnote (18) initially included a statement that the deprivation of liberty includes, under certain circumstances, forced labour and reducing a person to a servile status. It also included trafficking. This language was originally proposed by the US and would have helped clarify that the crime does not related only to acts involving a commercial element.
At Canada’s request, this footnote was then added to the references to sexual slavery in the war crimes section in order to conform the two sections but, we learned later, without the approval of the whole group. The references to forced labor and servile status in the footnote were removed at the last informal meeting, allegedly upon the request of the UAE and the Holy See. The Holy See claimed that it was concerned that priests would be considered victims of sexual slavery because they were in a servile status to God. The UAE gave no reasons and the chair allowed the presumption to operate in favor of removal since it had not been previously approved.
The rest of the original footnote which states that the element “other similar deprivation of liberty” includes trafficking in persons remains in the rolling text attached to this crime. This is an addition to the former rolling text.
Thus, the loss of the reference to forced labor and servile status is very significant. In addition, the same exclusion may well be advocated by the same forces in relation to enslavement under crimes against humanity. We need to be prepared to preserve the entire footnote in enslavement as well as correct the inconsistency between enslavement and sexual slavery.iv) Forced pregnancy
The elements of forced pregnancy were changed to reproduce verbatim the definition in the Rome statute. The elements of this crime in the rolling text formerly stated that the accused “intended to keep the woman or women pregnant in order to affect the ethnic composition of a population…” The Right to Life groups lobbied against this and claimed that it was a deviation from the Rome statute. The delegates reproduced the full definition contained in the Rome statute as the main element of the crime. This means that both the actus reus (“confining one or more women forcibly made pregnant”) and the mens rea (“with the intent of affecting the ethnic composition of any population or carrying out other grave violation of international law”) are merged together. We do not see this as a major issue, but will explore it.
v) Enforced sterilization
A problematic footnote existed in the former rolling text that stated that the deprivation of reproductive capacity did not include birth control measures. The footnote was included to address the US concern about army personnel being made to take birth-control pills. This has been changed to:
“The deprivation is not intended to include birth-control measures with short- term effect”
The change helps to clarify that some birth-control measures can form part of the crime. The term “short-term effect” was preferred by the Women’s Caucus to “short-term birth-control measures” in order to not exclude situations where measures of short-term duration such as contraceptive pills are forced on a victim for a long period of time.
The current language therefore satisfies the Women’s Caucus concerns. However, China is still concerned about this, and, we are told, considers this one of their major issues at the PrepCom.
vi) TortureThe purpose of “for any reason based on discrimination of any kind” has been added to the elements of torture under war crimes. This issue is therefore resolved satisfactorily according to the Women’s Caucus concerns.
Rules of Procedure and EvidenceEvidence in Cases of Sexual Violence
The discussion of Rule 6.5 dealing with Evidence in Cases of Sexual Violence had been delayed in the past two PrepCom sessions, and was finally addressed fully at this session. At the first informal on this rule, there was overwhelming support for the need to have an absolute rule, like that of the ad hoc Tribunals, to exclude evidence of the sexual conduct of a victim. The only dissenters were: the Holy See, Japan, Argentina and Bolivia. With the passage of time, more states developed concerns. There was more controversy regarding the issue of excluding evidence of consent. Differences between the Women’s Caucus and some other NGOs on this point exacerbated the problem.
The negotiations were thus difficult. In the end, the Rule was completely reworked. The Rule currently states:
Rule 6.5 Principles of evidence in cases of sexual violence
In cases of sexual violence, the Court shall be guided by and, where appropriate, apply the following principles:
(a) Consent cannot be inferred by reason of any words or conduct of a victim where force, threat of force, coercion or taking an advantage of a coercive environment undermined the victim’s ability to give voluntary and genuine consent.
(b) Consent cannot be inferred by reason of any words or conduct of a victim where the victim is incapable of giving genuine consent.
(c) Consent cannot be inferred by reason of the silence or, or lack of resistance by, a victim to the alleged sexual violence.
(d) Credibility, character or predisposition to sexual availability of a victim or witness cannot be inferred by reason of the sexual nature of the prior or subsequent conduct of a victim or witness.Rule 6.5 bis Evidence of other sexual conduct
In the light of the definition and nature of the crimes within the jurisdiction of the Court, and subject to article 69, paragraph 4, a Chamber shall not admit evidence of the prior or subsequent sexual conduct of a victim or witness.
Rule 6.5 ter In camera procedure to consider relevance or admissibility of evidence
(a) Where there is an intention to introduce or elicit, including by means of the questioning of a victim or witness, evidence that the victim consented to an alleged crime of sexual violence, or evidence of the words, conduct, silence or lack of resistance of a victim or witness as referred to in paragraphs (a) through (d) of Rule 6.5, notification shall be provided to the Court which shall describe the substance of the evidence intended to be introduced or elicited and the relevance of the evidence to the issues in the case.
(b) In deciding whether the evidence referred to in paragraph (a) is relevant or admissible, a Chamber shall hear in camera the views of the Prosecutor, the defence, the victim or his or her legal representative or the witness, and shall take into account whether that evidence has a sufficient degree of probative value to an issue in the case and the prejudice that such evidence may cause, in accordance with article 69, paragraph 4. For this purpose, the Chamber shall have regard to article 21, paragraph 3, and articles 67 and 68, and shall be guided by the principles stated in Rule 6.5, especially with respect to the proposed questioning of a victim.
(c) Where the Chamber determines that the evidence referred to in paragraph (b) is admissible in the proceedings, the Chamber shall state on the record the specific purpose for which the evidence is admissible. In evaluating the evidence during the proceedings, the Chamber shall apply the principles stated in Rule 6.5.Thus, the Rule contains three parts. The first part (Rule 6.5) lays out a series of guiding principles which state that consent cannot be inferred in certain circumstances. The second part (Rule 6.5 bis) contains a statement saying that the Chamber shall not admit evidence of the sexual conduct of a victim or witness. The third part (Rule 6.5 ter) lays out a “screening mechanism” or procedure for the Chamber to consider the relevance or admissibility of evidence. This part states that the Chamber shall be “guided by” the principles stated in the first part when deciding whether evidence of consent is relevant or admissible and that the Chamber shall “apply” these principles when ruling on defenses. The screening mechanism includes an in camera hearing.
One of the guiding principles states:
“Consent cannot be inferred by reason of any words or conduct of a victim where force, threat of force, coercion or taking an advantage of a coercive environment undermined the victims’ ability to give voluntary and genuine consent.”
The term “undermined” replaced “adversely affected” in the prior draft thus creating a higher threshold of proof required to exclude all consideration of consent. It was chosen after consideration of several alternatives. The threshold is strengthened by the other guiding principle which states that consent cannot be inferred because of the lack of resistance by the victim.
In Rule 6.5 bis, the reference to the definition and nature of the crimes was inserted to address the concerns of states that these rules would lead to changes in their national laws. The reworked rule is considerably weaker than the previous formulations. A footnote was added to this stating that it requires further discussion (upon the request of the UAE and Libya). Thus, this issue is still not resolved.
Other Victims’ issues:
A Victims’ definition has still not been drafted. The definition proposed at the Paris seminar has been provisionally issued as part of the rolling text of Part 2. However, it was the subject of much debate. A footnote (fn 1) to the text indicates that the rule requires further discussion.
There is a lack of coordination between the rolling text in Part 2 and the references to victims in the rolling texts of Parts 5 and 6. In particular, all the duties regarding victims have been relegated to the Victim Witness Unit, and has been omitted from the duties listed under the Registrar, even though Parts 5 and 6 set out duties of the Registrar regarding victims. A footnote was included upon the suggestion of France which states:
“One delegation was of the view that rules under Part 4 relating to information and assistance to be provided to victims in order to ensure their participation at all stages of the proceedings should be placed in this rule…This would apply to all victims and not only to those referred to in article 43, paragraph 6. Moreover, the rule under 4.2.c should be supplemented with the idea that the Registrar shall assist victims to organize their legal representation and provide legal representatives of the victims with adequate support, including such facilities as may be necessary.”
Regarding victim participation, Rule 6.30 lays out the procedure for victim participation. Victims must make written application to the Court in order to present their views and concerns to the Court. Discretion remains with the Chamber to reject an application to participate if the person is not a victim or is not directly affected. A procedure is provided for choosing a common legal representative when there are a large number of victims. The Rule states that legal representatives shall be entitled to attend and participate in the proceedings in accordance with the terms ordered by the Chamber. A legal representative may also apply to question a witness, expert or the accused. This remains in the discretion of the Chamber who may limit the manner of questioning. However, in reparations hearings, the restrictions on the manner of questioning do not apply.
Regarding notification, Rule 6.30 D provides that notice shall be provided to victims of a decision by the Prosecutor not to initiate an investigation or not to prosecute and of a hearing to confirm charges. However, only those victims who have already participated in the proceedings or who have communicated with the Court shall be notified. Thus, there is no general public notice. Notice is also provided at later stages when a victim participates in a proceeding.
Regarding pre-trial disclosure, Part 5 was not discussed at this session. Therefore, our recommendation for a mechanism to notify victims of disclosure of evidence which affects their rights and privacy was not addressed. It is not certain whether this Part will be discussed at the next session.
Children’s issues
A seminar on children and disabled persons and the ICC was held at the Siracusa intersessional meeting in February, 2000. Italy formally proposed many of the recommendations made in the report coming out of the seminar. Some of these recommendations were included in the final rolling text in modified form. Most importantly, the concept of a child support person was included in Part 4 under the Victim and Witness Unit. Rule B4.4.1.3 states:
“In performing its functions, the Unit shall give due regard to the particular needs of children, elderly persons and persons with disabilities. In order to facilitate the participation and protection of children as witnesses, the Unit may assign, as appropriate, and with the agreement of the parents or of the legal guardian, a child-support person to assist a child through all stages of the proceedings.”
Many of the other proposals, however, have not been adopted.
Composition and Administration
The Women’s Caucus recommendation for a non-discrimination and non-harassment mechanism was not taken up, largely because attention was diverted elsewhere This issue must now be abandoned, but can be pursued under the Regulations once the ICC is set up.
OTHER PREPCOM DEVELOPMENTSUS Proposal re Article 98
The US circulated a proposal at the PrepCom session to address its concerns about the Court. The proposal is in two parts. Firstly, there is a proposed text for a rule relating to Article 98 of the Rome Treaty which would be included in the Rules. The second part is a proposal for text to a supplemental document to the Rome statute. The text for the supplemental document would be contained in an agreement between the ICC and the UN. It states that the ICC would not request surrender of a national of a UN Member State who is acting under the overall direction of the state unless the following criteria are met: the state is a party to the Rome statute or accepts its jurisdiction; or the Security Council expressly authorizes measures under Chapter VII against the specific state and makes reference to the request for surrender. The first part of the proposal would be a rule providing the means to bind the Court to the provision in the Supplemental Document.
This proposal would effectively give a veto to the state of the nationality of the accused or the Security Council permanent members. The proposal would prevent the Court from continuing past the stage of seeking surrender of the national of a state unless the state of the nationality or the Security Council consents. It is an unacceptable amendment to the provisions of the Rome statute.
The US presented this proposal as the final “fix” that would allow it to sign the Rome statute if accepted, and would lead to active opposition to the court if rejected. It is unclear what is the status of the proposal. There was much opposition from states to the proposal. However, it is not clear whether the states are willing to use the proposal as a basis for a compromise. The NGO Coalition for an ICC strongly criticized the proposal at its press briefing, in addition to the Women’s Caucus open letter.
Aggression
There were two Working Group sessions on Aggression. Italy issued a proposal for a definition of aggression. Progress was slow.
Women’s Caucus Panel
The Women’s Caucus organized a panel on the issue of crimes against humanity and witness protection issues during the March 2000 PrepCom. One objective was to discuss some aspects of the elements of crimes against humanity that is being negotiated in the PrepComs. The speakers at the panel were Madeline Reese from the United Nations Office of the High Commissioner for Human Rights, Gabriela Mischkowski, WC participant and Co-founder of Medica Mondiale, a support group for survivors of sexual and gender violence in the conflicts of the former Yugoslavia, Francoise Ngendahayo, Advisor on Gender Issues and Assistance to Victims at the International Criminal Tribunal for Rwanda. The panel was chaired by Teresa Ulloa, Women’s Caucus member from Mexico.
Madeline Reese spoke as a representative from the Office of the High Commissioner for Human Rights and in the capacity in which she worked for the office of the High Commissioner in Bosnia. She discussed the elements of Article 7 i.e. crimes against humanity with particular reference to the high threshold requirement (actively encourage or promote) in the chapeau. She asserted that international human rights standard must be reflected in the documents of the ICC, that under no circumstance can non-derogable rightsshould be compromised, that human rights cannot be sacrificed for political expediency and finally that states that adhere to international treaties and that maintain human rights standards should not live in fear of prosecution.
The second speaker Gabriela Mishkowski spoke of the international law from the perspective of the injured and women survivors of violence. She spoke from her experience with Medica, a crisis center for war-traumatized women in Bosnia. She emphasized how the prosecution process can often be revictimizing and retraumatizing and therefore called for adequate protection measures. She particularly stressed the importance of privilege for counselling records, non-discriminatory evidence rules, including the irrelevance of evidence such as the prior sexual conduct, and the need to ensure victim-witnesses had legal representation in respect to their testimony. Finally Gabriela spoke of the misconceptions around the issue of active participation by the injured and the survivors and their legal representation and shared her experience that helped to clear some of the misconceptions on these issues.
The last panelist Francoise Ngendahayo also spoke on the issue of the rights of the victims and the need for privileged counselling records from the perspective of the survivors of the Rwanda genocide. She stated how difficult it is for victims to speak of the crimes and sometimes there are no words to explain the details that are often required in the trial process. She emphasized that counselling guidelines should be drawn up keeping in mind the cultural sensitivities and the needs of the survivors.
Presentation by Judge May of the ICTY
On March 20, Judge Richard George May made a statement to the Preparatory Commission on behalf of the Judges of the ICTY. Judge May addressed four issues which he said were important to the Judges. The first issue addressed was the issue of evidence in cases of sexual violence. The Judge defended the strong rules in the ICT/R Rules of Procedure regarding evidence of sexual conduct and consent in cases of sexual violence because of the nature of the crimes in front of the Tribunal. The Judge urged the delegates to adopt similarly strong rules for the ICC. This statement had an influence on the negotiations.
Future Strategy
The Women’s Caucus will begin to prepare for the next PrepCom session which will be held June 12 to 30, 2000. Our primary concerns for the next session will be:
-obtaining a gender integration statement in the chapeau to all the crimes
-opposing the higher threshold of “actively promote and encourage” in the crimes against humanity chapeau
-expanding the elements of sexual slavery beyond commercial exchanges
-replacing the “genuine consent” term with “voluntary and informed” in the elements of rape, enforced prostitution, sexual slavery and other forms of sexual violence
-ensuring adequate victim participation
-opposing US efforts to weaken the jurisdiction of the Court by using Article 98
-defending the current rules regarding evidence in cases of sexual violenceThe Women’s Caucus is planning on bringing more participants to the next PrepCom session. It will hold a two-day orientation session on the weekend prior to the session to prepare.
Finally, documents will be finalized by mid-May and sent out to our members. We hope that you will all be able to assist us by lobbying your home countries.