SUMMARY OF FIRST WEEK OF
INTERNATIONAL CRIMINAL COURT PREPCOM
AND REQUEST FOR URGENT ACTION
June 2000
We have just concluded the first week of the three week ICC Prepcom here at UN
Headquarters in New York and we need your assistance urgently. Below is a
summary of the status of discussion at the end of the first week. We have
included action letters for you to send to the relevant officials in your
governments. We have also included email addresses of different country missions
to the United Nations at the end of this message.
This summary follows our update sent on the first day of the ICC Prepcom wherein
we summarized the major issues we face at this meeting. This Prepcom will
finalize negotiations on two documents: (1) an Element Annex, further defining
the crimes within the Court's jurisdiction, and (2) a set of Rules of Procedure
and Evidence. There are still several contentious gender provisions at stake in
these negotiations. In addition, there is a drama playing out here which
includes aggressive bullying tactics by the U.S. against the international
community's commitment to ensure an independent and fair ICC. Also, there are
attempts to raise the threshold of the court's jurisdiction over crimes against
humanity, making all of the crimes against humanity more difficult to prosecute
but especially those of sexual and gender violence.
There are about 30 of us here as a part of the Women's Caucus monitoring this
process including participants from Australia, Kenya, Cameroon, Nigeria,
Nicaragua, Japan, India, Philippines, Georgia, Sri Lanka, Costa Rica, Chile,
Guatemala, U.S., UK, Liberia, Rwanda, South Africa, Jordan, Canada and Ecuador.
In addition to the substantive issues we face at this Prepcom, there have been
several process issues that have arisen. There is a presence of right-wing
anti-choice groups here misrepresenting the positions of the Women's Caucus and
even gaining access to informal discussions where NGOs are not allowed. We have
learnt that when asked to leave, other members of their group quickly replace
them. We are also concerned about the amount of negotiating time that is spent
in informals and the speed with which the delegates must progress to meet their
June 30 deadline. Some chairs of the working groups are setting strict rules
about which issues can be raised and which cannot. This directly affects several
gender issues.
We are also concerned with a disturbing trend we have witnessed in the oversight
of the negotiations. The bureau seems more concerned with ensuring near
universal agreement to and acceptance of the final documents at all costs rather
than protecting and maintaining the integrity of the Rome Statute. This is
resulting in concessions on key issues which undermine the rome Statute to
countries who will likely not ratify, including the U.S. and some Arab
countries.
The following is a summary of some of the priority issues as they stand as of
Friday, June 16:
1. U.S. PROPOSAL: The U.S. will table its controversial proposal on Monday afternoon (June 19). This proposal seeks to give the Security Council more control over the cases that can come before the Court and allow for the possibility of exceptions for peacekeeping forces, or those acting under the "overall direction" of the State in question. Obviously, this would undermine the independence and impartiality this Court, or any
court, required to do justice evenly and fairly.
The U.S. raised similar issues in the Rome Treaty conference where the statute of the ICC was adopted in July 1998. The U.S. was soundly defeated on these issues though not without several substantive concessions concerning the court's jurisdiction. We are gravely concerned about this proposal and urge you to write your foreign ministries and other relevant officials about this. The U.S. has continued to intensively pressure governments of countries it deems dependent on U.S. military and/or economic aid for support for this proposal. Most of the EU countries are arrayed strongly against the proposal though we have had word that the UK has been a weak link on this issues. (We have had at least one report that with a slight modification, the UK could recommend support to the US proposal).
In addition to its efforts within the context of the ICC process, the U.S. began last year to insist on a clause in bilateral extradition agreements that the parties to the agreement would not extradite U.S. officials to the Court, once established. Sri Lanka and S. Korea, among others, are parties to such agreements. Also, in the past week, Sen. Jesse Helms, chairman of the U.S. Senate Foreign Relations Committee, held a hearing for the sole
purpose of denouncing the Court in the most vitriolic of terms. At this hearing, a bill was introduced which calls for the protection of U.S. citizens from the jurisdiction of tribunals such as the ICC and would nullify the effect of the ICC's jurisdiction. It is believed this heariing was to bolster the resolve of the U.S. delegation to the ICC Prepcom not to give any ground at this meeting.
We urge U.S. based activists and organizations to contact officials in the State, Defense, and Justice departments and demand that they cease this destructive approach to this very necessary mechanism of accountability. We urge our international affiliates to contact your foreign ministries and urge them to reject this proposal and others like it.
2. CRIMES AGAINST HUMANITY: Two Prepcoms ago, 11 Arab countries submitted a
proposal which sought to exclude crimes of sexual and gender violence from the Court's jurisdiction when committed within the context of family, religion or culture. The proposal itself was discriminatory and contrary to international law to begin with and should not have been considered.
However, several delegations used the opportunity of this proposal to enter into negotiations with these countries which yielded text raising the threshold for all of the crimes against humanity. The language as currently formulated requires that states or non-state organizations have a policy of "active promotion or encouragement" of the criminal conduct.
The compromise language would limit the statutory jurisdiction of the Court and would have the effect of discriminating on the basis of gender and age. The Women's Caucus sees this as a priority issue, especially since it is often the case that crimes committed on a widespread or systematic basis with the acquiescence or toleration of states or non-state entities are committed predominately against women and children, thus needing no active
promotion or encouragement by the state. Since this language arose from compromise on a proposal that was baseless, discriminatory and contrary to international law to begin with, the Women's Caucus sees eliminating the compromise language as the only satisfactory option.
Last week, the issue of the chapeau language was addressed. There appears to be three positions that emerged: (1) countries who opposed the language but would be willing to work on alternative language; (2) countries who saw the language as somewhat problematic but could live with the current language and therefore cautioned against reopening debate because of the compromise involved; and (3) countries who supported the compromise language and threatened that the original proposal, excluding crimes
against women, would come back into play if the debate was reopened on the chapeau language.
From the intervention on the floor, we placed the following countries in the various positions:
Group 1: France, Samoa, Portugal, Colombia, Ecuador, Liechtenstein, Belgium, Cuba, Bosnia, Israel, Spain, Australia, Slovakia, South Korea, Thailand, Hungary,
Group 2: U.S., Netherlands, Norway, New Zealand, Switzerland, Germany, Canada, Sweden, Israel
Group 3: China, Bahrain, UAE, Egypt, Pakistan, Mexico, Peru, Turkey, Libya,
Iran, Oman, Sudan, Russia, Indonesia
As this is an issue, which could undermine the Court's ability to address egregious crimes against women occurring on a widespread or systematic basis as crimes against humanity, in addition to undermining generally the Court's capacity, we urge you to contact your foreign ministries and demand strong positions on this. We insist that if there are to be negotiations based on the compromise language, THE ALTERNATIVE LANGUAGE MUST ENCOMPASS SITUATIONS OF TOLERATION, IMPLICIT OR
TACIT APPROVAL AND FAILURE TO RESPOND TO CRIMES BY THE STATE OR ORGANIZATION IN THE FACE OF SUCH VIOLENCE.
We are concerned that many delegations are catering to countries on this issue for the sake of keeping them on board, when in fact they will likely not ratify any time soon. Thus, crucial aspects of the Rome Statute and the eventual ICC are bring compromised away. Like the U.S. proposal, these countries are seeking ways of ensuring that as non-state parties they will less the likelihood of being brought before the court.
3. ENSLAVEMENT/SEXUAL SLAVERY: There have been attempts by the UAE and the Holy See (a/k/a the Vatican) to keep "forced labor" and keeping others in a "servile status" from the definitions of the crimes of enslavement and sexual slavery. As of Friday, there was widespread support for retaining these elements in the crime of enslavement but not necessarily sexual slavery. Negotiations will continue on these definitions this week. We will insist that these elements also be applied to the crime of sexual slavery.
4. EVIDENCE IN CASES OF SEXUAL VIOLENCE: The draft text containing negotiated rules of evidence concerning consent and sexual conduct evidence in cases of sexual violence was discussed in an open session on Friday. In the last
prepcom, the smaller working group had reached a difficult compromise on the language. Currently, the rule has 3 parts. First, the rules lays out a series of principles which establish that consent may not be inferred from different circumstances, such as the victim's silence or
acquiescence. Second, the rule states that sexual conduct evidence shall not be admitted but makes a controversial reference to article 69.4 of the statute, which is a restatement of a basic evidentiary principle. This reference was insisted upon by Germany, Austria and other delegations who were concerned about reiterating a recognition of the rights of the
accused. The third component of the rule sets up a screening procedure to be held in chambers whenever one of the sides wishes to admit consent or sexual conduct evidence. The hearing must be held confidentially and the judge must find that the evidence is highly relevant and admissible and is not being admitted for any of the prohibited purposes.
At the open session, Turkey and Russia made interventions to the effect that the reference to 69.4 in the second part of the rule should be deleted as such evidence is always discriminatory and prejudicial to victims and witnesses and should never be allowed. They further observed that article 69, since it's part of the statute, applies equally everywhere and that its import is distorted if restated in this context and no where else. Their interventions were quickly followed by a number of delegations to the effect that the language was the result of a very difficult compromise and that if debate were reopened on that issue, the entire rule would come into question. The group included countries which originally desired a more progressive rule and those who had desired a more restrictive one favoring greater deference to the rights of the accused. The first group included France, Australia, Bosnia. The second group included Japan, U.S., Austria, Germany and the Holy See. As no further debate ensued after the reminder
by these countries of the compromise, the text was adopted by the chair of the working group without further debate. The rule will now go as it stands into the report of the working group.
For more information about these or other issues, please contact us or visit our website:
www.iccwomen.org. We will be in touch later in the week with another update on the U.S. efforts and crimes against humanity negotiations. Please take a moment to review the letters below and send them to your officials. Please also send a copy to the Women's Caucus for Gender Justice or let us know of your response.
Draft of action Letters to Foreign Ministries or other relevant Ministries:
Dear ,
We/I am writing to you about the current Preparatory Commission meeting for the International Criminal Court taking place now through June 30 at UN Headquarters in New York. We/I am deeply concerned about the U.S.' efforts to debilitate this Court as well as efforts to raise the threshold for crimes against humanity beyond the statutory language.
Specifically, We/I demand the following position from my country's delegation to the ICC
Prepcom:
1. That the U.S.' two-part proposal under Article 98 and the supplemental agreement be rejected in its entirety, as well as any further proposals that would have the same effect of undermining the Rome Statute and the
ICC.
2. That any language concerning the threshold for crimes against humanity must encompass situations of state or organizational toleration, implicit or tacit approval of the crimes listed in article 7 as well as failure to act in the face of such crimes;
3. That the definitions of crimes of enslavement and sexual slavery include "forced labor" and keeping others in a "servile status."
We/I, and many others, are watching these negotiations carefully to ensure that the gender gains in the Rome Statute are not undermined in the final days of the negotiations of the Elements Annex and Rules of Procedure and Evidence. I appreciate your immediate attention to these matters.
Sincerely,
~~~~~~~~Draft of Letters to U.S. Officials~~~~~~~~~~~~
President Clinton
Fax: 1-202-456-2461
Secretary of State Madeline Albright
Fax: 1-202-261-8577
Attorney General Janet Reno
Fax: 1-202-307-6777
Secretary of Defense Bill Cohen
1000 Defense Pentagon
Washington, D.C., 20301-1000
David Scheffer, Ambassador-at-Large for War Crimes
Fax: 1-202-736-4495
Theresa Loar, President's Interagency Council on Women
Fax: 1-202-647-5337
Bonnie J. Campbell, Director, Violence Against Women office
Fax: 1-202-307-3911
-----
Dear ,
We/I am writing to you about the U.S. role in the ongoing process to establish
the International Criminal Court. We/I am alarmed to see that my government is
trying to ensure more control by the Security Council over the cases that can
come before this Court and a 100 percent exemption from the Court's jurisdiction
for U.S. nationals.
This sort of proposal would undermine the principles of independence and
impartiality that are critical for any institution of justice. That my country
is seeking to achieve this is an embarrassment and a shame - not to mention the
bullying tactics the U.S. has resorted to in the process.
We/I strongly support the establishment of this Court as it represents an
historic opportunity to end the culture of impunity for genocide and the most
egregious of war crimes and crimes against humanity. Furthermore, the Rome
Statute of the ICC includes many historic gender provisions, including the fact
that crimes of sexual and gender violence are explicitly named for the first
time in international law.
We/I demand that my government play a more constructive role in this process and
cease its efforts to debilitate this very necessary institution. More
specifically, We/I demand:
1. that the U.S. withdraw its current proposal;
2. that the U.S. cease all similar efforts aimed at underming the International
Criminal Court;
3. that President Clinton sign this landmark statute before leaving office.
Though the likes of Sen. Helms and others would have you believe the contrary,
many in the U.S. are aware of and support the efforts to establish this Court
and demand that the U.S. to play a part in this process on an equal footing and
on the same terms as the rest of the world.
Thank you for your attention to this matter.
Sincerely,
*****************************************
Posted below are E_mail addresses of Permanent Missions (and Observer Missions:
Switzerland, Palestine, Vatican) to the United Nations -
Afghanistan - afgun@undp.org
Albania - albun@undp.org
Algeria - dzaun@undp.org
Andorra - andun@undp.org
Angola - agoun@undp.org
Antigua and Barbuda - atgun@undp.org
Argentina - argun@undp.org
Armenia -armun@undp.org
Australia - ausun@undp.org
Austria - autun@undp.org
Azerbaijan - azeun@undp.org
Bahamas - bhsun@undp.org
Bahrain -bhrun@undp.org
Bangladesh - bgdun@undp.org
Barbados - brbun@undp.org
Belarus - blrun@undp.org
Belgium - belun@undp.org
Belize - blzun@undp.org
Benin - benun@undp.org
Bhutan - btnun@undp.org
Bolivia - bolun@undp.org
Bosnia and Herzegovina - bihun@undp.org
Botswana - bwaun@undp.org
Brazil - braun@undp.org
Brunei Darussalam - brnun@undp.org
Bulgaria - bgrun@undp.org
Burkina Faso - bfaun@undp.org
Burundi - bdiun@undp.org
Cambodia -khmun@undp.org
Cameroon - cmrun@undp.org
Canada - canun@undp.org
Cape Verde- cpvun@undp.org
Central African Republic - cafun@undp.org
Chad -tcdun@undp.org
Chile - chiun@undp.org
China - chnun@undp.org
Colombia -colun@undp.org
Comoros - comun@undp.org
Congo - cogun@undp.org
Costa Rica -cosun@undp.org
Cote d'Ivoire - civun@undp.org
Croatia - hrvun@undp.org
Cuba- cubun@undp.org
Cyprus - cypun@undp.org
Czech Republic - czeun@undp.org
Denmark - dnkun@undp.org
Djibouti - djiun@undp.org
Dominica -dmaun@undp.org
Dominican Republic - domun@undp.org
Ecuador - ecuun@undp.org
Egypt - egyun@undp.org
El Salvador - salun@undp.org
Equatorial Guinea -gnqun@undp.org
Eritrea - eriun@undp.org
Estonia - estun@undp.org
Ethiopia -ethun@undp.org
Fiji - fjiun@undp.org
Finland - finun@undp.org
France -fraun@undp.org
Gabon - gabun@undp.org
Gambia - gmbun@undp.org
Georgia -geoun@undp.org
Germany - germany@un.int
Ghana - ghaun@undp.org
Great Britain - gbrun@undp.org
Greece - grcun@undp.org
Grenada - grdun@undp.org
Guatemala - gtmun@undp.org
Guinea - ginun@undp.org
Guinea-Bissau -gnbun@undp.org
Guyana - guyun@undp.org
Haiti - htiun@undp.org
Honduras -hndun@undp.org
Hungary - hunun@undp.org
Iceland - islun@undp.org
India -indun@undp.org
Indonesia - idnun@undp.org
Iran - irnun@undp.org
Iraq -irqun@undp.org
Ireland - irlun@undp.org
Israel - isrun@undp.org
Italy -itaun@undp.org
Jamaica - jamun@undp.org
Japan - jpnun@undp.org
Jordan -jorun@undp.org
Kazakstan - kazun@undp.org
Kenya - kenun@undp.org
Korea(Dem. People's Republic of) - prkun@undp.org
Korea (Republic of) -korun@undp.org
Kuwait - kwtun@undp.org
Kyrgyzstan - kgzun@undp.org
Lao P.Dem. Republic - laoun@undp.org
Latvia - lvaun@undp.org
Lebanon -lbnun@undp.org
Lesotho - lsoun@undp.org
Liberia - lbrun@undp.org
Libya -lbyun@undp.org
Liechtenstein - lieun@undp.org
Lithuania - ltuun@undp.org
Luxembourg - luxun@undp.org
Macedonia - mkdun@undp.org
Madagascar - mdgun@undp.org
Malawi - mwiun@undp.org
Malaysia - mysun@undp.org
Maldives -mdvun@undp.org
Mali - mliun@undp.org
Malta - mltun@undp.org
Marshall Islands - mhlun@undp.org
Mauritania - mrtun@undp.org
Mauritius - musun@undp.org
Mexico - mexun@undp.org
Micronesia - fsmun@undp.org
Moldova - mdaun@undp.org
Monaco - mcoun@undp.org
Mongolia - mngun@undp.org
Morocco - marun@undp.org
Mozambique - mozun@undp.org
Myanmar - mmrun@undp.org
Namibia - namun@undp.org
Nepal - nplun@undp.org
Netherlands - nldun@undp.org
New Zealand - nzlun@undp.org
Nicaragua - nicun@undp.org
Niger - nerun@undp.org
Nigeria - ngaun@undp.org
Norway - norun@undp.org
Oman - omnun@undp.org
Pakistan - pakun@undp.org
Palau - plwun@undp.org
Palestinian National Authority - palun@undp.org
Panama - panun@undp.org
Papua New Guinea - pngun@undp.org
Paraguay - pryun@undp.org
Peru - perun@undp.org
Philippines - phlun@undp.org
Poland - polun@undp.org
Portugal - prtun@undp.org
Qatar - qatun@undp.org
Romania - romun@undp.org
Rwanda - rwaun@undp.org
Russian Federation - rusun@undp.org
Samoa - wsmun@undp.org
San Marino - smrun@undp.org
Sao Tome and Principe - stpun@undp.org
Saudi Arabia - sauun@undp.org
Senegal - senun@undp.org
Seychelles - sycun@undp.org
Sierra Leone - sleun@undp.org
Singapore - sgpun@undp.org
Slovakia - svkun@undp.org
Slovenia - svnun@undp.org
Solomon Islands - slbun@undp.org
Somalia - somun@undp.org
South Africa - zafun@undp.org
Spain - espun@undp.org
Sri Lanka - lkaun@undp.org
St. Kitts and Nevis - knaun@undp.org
St. Lucia - lcaun@undp.org
St. Vincent & the Grenadines - vctun@undp.org
Sudan - sdnun@undp.org
Suriname - surun@undp.org
Swaziland - swzun@undp.org
Sweden - sweun@undp.org
Switzerland - cheun@undp.org
Syrian Arab Republic - syrun@undp.org
Tajikistan - tjkun@undp.org
Tanzania (United Republic of) - tzaun@undp.org
Thailand - thaun@undp.org
Togo - tgoun@undp.org
Trinidad and Tobago - ttoun@undp.org
Tunisia - tunun@undp.org
Turkey - turun@undp.org
Turkmenistan - tkmun@undp.org
Uganda - ugaun@undp.org
Ukraine - ukrun@undp.org
United Arab Emirates - areun@undp.org
United States of America - usaun@undp.org
Uruguay - uruun@undp.org
Uzbekistan - uzbun@undp.org
Vanuatu - vutun@undp.org
Vatican (Holy See) - vatun@undp.org
Venezuela - venun@undp.org
Viet - Nam - vnmun@undp.org
Yemen - yemun@undp.org
Yugoslavia - yugun@undp.org
Zaire - zarun@undp.org
Zambia - zmbun@undp.org
Zimbabwe - zweun@undp.org
Women's Caucus for Gender Justice
P.O.Box 3541
Grand Central Post Office
New York, NY 10163 USA
Tel:+1(212)697-7741
Fax:+1(212)949-7996
URL: http://www.iccwomen.org
