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Home > ICC > PREPCOMS > JUNE 2000 > WOMEN'S CAUCUS ADVOCACY IN ICC NEGOTIATIONS |
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ICC Prepcom Update
Week 2: ICC Negotiations Continue
June 2000
Many thanks to all those who responded to the action alert that was attached to our update at the conclusion of the first week of the ICC Prepcom. The second week concluded late Friday, June 23, with several major issues still unresolved. We therefore urge all those who have not responded to our alert to please do so this week when all the pending issues will be concluded.
The debates are continuing on the issue of the threshold for crimes against humanity and the crimes of enslavement, sexual slavery and enforced sterilization among other issues. In addition, the U.S. introduced its proposal, the first part of a two-part proposal setting the stage for increased involvement of the Security Council and exceptions for U.S.nationals, on Monday. On Friday, the first open discussions were held on the proposal. The status of the issues is summarized below.
~Crimes Against Humanity: Informal discussions were conducted throughout the week on the issue of the language of the chapeau to the section in the Elements Annex relating to crimes against humanity. This language will establish a jurisdictional threshold for the crimes. States were negotiating this week to find alternative language to the standing text which required "active promotion or encouragement".
As of late Friday evening the new text around which negotiation continues is as follows:
"Article 7 pertains to international criminal law. Accordingly, the provisions must be strictly construed taking into account that crimes against humanity are among the most serious crimes and require conduct which is impermissible under customary international law, recognized as such by the principle legal systems of the world."
The final sentence of the paragraph which follows the above currently states:
"The term policy to commit such attack requires that the state or organization consciously adopt, whether formally or not, a definite policy to commit an attack against a civilian population."
We are concerned that this language, though a departure from the previous language, still sets too high a threshold for the following reasons.
1. In the first paragraph, the language qualifies customary international law rather restrictively by stating that it must be recognized by the principle legal systems of the world. This contradicts what customary international law is and is therefore another attempt to restrict recognized and established principles of international law.
2. In the last sentence of the chapeau, we are concerned about the use of the words "adopt" and the reference to a "definite" policy to commit an attack. We are particularly concerned about the effect of this sort of language on crimes against women, especially given the negotiating history of this provision and its basis on the Arab proposal which explicitly sought to limit the court's jurisdiction with respect to crimes against women within the context of family, religion or culture.
The strongest resistance on the alternative language of the chapeau is coming from Egypt who at different stages suggests bringing back their proposal defining the terms 'widespread and systematic". They are suggesting that any alternative language must have 100 per cent acceptance by all delegations failing which the original compromise of language of "actively encourage and promote" should stay. They are supported by other Arab countries and China.
~Enslavement and Sexual slavery: There was general agreement among states that the term "forced labor" and keeping others in a "servile status" should be retained in the definitions of the crime of enslavement. There is, however, tremendous resistance to include these terms in the definition of the crime of sexual slavery. The resistance is by some Arab countries, UAE and Bahrain being the leading states among them. The resistance to include the element of "forced labor" also came strongly from the Netherlands.
As of Friday, the negotiations stood at an agreement to move the exact language in the crime of enslavement (including "forced labor" and keeping others in "servile status") to the crime of sexual slavery with a reference to definition of servile status in Article 1 of the Slavery Convention of 1956. Such a reference includes as slavery, institutions and practices that sell/ acquire women by husbands or other family members in addition to other types of practices such as debt bondage. This is however not the final text and will continue to be negotiated in the third week.
~ Enforced Sterilization: The element of this crime was discussed last week. The main element includes deprivation of a person's biological reproductive capacity. There was a footnote to the deprivation that said, "this does not include birth control measures with short-term effects." China raised their dissatisfaction with the footnote and their concern was to get exclusion of any national demographic population policies. They have proposed the term "non-permanent effects' instead of short-term. The final language could be
"does not include birth control measures with non-permanent effects in
practice."The issue of definition of consent in the element of this crime still remains unresolved. The elaboration on consent now includes the notion of deception but not quite informed and voluntary consent.
~U.S. Proposal: On Friday afternoon, the working group on Rules of Procedure and Evidence began discussing the U.S. proposal in an open formal for the first time. The proposed rule purports to give effect to Article 98 of the statute, which prohibits the Court from requesting surrender of an accused from a State having custody of the accused if such a request would require that State to act contrary to its international agreements relating to surrender of nationals of the States party to the agreements.
This rule is intended to set the stage for introduction of a subsequent provision which the U.S. would propose for inclusion in a supplemental agreement establishing the relationship of the Court to the UN. The second provision would introduce language relating to the Security Council and its chapter VII authority. However, the U.S. would need a hook in the Rules of Procedure and Evidence to leave an opening for the second part of the proposal.
Article 98, by its language, applies only to bilateral or multi-lateral international agreements relating to surrender of individuals between States. The U.S. proposal introduces two new concepts to the article, thereby impermissibly expanding and amending the statute. In addition to limiting the Court's ability to request surrender of an accused, the U.S. proposal would also limit the Court's ability to accept an accused into custody, either by a State willing to surrender or even the voluntary surrender by an accused. In addition, the U.S. proposal expands the scope of international agreements originally envisioned by article 98. Thus, by its vague reference to international agreements, the U.S. desires to expand the scope of these agreements to include those agreements the Court must enter into also, which was not intended for Article 98 and which is not included in the language of Article 98.
As the role of U.S. in the process is a very sensitive issue, there was a great deal of concern among many countries about how to respond to the proposal. During the debate on Friday, a large number of countries recognized that theoritically they could negotiate a rule for Article 98 using the U.S. proposal as a basis but reiterated the need the to protect the integrity of the Rome Statute as well as the independence and effectiveness of the Court. Most of the countries specifically pointed out the problems of the additional concepts the U.S. is trying to introduce to expand article 98 impermissbly. Several countries also firmly referred to the U.S. delegation's assertion that this rule stands on its own and should not be considered together with any other proposal that might arise in the future. Several countries wished to include an explicit stipulation to this effect as a reminder that if any part of this rule is eventually accepted that it is not to form the basis for the second part of any proposal.
Among the countries that spoke against those aspects of the rule that the U.S. wants to include were: South Africa, Switzerland, Angola, Australia (on behalf of Canada and New Zealand), Chile, Argentina, Cuba, Lichtenstein, Namibia, Swaziland, Trinidad and Tobago and Portugal (speaking on behalf of the EU and 13 other countries associating themselves with EU including Central and Eastern European countries of Bulgaria, Czech Rep., Hungary, Latvia, Lithuania, Slovakia, Romania, Poland and Cyprus, Malta, Iceland and Norway). The countries which spoke most firmly on this issue included S. Africa, Namibia, Angola and Swaziland and Lichtenstein. Norway, Russia and Japan spoke on the issue in very neutral terms. Israel and Turkey were the only countries which spoke in the favor of the U.S. proposal in its entirety.
Based on the debates, the working group will conduct further discussions in informals on this issue. To continue to keep maneuvering room for both the U.S. as well as the countries opposed to the U.S. efforts, it appears states will attempt to negotiate a provision using the U.S. proposal as a basis but eliminate any hook the U.S. hopes to plant in the Rules document for its subsequent efforts to undermine the Court's independence. And, in his statement in response to the discussions, U.S. Ambassador at large for War Crimes, David Scheffer revealed that the U.S. is far from ready to give up on these issues even in the face of the showing of resistance among the great majority of countries speaking on the issue Friday.
Assessing that negotiations, particularly on issues concerning women, were not going too well, the Women's Caucus organized a political act with a strong message to delegations on Friday morning. The message came on T-shirts that were worn by about 50 people including participants of the Women's Caucus and other NGOs. The message said "No Compromise on Justice" in the front and "Gender Justice Now" at the back. The strong presence of T-shirt clad women and men outside the Conference room took many delegations by surprise, some pleasantly. There was a presence of media, particularly CNN, covering the political act.
The third and the last week of the ICC prepcom beginning June 26 will be critical in that all the pending issues will be concluded. If there will be no consensus among delegations on critical issues, it is likely that the Bureau will produce a package on elements and rules and put these documents to vote. Or perhaps put together a package with references to disagreements on different issues to be resolved at the Assembly of States parties conference that will take place on the deposit of the instrument of ratification by the 60th state. It will be useful therefore if all those who will respond to our alert include a strong demand urging your respective delegations to not compromise on justice.