ICC PREPCOM UPDATE -

SUMMARY OF FINAL WEEK OF ICC PREPCOM

The ICC Preparatory Commission meeting concluded on Friday evening, June 30, after adopting the texts of the Elements Annex and Rules of Procedure and Evidence. There was a great deal of tension and controversy surrounding the adoption of the two texts, especially in the last two days of the session. Delegations wanting to do the right thing were faced with stubborn opposition from hardline countries and intense pressure from coordinating chairs to compromise and meet the June 30 deadline.

Delegations were also faced with pressure to reach consensus because the Chair maintained that a consensus document would be better off in the long run for the Court than if either or both of the documents were called to a vote. In addition, the chair and other countries maintained that the entire
process would be better off if the U.S. stayed involved somehow without allowing the process to be completely undermined by the U.S.

This presented a very difficult dilemma for some countries who wanted to oppose the U.S. efforts in the rules negotiations or the hardliner countries in the elements of crimes negotiations. They faced much pressure from all sides - the chairs of the sessions with respect to the June 30 deadline and the chair of the prepcom with respect to not disrupting the move toward a supposed consensus as well as continued involvement by the U.S. Several smaller countries standing alone were willing to face down the U.S. but met with pressure tactics from the bureau and some European and likeminded countries not to make trouble.

On Friday, the Women's Caucus circulated a one-page statement expressing our opposition to certain portions of the texts and the non-democratic process in which these critical decisions relating to the U.S. proposal and chapeau negotiations were finalized. The text of our statement is reproduced at the end of this update.

This update will focus on the results of the two major issues during the last week - the threshold for crimes against humanity and the U.S. Proposal. We also give a preliminary summary of the status of the definitions of sexual and gender violence crimes. A longer, more detailed report on the entire session will follow soon.

~ THRESHOLD FOR CRIMES AGAINST HUMANITY. In the working group on the Elements of Crimes, many countries held out as long as possible to try to get language which lowered the threshold for these crimes to a more acceptable and appropriate level. However, they were up against several hardliners, such as Egypt, Turkey and China, who refused to budge for the duration of the negotiations. As a result, the text contains an even more difficult and detailed threshold than what the session began with.

As you know, the history of this negotiation was of serious concern to the Women's Caucus given that the problematic language was the result of compromises based on a proposal by 11 Arab countries seeking to exclude crimes of sexual and gender violence when committed within the family or as a part of religious or cultural concern. Their proposal also applied to the crimes of imprisonment and enslavement. The compromise language arising from their discussions required that states or organizations "actively promote or encourage" the conduct in question. We, and many other NGO's and delegations, maintained that this language created too high a threshold generally and would further have a discriminatory effect since the crimes that would be excluded are committed predominately against women and children.

After difficult and long negotiations characterized by lack of willingness to compromise on the part of Egypt and China and at different times by the UAE, Syria and other Arab countries, the Prepcom adopted text which still requires "active promotion or encouragement" on the part of states or organizations. Worse, this phrase is accompanied by a footnote which clarifies that a policy requires "action" on the part of states or organizations but that in "exceptional circumstances," "deliberate failure" to take action can constitute a policy. As soon as this language arose in the negotiations, we were advocating the deletion of "deliberate"
failure as that requires a showing of a level of intent inappropriate for these crimes. We are also concerned about the reference to "exceptional circumstances" and its requiring "deliberate failure" because deliberate
failure to act is a high standard and when faced with the nature and scope of crimes which qualify as crimes against humanity "deliberate" failure should always be regarded as a state or organizational policy.

In addition, the paragraph preceding this phrase embodies the idea that because article 7 (crimes against humanity) pertains to international criminal law, its provisions must be strictly construed and therefore
requires "conduct which is impermissible under generally applicable international law, recognized as such by the principle legal systems of the world." The limiting language requiring recognition by the principle legal systems was another effort by Egypt and others to find ways of separating themselves from the rights and violations recognized in international law and, specifically, in the ICC. This presented Egypt with another venue to wage their battle, already fought and lost in Rome, to require universal recognition of fundamental rights. As the delegations were facing the June 30 deadline and intense pressure from the coordinating chairs during this session to yield they adopted this text as final. It now reads:

1. Since article 7 pertains to international criminal law, its provisions, consistent with article 22, must be strictly construed, taking into account that crimes against humanity as defined in article 7 are among the most serious crimes of concerned to the international community as a whole, warrant and entail individual criminal responsibility, and require conduct which is impermissible under generally applicable international law, as recognized by the principal legal systems of the world.
…
3. "Attack directed against a civilian population" in these context elements is understood to mean a course of conduct involving the multiple commission of acts referred to in article 7, paragraph 1, of the Statute
against any civilian population, pursuant to or in furtherance of a State or organizational policy to commit such attack. The acts need not constitute a military attack. It is understood that "policy to commit such attack" requires that the State or organization actively promote or encourage such an attack against a civilian population. (FN 1 - A policy which has a civilian population as the object of the attack would be
implemented by State or organizational action. Such a policy may, in exceptional circumstances, be implemented by a deliberate failure to take action, which is consciously aimed at encouraging such attack. The existence of such a policy cannot be inferred solely from the absence of governmental or organizational action.)

By the end of the day Thursday, Egypt finally decided to agree to this language. Until then, Egypt had been expressing its dissatisfaction with the above language. However, it was unclear until Friday morning whether China would block consensus on the language or agree. Finally, on Friday, China registered its dissatisfaction with the wording as well as several other issues in the Elements text but agreed that it would not block consensus.

Of the countries that fought for better language in the chapeau, Portugal seems to have held out the longest before being completely overridden by other EU and likeminded countries. Lichtenstein was also a strong proponent of changing the language and advocated for this as far back as the March prepcom. Several countries expressed their concern about the narrowness of the provision in the formal working group session and later in the plenary, including Cote d'Ivoire, Cuba and Portugal. During her intervention, the
delegation of Cuba even expressed the delegation's belief that the U.S. masterminded the restrictive language for the crimes against humanity threshold.

~ U.S. PROPOSAL: A few countries were still wanting to fight the U.S. efforts to make an opening in the rules document for its future efforts to bring in the Security Council and exceptions for U.S. nationals. Those wanting to fight outright against the U.S. attempts were ultimately blocked in their efforts.

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 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 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, including the voluntary surrender by an accused or by a State willing to surrender. 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 enters into also, which was not intended for Article 98.

When the U.S. first introduced its proposal, a large number of countries recognized that theoretically 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 impermissibly. Based on the number of countries making interventions, including representative interventions, it was clear that 87 percent of countries (courtesy: CICC non-table) participating in the session expressed opposition to what the U.S. was attempting. 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 the U.S. proposal.

Between the time of the initial discussion about the proposed rule last Friday, June 23, and Thursday afternoon (June 29), the coordinating chair of the working group acted as a liaison in informal discussions with different delegations to try to come up with negotiated text. To continue to keep maneuvering room for both the U.S. as well as the countries opposed to the U.S. efforts, states attempted to negotiate a provision using the U.S. proposal as a basis but eliminate any hook the U.S. hoped to plant in the Rules document for its subsequent efforts.

On Thursday afternoon, the chair introduced the negotiated text as well as an explicit "understanding" to accompany the text in the report of the Prepcom proceedings. The new text reads as follows:

"The Court may not proceed with a request for the surrender of a person without the consent of the sending State if, under article 98, paragraph 2, such a request would be inconsistent with obligations under an international agreement pursuant to which the consent of a sending State is required prior to the surrender of a person of that State to the Court."

The proposed understanding issued by the coordinator in English only on Thursday reads as follows:

"It is generally understood that Rule 9.19 should not be interpreted as requiring or in any way calling for the negotiation of provisions of any particular international agreement by the court or by any international
organization or a State."

Many delegations, including many EU and likeminded countries, believed that the negotiated language, accompanied by the understanding, was narrow enough to restrict future attempts by the U.S. However, the U.S. declared the text as a victory in that it was successful in setting the stage for the next proposal introducing the Security Council and exemptions for U.S. nationals. This was reported in the press on Friday with the U.S. ambassador boasting that they had achieved their goal and declaring openly the U.S. intentions to put forward the second part of the rule at the November-December Prepcom - despite his earlier assertions to the contrary.

Other countries, such as Cote d'Ivoire, were dissatisfied with the fact that the working group had entertained the U.S. proposal at all - no matter how narrow some countries believed the wording to be. When Cote d'Ivoire attempted to make an intervention to this effect during the formal session, several disconcerting events took place. As the delegate from Cote d'Ivoire began to speak, his microphone stopped working. The session was then suspended pending resolution of the technical difficulty.

During the suspension, the coordinator approached the delegate as well as the Chair of the prepcom to discuss his intentions. When the session reconvened, Cote d'Ivoire was not allowed to finish his intervention. The coordinator instead chose to go immediately into informals. The delegate from Cote d'Ivoire was surrounded by numerous delegations from EU and likeminded countries pressuring him to accept the negotiated text of the U.S. proposal so as not to block consensus. Calls were made in the interim
period to the Ambassador of Cote d'Ivoire requesting his intervention to ask his delegate to be flexible.

When the session reconvened in a formal, the coordinator did not give the floor to Cote d'Iviore or the other African countries scheduled to speak and instead allowed France to make an intervention about the inconsistency of the French version of the text - presumably to imply that Cote d'Ivoire's concerns would somehow be addressed by the statement of inconsistency. Tunisia intervened and stated that there was no
inconsistency between the French and English versions and wanted more discussion on the issue. There was no further discussion and the coordinator declared that the working group adopted the text and it would
be sent to the plenary the next day for final approval.

On Friday, the Chair opened the plenary by announcing that he preferred that the session quickly adopt both texts by consensus and then allow time for delegations to express their concerns or understandings regarding the text. Cote d'Ivoire immediately intervened saying delegations should be able to make interventions before the texts are adopted in case the interventions have a bearing on their adoption. The Chair agreed to allow Cote d'Ivoire, and others, to make interventions before adoption of the texts.

After the coordinator for elements of crimes presented the report and texts, Cote d'Ivoire made an intervention pointing out that his delegation had difficulties with the language for the threshold for crimes against humanity but that he would not block consensus on that issue. He continued to speak on the issue of the U.S. efforts and the resulting text adopted by the rules working group. He stated that his delegation considered it an amendment of the Rome Statute. Ultimately, he said that his delegation would seek to call that portion of the rules document to a vote.

Immediately after Cote d'Ivoire's intervention, the delegate of Australia intervened requesting suspension of the discussion so that delegations could consult with each other based on Cote d'Ivoire's intervention. There
was much confusion at this point and many delegates were re-thinking the compromise they had agreed to in light of Cote d'Ivoire's willingness to keep this issue open. However, during the suspension, the Chair of the Prepcom agreed to include a statement by Cote d'Ivoire in the report of the proceedings of the Prepcom about Cote d'Ivoire's concern and disagreement with the rule as well as its reasons if Cote d'Ivoire agreed not to call the rule to a vote.

When the session reconvened, amid much tension and apprehension, Cote d'Ivoire made a statement to the effect that it would withdraw its call for a vote with the understanding that the Chair would include its explicit concerns in the Report. The rest of the working groups then presented their reports. The Elements and Rules texts were then adopted by consensus. Afterward, several delegations made interventions stating their reservations and concerns about different texts. Cuba made the strongest statement supporting Cote d'Ivoire and describing the destructive and manipulative role played by the U.S. in this process and the absence of any indication by the U.S. about signature or ratification. Cuba also attributed the failings in the chapeau language to underhanded maneuverings by the U.S.

The Women's Caucus was immensely disappointed with the results of the negotiations on these two issues and especially with the failings of the process in this regard. We were, however, heartened by the courage of smaller countries who were willing to act independently and without the safety of hiding behind negotiating blocks such as the EU or likeminded to take on the U.S. This is even more astounding given the high pressure the U.S. has been applying in the capitals of every country, and the implied threats about withholding military and economic aid as well as future cooperation with the Court.

Despite these two major disappointments, there were several issues that were resolved satisfactorily from our point of view. These include the definitions of enslavement and sexual slavery, both of which include the elements of forced labor and servile status - though China objected without blocking consensus. Also, the crime of enforced sterilization contains a footnote that "genuine consent" does not include consent through deception.

We will send out a report containing a more detailed list of the results on all of the issues we identified as priority concerns for this series of Prepcoms in the near future. We deeply appreciate all of the assistance and expressions of concern we have received and especially the responses to our alerts we have been circulating since April. The next series of Prepcoms will be devoted to developing a relationship agreement between the ICC and the UN as well as budget development. We will have less of a presence at these prepcoms since the issues are not substantive. However, the CICC will maintain a presence there and we will continue monitoring the proceedings though we have not worked out how or to what extent yet. We will be in touch about future strategies on these issues that were resolved inappropriately also in the near future.

Again, many thanks to all.

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(Statement issued by the Women's Caucus to delegations on Friday, 30 June
2000)

THE WOMEN'S CAUCUS FOR GENDER JUSTICE

DOES NOT SUPPORT

RULE 9.19(2)

AND THE COMPROMISE LANGUAGE OF THE CHAPEAU TO CRIMES AGAINST HUMANITY

THE CHAPEAU LANGUAGE IS INCONSISTENT WITH THE STATUTE AND A BETRAYAL OF ITS PRINCIPLES. RECALLING THE NEGOTIATING HISTORY OF THE CHAPEAU, THE ACCOMODATION OF THE DISCRIMINATORY MOTIVIES OF A FEW COUNTRIES IS SHAMEFUL.

WE ARE DISAPPOINTED BY THE WEAKENING RESOLVE OF THE STATES WHO COMMITTED
THEMSELVES TO A STRONG COURT.