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Home > ICC > PREPCOMS > NOV-DEC 1999 > WOMEN'S CAUCUS ADVOCACY IN ICC NEGOTIATIONS |
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Report of the November-December 1999 ICC Prepcom
The Women’s Caucus has consistently sent action alerts about the concerns we have in the negotiations of the Elements Annex and the Rules of Procedure and Evidence at the preparatory commission (prepcom) meetings on the International Criminal Court (ICC) through the three prepcoms in the year 1999. We have also kept you informed about the status of discussion on our issues with a quick and brief report immediately after the prepcom and a detail one subsequently. Here’s a detail report of the November-December 1999 prepcom. We hope our reports gives a continuity in the discussion that took place in the three prepcom with respect to gender issues and helps trace the developments on these issues.For this prepcom we brought eleven women from different regions, five women raised their own resources to participate in the prepcom as a part of the Caucus delegation and and eight women (including the staff) participating locally added to the strength of the Caucus delegation. Unfortunately, we were unable to retain all the women we brought from the regions for the entire three weeks. Most of them were also brought to participate in a meeting organized to review a manual on international humanitarian law and ICC that the Caucus is co-producing with ILANUD, Costa Rica. This affected our lobby strength during the three weeks. We hope however that in the next prepcom i.e. March 13-31, 2000 we would be able to take advantage of the presence of the women coming to the Beijing +5 review prepcom (March 6-17, 2000) that will overlap for one week with the ICC prepcom.
Once again, we thank you all for your support and action on our alert that was sent out during the prepcom on Dec. 3, 1999. Such support are very helpful when we are trying to get different state delegations to hear our views and voices. The series of prepcoms after the adoption of the ICC statute in Rome in July 1998, has been devoted primarily to developing two documents: (1) an Elements Annex defining the crimes within the Court’s jurisdiction and (2) Rules of Procedure and Evidence.
In this report, we summarise some of the discussion on these documents. While there are many issues that the commission discuss and negotiate in each of these section, we give have summarised mainly the issues which are of direct concern to the Caucus and other important issues that are being raised in these prepcoms. The report, in no way, summarises the discussion on all the issues that are being negotiated. We thank the Coalition of NGOs for an ICC (CICC) for compiling and sending out detail notes of each day’s proceedings and the reports of the team leaders. The present report summarizes from these notes.
For the Women’s Caucus, this prepcom was a replay of some of our experiences in other UN Conferences (like Vienna, Cairo and Beijing) and in the Rome Treaty Conference. Conservative states and NGOs raised their issues of ‘protection of family’ when crimes are committed against women in the family. Details of the issues involved are discussed in the section on Elements of Crimes below. We start by summarising the issues of concern in the section of Rules of procedure and evidence and the status of discussion on key issues in this section.
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RULES OF PROCEDURE AND EVIDENCEThe following briefly recapitulates the issues of concern for the Women’s Caucus in this section :
Evidentiary Rules Relating to Sexual Violence. The Rules must preclude discriminatory and inflammatory evidence in cases of sexual violence and state that (1) no corroboration of the victim's testimony will be required; (2) no evidence of the victim's prior sexual conduct shall be received; (3) where coercive circumstances exist, including violence, duress, force or threat thereof, detention or psychological oppression, abuse of power or threat thereof to the victim or a third party, there can be no inference or defense of consent;
Psychiatric or Counselor-patient Privilege. The Rules should include an absolute psychiatric and counselor-patient privilege to prevent disclosure of counseling records obtained in the course of independent therapy or counseling by the Victim Witness Unit as against the discretionary privilege that exists in the current draft. This is particularly important in cases of sexual violence crimes.
Victim and Witness Protection. The Rules of Procedure and Evidence must not explicitly prohibit the possibility of witnesses testifying with anonymity in highly exceptional cases and consistent with the rights of the accused. In cases where there is risk of death or serious harm to the physical or mental health of the witness or others at risk on account of his/her testimony, it should be left to the Court to decide when or if a witness should be permitted to testify without his/her identity being made known to the defendant.
Victim Participation in Proceedings. The Rules should give effect to the provisions in the ICC Statute entitling victims and witnesses to participate at every appropriate stage, including investigation, confirmation, trial and appeal. The Rules should recognize the right of the victim and/or victim's representative to present information orally or in writing and subject to all the protections provided in the Statute.Court Composition and Administration.
The Rules must establish a mechanism within the Court with an obligation and duly to fulfill the Court’s diversity requirements i.e ensure balance in geographical representation, representation of different legal systems and a fair representation of men and women in all organs of the Court. The Rules must also make harassment a ground for disciplinary action and removal from office.Evidence in crimes of sexual violence was the only issue that were discussed in the formals. There were no substantive discussion on any of the other issues mentioned above in the formals. The following therefore summarises the discussion only on this issue. The basis for discussion was the proposal submitted by Australia and France in the July-Aug.99 prepcom. The Chair mentioned that Rule 6.5 concern part 6 of the statute i.e. evidence for crimes of sexual violence was not discussed in the last prepcom. However the Canadian Coordinator for this section clarified that it was discussed and was found that the discussion was pre-mature because the elements group was still discussing elements of crimes of sexual violence, particularly the crime of rape.
In the light of the discussion of the elements, the Coordinator pointed out that perhaps the rule need to be changed. The elements of war crime of rape do not explicitly refer to lack of consent as one of the elements. The rule therefore that no consent exist where the victim has been subjected to force or coercion (Rule 6.5 (a)) and also the one in the chapeau which says that no consent exists where the victim has been coerced or threatened need to be re-drafted. He added that the drafting question is what should rule 6.5 (a) state in the light of the fact that consent is not an element, but there is a possibility it could be raised by the defense as a means of defense.
France, Germany, Spain, Israel, Japan, Italy, U.K. all strongly proposed that paragraph (a) must be deleted and not re-worded. France said that with constituent elements of crimes already in place, rule 6.5(a) was pointless. Germany and Israel said that the rule as it stands now is substantive and does not add anything to the rules. Japan felt that this rule is problematic from the viewpoint of the rights of the accused. U.S. and Australia agreed with Japan on this issue.
Columbia however felt that the rules should specify elements of proof even if the elements of crimes are well defined. The required evidence has to be provided for in the rules to say that there is a presumption of no consent. Chile, Cuba and Brazil were in agreement with the Colombian proposal.
Canada came back into the discussion suggesting that if the rule would address the question of when should consent be admitted it would become clearly a procedural rule and not be substantive. Canada asserted that there is a need for some type of procedural rule on evidence of consent. They suggested that (a) will still be valid if the focus was more on 6.5(b). The merit on creating a procedural rule on consent was that the accused would bring in evidence of victims’ consent saying that there was coercion but it did not affect the ability of the victim to consent (rule 6.5(b) states some qualification in situations where such evidence is sought to be submitted).
Rule (b) has two elements, one that where conditions in (a) does not exist (i.e. force or coersion does not exist), the trial chamber shall hold in camera hearing to determine the second element that the evidence is highly relevant and credible. This rule is necessary and if (a) is deleted it becomes redundant. U.K. agreed to have a procedural rule but felt the criteria of highly relevant is a high threshold and affects the rights of the accused. Spain felt it would work if we put rule (b) first and then (a) with slight changes. Bosnia felt that consent should not be a defense but in recognition of the need to balance the rights of the accused, they supported the Canadian proposal. Japan opposed the threshold of highly relevant and credible. Singapore too found it difficult to accept a rule that imposes qualification for the accused to introduce evidence of consent.
Rule on evidence of sexual conduct
Australia introduced the NB in this rule, which is a rule from ICTY and ICTR. Australia wanted a blanket exclusion because evidence of prior sexual conduct in the context of the crimes in question is irrelevant.
Canada agreed with Australia and added that no sexual conduct is ever relevant neither prior nor subsequent. France did not disagree with the substance of the rule but with the method. Bosnia too was in agreement with the arguments of Canada and Australia. However Singapore and Netherlands did not agree with blanket exclusion of the evidence of sexual conduct in view of the rights of the accused.
Eventually, the discussion on rule 6.5 on evidence in crimes of gender and sexual violence remained inconclusive and will be carried over to the next prepcom. As you may note, the issue of consent has been made difficult by the elements of crime of rape, which essentially do not conceive of the crime of rape in non-coercive circumstances. The Caucus position is to prohibit or effectively restrict admission of such evidence. The draft rolling text on this rule has maintained the original rule of prohibition of such evidence of sexual conduct and discussion will continue in the next prepcom.
Members of the Caucus discussed some of the other issues informally with some of the delegations. On Court Composition and Administration, we discussed with South Africa, United States, Australia on the notion of having an office of equality or a mechanism that will ensure that the diversity requirement in the appointment of officials is fullfilled and that harrassment becomes a ground for disciplinary action and removal from office. While there seem to be an opposition to establishing any more bureaucratic office –the idea was well- taken by most of the delegation.
The stages in which victims or their legal representative can participate is also an issue that is still in discussion. However, there were no formals on this issue. The protection issue was not discussed in this prepcom.
Jurisdiction, Admissibility and Applicable LawA key discussion that impact on the effectiveness of the court was on rules for Part 2 of the statute. Part 2 deals with issues of jurisdiction, admissibility and applicable law in articles 11-19. These issues are of concern to states that are unhappy with the existing jurisdictional provisions in the statute and are using the preparatory commissions’ process to address these concerns. The basis for discussion on these issues was the proposals issued by France, Australia, United States prior to the Nov.-Dec.99 prepcom and the proposal made by Bosnia-Hersegovina made in the current prepcom. The proposals by United States on rules for Article 17, 18 and 19 of the statute essentially undermines the independence of the Prosecutor and seriously burdens the Prosecutor and the Court with procedural delays that could eventually make the court ineffective and incapable of serving its purpose of ending impunity and doing justice.
Most of the discussion took place in the informals and a rolling text was issued on Dec. 17, 1999 (…RT.1 and corr.1.) which does not represent agreement among all states. Bruce Broomhall of the Lawyers Committee for Human Rights summarized the discussion and the rules in the final rolling text. Rule 2.16 does not allow States a right to bring admissibility proceedings as early as the stage in art.15. Rule 2.17 (c) would allow the Court on its own motion or at the discretion of the Prosecutor to invite the States listed in art.19(2) to challenge the jurisdiction or admissibility. The rule on admissibility factors for art.17 now has two factors. One, that the Court of the relevant states has met accepted international standards for the independent and impartial prosecution of the similar conduct and two, that the State has confirmed in writing to the Prosecutor its action with regard to any relevant investigation or prosecution. The wording and the inclusion of this rule will be debated in the next prepcom.
The U.S. proposal earlier had one more criteria that made it a duty that the Court should judge the national judicial systems for accessing its inability or unwillingness to prosecute the crimes before it proceeds investigation and prosecution. Norway, Germany, Sweden, Russia, Spain, South Africa, Portugal, Cuba, Finland, Hungary, Switzerland, Australia, Italy and many other countries believed this rule to be completely unnecessary. Norway felt this overburdened the court with too many procedural steps. Russia said that this judgement of the court could become a political judgement. Spain said that this would make ICC a constitutional Court for the whole world and wondered if the United States had considered all the implications such a rule will impose on the RPE. Bosnia commented on the enormity of the effort the Court will have to go through to accomplish this.
Another rule proposed by the US requires excessive disclosure to States by the Prosecutor, creating procedures and providing for delays unanticipated by the Statute. The rolling text in rule 2.10 allows for states notified to request additional information but does not require that the identity of the suspects be disclosed. Further rule 2.11 allows for the Prosecutor to request additional information and rule 2.12(b) requires that the state be given notice of investigation and submit additional observations. No rule on art.19 exists in the rolling text.
The most important concern for the United States remains the potential for the ICC to proceed with respect to US nationals even when the US remains outside the treaty. They have not yet made any proposal addressing these specific concerns with rules on art. 11, 12 or 98 but is a possibility for the coming prepcom.
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ELEMENTS OF CRIMES:
Again before we give details of the discussion, the following is a brief recap on the issues of concern to us at the Caucus on elements of crimes of gender and sexual violence.
Threshold in the Chapeau. The move by some countries to raise the threshold in the chapeau of crimes against humanity must be strongly opposed. Raising of the threshold by adding language in the chapeau requiring the accused to ‘actively encourage and promote’ the attack will make it extremely difficult for many situations of crimes against humanity to be prosecuted under the ICC and would make it impossible for crimes of sexual violence from ever being prosecuted.
Statement of incorporation. The Annex should explictly state that acts of rape and other forms of sexual violence, in addition to constituting crimes in and of themselves, can also constitute other crimes against the person falling within the Court's jurisdiction. It was crucial that rape and other forms of sexual violence be explicitly identified as crimes within the Court's jurisdiction. To avoid the potential for further marginalization of such acts, it must be clear that sexual acts should also be charged as genocide, killing, mutilation, torture, inhuman treatment and other war crimes or crimes against humanity where applicable.
Sexual Slavery/Enslavement. Support definitions of enslavement and sexual slavery that would encompass the range of situations that amount to enslavement and reflect the true nature of the crime. The definitions of these crimes should not be limited to a few specific instances or types of enslavement/sexual slavery like purchasing, selling, lending or bartering.
Enforced Sterilization. Support removal of the footnote in the elements of this crime that says that it does not apply to birth control measures. Support change in the language from ‘without genuine consent’ to ‘without informed and voluntary consent’.
Threshold in the Chapeau. The move by some countries to raise the threshold in the chapeau of crimes against humanity must be strongly opposed. Raising of the threshold by adding language in the chapeau requiring the accused to ‘actively encourage and promote’ the attack will make it extremely difficult for many situations of crimes against humanity to be prosecuted under the ICC and would make it impossible for crimes of sexual violence from ever being prosecuted.
Statement of incorporation. The Annex should explictly state that acts of rape and other forms of sexual violence, in addition to constituting crimes in and of themselves, can also constitute other crimes against the person falling within the Court's jurisdiction. It was crucial that rape and other forms of sexual violence be explicitly identified as crimes within the Court's jurisdiction. To avoid the potential for further marginalization of such acts, it must be clear that sexual acts should also be charged as genocide, killing, mutilation, torture, inhuman treatment and other war crimes or crimes against humanity where applicable.
Sexual Slavery/Enslavement. Support definitions of enslavement and sexual slavery that would encompass the range of situations that amount to enslavement and reflect the true nature of the crime. The definitions of these crimes should not be limited to a few specific instances or types of enslavement/sexual slavery like purchasing, selling, lending or bartering.
Enforced Sterilization. Support removal of the footnote in the elements of this crime that says that it does not apply to birth control measures. Support change in the language from ‘without genuine consent’ to ‘without informed and voluntary consent’.
Other forms of sexual violence. Support comparing the gravity of this crime to all other crimes against humanity in Article 7.i and not only to crimes of sexual violence in Article 7.i.g. as proposed by some delegations.
The discussion at the prepcom was based on a number of proposals and the Chair invited comments on these proposals. The proposals were from the U.S., joint proposal from Canada and Germany (…DP.36) and a proposal from Japan. During the second week of the prepcom, eleven Arab countries submitted their proposal on crimes against humanity (…DP.39).
Germany introduced their proposal and explained the general approach to their proposal. They said that their proposal was inspired by the U.S. proposal but different in its substance, took into account the negotiating history of Art. 7, tried to be consistent with elements of war crimes wherever relevant, and also consistent with relevant jurisprudence. They further explained that the notes are explanatory arguments and are not intended to be in the final version of the elements. Japan clarified that their proposal is complimentary to the German/Canadian proposal since it focused only on the structure of the elements. The U.S. agreed, at the outset to modify its own proposal on the basis of the German/Canadian one since it was the most recent one.
The Women’s Caucus had three major concerns with the German /Canadian proposal with regard to the sexual violence crimes: (1) that the elements of the crime of enslavement, and by extension sexual slavery, were too restrictive and should encompass all ways and means of acquiring, facilitating and exercising powers of ownership over a person; (2) the footnote in the crime of enforced sterilization (that it does not relate to birth control measures) must be removed; and (3) the crime of ‘other forms of sexual violence’ should be required to be comparable in gravity to all other grave crimes against the person and not only to the crimes of sexual violence.
In the formal discussion that followed, Spain emphasized that Art. 7 of the statute is the most comprehensive definition of crimes against humanity. They remarked that the joint proposal has introductory notes that need further development. U.K. Finland Sweden, Korea and Belgium welcomed the proposal as a good basis for discussion. Finland, Sweden, Spain and Belgium were relieved that the notes were not meant to be a part of the text.
Columbia mentioned that Art.7 of the statute has a structure, which should be used and respected while establishing the elements of these crimes. They agreed with the notes in the proposal and found them to be illustrative and important for the competence of the court.
Cuba pointed out that some interpretations of the elements are not adequately reflected in the proposal e.g. on elements of the crime of extermination, it is destruction of population throughout several means, not necessarily through death.
In the discussion on the elements of crime of enslavement; France, Cuba, Bosnia and China were not in favor of including an illustrative list that specify what could constitute the crime of enslavement. The reasons were varied. Some delegations felt it was not necessary and others felt it was too restrictive and did not include all forms of enslavement. United States and Australia were both in favor of an illustrative list that was clearly illustrative and non-exclusive. Trinidad and Tobago, Italy, Israel, Switzerland, Hungary, Russia, Netherlands and Austria, New Zealand were all in favor of an illustrative list and wanted to add compulsory work or forced labor in the list of the crime of enslavement.
In the discussion on the elements of crimes of sexual violence, Canada explaining their proposal said that this section mainly reproduced what was agreed upon with regard to Art.8 i.e. war crimes. They regarded the elements of sexual slavery too narrow and were flexible to change. They advocated removal of the footnote in the crime of enforced sterilization (that the elements does not apply to birth control measures) and expressed a problem as to how to compare the gravity for the crime of ‘other forms of sexual violence.’
Holy See took the floor to point out that elements of crimes should be consistent with the statute. They felt that the elements of the crime of forced pregnancy is not consistent since they attach intention to keeping the woman pregnant. Ireland and Nigeria supported the Holy See on the issue.
Sweden, Italy and Bosnia differed from the Holy See on the issue of the crime of forced pregnancy and supported the German/Canadian proposal.
Portugal and Columbia supported replacement of the term ‘genuine consent’ in the elements of enforced sterilization with the term ‘informed’ or ‘voluntary’ consent. China felt that this crime must be distinguished from national birth control measures and Sudan supported China on the matter.Portugal and Columbia said that the elements of crime of sexual slavery are too restrictive and must be open to further development.
Commenting on the elements of ‘other forms of sexual violence’, Portugal felt that the gravity of this crime must be comparable with the Art.7 (1) as a whole and not only with particular section. Netherlands and Bosnia supported such broad comparison in gravity.
As already stated above, a proposal on crimes against humanity was submitted in the second week of the prepcom by 11 countries of the Arab League. Commenting on their own proposal (…DP.39) UAE, Libya, Oman, Sudan, Lebanon and Bahrain emphasized the need for the court to take into account what they called ‘cultural diversity’ in defining the elements of crimes against humanity. They expressed their concern that women working at home may be interpreted as enslavement within Art.7(1)9c)(iii) of the statute. They therefore sought to exclude these possibilities in their proposal by adding elements in all crimes of sexual violence and in the crime of imprisonment and persecution to say that if these crimes are committed within the family as a matter of religious and cultural norms they do not qualify as crimes against humanity.
This proposal is clearly contradictory to the statutory provisions of art. 21(3) of the ICC statute (which says that the application of laws be without discrimination on the basis of gender) and therefore should not have been considered or taken seriously at all. Many state delegations including delegations from the global south recognized this and made interventions to that effect.
Isreal, Sweden, Hungary, Italy, Turkey, Portugal, New Zealand, Finland, U.K. in their commentary expressed concerns over the Arab proposal particularly the elements concerning the ‘family matters.’ Some of these delegations felt such elements were inconsistent with the statute, others felt the concerns expressed by the Arab delegations has been taken into account in the statute, and yet others felt that their concerns loom larger in theory than in practice. Sweden was strong in commenting that they would find it difficult to consider this proposal.
Syria felt that it was important to discuss and agree on the chapeau of crimes against humanity before discussing the elements. They felt that on crimes of sexual violence, the Arab proposal was a valid one particularly with regard to crime of rape, sexual slavery, and enforced prostitution and a better one from the German/Canadian proposal on the crime of forced pregnancy as it is more consistent with the statute.
Despite a wide recognition that this proposal was contradictory to the statute, some delegations entered into negotiations with the Arab group who sought to drop these restrictive elements in crimes of sexual violence in exchange for raising the overall threshold for all of the crimes against humanity. It is disturbing to note the willingness on the part of some key delegations – in addition to the United States which has made no secret of wanting a higher threshold for crimes against humanity -- to entertain such discussions. These discussions has created a situation where elements of sexual violence crimes are being used as a bargaining point to raise the threshold for crimes against humanity when in fact the 11 Arab countries proposal on sexual violence crimes had no basis to be considered in the first place. The result of these negotiations was that the draft rolling text did not include the elements excluding ‘the family matters’ but has language that substantially raises the threshold for all of the crimes against humanity.
Since many delegations raised an objection to this higher threshold, there is a footnote in the draft rolling text to say that any further discussion on lowering the threshold will bring back the discussion on the ‘family elements’ of the crimes of sexual violence. We believe raising the threshold will cause many situations of crimes against humanity-- including crimes of sexual violence -- to escape the net of the ICC. Precluding family situations from the definitions of crimes of sexual violence completely undermines the essence of these crimes and would prevent many situations of severe sexual and gender violence from ever being prosecuted.
Most of the negotiations between the 11 Arab countries and some delegations involved in drafting text took place over informal discussion and conversations. We are therefore particularly disturbed by the footnote in the draft rolling text on elements of crimes against humanity adopted at the end of the meeting as the text to continue work at the next prepcom. This footnote is in the elements of the crime of rape and makes an open and blatant admission of using the elements of sexual violence crimes as a bargaining chip to raise the threshold of all crimes against humanity in the chapeau.
We are appalled that the preparatory commission allowed for such an unprincipled way of going about discussion on elements of crimes against humanity in pursuit of achieving a consensus. We believe it to be unprincipled because linking the discussion of the threshold in the chapeau of crimes against humanity to elements of crimes of sexual violence is discriminatory and contradictory to the mandate in Art. 21(3) of the ICC statute. Such a link implies that the ‘family elements’ contained in the proposal by the 11 Arab countries for crimes of sexual violence are somehow justifiable and could therefore be excluded from being considered crimes against humanity. Secondly, both the chapeau and the elements of crimes of sexual violence are separate issues and merit separate discussion without any link to each other.
In the draft rolling text adopted at the end of the prepcom, there are more footnotes to suggest that the text is not final and all the issues will be re-visited in the next prepcom.
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AGGRESSION
Finally, we would briefly summarze the opening discussion on another important issue of the crime of Aggression. A working group has been established to start discussion on the definition of this crime. The Chair of the working group introduced the information paper that was compiled and distributed at the end of the July/August prepcom and opened the floor for discussion.
Spain in their intervention emphasized the importance of the crime of aggression in international law. The present system that the Security Council (SC) determines whether or not a state that committed aggression will constrain the ICC in terms of holding individuals responsible – because in the crime of aggression, it is the military or political leader with the state sanction that carries out the state objectives. The difference, Spain explained, between aggression perpetrated by the state and acts carried out by individuals with military or political post must also be reflected in the legal definition of the crime of aggression as it relates to the ICC. Spain does not agree that the SC should determine an action of aggression since it is a political organ and its decisions will not, at base, be neutral. Other texts such as the GA resolution 3314, Tokyo and Nuremberg jurisprudence and precedents must be analyzed. They however, believed it necessary to merge all views as not one is entirely satisfactory. Columbia supported the intervention by Spain.
France was concerned that the Court will become a body through which states will come to present political and military conflicts. They therefore have a firm position that the SC plays the role of a preliminary filter. The definition should contain a general formula and / or perhaps a non-exhaustive list of elements.
Iran pointed out certain contradiction in the language concerning the crime of aggression. The ICC statute in Art.5(b) hold that the definition must be consistent with the provisions of the UN charter. And according to the art.39 of the Charter, the Security Council (SC) determines the crime of aggression. They viewed that aggression is not a monopoly of the SC and the statute in art.14 allows for state party referrals. Adding voice to this view,
Cuba felt that only in situations where none of the proposals address the issue conceptually, should Art. 39 of the UN Charter be looked at.UK reminded that GA resolution 3314 was not intended as a codification of international law, but as guidance to the SC in determining the crime of aggression. Therefore UK does not find the resolution a good a starting point. Nuremberg charter is the only charter that determines individual criminal responsibility and new elements have been added since then in the UN Charter, which gives the SC deciding power. They find it inconceivable that the ICC can hear a case against an individual unless the SC has referred it and decided that a state has committed an act of aggression. China agreed with this view and felt it is the prerogative of the SC to determine the crime of aggression. The ICC cannot disregard nor circumvent the provisions of the UN Charter.
Syria, provoked to take the floor, reminded that Syria would be hesitant to accept the Rome statute without any definition of the crime of aggression. They supported the views of Spain and did not deny role for the SC but felt that if the SC fails to find a case of aggression then it should refer it to the ICC. Republic of Korea agrees that the SC has an important role to play in determining an act of aggression. There can also be alternate ways if SC fails.
Cape Verde was concerned about a monopoly of the SC over the crime of aggression. For independence of the Court, there needs to be a separation of power on the international law and the judges of the ICC has to be empowered as to the definition of the crime of aggression. They supported the French intervention that the definition should contain a general formula.
Lebanon viewed that 3314 shows what is reflected in international law. They wondered how can the court exercise jurisdiction without a definition of a crime and if a definition is reached, whether the SC can ignore it. The UN Charter has not defined the crime. Lebanon has always commented on the dissatisfaction with the role of the Security Council. They want to see a definition that is mandatory for all including SC. They therefore felt that a definition should be arrived at first and then discuss the role of SC.
The Chair wondered if the discussion was going anywhere at all. He summarize the debate in a couple of points. One, that a 3314 type of list or a general definition is required and two, that Art. 121 and 123 of the statute cannot be ignored. He reminded that the definition will have to enjoy the support of 2/3 state parties. He closed the session suggesting the need for more consultation before another round of general discussion.
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As the negotiations in the prepcom proceeded, the Women’s Caucus held a panel discussion to emphasize that crimes against women are crimes against humanity. We got panelist who spoke of crimes that are being committed currently that could be prevented from being prosecuted since these are often committed within the family and in the name of ‘cultural and religious’ diversity. We had two panelist speaking on the issue of crimes against Afghan women in the hands of the Taliban regime, a lawyer and activist from Jordan speaking on the issue of honor killings and another panalist speaking on her experience with the Guatemalan Truth Commission. While we believe that cultural and religious diversities should be respected, when these sanction criminal acts against women, they are no less crimes and ought to be recognized and prosecuted as such. Report of the proceedings of this panel will be edited and circulated at the next prepcom among delegates and NGOs. At this prepcom, members of the Caucus delegation also took the intitiative to revive the Children’s Caucus so that the issues concerning the rights of children are not neglected.
Since we gave our immediately assessment in the brief report earlier, we have had feedback from some of the participants of the Caucus delegation. Not all experienced a feeling of loss of influence and some actually got a feedback from state delegations to say how effective the Caucus lobby has been. However, the fact is, no matter how successful our lobby strategies are, in the end it is only a few delegations sitting in the informals (where NGOs are not allowed), a handful of delegations drafting the rolling text and some powerful delegations that exert influence in a substantive way. This process often leaves out views of delegations that may be less powerful and more sympathetic to gender issues.
Despite the above, we are pleased that none of the above discussions have been finalized and will continue in next prepcom. The next prepcom is scheduled from March 13-31, 2000. We believe the most effective advocacy strategy for the next prepcom will be to influence delegates in the capitals by groups in their respective countries. Further, an inter-sessional meeting has been announced and will be held in Siracusa from January 31-February 5, 2000 to discuss some of the elements of crimes against humanity and the mental elements for the crimes. This provides us with an opportunity to influence the delegates on our issues in a more informal setting before the March prepcom. Since most of the issues at this prepcom remained inconclusive, these will continue to be issues of struggle for us at the next prepcom. We will shortly get back to you with our action alert for the next prepcom.