i. establishing an effective trust fund for ......a. statutory requirements for election of judges 5...

TABLE OF CONTENTS

I. ESTABLISHING AN EFFECTIVE TRUST FUND FOR VICTIMS 2

II. ENSURING THE STATUTORY REQUIREMENTS FOR ELECTION OF

JUDGES, INCLUDING A FAIR REPRESENTATION OF MEN AND

WOMEN, AND FOR THE PROSECUTOR ARE MET 4

A. Statutory requirements for election of judges 5

B. Ensuring that the election procedure avoids another disaster 6

C. Electing the most highly qualified Prosecutor and Deputy

Prosecutors 11

D. Establishing an effective Advisory Committee on Nominations

12

III.GUARANTEEING THAT PROVISIONS FOR REMUNERATION OF

JUDGES PROTECT THEIR INDEPENDENCE 16

IV. PROVIDING FOR AN INDEPENDENT SECRETARIAT OF THE

ASSEMBLY OF STATES PARTIES 17

V. DRAFTING A FIRST YEAR BUDGET WHICH IS BASED ON THE

FUNCTIONS OF THE COURT 21

ANNEX I: NGO PRINCIPLES ON THE ESTABLISHMENT OF THE TRUST

FUND FOR VICTIMS 22

ANNEX II. AMNESTY INTERNATIONAL’S POSITION STATEMENT ON THE

MANAGEMENT OF THE TRUST FUND FOR VICTIMS 26

ANNEX III. CHART INDICATING PROPOSED RELATIONSHIPS BETWEEN

BODIES DEALING WITH VICTIMS AND WITNESSES 28

INTERNATIONAL CRIMINAL COURT: Concerns at the tenth session of the Preparatory Commission (1 to 12 July 2002) 1

Amnesty International June 2002 AI Index: IOR 40/010/2002

1

INTERNATIONAL CRIMINAL COURT: Concerns at the tenth session of the Preparatory

Commission (1 to 12 July 2002)

This paper discusses a number of the concerns which Amnesty

International has about matters scheduled to be considered at the tenth

and final session of the Preparatory Commission for the International

Criminal Court:

- establishing an effective Trust Fund for Victims pursuant to

article 79 of the Rome Statute of the International Criminal Court

(Rome Statute),

- ensuring that the procedure for election of judges and the

Prosecutor fulfills the requirements of the Rome Statute, including

a fair representation of men and women judges,

- guaranteeing that provisions for remuneration of judges protect

their independence,

- providing for a permanent independent Secretariat of the

Assembly of States Parties, and

- drafting a first year budget which is based on a careful analysis

of the functions of the International Criminal Court (Court).1

1Although Amnesty International has not addressed the question of the

definition of the crime of aggression or the conditions under which the Court

2 INTERNATIONAL CRIMINAL COURT: Concerns at the tenth session of the Preparatory


AI Index: IOR 40/010/2002 Amnesty International June 2002

2

will exercise jurisdiction over this crime, it is essential that the conditions

for exercising jurisdiction, as for any crime by any court, must fully respect

the independence of the Court in determining whether the crime occurred

and the guilt or innocence of an accused. It is a general principle of law,

both at the national and international level, that the independence of the

judiciary be fully respected. United Nations Basic Principles on the

Independence of the Judiciary; Universal Declaration of Human Rights, Art.

10; International Covenant on Civil and Political Rights, Art. 14 (1).

This paper updates the Amnesty International paper, International

Criminal Court: Concerns at the ninth session of the Preparatory

Commission (8 to 19 April 2002), AI Index: IOR 40/006/2002, March

2002. Amnesty International believes that the comments in this paper

will be useful to delegates in considering the matters before them at the

tenth session. This paper does not necessarily address the full range of

the organization’s concerns about topics at this session. For example, the

recent and rapid evolution of government positions on the choice of the

procedure for the election of judges which is most likely to satisfy the

requirements of the Rome Statute has made it difficult to provide

detailed commentaries on each of them at the time this paper was

written and Amnesty International will be working with the Coalition for

the International Criminal Court (CICC) Secretariat and other members

of the CICC to provide analyses of these proposals and recommendations

during the tenth session. This paper also does not address other topics

of current concern to delegates that are not on the agenda of the

Preparatory Commission, such as the recent challenges by one non-state

party that has been seeking impunity for its citizens participating in

United Nations (UN) peace-keeping operations who are suspected of war



3

crimes, crimes against humanity or genocide through a resolution of the

Security Council exempting them from the jurisdiction of the Court or by

putting pressure on other states to enter into agreements that would

purport to exempt their citizens suspected of such horrific crimes from

the Court’s jurisdiction or any other jurisdiction.

In addition to this paper, which is being made available to all

Permanent Missions, the organization believes that, as in the past, the

delegates will find the contributions of other non-governmental

organizations useful in their work, including, in particular, the studies by

the Project on International Courts and Tribunals (PICT) and the

Secretariat of the CICC. Indeed, this paper is based in large part upon

the excellent research of the CICC Secretariat and the work of the CICC

teams monitoring these issues at previous sessions.

Moreover, Amnesty International believes that the Preparatory

Commission will continue to find the experience and insight of the staff of

the International Criminal Tribunals for the former Yugoslavia and

Rwanda (Yugoslavia and Rwanda Tribunals) invaluable and it urges

delegates to consult them on all of the issues before them at the tenth

session during discussions in the Working Groups and during informal

meetings. As in the past, one or more delegations might wish to invite

the staff to make presentations to delegates concerning the experience of

the Tribunals relevant to various issues during lunch hours or at other

convenient times. Such presentations have always proved extremely useful

to delegations in providing greater insight into the practical issues facing

the International Criminal Court.

I. ESTABLISHING AN EFFECTIVE TRUST FUND FOR VICTIMS




4

At the sixth session of the Preparatory Commission, the Working Group

on Financial Regulations and Rules accepted the task of defining the

article 79 Trust Fund and its work. At the end of the eighth session in

October 2001, the Working Group having concluded its work on the

Financial Regulations, decided that it did not have sufficient time or

resources to complete its work on the Trust Fund and the issue was

forwarded to the ninth session for consideration by the Working Group

on Financial Issues.

In making its decision to defer the issue once more to the next

session, a number of delegations taking part in the Working Group on

Financial Regulations and Rules requested further input from

non-governmental organizations, particularly those that work on victim’s

issues.

At the ninth session of the Preparatory Commission, the Working

Group on Financial Issues - Trust Fund for Victims, coordinated by Gaile

Ramoutar of Trinidad and Tobago, met for one half of a formal session.

The main focus of this meeting was a new proposal by the French

delegation on the management of the Trust Fund.1 At the tenth session

two formal sessions are scheduled on the issue, as well as a number of

informal sessions.

1 Proposal submitted by France concerning a trust fund for the benefit of

victims, U.N. Doc. PCNICC/2002/WGFI-VTF/DP.1.




2

Amnesty International as a member of the CICC’s Victims Rights

Working Group, supports the NGO Principles on the Trust Fund For

Victims which was issued at the ninth session and is annexed to this

document (Annex I). In addition, Amnesty International has issued a

statement making detailed recommendations about the management and

structure of the Trust Fund for Victims, which is also annexed to this

paper (Annex II), and has illustrated this proposed structure in a chart

annexed to this paper (Annex III).

Amnesty International welcomes the French proposal issued at

the ninth session as a significant step forward in the negotiations. In

particular, the organization welcomes the proposal for a Board of

Directors of the Trust Fund, made up of members with established

competence in protection of an providing assistance to victims of serious

crimes, serving on a pro bono basis. Amnesty International believes this

Board will be essential to ensure that effective and meaningful assistance

is provided to victims.

As the Board of Directors is a pro bono body, it is essential that

there is effective day-to-day management of the Trust Fund. Amnesty

International is concerned that this role is currently envisaged as being in

the Registry of the Court. Such a situation could endanger the

independence of the Trust Fund and its ability to function effectively.

The functions of the Trust Fund. The Trust Fund will have two

distinct functions:



3

- (1) to pay orders for reparations against a convicted person

under Article 75 and Rule 98 of the Rules of Procedure and Evidence,

and

- (2) to provide assistance to victims of crimes under the

jurisdiction of the Court, including, those victims that are not involved

in a specific case before the Court.

For the first function, paying orders for reparations, it is essential that

the Trust Fund has a strong connection with the Court and that there is

accountability and reporting to the Court on implementation of its

orders. The second function, providing assistance, is essential to ensure

the fairness of the Trust Fund, by not limiting it to just those individuals

where there is sufficient evidence and will to prosecute the person accused

of perpetrating their crime. The Court will investigate situations where

there are many victims of crimes under the jurisdiction of the Court and

many suspects that it will decide not to prosecute - the Trust Fund

should be in a position to provide assistance to those victims without

compromising the independence and integrity of the Court. To do so it

will require independence from the Court.

Recommendations - (these recommendations are discussed in more detail

in Annex II)

Independent Trust Fund Secretariat and Executive Director. To

ensure that there is both a strong connection to the Court in the

enforcement of Court orders for reparations and independence in

assisting victims not involved in specific cases before the Court, an




4

independent Trust Fund Secretariat should be established which is

managed by an Executive Director who is appointed by the Board of

Directors. The Secretariat should be located at the seat of the Court.

Strict lines of accountability and reporting on implementation of

Court orders. To ensure the proper function of implementing orders of

the Court for reparations, there should be strict lines of accountability

and reporting to the Court for these tasks.

Independence and accountability to the Assembly of States Parties

for other functions. For all other functions, the Trust Fund should be

independent under the control of the Board of Directors, who instruct

the Executive Director. The Board of Directors and the Executive

Director should be accountable and report directly to the Assembly of

States Parties and its relevant subsidiary bodies.

Further safeguards against conflict with the work of the Court. To

provide additional safeguards against conflict with the work of the Court

– the Trust Fund should not make individual awards to victims other

than those ordered by the Court, but should only provide assistance

through “established channels of assistance” by sponsoring projects

carried out by intergovernmental and non-governmental organizations to

benefit victims of the crimes, for example, rehabilitation programs.

Start up and regular administrative costs. To ensure the Trust

Fund’s ability to grow into a successful and effective mechanism for

reparation and assistance to victims, the initial costs of setting up of the

Trust Fund, at least in the first financial period should be paid by the



5

budget of the Assembly of States Parties. In future years, the Assembly of

States Parties should pay for the travel and other relevant expenses of

the Board of Directors as a subsidiary body of the Assembly of States

Parties under Article 114 and the salary of the Executive Director. All

other administrative and staff costs should be paid out of the funds of the

Trust Fund up to 5% of the total annual income.

II. ENSURING THE STATUTORY REQUIREMENTS FOR ELECTION OF

JUDGES, INCLUDING A FAIR REPRESENTATION OF MEN AND WOMEN,

AND FOR THE PROSECUTOR ARE MET

Article 36 of the Rome Statute provides for certain criteria to be met in

electing judges, including a fair representation of female and male judges,

and it also provides that the Assembly of States Parties may establish an

Advisory Committee on nominations. Amnesty International believes

that it is essential for the credibility of the Court as an institution and for

its effectiveness that the Assembly avoid the failures of the past

half-century in which no women - who compose more than half of

humanity - or only a handful of women were appointed to such crucial

international bodies as the International Court of Justice, the

International Criminal Tribunals for the former Yugoslavia and for

Rwanda, the International Law Commission and numerous international

courts. The importance of ensuring a fair representation of men and

women judges in a court which will have to address substantial numbers

of crimes of sexual violence is so clear that it does not need repeating.2

2 The need for a fair representation of male and female judges on the Court

was recently reiterated in a speech by a leading English barrister. She said:

The prospects for an effective, legitimate and credible International Criminal

Court depend, to a great extent, on the composition of its bench. That




6

means, among other points, that there be representation of the principal

legal systems, appropriate geographical representation, and an appropriate

gender balance. The international judiciary is overwhelmingly male,

suggesting that the selection process operates within unacceptable limits. This

is partly because women are under-represented in most national legal

systems, as well as at the international level. However, it is not credible to

suggest that under-representation is due to a dearth of suitably qualified

candidates.

The under-representation of women threatens to undermine the

authority of the institution from day one. As the court grows and becomes

involved in high-profile cases, it will be crucial that international criminal

justice be seen to be fair and representative of international society as a

whole. The need for female appointees is reinforced by the attention given by

the International Criminal Court Statute to women's issues, as compared

with the very limited concern women's issues have received in international

criminal law in the past.

Rape and other acts of sexual violence have long been utilised as

instruments of warfare, not only as an attack on the individual but also as a

means to ‘humiliate, shame, degrade and terrify the entire . . . group’. As

events in Rwanda and the former Yugoslavia so horribly remind us, sexual

aggression against women often serves as a grotesque public display of

domination, in which the rape of the woman's body symbolically represents

the rape of the community itself. The victims have been let down when it has

come to the prevention and prosecution of these offences, largely because

sexual violence has been regarded as an accepted concomitant of war, even if

it was not explicitly condoned. I therefore welcome the Rome statute's

express requirement that there be a fair representation between the sexes on

the ICC's bench, and express the hope that all states will take that

requirement seriously when they nominate and vote for candidates.”

Cherie Booth, Q.C., Matrix Chambers, address at the Royal Institute of British

Architects, London on 12 June 2002



7

It is also essential to ensure that the statutory requirement of including

judges with legal expertise on certain issues, such as violence against

women and children, is satisfied.

As explained below, Amnesty International is concerned that none

of the proposals for consideration at the tenth session will clearly avoid

such a disastrous outcome and it recommends that any election

procedure adopted must be calculated to achieve the statutory

requirements. It also continues to believe that an Advisory Committee

on nominations could help ensure that the statutory requirements are

satisfied at the first and subsequent elections. Of course, the

organization recognizes that the most important step in ensuring that

statutory requirements are met will be for states at the national level to

ensure that they chose nominees in an open and transparent process with

broad consultation with civil society.

In addition, it will be important for the Preparatory Commission

to recommend to the Assembly of States Parties that a effective

procedure is adopted to ensure that the most highly qualified professional

prosecutor is selected to be the first Prosecutor of the Court.

A. Statutory requirements for election of judges

Article 36 of the Rome Statute spells out four types of requirements for

judges. First, each judge must satisfy certain general requirements.

Article 36 (3) (a) provides that “The judges shall be chosen from among




8

persons of high moral character, impartiality and integrity who possess

the qualifications required in their respective States for appointment to

the highest judicial offices.” and Article 36 (3) (c) states that “[e]very

candidate for election to the Court shall have an excellent knowledge of

and be fluent in at least one of the working languages of the Court”.

Second, Article 36 (5) provides that each of the 18 judges initially

elected must have either criminal justice (Category A) or international

law experience (Category B). At least nine judges must satisfy the

requirements of Article 36 (3) (b) (i), which requires that each judge

“[h]ave established competence in criminal law and procedure, and the

necessary relevant experience, whether as judge, prosecutor, advocate or

in other similar capacity, in criminal proceedings”. At least five judges

must satisfy the requirements of Article 36 (3) (ii), which requires that

each judge “[h]ave established competence in relevant areas of

international law such as international humanitarian law and the law of

human rights, and extensive experience in a professional legal capacity

which is of relevance to the judicial work of the Court”.

Third, the Assembly must take into account the need for

geographic, legal system and gender balance Article 36 (8) (a) provides:

“(a) The States Parties shall, in the selection of judges, take

into account the need, within the membership of the Court, for:

(i) The representation of the principal legal systems of the

world;

(ii) Equitable geographical representation; and

(iii) A fair representation of female and male judges.”



9

Fourth, the Assembly must take into account the need for special

legal expertise. Article 36 (8) (b) provides: “States Parties shall also

take into account the need to include judges with legal expertise on

specific issues, including, but not limited to, violence against women or

children.”

The directives in Article 36 (8) (a) and (b) require states to make a

good faith effort to ensure that these needs are addressed. They are not

discretionary; they simply leave the method for doing so to the Assembly

of States Parties. If these needs are not met, then the states parties

have failed to comply with the Rome Statute.

B. Ensuring that the election procedure avoids another disaster

During the ninth session, the Working Group on the Assembly of States

Parties Preparatory Documents began discussing nomination and election

procedures for judges and the Prosecutor, on the basis of a working paper

prepared by the UN Secretariat.3

Delegations reached consensus on a number of issues and the

Coordinator of the Working Group issued a rolling text reflecting the

discussions.4 However, it was decided that negotiations, particularly on

the implementation of Article 36 (5) and 36 (8) (a) of the Rome

Statute, would continue during the tenth session. Indeed, delegations

3 U.N. Doc. PCNICC/2002/WGASP-PD/L.1.

4 U.N. Doc. PCNICC/2002/WGASP-PD/RT.2.




10

were not able to reach a consensus on how to implement the Rome

Statute representation-related requirements. It is the first time that

states have had to combine so many requirements during an

international judicial election, and, as stated above, it is essential that the

letter and spirit of the Rome Statute be fully respected, as the first

election of judges will have a crucial impact, not merely on the image of

the Court, but its effectiveness and legitimacy.

The three main approaches suggested at the ninth session. At the

close of the ninth session in April, four main approaches were under

consideration:

- “Free” election: some delegations advocated a traditional

mechanism-free election, where the implementation of the Rome

Statute provisions would be left to the “conscience” of voting

states, and voting would take place in a single ballot for all posts,

with subsequent ballots only if there were insufficient successful

candidates receiving the required two-thirds majority. Amnesty

International and others opposed this view. They explained that,

on the basis of previous experience with this approach, which

involves secret political negotiations in which selection of the best

possible candidates, with a fair gender balance, often is not the

primary consideration, that the outcome of such an election would

not comply with the Rome Statute requirements and, in

particular, would not lead to fair gender representation or

inclusion of persons with the required expertise. Apart from the

situation where there were insufficient successful candidates on a



11

particular ballot, there would be no ability for the Assembly of

States Parties to correct imbalances during the voting.

- A strict quota system: another group of states promoted a

strict quota system which would only apply to article 36 (8) (ii)

(related to geographical representation). Non-governmental

organisations opposed this view. They noted that states had

extensive experience in ensuring geographic balances in elections to

posts in intergovernmental bodies and that the election procedure

should focus primarily on ensuring that the statutory requirements

of “[a] fair representation of female and male judges” and “the

need to include judges with legal expertise on specific issues,

including, but not limited to, violence against women or children.”

were satisfied. Indeed, Amnesty International argued that the

procedure should expressly require that states should first address

these statutory requirements and that the others would inevitably

take care of themselves. A rigid quota system to address any of

the three categories risks eliminating the most highly qualified

candidates and a minimum number of judges in any category risks

becoming the maximum number for that category.

- Flexible mechanism: a third group of countries promoted,

as a compromise between the first two positions, a flexible

mechanism that would not guarantee the result of the election (as

a strict quota system would) but that would try to implement

equally all representation-related provisions. In this spirit,

Hungary and Liechtenstein worked on a proposal that would

involve minimum voting requirements for geographical




12

representation and gender representation. A revised version of

this proposal (discussed below) will be further discussed during the

tenth session of the Preparatory Commission.

- Election in stages. Belgium proposed a variation on the

“free” election model by providing for an election in two stages,

the first stage would be separate ballots to elect nine judges in

Category A (criminal law experience) and five judges in Category B

(international law experience) and then in the second stage, the

remaining four slots would be filled.5 The Belgian proposal has

been included as an annex to the rolling text.6 Delegates would be

not be constrained to fulfill the statutory requirements at either

5 Belgian proposal on elections, U.N. Doc. PCNICC/2002/WGASP-PD/DP.2.

6 Several countries have proposed a modification of the Belgian proposal

designed to address what they see as a conflict with the statutory

requirement that all candidates who receive a two-thirds majority will be

elected. The Belgian proposal would permit the rejection of a candidate if

more that nine received the required two-thirds in the vote for Category A

judges or more than five received the required majority for category B

judges. Proposal by Austria, Hungary and Liechtenstein on the first election

of the judges to the International Criminal Court. It was submitted to the

Secretariat on 14 June 2002, but as of the date of this paper it had not yet

been issued as a UN document in all languages. However, the new proposal

would not completely exclude this possibility and it could also eliminate one

of the virtues of the Belgian proposal - that it would permit a second stage

where there might be a limited opportunity to correct imbalances that

emerged in the first stage.



13

stage, but they would at least have the opportunity to attempt to

redress imbalances at least partially with the four remaining slots.

The current version of the Hungarian-Liechtenstein proposal. The

current version of this proposal is sponsored by Austria, Colombia,

Hungary, Liechtenstein and Romania.7 It would establish a complex

system that attempts to ensure that the statutory requirements of

geographical and gender balance are fulfilled by requiring each state

party to vote for at least two candidates from each regional group and at

least six candidates from each gender and to meet the requirement of

legal system balance by directing states parties to take this requirement

into account. The full text of the proposal reads:

“Subject to the availability of an adequate number of candidates,

the following minimum voting requirements shall be used for the

first round of elections. Each State Party shall vote for

at least two candidates from each regional group, and

at least six candidates from each gender.

When voting for candidates, States Parties shall take into account

the requirement of representation of principal legal systems.

If the number of candidates from any regional group is less than

two, the minimum voting requirement for that region shall be

equal to the number of candidates from that region.

7 Proposal by Austria, Colombia, Hungary, Liechtenstein and Romania on

Article 36 (8) (a) of the Rome Statute. It was submitted to the Secretariat

on 14 June 2002, but as of the date of this paper it had not yet been issued

as a UN document in all languages.




14

If the number of candidates of any gender is less than six, the

minimum voting requirement for that gender shall be equal to the

number of candidates of that gender.

For the purposes of elections, the regional grouping system of the

United Nations shall be utilized.

Ballot papers shall be organized in a manner facilitating such an

election process, and minimum voting requirements shall be clearly

indicated. Clear instructions and sufficient time shall be given for the

conduct of elections.

Ballots cast that do not observe the rule on minimum voting

requirements shall be invalidated.

If fewer than 18 candidates are elected, the minimum voting

requirements, with necessary adjustments, shall be utilized for

subsequent balloting.

Such adjustments shall be determined by subtracting,

in the case of the requirement set forth in subparagraph 1

(a), region-by-region, the number of elected

candidates from the minimum voting requirements,

in the case of the requirement set forth in subparagraph 1

(b), the number of elected male or female candidates

from the minimum voting requirements.

The adjusted minimum voting requirements shall be clearly

indicated on the subsequent ballot papers. Clear instructions and

sufficient time shall be given for the conduct of subsequent

balloting.

Each minimum voting requirement shall be adjusted

until that requirement can no longer be met, whereupon the use of that

requirement shall be discontinued.



15

If the adjusted minimum voting requirements can be

met individually, but not jointly, the use of all minimum voting

requirements shall be discontinued.

The President of the Assembly of States Parties shall

be responsible for the determination or discontinuation of the minimum

voting requirements.”

The explanatory note states that “[t]he proposal’s aim is to

facilitate, to the extent possible, the fulfillment of the Statutory

requirements set forth in Art. 36 (8) (a)” and that “[i]t offers a

compromise solution between two options, namely the strict assignment

of judicial seats with respect to the requirements of Art. 36 (8) (a), and a

system of free elections”. The explanatory note attaches a number of

charts which are designed to show that the statutory requirements would

be fulfilled. Given the huge number of variables, including the question of

how many nominations will be made and how many will fit the the

statutory categories, it is difficult to determine at this stage whether the

proposed mechanism would work as envisaged. In addition, there are

risks of deadlocks which would then lead to “free” voting. The proposed

minimum numbers of candidates in gender or geographic categories could

become the maximum numbers states were willing to consider.

Nevertheless, it is a serious attempt to meet the statutory requirements

and deserves further careful scrutiny.

The best procedure: a series of staggered elections for each post.

Amnesty International believes that the Assembly should adopt a

mechanism that would ensure the fulfilment of the Rome Statute

requirements and the proponents of any mechanism must demonstrate




16

that their proposal, if adopted, would be the most likely to achieve this

result. The organization believes that the most effective way to ensure

this result would be a multi-phased election in which each of the 18

posts was filled separately, one after the other. Such a procedure - or

one in which a few were elected at a time - would increase the chances

that there would be fair representation and appropriate expertise,

because states and the general public would be able to see as they went

along whether the statutory criteria were being met. It is almost

inconceivable that states would not respond as soon as imbalances started

to appear to ensure that the requirements of the Rome Statute were

satisfied.

Some observers have claimed that such a staggered election system

- even with instaneous electronic voting - would be lengthy because each

delegation would have to call back to the capital for completely new

instructions on each ballot, but this is not a convincing argument since

instructions on voting to delegations in elections to intergovernmental

organization bodies have for decades taken into account the matter of

multiple ballots in traditional voting systems. Moreover, there are

possibilities of multiple ballots in almost any election procedure. In any

event, if a staggered election system would better facilitate the fulfillment

of the statutory requirements and avoid the systematic failures in every

single past election to international criminal courts and other

intergovernmental organizations, the possibility that it might take

somewhat longer than an other method would be a small price to pay.

Nevertheless, there may well be a different possible mechanism

that would better achieve the desired result. Other possible solutions may



17

emerge in the course of discussions among non-governmental

organizations and governments before or during the Preparatory

Commission. Amnesty International is open to alternatives to the

mechanism it proposes, a staggered series of elections for each post, if it

can be convincingly be demonstrated by the proponents that any

alternatives better guarantee the fulfillment of the statutory

requirements. Given the complexity of the various proposals under

discussion in the weeks before the opening of the tenth session and the

frequent changes which have been made, Amnesty International has

decided simply to articulate basic principles which should guide the

Preparatory Commission in this paper, although it will work closely with

other members of the CICC in commenting on proposals as they continue

to evolve and may issue a further paper on this important question

during the tenth session.

Recommended guiding principles. Amnesty International believes

any proposal or mechanism devised during the tenth session should

comply with the following principles:

Transparency: election procedures should be transparent and allow

for interested organizations to observe and comment the process.

Qualifications: The first consideration in determining qualifications

of candidates is professional competence as described in Article 36 (3) (b)

of the Statute, taking into account the need to ensure the presence of

certain areas of expertise in the Court (Article 36 (8) (b) of the Statute).




18

Representation: As stated above, the Assembly should be expressly

directed first to address the need for fair representation of female and

male judges (Article 36 (8) (a) (iii)). Although the other representation

criteria (equitable geographical representation and representation of the

principal legal systems of the world) are usually adequately addressed in

international judicial institutions, fair representation of male and female

judges has not been achieved in a single international court.1.

Second, the need to include judges with legal expertise on specific

issues (Article 36 (8) (b)) should then be taken into account.

Third, attention should also be paid to the need for equitable

geographic representation (Article 36 (8) (a) (ii)) in order to reflect the

increasing universality of the states parties to the Rome Statute. Fair

representation among geographical regions will serve to encourage

non-states parties to accede to the Rome Statute.

Finally, to the extent that addressing the need for equitable

geographic representation has not met the need for the representation of

the principal legal systems of the world (Article 36 (8) (a) (i)), then this

requirement should be taken into account.

1 For instance, in the International Criminal Tribunal for Yugoslavia,

there is only one woman out of 16 judges. The International Court of

Justice, composed of 15 judges, comprises only one woman.



19

- Burden on the sponsors: The sponsors of proposed mechanisms

should clearly explain how their proposal will implement the Rome

Statute requirements better than any other proposal.

C. Electing the most highly qualified Prosecutor and Deputy Prosecutors

The most important official that the Assembly of States Parties will elect

will be the Prosecutor and it is essential that the Preparatory Commission

recommend a procedure for election that will help to ensure that the

most highly qualified professional prosecutors are elected as Prosecutor

and as Deputy Prosecutors.

Article 42 (3) provides that “[t]he Prosecutor and the Deputy

Prosecutors shall be persons of high moral character, be highly competent

in and have extensive practical experience in the prosecution or trial of

criminal cases. They shall have an excellent knowledge of and be fluent in

at least one of the working languages of the Court.” Amnesty

International believes that this means that the Prosecutor should satisfy

the following criteria:

- first and foremost, recognition in his or her jurisdiction as an

outstanding lawyer;

- secondly, recognized excellent management experience at the

highest levels of his or her national criminal justice system;

- thirdly, experience in preparing and prosecuting large, highly

complex cases in a professional way consistent with the




20

internationally recognized right to fair trial, preferably cases

involving crimes under international law; and

- fourthly, demonstrated impartiality, independence, integrity and

good judgement.

There appeared to be general support at the ninth session for the

nominees for the post of Prosecutor to have wide geographic support.

Greece and Switzerland proposed that candidates for the post of

Prosecutor be supported by at least seven states composed of at least

three different regional groups.2 Amnesty International believes that

this proposal has great merit. Amnesty International also believes that a

statement outlining the qualifications of each nominee and indicating how

supporters believe that the nominee fulfills the above criteria should be

distributed as soon as a nomination is made in the same way that

Belgium has proposed for nominees to be judges.

Recommendations:

Each nominee should receive the support of several states from different

regional groups.

Each nomination should be accompanied by a statement, which should be

circulated as soon as the nomination is made, explaining how the nominee

satisfies the above criteria.

2 Greek and Swiss proposal on nomination of the Prosecutor, U.N. Doc.

PCNICC/2002/WGASP-PD/DP.3.



21

D. Establishing an effective Advisory Committee on Nominations

Regardless what procedures are established for the elections, there are a

number of important technical issues which will have to be addressed

regarding how the Assembly of States Parties will consider nominations

for the posts of Prosecutor, Deputy Prosecutors and Judges and in

making recommendations for the post of Registrar and how it will

conduct elections for the posts of Prosecutor, Deputy Prosecutors and

Judges. These technical issues were outlined in detail in a working paper

issued by the United Nations Secretariat at the ninth session.3 However,

this working paper does not address the crucial issue of the role of the

Advisory Committee on nominations in any detail.

Article 36 (4) (c) of the Rome Statute. Article 36 (4) (c) of the

Rome Statute authorizes the Assembly of States Parties to establish an

Advisory Committee on nominations, but it does not spell out the role of

the Advisory Committee.4 Although Article 36 (4) (c) is part of the

3 Election of judges, the Prosecutor and the Registrar of the International

Criminal Court, U.N. Doc. PCNICC/2002/WGASP-PD/L.1, 26 February

2002. 4 The Advisory Committee grew out of an initial proposal by the United

Kingdom to ensure that the Assembly of States Parties had as much

information as possible on which to assess the qualifications of the candidates

and avoid politicization of the nomination and elections of judges by

establishing a screening body of chief justices of states parties to assist the

Assembly of States Parties in the nomination of candidates. This particular

approach was not adopted, but, instead, after a suggestion by Egypt that a

screening body be advisory, and a suggestion by France to establish an




22

article dealing with the nomination and election of candidates to be

Judges, nothing in the Rome Statute limits the role of the Advisory

Committee to nominations of Judges, so the Assembly could authorize it

to assist it in the nomination and election of the Prosecutor and Deputy

Prosecutor and in making recommendations to the Judges for the post of

Registrar.

Article 36 (4) (c) provides:

“The Assembly of States Parties may decide to establish, if

appropriate, an Advisory Committee on nominations. In that

event, the Committee’s composition and mandate shall be

established by the Assembly of States Parties.”

advisory committee, it was decided to authorize the Assembly to establish an

Advisory Committee. For the history of this article, see Medard R.

Rwelamira, Composition and Administration of the Court, in Roy S. Lee, ed.,

The International Criminal Court: The Making of the Rome Statute - Issues -

Negotiations - Results (The Hague/London/Boston: Kluwer Law International

1999) 163-164.



23

The Preparatory Commission should recommend to the Assembly

of States Parties that an Advisory Committee be established to assist the

Assembly in considering nominations of Judges, the Prosecutor and

Deputy Prosecutors and in other tasks related to elections, as well as in

making recommendations to the Judges concerning the choice of the

Registrar. This advisory body should be composed of independent

experts to ensure its impartiality and increase its credibility. In

establishing the Advisory Committee, the Assembly of States Parties could

draw upon the experience of expert intergovernmental organization and

non-governmental organization advisory bodies, such as the Committee

on Legal Affairs and Human Rights of the Parliamentary Assembly of the

Council of Europe in providing advice on the election of judges to the

European Court of Human Rights, the Committee on ICJ nominations of

the American Society of International Law on the nomination of judges to

the International Court of Justice and the Committee on the Federal

Judiciary of the American Bar Association on the nomination of Federal

judges. Such an advisory body, particularly if it was composed of

independent experts, could help the Assembly by improving the speed,

effectiveness, impartiality and credibility of considering nominations and

in conducting elections in a number of ways.5 Such assistance will be

5 As the leading commentary on the Statute has explained:

“It is essential to devise the method for selecting the judges so as to make

sure that the best possible candidates are elected. The proposed judges

must be elected on merit and will, hopefully, be perceived to be so.

Paragraph 4 provides the States Parties an opportunity to carefully review

the qualifications of candidates through an independent review committee.

In other word[s], it is stipulated in this paragraph that nominations must be

accompanied by a statement in the necessary detail specifying how the




24

particularly valuable to the Assembly of States Parties given the

complexities involved in the nominations and elections of candidates from

two separate lists, as provided in Article 36 (3) (b) and (5), one involving

established competence in criminal law (List A) and the other involving

established competence in relevant areas of international law (List B).

Ways in which the Advisory Committee could assist the Assembly in

the selection of the best candidates to be Judges. The ways in which the

Advisory Committee could assist the Assembly in the difficult task of

choosing the best candidates to be Judges include:

facilitating the implementation of the complex requirements

involved in nominating and electing Judges from two separate lists;

candidate fulfils the requirements of criminal trial experience or that of

recognised competence in international law as demanded in paragraph 3.

This was included to help ensure that selection would be primarily based on

merit rather than on political considerations. It was also for that purpose,

that the Assembly of States Parties may even decide to establish, if

appropriate, an Advisory Committee on nominations. In that event, the

Committee’s composition and mandate will be established by the Assembly of

States Parties. Such an open and thorough examination and selection at

the national and international level would surely help to ensure that the

judges elected will act independently and impartially on the basis of

professional ethics rather than on the basis of political considerations.”

Zu Wen-qi, Article 36: Qualifications, nominations and elections of judges, in Otto

Triffterer, Commentary on the Rome Statute of the International Criminal Court:

Observers’ Notes, Article by Article (Baden-Baden: Nomos Verlagsgesellschaft 1999),

604.



25

receiving nominations;

determining eligibility of candidates in the light of Article 36;

suggesting standard formats for statements to accompany

nominations to facilitate comparison of candidates;

inviting and receiving submissions from legal experts and others on

the qualifications of candidates;

developing impartial criteria to assist the Assembly in electing the

best candidates from two separate lists;

interviewing candidates;

providing the Assembly and the general public with all relevant

information as it is received;

providing the Assembly with evaluations of candidates in the light

of impartial criteria; and

providing the Assembly and the general public with timely

information as nominations are being submitted on the balance of

legal systems and geographic regions, the degree to which the

nominations are fairly representing men and women and the

number of persons with relevant expertise on specific issues,

including, but not limited to, violence against women and children.




26

The latter function would assist the Assembly and states parties as

they make nominations of Judges to ensure that the balances and areas

of expertise required by Article 36 8 (a) and (b) of the Statute are

properly reflected in the total number of nominations (see previous

section)

By requiring the Advisory Committee to make public information

concerning the nominations from different legal systems of the world, the

places where the candidates are from, whether they are men or women

and their legal expertise, all states parties and the general public will

know immediately if imbalances are developing and if sufficient numbers

of candidates with appropriate areas of legal expertise are not being

nominated. This will allow states parties that have not yet made

nominations to take into account the developing imbalances and the

deficiencies in legal expertise when making subsequent nominations. It

could also enable the Advisory Committee to alert the Assembly if it

appears that it is unlikely that sufficient nominations will be received for

each list. The work of the Advisory Committee in this regard would be

greatly assisted, of course, if the Swiss proposal discussed above providing

for immediate distribution of the statement of judicial nominees were to

be adopted.

Such a mechanism could help avoid the embarrassment to the

Assembly that could occur if the nominations were only made public at

the close of the period for nominations and there were such serious

imbalances and deficiencies in the nominations that it would not be

possible for the Assembly to satisfy the legal requirements of Article 36

(8) (a) and (b). Such a mechanism could have avoided the problem that

occurred in the most recent elections of judges and judges ad litem to the



27

International Criminal Tribunal for the former Yugoslavia, when almost

no women were nominated.6

Assisting in the nomination and election of the Prosecutor and

Deputy Prosecutors. In addition to the above role for the Advisory

Committee with respect to the nomination and election of judges, the

Assembly of States Parties could ask the Advisory Committee to assist it

in the nomination and election of the Prosecutor and the Deputy

Prosecutors. The Statute fails to provide a mechanism and detailed

procedures in this regard and, as the Secretariat’s working paper

suggests, the Advisory Committee could play a similar role in assisting the

Assembly select the best possible candidate to the one suggested with

respect to Judges.7

Assisting in making recommendations for appointment of the

Registrar. Similarly, the Assembly of States Parties could request the

Advisory Committee to assist it in preparing recommendations to the

Judges concerning the appointment of the Registrar. Both the Statute

and Rule 12 of the draft Rules of Procedure and Evidence do not provide

for a procedure for making recommendations to the Presidency. To

address this gap, the Secretariat’s working paper suggests that this

6 For example, in March 2001 the General Assembly considered a list of 25

nominees for judges of the International Criminal Tribunal for the former

Yugoslavia, only one of which was a woman. Fourteen people were elected,

one of whom was a woman. 7 Election of judges, the Prosecutor and the Registrar of the International

Criminal Court, U.N. Doc. PCNICC/2002/WGASP-PD/L.1, 26 February

2002, para. 57 (stating that the Advisory Committee could be assigned to

establish a list of nominees for Prosecutor).




28

possibility could be considered.8 For the same reasons that the Advisory

Committee could provide effective support with respect to the selection of

Judges, the Prosecutor and Deputy Prosecutors, it could do so with

respect to making recommendations concerning the appointment of the

Registrar.

III.GUARANTEEING THAT PROVISIONS FOR REMUNERATION OF

JUDGES PROTECT THEIR INDEPENDENCE

8 Ibid., para. 71 (suggesting consideration of a role for the Advisory

Committee in this process).



29

At the ninth session, the Working Group on Financial Issues -

Remuneration of Judges, coordinated by John Holmes of Canada, met for

the first time. At the end of the session the Working Group had

completed its work on all issues except the remuneration of non-full time

judges. The adopted text of the ninth session is included in the report of

the Working Group.9 This document also includes in its Annex a proposal

for the remuneration of non-full time judges. At the tenth session, the

Working Group aims to complete its work on this one outstanding issue.

The debate on the issue of non-full time judges during the ninth

session focussed on whether all 18 judges when elected at the beginning

of 2003 are entitled to full salary, even though it is expected that nine

members will not be required at least in the first months following the

inauguration, or; whether those that are not required initially are entitled

to some part payment until they are required to work at the Court (as

currently proposed), and/or whether once elected those judges that are

not required initially can continue with their existing employment until

they are required to work at the Court.

Amnesty International is concerned that the proposal in the

Working Group’s report does not ensure that the independence of judges

who are not working full-time for the Court in the initial phase of its

existence, as required of all judges by the Rome Statute. Article 40 (2)

provides: “Judges shall not engage in any activity which is likely to

interfere with their judicial functions or to affect confidence in their

independence.” Article 40 (3) prohibits judges required to serve on a

9 Conditions of service of judges of the International Criminal Court, Report

of the Working Group, U.N. Doc. PCNICC/2002/WGFI-RJ/L.1/Rev.1.




30

full-time basis at the seat of the Court from engaging in any other

occupation of a professional nature, but it is silent on part-time judges.

Amnesty International believes that provisions for remunerationof judges

not working full-time must be consistent with both the letter and the

spirit of the Rome Statute.

Recommendations

Elected judges should be able to continue their existing work unless

it is not compatible with the work of the Court. Amnesty International

believes that those elected judges who are not required to serve full-time

immediately following the elections and inauguration, should be allowed

to continue their existing professions, unless the existing profession is not

compatible with the role of a judge of the International Criminal Court.

For example, maintaining a diplomatic or government official role would

be inconsistent with the impartiality required of an elected ICC judge,

whereas, working as a university professor would be compatible with the

role.

If a judge is required to leave their existing employment without

being required by the Court and no alternative employment is available,

then the ICC should provide an interim salary until they are called to the

seat of the Court. This amount of remuneration should be appropriate for

a judge of the Court, taking into account the annual salary.

Once a judge is called to the Court they must then be required to

leave their existing employment and to work at the Court full-time. The

provision of pro rata payments for temporary work or job sharing with

their existing employment would be inappropriate for a judge of the



31

International Criminal Court. Once called to the International Criminal

Court the judge should commit themselves full-time to the position.

IV. PROVIDING FOR AN INDEPENDENT SECRETARIAT OF THE

ASSEMBLY OF STATES PARTIES

The Working Group on the Assembly of States Parties-Preparatory Documents, in addition to

its responsibilities concerning the election of judges, is responsible for drafting

recommendations concerning the Secretariat for the Assembly of States Parties. Amnesty

International believes that although the United Nations should provide

conference services for the first and second meetings of the Assembly of

States Parties (and this needs to be provided for in the first year budget),

in subsequent sessions the Assembly of States Parties should be serviced by

a permanent independent Secretariat.10

At the ninth session, delegates agreed that, for reasons of

efficiency, continuity and experience, the United Nations should serve as a

transitional Secretariat.11 To this end, the Working Group endorsed for

10 This section of this paper follows closely a preliminary analysis of the

issues by the CICC Secretariat and CICC teams that monitored the Working

Group at the ninth session. 11 Delegates considered a background paper prepared by the UN Secretariat,

which mentioned the possibility of an independent Secretariat, and a

subsequent proposal from the Secretariat and the Coordinator providing for

the UN to provide Secretariat services on a provisional basis. Draft

resolution on the Assembly of States Parties concerning the provisional

arrangements for the Secretariat of the Assembly of States Parties,

Discussion paper proposed by the Coordinator, U.N. Doc.

PCNICC/2002/WGASP-PD/L.4.




32

adoption by the Preparatory Commission, and the Commission adopted,

a draft resolution of the Assembly of States Parties, calling for such an

arrangement with the United Nations. The resolution does not specify a

time-limit for provisional use of the UN as the Assembly’s Secretariat,

although a number of delegates expressed the belief that this period must

be as short as possible.

A majority of delegations indicated that they favored an

independent permanent Secretariat for the Court, leaving open the type

of connection that might be established to the United Nations and

Amnesty International agrees that it would be inappropriate for the UN

to perform this function after the initial phase of establishing the Court

was over.12 The nature of a permanent Secretariat will be considered

again at the tenth session. It is important that some decisions be made

about the functions an independent Secretariat may need to play, so as

to ensure that any financial implications for the first financial period are

adequately addressed in the draft first year budget, which must be

adopted at the tenth session for adoption by the Assembly at its first

meeting.

Rule 37 of the draft Rules of the Assembly of States Parties

provides:

12 Many of the tasks of the Assembly of States Parties are closely related to the core

functions of the Court and may engender actual or perceived conflicts of interest between the

UN and the Court which may render such tasks inappropriate for the UN Secretariat to

undertake. The perceived and actual independence of the Court and its integrity will require

that it relies on its own lines of authority, within the Court and between the Court and the

Assembly, to fulfill its mandate.



33

“The Secretariat shall receive, translate, reproduce and distribute documents, reports

and decisions of the Assembly, the Bureau and any subsidiary bodies that may be

established by the Assembly; interpret speeches made at the meetings; prepare, print

and circulate, if so decided by the Assembly or the Bureau, the records of the session;

have the custody and proper preservation of the documents in the archives of the

Assembly; distribute all documents of the Assembly and the Bureau; and, generally,

perform all other work which the Assembly or the Bureau may require.”

Thus, it is clear that the Secretariat will perform not only traditional

administrative conference services, but also “all other work that the

Assembly or Bureau may require”, which will necessarily include

substantive tasks. Given the substantive responsibilities the Assembly of

States Parties will assume from the first day of its existence and given

the fact that the Assembly meets at best a few times a year, the

Assembly will need continuous and expert assistance in the fulfillment of

these responsibilities.

The functions of the independent permanent Secretariat. The mandate of an

independent Secretariat must be derived from the necessary functions of the Assembly of

States Parties and the Bureau as spelled out in Article 112 of the Rome Statute. It can be

anticipated that the Assembly, including its Bureau, will need assistance with many of the

substantive tasks assigned to it. Among the functions of the Assembly of States Parties that

will be crucial in the beginning years of the Court’s operation are the following:

The work of the Bureau (Article 112 (3), (6))

Establishment and management of the Trust Fund for Victims (see discussion in Section

I)

The work of the Committee on Budget and Finance

Establishment and management of an Advisory Committee on Nominations, if it is

decided to establish one (see discussion above)

Specific areas of work of the Assembly needing assistance by the Secretariat. The

specific areas of work that the Assembly of States Parties will take up and for which it will

likely require support by an independent permanent Secretariat include the following:

Management of the budget process in respect of the Assembly’s own budget but also in

overseeing the entire budget approval process (including regular and supplementary




34

budgets); this relates particularly to the regular work of the Committee on Budget and

Finance, the management of the annual audit and the provision of internal oversight

services, the latter for which there is as yet no provision.

Establishment of funds for the Court (see Article 115)

Management of protocol and the mechanics of Member and Observer State

participation in Assembly meetings (see Article 112 (1) and (8), as well as the

participation of non-governmental organizations in open meetings

Management of the participation of non-governmental organizations in open meetings

Management of the elections and the voting process system in general

Management of communications with states - ranging from notification of meetings and

distribution of reports to encouragement of State cooperation with the Court

Management of communications with the Court - ranging from review and approval of

the relationship agreement with the UN and the host State agreement, gratis personnel

guidelines, the codes of conduct, staff regulations and other internal provisional

regulations, and of any amendments to subsidiary instruments to the Rome Statute (such

as the Rules of Procedure and Evidence) to communications with the Court about

situations of state non-cooperation and consultation on the preparation of the budget

Management of procedures for dispute settlement among states parties regarding

disagreement about application of the Rome Statute

Management of early hiring for the Assembly and the Court, in particular in relation to

the hiring and oversight of the work of the Director of Common Services.

Administration of solemn undertakings for the judges, Prosecutor and Registrar

Encouraging ratifications. The Assembly of States Parties could play an active

role in encouraging further ratifications of the Rome Statute

Assisting in drafting legislation that fully implements the Rome Statute. The

Assembly of States Parties could play an important role in encouraging states that have

ratified to develop and adopt effective implementing legislation.

Encouraging ratifications of the Agreement on Privileges and Immunities. The

Assembly of States Parties will probably undertake the role of encouraging states to ratify the

Agreement on Privileges and Immunities.

Undertaking outreach efforts. To strengthen the effectiveness of the Court and

the broader framework of international justice, the Assembly of States Parties may wish to ask

the Secretariat to conduct outreach efforts modelled on the outreach programs of the

International Criminal Tribunals for the former Yugoslavia and for Rwanda, to ensure greater

worldwide understanding of the Court’s mission and mandate.

Traditional provision of conference services. The tasks listed above

deliberately exclude the provision of basic conference services such as document duplication

distribution in the course of meetings and interpretation and translation services. It is

arguable that these services can be provided by the UN Secretariat, as they are basic technical

services without any political implications. In fact, it may be reasonable to expect that the

UN Secretariat would be better placed to service the first two meetings of the Assembly, as



35

time remaining to assess other options is short and the UN Secretariat is familiar with the

goals the first two meetings of the Assembly must accomplish.

However, it is imperative that states parties clearly assess as soon as possible

what is the most cost-efficient and rational approach to adopt for the long-term, given the fact

that the Court will be based in The Hague and the UN Secretariat is based in New York. The

Assembly should assess in its first meeting what would be the best source of conference

services after the second Assembly meeting in January 2003, presuming that eventually it will

be more advantageous for the Assembly to meet in The Hague. The Assembly must be

prepared to make a change in services in time for the third meeting, should it prove to be

more rational and cost-efficient to do so.

The need to provide for the establishment of an independent Secretariat in

the first year budget. The functions listed above are considered to be essential for the first

year. Some of these functions will be more important than others. Among those functions

should be included the work of the Committee on Budget and Finance. Especially in the first

period, from September 2002 through approximately April or May 2003, there will be no

Registrar and the Assembly of States Parties will be directly responsible for oversight of the

work of the Common Services Division. It is in this early period that it will be especially

crucial to ensure that the finances of the Court and of the Assembly are transparent and

legitimate. Any mistakes in this early period could damage the reputation of the Court and

the Assembly for years to come.

Provision should therefore be made in the budget for the first year budget for

core staff members of an independent Secretariat to be hired immediately following the first

Assembly meeting to undertake and monitor these key functions. The Preparatory

Commission should consider the nature and level of core staff members that should be hired

and the budgetary implications of these additional staff, which must be incorporated into the

draft first year budget.

Recommendations:

The first year budget should provide for the establishment of an independent

Secretariat with sufficient resources to perform the above functions and specific tasks.

In particular, the first year budget should provide for core staff members of an

independent Secretariat to be hired immediately following the first Assembly meeting to

undertake and monitor these key functions.

V. DRAFTING A FIRST YEAR BUDGET WHICH IS BASED ON THE

FUNCTIONS OF THE COURT




36

At the ninth session of the Preparatory Commission, the Coordinator of

the Working Group on the First Year Budget, Valentin Zellweger from

Switzerland, issued a substantially revised draft of the budget for the first

financial period.1 The revised draft was welcomed by delegations and

members of the NGO Coalition for an International Criminal Court,

including Amnesty International, as a significant step forward and an

important contribution to ensure that the Court has sufficient resources

and budget flexibility in the start up phase and throughout the first

financial period (September 2002 to 31 December 2003).

During the ninth session, the Working Group focused on the

functional requirements of the Court for the first financial period. This

is set out in Part 1 of the draft. At the conclusion of the session the

Working Group adopted Part 1.2 Amnesty International welcomes the

completion of this substantive task.

The Coordinator has requested that, at the tenth session, the

Working Group should focus on completing its work on Part 2 of the

draft on provisional estimates for the first financial period of the Court.

In particular Part 2 focuses on estimated costs and post requirements for

the Court. These negotiations are expected to be technical and many

delegations are reportedly sending their state’s UN General Assembly

Fifth Committee expert to assist them.

Recommendations:

1 U.N. Doc. PCNICC/2002/WGFYB/L.1.

2 U.N. Doc. PCNICC/2002/WGFYB/RT.1.



37

To implement the recommendations set out in the Coalition for an

International Criminal Court’s document “Issues for the final session of the

Preparatory Commission”

This document which is available on the Coalition’s website

(www.iccnow.org) from 27 June 2002, sets out important

recommendations on specific issues relating to the First Year Budget,

including the Assembly of States Parties, internal oversight mechanisms

and the office of the Defence Counsel.

Sufficient funds should be allocated to all organs of the Court to

enable them to carry out the functions described in Part 1 of the draft

First Year Budget. Furthermore, adequate reserves for unforeseen

expenses should be provided to ensure there is reasonable flexibility for the

first financial period so that supplementary budgets are only required if

absolutely necessary.

In particular, there are three important budgetary issues in the

first financial year that will directly affect victims:

(1) the Victims and Witnesses Unit;

(2) the Victims Representation and Reparations Unit; and

(3) the Trust Fund for Victims.

Amnesty International believes that sufficient resources and priority

should be given to the establishment of these units to ensure that they




38

are set up and effective at the appropriate stages of the first financial

period. The CICC’s Victim Rights Working Group, of which Amnesty

International is a member, is developing materials and recommendations

for the establishment of these three units which shall be circulated to

delegates during the Preparatory Commission.

ANNEX I: NGO PRINCIPLES ON THE ESTABLISHMENT OF THE TRUST

FUND FOR VICTIMS

Article 79 of the Rome Statute of the International Criminal Court

provides for the establishment of a Trust Fund for the benefit of victims

of crimes within the jurisdiction of the Court, and of the families of such

victims (the Trust Fund).

At the sixth session of the Preparatory Commission of the

International Criminal Court, the Working Group on Financial Regulations

and Rules accepted the task of defining the Trust Fund and its work. At

the end of the eighth Session in October 2001, the Working Group

having concluded its work on the Financial Regulations, decided that it

did not have sufficient time or resources to complete its work on the

Trust Fund and the issue has been forwarded to the ninth session, which

will take place from 8-19 April 2002, for consideration by the Working

Group on Financial Issues. The status of the negotiations reached by the

Working Group on Financial Regulations and Rules is contained in its



39

report.3 In making its decision, a number of delegations taking part in

the Working Group on Financial Regulations and Rules requested the

input of non-governmental organizations, particularly those that work on

victim’s issues.

This paper contains principles to ensure an effective Trust Fund,

agreed by the NGO members of the CICC’s Victims Working Group.

Preparation of these principles has included consultations with the

members of the United Nations Voluntary Fund for Victims of Torture

and examination of other trust funds, including, the United Nations Trust

Fund on Contemporary Forms of Slavery and the UNDP Trust Fund for

Crisis, Post-Conflict and Recovery Situations.

Representatives of the Victims Working Group will be present

throughout the negotiations of the Working Group on Financial Issues and

can also be contacted in advance of the Preparatory Commission through

the CICC’s Secretariat.

Management and administration of the Trust Fund

The Victims Working Group is opposed to the current proposal for

managing the Trust Fund set out in paragraph 5 of the annex to RT.5.

Neither the financial experts of the Committee of Budget and Finance nor

the administrative experts of the Registry have the experience or

expertise to determine the activities of the Trust Fund or to consult

directly with victims and their families.

3 U.N. Doc. PCNICC/2001/WGFIRR/RT.5 (ART.5).




40

To ensure that the Trust Fund provides meaningful and effective

assistance and reparations to victims and their families, the Assembly of

States Parties should appoint a Board of Trustees, made up of individuals

with expertise and experience of providing assistance to victims of serious

human rights violations. The tasks of the Board of Trustees should include

determining the activities of the Trust Fund and promoting and soliciting

contributions and pledges.

The Board of Trustees should meet regularly, at least three times

each year and have facilities to communicate and issue advice and

instructions in between meetings.

An Executive Director of the Trust Fund should be appointed to

manage the day-to-day tasks of the Trust Fund. The Executive Director

should have sufficient facilities and staff to effectively manage the Trust

Fund, including staff members with experience of working with victims,

administration and fundraising.

Oversight and accountability mechanisms should be established by

the Assembly of States Parties to ensure the effective management of the

Trust Fund.

Resources of the Trust Fund

The Victims Working Group recommends a broader and more flexible list

of resources than those listed in paragraph 2 of RT.5. In its current form,

paragraph 2 could prevent the Trust Fund from accepting contributions

consistent with the spirit and aims of the Trust Fund.



41

The text of paragraph 2 should allow the Executive Director to

accept funds from a broad range of sources, if necessary, on the advice of

the Board of Trustees.

Voluntary Contributions

The Executive Director, not the Registrar as set out in RT.5, should

oversee the receipt of voluntary contributions on a case-by-case basis.

Earmarked contributions shall be permissible to the extent that the

consequences for excluded victims and the effect of accepting the

donation are not inconsistent with the spirit and purpose of the Trust

Fund.

The Board of Trustees should develop detailed criteria to guide the

Executive Director in determining whether to accept voluntary

contributions. If necessary, the Executive Director should consult with the

Board of Trustees on implementing the guidelines.

A report should be submitted to the Assembly of States Parties

each year on the acceptance and refusal of voluntary contributions.

Uses of the Trust Fund

The Trust Fund shall be used for:




42

Fulfilling orders of the International Criminal Court to pay

reparations through the Trust Fund, in accordance with Rule 98 (1) to

(4) of the Rules of Procedure and Evidence.

The benefit of victims of crimes under the jurisdiction of the Court,

and the families of such victims in accordance with Article 79(1) and

Rule 98(5).

Beneficiaries of the Trust Fund

When an order is made by the International Criminal Court for

reparations to be paid to victims through the Trust Fund, in accordance

with Rule 98 (1) to (4) of the Rules of Procedure and Evidence, the Court

will name individual beneficiaries and/or describe the beneficiaries

(particularly relating to collective awards). When the victim(s) are not

named by the order of the Court, the Executive Director, in consultation

with the Board of Trustees, should take reasonable steps to identify the

beneficiaries as described in the order.

“Victims of crimes under the jurisdiction of the Court” in Article

79 (1) and Rule 98 (5), should not be limited to victims participating in

a case before the Court or victims of a particular individual being

prosecuted by the Court. It should apply to all victims of crimes under

the jurisdiction of the Court and their families, resulting from a situation

where the Prosecutor of the International Criminal Court has conducted

an investigation and either:

(i) the Pre-Trial Chamber has issued a warrant of arrest in

accordance with Article 58, or,



43

(ii) the Prosecutor has concluded that there is not a sufficient basis

for a prosecution under Article 53 (2), for reasons other than the

Prosecutor is satisfied that crimes under the jurisdiction of the Court

did not take place, and this decision has been communicated to the

victims or their families.

In accordance with the principle of complementarity, victims of

crimes under the jurisdiction of the International Criminal Court that

have been investigated by national authorities or prosecuted by the

national court of a state which has jurisdiction over the case, should also

constitute “victims of crimes under the jurisdiction of the Court” for the

purposes of Article 79 (1) and Rule 98 (5).

Victims appearing before the International Criminal Court

The Trust Fund should not provide assistance to victims appearing before

the International Criminal Court until the Court has decided whether or

not to convict the accused. During the investigation and trial, the Victims

and Witnesses Unit will be responsible under Article 43 (6) to provide, in

consultation with the Office of the Prosecutor, protective measures and

security arrangements, counselling and other appropriate assistance to

victims appearing before the Court.

Forms of Reparation

Awards made through or by the Trust Fund may consist of any form of

reparations, including, restitution, compensation, rehabilitation and

satisfaction and guarantees of non-repetition.




44

Activities of the Trust Fund

Funds paid to the Trust Fund under Rules 98 (1) to (4) shall be used in

accordance with the Court’s instructions set out in the order. In the event

that the order does not detail the use of the award, the Executive

Director shall refer the case to the Board of Trustees.

All other funds received by the Trust Fund (general funds) may be used

for activities to benefit victims of crimes under the jurisdiction of the

International Criminal Court and their families. In determining the uses

of the general funds the Board of Trustees must consider the needs of the

victims and their families, the resources available in the Trust Fund and

whether the activity or project would discriminate against other victims

and families of victims eligible for a Trust Fund award.

Uses of the general funds include:

awards to fulfil an order of the Court for reparations against a

convicted person, in accordance with Article 75 (2), when the full

amount of the order has not been obtained from the convicted

person. In the event that funds are subsequently obtained from the

convicted person, the amount shall be re-paid to the Trust Fund;

awards made through established channels of assistance, including

intergovernmental, international and national organizations for

activities and projects to benefit victims and their families.

Awards to intergovernmental, international and national organizations



45

An award made to an intergovernmental, international and national

organizations, in accordance with Rule 98 (4) or from the general funds

of the Trust Fund, should be subject to checks and balances, such as

oversight and monitoring mechanisms, to ensure that the award is used

for the benefit of the victims and their families, included in the order of

the Court and/or the conditions specific to the award.

ANNEX II. AMNESTY INTERNATIONAL’S POSITION STATEMENT ON THE

MANAGEMENT OF THE TRUST FUND FOR VICTIMS

1. The Assembly of States Parties shall establish a Board of Directors of

the trust fund for victims (the “Trust Fund”), set out in article 79 of the

Rome Statute of the International Criminal Court, composed of seven

members.4

4 The UN Voluntary Fund for Victims of Torture provides for five

members of its Board of Trustees, however, the Trust Fund only deals

with humanitarian assistance – the judicial and non-judicial functions of

the article 79 Trust Fund requires that at least 7 members should be

available to ensure the impartiality of the Trust Fund.

2. The Assembly shall elect the members of the Board of Directors, who

should not be of the same nationality, on the basis of equitable

geographical distribution and taking into account the necessity of

ensuring equitable representation of the principal legal systems of the

world as well as an equitable distribution of men and women. The

members of the Board of Directors shall be elected from among persons

of high moral character, impartiality and integrity who have established




46

competence in providing assistance to victims of serious crimes. They are

elected for three years and are eligible for re-election one time.

3. The Board of Directors shall meet at the seat of the Court as necessary

and at least once a year. The Board of Directors shall have facilities to

communicate and issue advice and instructions between meetings.

4. The members of the Board of Directors shall serve in their individual

capacity on a pro bono basis. As a subsidiary body of the Assembly of

States Parties, the cost of their travel for attend meetings and other

relevant expenses shall be paid by the budget of the Assembly of States

Parties, pursuant to article 114 of the Rome Statute.

5. The Board of Directors shall appoint an Executive Director to establish

and manage the Trust Fund Secretariat (the “Secretariat”) to perform

the day-to day tasks of the Trust Fund. The Executive Director shall be

accountable to the Board of Directors and shall report to them on the

work of the Secretariat regularly, at least quarterly or on request. The

salary of the Executive Director shall be paid by the Assembly of States

Parties, pursuant to article 114 of the Rome Statute.

6. The Board of Directors shall prepare draft criteria concerning the

management of the Trust Fund, including the activities and projects of

the Trust Fund and submit it to the Assembly of States Parties to review

and adopt in accordance with article 79, paragraph 3 of the Rome



47

Statute.5 The Board of Directors may make recommendations to amend

the criteria in its reports to the Assembly of States Parties.

7. The Board of Directors shall be authorized to promote and solicit

contributions and pledges to the Trust Fund.6

5 Article 79 paragraph 3 of the Rome Statute states: “The Trust Fund

shall be managed according to criteria to be determined by the Assembly

of States Parties.” 6 GA Resolution 36/151 paragraph 1(e) establishing the UN Voluntary

Fund for the Victims of Torture.

8. The Secretariat shall be located at the seat of the Court.

9. The Executive Director shall appoint staff to the Secretariat which shall

include the following core staff:

1 fund administrator;

1 Public Information and Outreach Officer;

1 Victims Liaisons Officer.




48

10. The cost of establishing the Trust Fund Secretariat and its initial

operation in the first financial period of the Court shall be paid by the

budget of the Assembly of States Parties in the first year budget. In

subsequent financial periods, the costs of administering the Trust Fund

shall be paid by the funds of the Trust Fund, not exceeding 5% of the

total annual income of the Trust Fund in the previous financial period.7 In

the event that 5% is not sufficient to pay the administrative costs,

including the core staff listed in paragraph 9, the Assembly of States

Parties shall contribute to ensure the effective functioning of the Trust

Fund .

11. Orders of the Court for reparations, pursuant to the Rule 98,

paragraphs 2 to 4 of the draft Rules of Procedure and Evidence, shall be

transmitted to the Board of Directors. The Board of Directors shall

instruct the Executive Director to implement the order in accordance

with the instructions of the Court. If the Court requests the Board of

Directors to determine the forms and modalities of reparations, the

Board of Directors must submit its recommendations to the Court for

approval before instructing the Executive Director to implement the

order. Where necessary and appropriate the Executive Director or the

Board of Trustees shall consult with the Victims and Witnesses Unit of the

Registry. The Executive Director shall report in writing to the Board of

Directors and the Court regularly, at least quarterly or on request, on

implementation of all orders and the management of funds separated

7 5% administration is the percentage for administration set for the

United Development Program Trust Funds.



49

from other resources of the Trust Fund for the purpose of fulfilling the

orders.

12. The Board of Directors shall determine the other activities and

projects of the Trust Fund as well as the utilization of its resources in

accordance with the criteria determined by the Assembly of States

Parties pursuant to article 79, paragraph 3 of the Rome Statute. These

activities and project shall be made through existing channels of

assistance, including Inter-governmental organizations and

non-governmental organizations. The Executive Director shall report to

the Board of Directors regularly, at least quarterly or on request, on all

applications submitted to the Trust Fund. The Board of Directors shall

report each year to the Assembly of States parties on the activities and

projects of the fund.

13.The Executive Director shall monitor the implementation of the

activities and projects of the Trust Fund to ensure that they are carried

out in accordance with the terms of the Trust Fund grant. The Executive

Director shall report in writing to the Board of Directors on the

implementation of the activities and projects of the Trust Fund regularly,

at least quarterly or on request. The Board of Directors shall report each

year to the Assembly of States Parties.

14. The Board of Directors will review all voluntary contributions from

governments, international organizations, individuals, corporations and

other entities in accordance with paragraphs 15 and 16 and any

additional guidelines adopted by the Board of Directors or the Assembly

of States Parties. The Executive Director shall report in writing to the




50

Board of Directors on all voluntary contributions offered regularly, at

least quarterly or on request. The Board of Directors shall report each

year to the Assembly of States Parties on all voluntary contributions

offered to the Trust Fund.

15. Voluntary contributions set out in paragraph 14 must be in

conformity with the goals and activities of the fund.

16. The Board of Directors will refuse those contributions where the use

intended by the donor would result in a manifestly inequitable

distribution of the funds available resources among different groups of

victims.

17. The Committee on Budget and Finance will be responsible for

examining the budget of the Trust Fund each year and for reporting and

making recommendations to the Assembly of States parties to ensure the

best possible financial management.

18. The Office of Internal Audit established under Regulation 10 of the

Financial Regulations of the International Criminal Court shall conduct an

independent audit of the financial transactions of the Trust Fund in

conformity with generally accepted common auditing standards and

notably evaluating compliance of all transactions with established

regulations, rules, policies, procedures and administrative instructions. As

a result of its audit, the Office of Internal Audit shall provide comments

and recommendations to the Board of Directors.



51

19. The Auditor appointed under Regulation 12 of the Financial

Regulations shall conduct an audit of the Trust Fund in accordance with

the Regulation, except the Board of Directors will perform the tasks

assigned to the Registrar.

ANNEX III. CHART INDICATING PROPOSED RELATIONSHIPS BETWEEN

BODIES DEALING WITH VICTIMS AND WITNESSES

(For formatting reasons, this chart is reproduced on the following page)